By Nick Kaye<\/p>\n
The Rise of the \u201cHigh-Crime Area\u201d Factor<\/u><\/strong><\/p>\n In Illinois v. Wardlow<\/em>, the United States Supreme Court held that an individual\u2019s mere presence in a \u201chigh-crime area\u201d is a significant factor in determining whether an investigative detention, commonly known as a \u201cTerry <\/em>stop\u201d or \u201cstop and frisk,\u201d is constitutional under the Fourth Amendment.[1]<\/sup> Specifically, the Court held that presence in a \u201chigh-crime area,\u201d coupled with \u201cevasive behavior,\u201d may be sufficient to create reasonable articulable suspicion for law enforcement officers to detain an individual.[2]<\/sup><\/p>\n Since Wardlow <\/em>was decided in 2000, law enforcement officers have relied heavily upon the \u201chigh-crime area\u201d factor to justify investigative detentions. For example, in New York City between 2007 and 2012, police cited \u201chigh-crime area\u201d as a factor in fifty-nine percent of all stops.[3]<\/sup> Likewise, in Newark, New Jersey, between 2009 and 2012, police cited \u201chigh crime area\u201d as a factor in thousands of stops, often as the primary or sole justification.[4]<\/sup><\/p>\n While similar data is not available for cities in Virginia, a survey of recent cases shows that law enforcement officers in our commonwealth regularly invoke the \u201chigh-crime area\u201d factor.[5]<\/sup> Furthermore, the Virginia Supreme Court has embraced the \u201chigh-crime area\u201d factor with open arms.[6]<\/sup> In one emblematic case from 2019, Hill v. Commonwealth<\/em>, the Virginia Supreme Court held that police officers had reasonable suspicion to pull a man from his parked car in a \u201chigh-crime area\u201d simply because he engaged in \u201ca bunch of movement\u201d when the officers approached him and did not respond to the officers\u2019 subsequent commands to show his hands.[7] <\/sup>According to the Court, the officers acted lawfully when they opened Mr. Hill\u2019s car door, seized him by his forearm, and searched his car, even though they had seen no particularized evidence of criminal activity.[8] <\/sup>One Justice, in dissent, described the scene as follows:<\/p>\n Here, we are left with a man sitting in a luxury vehicle in an area designated as high crime and high drug<\/em> . . . He had no visible weapons or visible drug paraphernalia in the car . . . He reached into a space the officers could not see before the officers engaged him, and continued reaching while they spoke. The officers state they became concerned for their safety, but there is nothing in the record to support a reasonable inference that his behavior was threatening, suspicious, furtive, aggressive, or calculated to harm the officers.[9]<\/sup><\/p>\n Hill <\/em>illustrates the way in which both state courts and lower federal courts\u00a0have stretched the holding in Wardlow <\/em>to allow law enforcement officers extensive leeway to conduct investigative detentions based only on an individual\u2019s presence in a \u201chigh-crime area\u201d and ambiguous behavior that might have any number of innocent explanations.[10]<\/sup><\/p>\n The Inherent Problem with the \u201cHigh-Crime Area\u201d Factor<\/u><\/strong><\/p>\n The \u201dhigh-crime area\u201d factor is unique from other factors considered in Fourth Amendment analyses\u2014and uniquely troubling\u2014because it does not depend upon an individual\u2019s actions but instead \u201cdefines neighborhoods and physical communities in which a person has, by default, diminished constitutional freedoms and lowered expectations of privacy.\u201d[11]<\/sup> Put simply, under Wardlow<\/em>, a person\u2019s Fourth Amendment protections against search and seizure by the government vary solely based on where that person happens to live.[12]<\/sup><\/p>\n Crucially, the areas police regard as \u201chigh crime\u201d tend to have disproportionately high Black, Hispanic, and other minority populations.[13]<\/sup> Scholars have posited two primary explanations for this phenomenon. First, racial bias may lead police officers \u201cto consciously or subconsciously believe that people of color are more likely to commit crime, and thus, to perceive that communities of color have higher crime rates.\u201d[14]<\/sup> Second, the conditions of systemic racism in the United States\u2014including segregation, poverty, limited social opportunity, and mass incarceration\u2014may drive certain types of crime among communities of color as a rational response to a harsh material reality.[15]<\/sup><\/p>\n While these explanations are complex, the bottom line is simple: Under Wardlow <\/em>and related cases, countless people of color are deprived of complete Fourth Amendment protection against police intrusion based only on their race and the neighborhood they live in.[16]<\/sup> As Deputy Federal Public Defender Holt Ortiz Alden puts it, the United States Supreme Court has \u201carmed police\u201d with the tools to \u201coppress and criminalize people of color.\u201d[17]<\/sup><\/p>\n Unfortunately, many who have written about the problematic nature of the \u201chigh-crime area\u201d factor offer only superficial reforms. A large body of scholarship focuses on courts\u2019 failure to define what constitutes a \u201chigh-crime area\u201d and the resulting deference given to police officers\u2019 subjective perceptions of crime rates.[18]<\/sup> Scholars in this camp advocate for measures including requiring prosecutors to provide statistical evidence of crime rates when invoking the \u201chigh-crime area\u201d factor,[19]<\/sup> using crime-mapping technology to designate \u201chigh-crime areas,\u201d[20]<\/sup> and establishing \u201chigh-crime areas\u201d through action by legislative bodies.[21]<\/sup><\/p>\n While not necessarily unhelpful, these measures ignore the fundamental social harm of labeling entire communities and the people within them as \u201ccriminal\u201d and less deserving of constitutional protections.[22]<\/sup> These measures also ignore the self-perpetuating nature of the \u201chigh-crime area\u201d factor\u2014that designation of an area as \u201chigh-crime\u201d will necessarily lead to a more significant police presence, more searches, and more arrests, thus validating the designation in the first instance.[23]<\/sup><\/p>\n Regardless of its parameters, the \u201dhigh-crime area\u201d designation creates a destructive feedback loop that inflames community-police tensions, leads to greater resentment for the law, and inflicts devastating economic consequences on communities that are already impoverished\u2014particularly communities of color\u2014by reducing economic development, property values, and employment opportunities.[24] <\/sup>In the long run, this feedback loop may actually increase crime rather than reduce it.[25]<\/sup><\/p>\n Therefore, the only viable solution is to eliminate the \u201chigh-crime area\u201d factor and invest resources into elevating marginalized communities instead of criminalizing them.[26]<\/sup><\/p>\n Public interest lawyers across the country must work to challenge the \u201chigh-crime area\u201d factor, exploring all possible avenues of attack, including constitutional challenges under the Equal Protection Clause of the Fourteenth Amendment.[27]<\/sup> The framework created by Wardlow<\/em>, which diminishes individuals\u2019 constitutional protections based only on their race and neighborhood, cannot stand.<\/p>\n —————————————————————-<\/p>\n [1]<\/sup> See <\/em>Illinois v. Wardlow, 528 U.S. 119, 124 (2000).<\/p>\n [2]<\/sup> See<\/em> id. <\/em>at 124-25.<\/p>\n [3]<\/sup> Ben Grunwald & Jeffrey Fagan, The End of Intuition-Based High-Crime Areas<\/em>, 107 Calif. L. Rev. 345, 370-72 (2019).<\/p>\n [4]<\/sup> U.S. Dep\u2019t of Just., Civ. Rts. Div., Investigation of the Newark Police Department 9-10 (2014), https:\/\/www.justice.gov\/sites\/default\/files\/crt\/legacy\/2014\/07\/22\/newark_findings_7-22-14.pdf.<\/p>\n [5]<\/sup> See, e.g.<\/em>, Commonwealth v. Brown, No. CR22-1336, 2023 Va. Cir. LEXIS 86, at *12-16 (Va. Cir. Ct. May 10, 2023); Commonwealth v. Jackson, No. 22-F-1473, 2023 Va. Cir. LEXIS 28, at *6-8 (Va. Cir. Ct. Feb. 28, 2023); Commonwealth v. Oliver, No. CR22-F-1887, 2022 Va. Cir. LEXIS 234, at *5-7 (Va. Cir. Ct. Dec. 1, 2022).<\/p>\n [6]<\/sup> See, e.g.<\/em>, Hill v. Commonwealth, 832 S.E.2d 33, 40 (2019); Whitaker v. Commonwealth, 687 S.E.2d 733, 737 (2010).<\/p>\n [7]<\/sup> Hill, supra <\/em>note 6, at 35-36, 40.<\/p>\n [8]<\/sup> Id. <\/em>at 35-36; id. <\/em>at 48 (Millette, J., dissenting).<\/p>\n [9]<\/sup> Id. <\/em>at 48 (Millette, J., dissenting) (emphasis added).<\/p>\n [10]<\/sup> See <\/em>Thomas R. Fulford, Writing Scripts for Silent Movies: How Officers Experience and High-Crime Areas Turn Innocuous Behavior Into Criminal Conduct<\/em>, 45 Suffolk U. L. Rev. 497, 506 (2012) (noting that lower courts \u201chave moved towards a general acceptance of categorical judgments serving as the basis for a stop and frisk . . . most often manifested in the dual assertions of ambiguous behavior . . . and the location of the stop being widely recognized as a \u2018high crime area\u2019\u201d).<\/p>\n [11]<\/sup> Holt Ortiz Alden, Discovering the Victim: The Enduring Problem with \u201cHigh-Crime Areas\u201d<\/em>, 16 Stan. J. Civ. Rts. & Civ. Liberties 385, 389-90 (2020).<\/p>\n [12]<\/sup> See <\/em>Andrew Guthrie Ferguson & Damien Bernache, The \u201cHigh-Crime Area\u201d Question: Requiring Verifiable and Quantifiable Evidence for Fourth Amendment Reasonable Suspicion Analysis<\/em>, 57 Am. U. L. Rev. 1587, 1588 (2008) (providing a helpful illustration of how a particular behavior might be grounds for a lawful police stop in one neighborhood but not in another).<\/p>\n [13]<\/sup> See <\/em>Rashaad Shirazi, It\u2019s High Time to Dump the High-Crime Area Factor<\/em>, 21 Berkeley J. Crim. L. 76, 77 (2016); David A. Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked<\/em>, 69 Ind. L. J. 659, 677-78 (1994).<\/p>\n [14]<\/sup> Grunwald & Fagan, supra <\/em>note 3, at 369.<\/p>\n [15]<\/sup> See <\/em>Shirazi, supra <\/em>note 13, at 79-87.<\/p>\n [16]<\/sup> See <\/em>DeAndre\u2019 Augustus, How the Race of a Neighborhood Criminalizes the Citizens Living Within: A Focus on the Supreme Court and the \u201cHigh Crime Neighborhood\u201d<\/em>, 33 St. Thomas L. Rev. 84, 86 (2020) (explaining that the \u201chigh-crime area\u201d factor has nearly eliminated the need for probable cause in communities of color).<\/p>\n [17]<\/sup> Alden, supra <\/em>note 11, at 388-89.<\/p>\n [18]<\/sup> See, e.g.<\/em>, Ferguson & Bernache, supra <\/em>note 12; Andrew Dammann, Categorical and Vague Claims That Criminal Activity is Afoot: Solving the High-Crime Area Dilemma Through Legislative Action<\/em>, 2 Tex. A&M L. Rev. 559 (2015); Hannah Rose Wisniewski, It\u2019s Time to Define High-Crime: Using Statistics in Court to Support an Officer\u2019s Subjective \u201cHigh-Crime Area\u201d Designation\u201d<\/em>, 38 New Eng. J. Crim. & Civ. Confinement 101 (2012); Andrew Guthrie Ferguson, Crime Mapping and the Fourth Amendment: Redrawing \u201cHigh-Crime Areas\u201d<\/em>, 63 Hastings L. J. 179 (2011).<\/p>\n [19]<\/sup> See <\/em>Ferguson & Bernache, supra <\/em>note 12; Wisniewski, supra <\/em>note 18.<\/p>\n [20]<\/sup> See <\/em>Ferguson, supra <\/em>note 18.<\/p>\n [21]<\/sup> See <\/em>Dammann, supra <\/em>note 18.<\/p>\n [22]<\/sup> See <\/em>Alden, supra <\/em>note 11, at 412-13; Shirazi, supra <\/em>note 13, at 105-06.<\/p>\n [23]<\/sup> See <\/em>Alden, supra <\/em>note 11, at 414.<\/p>\n [24]<\/sup> See <\/em>Shirazi, supra <\/em>note 13, at 105-06.<\/p>\n [25]<\/sup> See <\/em>Derek J. Paulsen & Matthew B. Robinson, Crime Mapping and Spatial Aspects of Crime 38 (2d ed. 2009) (\u201cStill other research has shown that increasing crime rates follow the wide-scale application of \u2018criminal area\u2019 labels to specific neighborhoods, almost encouraging crime.\u201d).<\/p>\n [26]<\/sup> See <\/em>Alden, supra <\/em>note 11, at 417-18 (describing the importance of investing resources in communities of color to combat the harms of systemic racism); Hanna Love, Want to Reduce Violence? Invest in Place<\/em>, Brookings (Nov. 16, 2021), https:\/\/www.brookings.edu\/articles\/want-to-reduce-violence-invest-in-place\/ (\u201cIf the causes of violence exist outside of the criminal legal system itself\u2014rooted in inequities such as poverty, unemployment, segregation, and poorly maintained infrastructure\u2014then we must all look outside of the criminal legal system for solutions to address it.\u201d).<\/p>\n [27]<\/sup> See <\/em>Shirazi, supra <\/em>note 13, at 107-09 (providing a framework for as-applied constitutional challenges to the \u201chigh-crime area\u201d factor under the Equal Protection Clause).<\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" By Nick Kaye The Rise of the \u201cHigh-Crime Area\u201d Factor In Illinois v. Wardlow, the United States Supreme Court held that an individual\u2019s mere presence in a \u201chigh-crime area\u201d is a significant factor in determining whether an investigative detention, commonly known as a \u201cTerry stop\u201d or \u201cstop and frisk,\u201d is constitutional under the Fourth Amendment.[1] Specifically, the Court held that presence in a \u201chigh-crime area,\u201d … Continue reading Criminalizing Communities: The Inherent Problem with the \u201cHigh-Crime Area\u201d Factor in Fourth Amendment Analysis<\/span><\/a><\/p>\n","protected":false},"author":6063,"featured_media":1676,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[51366,67126],"tags":[],"class_list":["post-1675","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-blog-post","category-recent-posts"],"jetpack_featured_media_url":"https:\/\/blog.richmond.edu\/pilr\/files\/2023\/11\/Picture12345.png","_links":{"self":[{"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/posts\/1675","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/users\/6063"}],"replies":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/comments?post=1675"}],"version-history":[{"count":5,"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/posts\/1675\/revisions"}],"predecessor-version":[{"id":1943,"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/posts\/1675\/revisions\/1943"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/media\/1676"}],"wp:attachment":[{"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/media?parent=1675"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/categories?post=1675"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/tags?post=1675"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}