When Stop and Frisk Comes Home: Policing Public and Patrolled Housing

Abstract

In response to programmatic stop-and-frisk, police killings, and other recent controversies in American policing, many have called for “smart policing” — the evidence-based deployment of police resources. An often-heralded example of smart policing is hot spots policing, which involves directing police attention to locations where crime and disorder fester. It is difficult to argue with the logic of hot spots policing, and this Article does not do so. Instead, it critically examines how the Fourth Amendment operates when hot spots policing and similar targeted strategies are used in a common setting: public housing developments and their private counterparts. Largely because of mass criminalization, Fourth Amendment law allows police to lay siege to public housing and the people who live in it. 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. Given the low Fourth Amendment standards for stops, arrests, and searches in connection with minor misconduct, that outsized attention combines with the astounding array of conduct regulated in public and patrolled housing to permit police nearly unfettered authority. Fourth Amendment protections usually associated with the home are virtually unrecognizable in these places. Instead, the Fourth Amendment fuels the use of law enforcement as a tool of social control in public and patrolled housing. As such, the harms of programmatic stop-and-frisk are not remedied, but simply concentrated and localized. Policing in public and patrolled housing thus offers a cautionary tale of the limits of “smart policing” as an answer to abusive police practices.