Tuesday, August 13, 2013

There isn't a New York City exception to the Constitution

The mayor and his police chief are shocked, shocked mind you, that there is gambling going on in Ricks and that their stormtrooper tactics of allowing the New York Police Department to stop and frisk essentially at will offends the Fourth Amendment.
I understand that the vast majority of the 4 million plus frisks in the past several years were on 1) black males who 2) made furtive gestures, whatever that means.  You can bet that white guys on Park Avenue wearing $2,500 suits aren't being tossed up against walls and patted down very often.  Like, maybe never.
OK, a little constitutional law on police-citizen encounters.  Basically they come in three levels.
First, police like everyone else has the First Amendment right to go up to anyone and try to start a conversation.  And, the citizen has the First Amendment right to tell the cop to go to hell and walk off.
Along this line, at least in Houston police and prosecutors have gotten the crazy idea that the police have the legal right to go up to anyone at anytime and demand that the citizen produce identification.  People who believe that either have spent too much time in Amsterdam smoking funny cigarettes or they can't read the Penal Code.
In the United States, there is no requirement that anyone carry identification just to walk down the street.  We have to produce our driver's licenses but only when we are driving.  And, we have to produce picture IDs to vote and get on airplanes.   But we don't have a national ID card and I don't expect us to anytime soon.
Police in Texas can demand that a person identify himself only if the person is either lawfully detained or lawfully arrested or if the officer has reason to believe the person witnessed a crime.  That's it, period.  The end.
The second form of police-citizen interaction is what is called the Terry stop, named after the Supreme Court case Terry v. Ohio.  A police officer who has reasonable suspicion that a crime has been or is about to be committed can investigate, including detaining the suspected wrongdoer.  That requires facts, not hunches.  Facts the officer can repeat to a judge.  And, that still doesn't give the officer the right to put a hand on the suspect.
If the officer has facts, not hunches but facts he can articulate, that the suspect is armed, the officer can pat him down.  And, if the officer feels something that he immediately recognizes as contraband, he can go into a pocket or whereever to seize it.  But he has to have ore than a hunch.  The officer still needs facts.
The last level of police-citizen interaction is the full custody arrest.  That requires probable cause that a person committed a specific crime or a warrant -- which must be supported by probable cause that the person committed a specific crime.  A full custody arrest gives the officer the right to search the suspect, transport him to jail, book him and even arrange for a strip search.
What apparently has been happening in New York is police are seeing too many "furtive gestures," presuming that means the person is armed and going the pat down.  By the way, I understand 90 percent plus turn up nothing.
Just think how that makes a person feel, being jacked up and patted down in public.  Maybe powerless?  Maybe put upon and abused?
Mayor Bloomberg says the policy cuts crime.  Yep.  It just might.  On the other hand, I'll bet there isn't much street crime in North Korea.  Maybe he could get the North Korean authorities to suggest new and better ways to control crime.  I'm sure they have a few ideas.
What massive frisks does is convert the police from a public servant agency into an occupying force.  They start to lost their legitimacy when people believe cops can do whatever they want with impunity.
This kind of abuse isn't confined to the Big Apple.  The Department of Public Safety just rehired at least one trooper who had been fired for conducting body cavvity searches on two young women at the side of the road.  The trooper's defense -- apparently accepted by DPS management --  was she was only following orders from a superior.  That's the same defense raised by the SS who dumped the Zyklon B into the gas chambers.  It didn't work then and should not work now.
And even if it did work, do we want DPS troopers who are so lacking in moral compasses that they don't see anything wrong with putting their hands inside a young woman's bikini bottom, theln feeling up inside?

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