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Are Public Housing Tracts America’s ‘Occupied Territories’?

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If you live in public housing, don’t expect to be protected by the Fourth Amendment’s guarantees against unreasonable searches and seizures, warns an article in the Case Western Reserve Law Review.

“Cramped” Supreme Court interpretations of the Fourth Amendment that upheld proactive crime-fighting strategies such as “spot policing,” “stop and frisk” and “zero tolerance policing” have taken from public housing tenants a basic constitutional right shared by all Americans, according to Rutgers University assistant law professor Alexis Karteron.

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“Fourth Amendment law plays a critical role in fueling such intense police oversight and surveillance of public and patrolled housing that they are sometimes effectively rendered occupied territories,” Karteron wrote.

Judicial rulings that justify aggressive measures against individuals in public spaces who are suspected of criminal behavior allow police to “lay siege” to vast housing tracts without resorting to the warrants they would require to enter private dwellings, she argued.

In her article, entitled “When Stop and Frisk Comes Home: Policing Public and Patrolled Housing,” Karteron proposed “rethinking” the Fourth Amendment in a way that gives the entire area occupied by a housing development the same “sanctity” as private residences.

“Public housing developments and their private counterparts have historical reputations as problem places, and law enforcement has subjected these locations to specialized policing programs for decades,” she wrote.

Under current interpretations of Fourth Amendment law, police are encouraged to act forcefully against residents of public housing and patrolled housing— which refers to multi-unit dwellings subject to regular patrol by police or other law enforcement officers— “in response to even the most minor misbehavior,” she added.

“The excessive regulation of conduct in and around such housing developments—achieved by statutes and ordinances that specifically govern conduct in those locations as well as ‘house rules’ and similar restrictions enforced by police—combined with the freedom accorded police when they operate in these locales, effectively provides police carte blanche to stop, arrest, and search everyone they encounter.”

Karteron said she was not attempting to evaluate or assess the effectiveness of “smart policing” strategies developed over the past decades. But she noted that such strategies can threaten the civil rights of public housing tenants unless authorities take measures to avoid their misuse.

“Long-acknowledged anemic Fourth Amendment protections for the urban poor are especially weak in hot spots,” she wrote. “In the context of public and patrolled housing, that weakness profoundly affects the everyday interactions between residents and the police.

“Actions deemed lawful under the Fourth Amendment can leave public and patrolled housing residents particularly vulnerable to surveillance, police encounters and stops, as well as searches and arrests. “

Karteron cites a case of a public housing development in Oakland, Ca., where “officers routinely conduct warrant and records checks of people they accuse of loitering, and officers often handcuff them as well.”

Similarly, the Black Lives Matter organization filed a complaint with the New York Attorney General, accusing the Buffalo (N.Y.) Police Department of unconstitutional trespass-enforcement policies in housing projects in that city—which included trespass “sweeps” and checkpoints.

So-called problem-oriented policing, defined as efforts to solve factors that contribute to criminal behavior, such as poor street lighting, abandoned homes, broken locks and other security failures, can also lead to aggressive behavior that flouts Fourth Amendment protections, Karterton said.

The 1968 Supreme Court ruling in Terry v Ohio set a standard of “reasonable suspicion” and “articulable facts” related to potential criminal behavior to determine whether they are entitled to stop an individual.

But that has also enabled law enforcement to effectively ignore Fourth Amendment protections in areas that are deemed public, wrote Karterton.

The Fourth Amendment poses no barrier to these uses of arrest powers in public and patrolled housing because it asks only whether there was probable cause for some offense at the time of arrest, her paper said.

It continued:

As with (police) stops, given the wide range of rules and regulations that govern conduct within and around public and patrolled housing, arrests are very easy to produce. Accordingly, in public and patrolled housing, police utilize arrests in response to the most minor of offenses in the hallways, lobbies, and other common spaces. This practice undermines the sanctity of the home, which is usually protected by the Fourth Amendment.

Karteron cited policing practices in New York City public housing developments as an example of how the combination of limited legal rights for public housing residents, an “order maintenance” approach, and the “special rules that apply in public and patrolled housing, make the Fourth Amendment’s protection against unreasonable searches and seizures effectively vanish.”

Approximately 400,000 people live in the city’s public housing projects, and the high police presence in those areas creates the misleading perception that they are hotbeds of criminality and disorder, she said.

Advocates of aggressive law enforcement have argued that greater policing in public housing is part of law enforcement’s public safety mission. The New York Daily News claimed in May that “cops are fighting a skyrocketing increase in murders and shootings in city housing projects.” The newspaper reported year-to-year increases in murders and shootings in NYC public housing developments.

But such statistics give a misleading picture, Karteron and other critics have pointed out.

Often, the high crime rates reflect a greater number of police stops and arrests for even minor crimes such as trespassing, loitering, or marijuana possession, Karterton said.

Moreover, police have significant leeway in conducting stop-and-frisks on residents they spot or bump into in the course of patrols. In Illinois v Wardlow, the Supreme Court upheld the right of law enforcement to question residents if the stop occurred in a high crime area, according to a 2019 study by Ben Grunwald and Jeffrey Fagan in the California Law Review.

But the authors of the study said the definition of a “high crime area” can be questionable.

A neighborhood could find itself defined as a “high crime area” simply because of the high number of complaints or stops, which makes such definitions circular, the California Law Review researchers noted—further aggravated by the potential for policing bias, since many at-risk neighborhoods are populated by persons of color.

“Defining high-crime areas based on arrest data would then make communities of color appear more dangerous than they are, and might also create a kind of high-crime feedback loop,” the researchers cautioned.

(See also: Stop and Fix? How the High Crime Area Defense Has Licensed Bad Policing, The Crime Report, June 24, 2019)

Karteron cites such a feedback loop as one of the factors underlying police focus on public housing areas, noting that New York State law criminalizes trespassing in public housing developments. After a person refuses a “personally communicated” request to leave from a property supervisor (or someone in charge), he or she has committed a criminal trespass under the law.

Also, law enforcement can be called in when a resident fails to abide by a public housing development’s specific posted rules or guidelines. Residents in development areas deemed off -limits by supervisors can face criminal charges.

Karteron argued that the civil liberties guaranteed by the Constitution should not be hostage to aggressive policing in the name of public safety. She proposed “rethinking Fourth Amendment standards so that they reflect the traditional protection for the home.”

That would include adopting state constitutional and legal standards that “reject the cramped interpretations of the Fourth Amendment” and limiting the authority of local and state actors through devising local policies that “reject targeted and hot spots strategies that resemble occupation.”

Courts could sharpen this protection further by clarifying that “Terry stops are not permitted when law enforcement officers suspect only noncriminal infractions,” she wrote.

Police should also stop making arrests for minor infractions, effectively decriminalizing certain types of conduct, like trespassing or loitering.

Another effective measure would involve applying the strategies of community policing to public and patrolled housing, she wrote.

Prof. Karteron’s paper can be downloaded here.

TCR news intern Brian Demo contributed to this summary.

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