May 19, 2013
Pat-Downs Hit Middle America Where It Counts
Posted on Nov 24, 2010
Will the Courts Take Frisks More Seriously Now?
Should the frisk be so commonly used? In legal theory the answer is “no.” Although the Terry decision authorized brief detentions for questioning, it placed limits on the authority to frisk someone detained: A frisk is supposed to occur only when there are articulable suspicions of a weapon. A frisk cannot be based on a hunch and it certainly cannot be a standard, routine practice. In the real world, however, neither the police nor the judges who are constitutionally charged with enforcing adherence follow those rules.
Police officers, with the tacit approval of prosecutors and sympathetic judges, frequently say, “I could not take the chance that he might have a weapon in his pocket, so I patted him down for my own personal protection.” Judges tend to empathize with the anxiety and uncertainty the police officer may feel in a street or roadside confrontation. The constitutional requirement—that observable facts (a bulge the size of a gun, for instance, or furtive movements with the hands into the clothing) are supposed to be necessary before even an exterior pat-down occurs—is hardly ever enforced. When no weapon is found during the frisk, police officers and judges shrug: “Better safe than sorry.”
Thus, police pat-down practices (both as to whether a pat-down was needed and as to how extensive the intrusion should be) go unchallenged. Unjustified frisks occur even if the initial detention—but not a frisk—might be warranted. Concern for the officer’s safety and the deference to the officer’s discretion on the scene hold total sway. A police officer who can say that his training (or the experience of fellow officers) has brought to the fore instances where “suspects have concealed razor blades or needles” in their underwear means that those reports always make it reasonable to convert a frisk opportunity into a de facto strip search on the spot, day or night, rain or shine. Trial and appellate court judges leave decisions about when and how to frisk entirely up to the police officer. In effect, the officer has authority unchecked and unconstrained by the Constitution.
In a New York Times article about the controversial TSA searches, professor Orin Kerr commented about the weak oversight by the courts of searches at airports. In a massive understatement Kerr said, “The tenor of earlier cases is pretty deferential to the government.” Translated from nuanced, politic legalese, Kerr might have explained “deferential” more colorfully—as akin to the attitude Rochester, the Beverly Hills butler, showed toward Jack Benny: “I’ll take your word for it, Boss.”
What has emerged from the TSA pat-down kerfuffle is recognition that it is psychologically demeaning to be subjected to physical touching of private areas of the body by someone not invited to do so. Now, the psychological treatment of men of color is being brought home to middle American men as shown by, the Times reports, their complaints “about airport security measures, offering graphic accounts of genital contact and expressing a general sense of powerlessness and humiliation.” Men of color might respond: “Welcome to our world. We have had that experience in our own neighborhood without driving out to the airport.”
Will the perception that there is a harm—a substantial psychological humiliation—needlessly imposed on millions of innocent citizens by intrusive pat-downs change opinions of the general public about the use of such tactics by police officers against males of color who are not boarding airplanes? Probably not.
Intrusive “junk touching” will continue to be a threat in the lives of men of color walking or driving on the streets of America. The courts will continue to give the police carte blanche with regard to the necessity for, and scope of, police pat-downs. For four decades since the approval of the frisk tactic in Terry v. Ohio, the courts have looked the other way while the frisks disproportionately targeted men of color.
It should come as no surprise that police and agents of federal security agencies such as the TSA may be more responsive to the air traveling business public than to pedestrians and motorists in low income communities of color. Now that white, male, middle Americans are feeling the long arm of the law near the family jewels, the impact of a humiliating governmental indignity is no longer confined to a powerless and silent minority. For men of color, who have traditionally been on the groping end of the long arm of the law, the response may be “So what’s new?”
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