By David Coleman
The recent outrage expressed by white males and females over intrusive airport pat-downs may have an upside. At least at the nation’s airports, nonminority airline passengers who seek to board an airplane are being sensitized to the indignities that are a routine part of the lives of some men of color who merely walk or drive down a street. For reasons purportedly related to public safety, African-American, Hispanic and Asian males are disproportionately stopped and frisked by law enforcement officers on American streets and highways.
Recent news stories have focused on the creation of a database from the 600,000 police detentions in New York each year. As the New York Times has reported from analysis of the data, frisks or pat-down searches occur in almost 60 percent of the stops and at a rate that is disproportionately higher for minorities.
The rate of frisks for blacks and Latinos in New York is nine times that of whites who are stopped. Although the creation of a database from the stops has fueled debate, the stop-and-frisk is not just a New York Police Department tactic or even an urban phenomenon. Police detentions and the concurrent clothing frisks are just as prevalent in other cities, suburbs and rural areas as in New York City. Putting the “Frisk” in “Stop and Frisk”
In a seminal 1967 decision, Terry v. Ohio, the United States Supreme Court decided that a brief detention (seizure) of a citizen is constitutionally permissible. Fourth Amendment protections do not preclude police from stopping citizens in their tracks to ask questions or conduct a brief investigation to dispel suspicion about the activity of the person stopped.
The “stop”-legally and technically speaking-is a forcibly ordered interruption of the movement of a citizen to permit police questioning. But police seldom confine the stop to just asking questions. The stop or detention is followed by a frisk that has two motivating purposes: (1) the possibility that the detained person may have a hidden weapon that could be used against the officer and (2) the possibility that the person’s clothing contains illegal drugs possessed for personal use or sale. Terry, of course, approved frisks only for the first purpose. For police fighting the three-decades-long war on drugs, the second purpose piggybacks quite nicely on the first.
To investigate these two possibilities, people who are stopped are subjected to an exterior patting of the upper body clothing over the chest and under the arms as well as a sweep of the hands, up and down the legs including the upper thigh and hip area-the same procedures that are used in Transportation Security Administration pat-downs. Police officers who detain individuals on the street search at least as intrusively as do TSA agents conducting airport passenger pat-downs. In fact -and this is not well-known outside the population of impacted subjects and the police-police officers may conduct a tactile or visual search of the undergarments of men and women because of their training that small, packaged quantities of drugs may be hidden in the undergarments of users and street sellers.
As white male air travelers take up the cause of YouTube hero John “Don’t Touch My Junk” Tyner, a snicker of schadenfreude may be shared among working class and lower class men of color. They may well wonder why the revelation that pat-downs are a degrading imposition of power by government agents has taken such a long time to emerge. White males reflecting on the comparison might think that their indignity in the fluorescent glow of an airport concourse is worse than a body inspection on a dark city street. But that conclusion is naive. Imagine if the TSA agent were conducting the pat-down on a street corner or in an alley, and another TSA agent was stationed next to a patrol car with his hand gripping a service revolver or a shotgun. The isolated circumstances-out of the view of witnesses and marked by palpable apprehension from the assertion of power by police officers who suspect a crime may be afoot-make the situations difficult to equate. TSA passenger pat-downs have spawned overdue questions about the need for such humiliating intrusions on the personhood of so many to secure an assumed, but unsubstantiated, additional measure of safety. Many, from libertarians such as Ron Paul to tea party darling Glenn Beck, are saying they don’t think the pat-downs are needed.
Where were these defenders of privacy when the subjects of the intrusive searches were not from the white male cohort of society?
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.
This is true largely because stops and frisks are litigated in court only when drugs or weapons are seized. A decision that a stop-and-frisk (when it placed the officer in a position to find weapons or drugs) violated the Constitution would run counter to two powerful, hydraulic pressures on judges that they are unable to resist: the “double wide” latitude given to law enforcement officers concerned for their safety and the more lamentable rationale that the end (seizing evidence of a crime) justifies the means by which law enforcement gets the job done.
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?”
By David Coleman