The Guest Columnists are, respectively president of the Metropolitan Wilmington (Del.) Urban League and professor of Law at the University of Delaware
The Northwest Westside and Northeast neighborhoods of Wilmington, Delaware, which are largely poor and many of whose residents are African American and Latino-American, have been beset by the scourge of drug trafficking.
Certain street corners and blocks in these neighborhoods are well-known as the "transfer points" for illegal drugs from the hands of traffickers to individual users.
As with the drug bazaars which have infested other low-income communities throughout the country, the drug trade in these areas has generated robberies, murders and other kinds of crimes, threatening the safety of their many law-abiding residents and seriously damaging the neighborhoods' quality of life.
In the last three years these areas have endured 182 shooting incidents, resulting in 199 victims. African Americans made up 87 percent of the victims, and 80 percent of the suspects. Robbery was a motive for about one-quarter of these crimes; drugs were for at least one-third of them, although it's likely that the true percentage is much higher.
Residents describe themselves as living under a state of siege from the traffickers, a description which is no surprise to us. Nor is their justifiable anger.
It's this emergency that has provoked Wilmington city officials to undertake a new effort to rid the areas of their known drug bazaars. Last June two special police squads began raiding street corners that are known areas of drug trafficking. The tactic of the squads, comprised of up to 20 officers in marked and unmarked cars and vans, is to rush to a location and detain all suspicious persons within reach. They are lined up against a wall and searched for weapons and other contraband.
The police strategy is based on a 1968 Supreme Court ruling in Terry v. Ohio that police can stop, search and briefly detain individuals if an officer has "reasonable suspicion supported by articulable facts that criminal activity may be afoot." The court determined that reasonable suspicion is a standard above a hunch, but somewhere below "probable cause."
The police action, which has sharply reduced drug trafficking in these areas, has drawn widespread support from residents of these beleaguered neighborhoods -- with good reason. In Wilmington's poor and minority neighborhoods, as elsewhere, the scourge of drug trafficking is an "imported phenomenon." Drugs aren't grown in these communities, and, given that the overwhelming majority of America's drug users are White, the majority of "customers" for illegal drugs don't live in them. They've become the nation's drug bazaars precisely because they are poor and predominantly minority. Efforts to push the drug trade out are not only to be supported; they're to be demanded.
But we are troubled by the police squads' picture-taking of all those they initially stop and frisk in these roundups -- even those who are found not to be carrying contraband and are not arrested.
City officials say the photographs, with the individual's names and addresses, are being used to create a database of "potential suspects" to investigate "future crimes." This has provoked a vigorous debate in Wilmington about whether the taking and compiling of photographs of individuals based on the belief that they might commit a crime in the future violates the Fourth Amendment of the Constitution's protection against unreasonable searches and seizures.
We think it does, and we say so without fear of being accused of being "soft on crime," which some like to use to silence questions about the constitutionality of some police tactics.
Why are pictures of individuals not arrested for any past or present crime being taken and stored? Is that justified by the assumption that they could possibly commit a crime at some point in the future -- a reasoning of future-expected-guilt-by-present-association?
We have no doubt that some of the individuals frisked but not charged with any crimes in these roundups were at least thinking about being up to no good. That suspicion, however, isn't good enough.
It's also clear that many of the mostly minority men were completely innocent; they happened to be walking through the area on their way to and from home when they were stopped and photographed. Their pictures are on file now. When a future crime is committed, will they be called in, or visited by the police for questioning for no reason other than their photograph is on file?
Some, including some law-abiding neighborhood residents, have said we're quibbling over constitutional "niceties" when the emergency calls for tough action.
One answer to that is numerous other cities have found ways to attack drug trafficking in poor neighborhoods without trampling on the Constitution. Wilmington ought to tweak its, yes, effective, program so that it does, too.
A second answer is that raising questions about the constitutionality of government actions isn't "nuisance work." It's the very foundation of American democracy. The constitutional safeguards for the rights of individuals aren't "niceties," to be set aside whenever they prove inconvenient. They're to be adhered to always -- especially in tough times, because they're all that stand between the individual citizen and an abusive government.
Our Constitution's Fourth Amendment still applies in the "hood," drug crisis or no drug crisis.
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