Sexual Assault In Blue

Imagine that you’re walking along the street, or in the park, with your family, minding your own business, when a stranger comes up and wants to talk. The stranger is quite rude about it, and won’t leave you alone. Then the stranger starts touching you, on the arms, on your chest, even groping up and down your legs and brushing against your genitals. Even worse, the stranger starts touching your family the same way–your wife, your son and daughter.

You’re outraged, but you don’t dare try to stop this obscene intrusion, because under the stranger’s jacket you can see a gun. And even if you could do something about that, the stranger is part of a crew, and the others have guns too.

This grotesque violation is reality for hundreds of thousands of people every year in New York and other major cities. And complaining to the police does no good whatsover, because the the strangers with the groping hands are the police.

The New York Times‘s Bob Herbert just wrote about this:

The police in New York City are not just permitted, they are encouraged to trample on the rights of black and Hispanic New Yorkers by relentlessly enforcing the city’s degrading, unlawful and outright racist stop-and-frisk policy. Hundreds of thousands of wholly innocent individuals, most of them young, are routinely humiliated by the police, day in and day out, year after shameful year.

…

From 2004 through 2009, city police officers stopped people on the street and checked them out nearly three million times. Many were patted down, frisked, made to sprawl face down on the ground, or spread-eagle themselves against a wall or over the hood of a car. Nearly 90 percent of the people stopped were completely innocent of any wrongdoing.

I didn’t see it mentioned by name, but I assume all of this is happening under the exception to the Fourth Amendment’s prohibition of unreasonable searches and seizures known as the “Terry Stop,” during which, according to Wikipedia,

For their own protection, police may perform a quick surface search of the person’s outer clothing for weapons if they have reasonable suspicion that the person stopped is armed. This reasonable suspicion must be based on “specific and articulable facts” and not merely upon an officer’s hunch. This permitted police action has subsequently been referred to in short as a “stop and frisk,”

Keep in mind that reasonable suspicion is the easiest standard for a police officer to meet. It can be based on unknown shapes under the clothing, suspicious behavior, or probably even simply being in a known gang location.

[Update: In the comments, Scott Greenfield informs me that the rule governing police behavior in New York is somewhat more complicated than Terry v. Ohio. Read his comment for the explanation and proper cite.]

It’s true that evidence gained from improper searches can sometimes be excluded at trial, but let Scott Greenfield explain why that’s not a solution:

While the remedy for an unconstitutional stop and frisk that results in an arrest may (or may not) be suppression, the 90% ordered to kiss pavement and get some boot-love while wandering hands touch private parts get nothing.  Zero, zippo, nada.  There’s no incentive for the police not to stop and frisk at will because there’s no price to be paid for it.  Find something and get an arrest.  Find nothing and move on to the next black man

This is the eternal argument against the exclusionary rule: It only helps the guilty. Usually this argument is made by law-and-order types who want to get rid of the exclusionary rule, but it’s also an explanation of why the exclusionary rule is not enough: It doesn’t help innocent people whose rights are trampled by police. They have no remedy.

(After-the-fact lawsuits aren’t as helpful as we might hope, as Norm Pattis explains in a new post.)

One of the emerging themes of my posts here at Windypundit is the idea that when something bad happens to you, the reason it happens has no effect on the injury you suffer. For example, if a crazy person kidnaps you and locks you up in a small cage for five years, you’re going to have a really bad time of it. However, if lying cops and an overzealous prosecutor send you to jail for five years for a crime you did not commit, you’re going to have an equally bad time of it.

In fact, even if you did commit the crime, you’re still going to suffer if you have to spend five years in prison. The only difference is that this time you’ll deserve it. But that isn’t going to make it any easier for you.

Similarly, I can’t think of any reason that being fondled by a police officer during a Terry stop would be any less unpleasant than being fondled by a stranger at a bus stop. That latter is called (I think) sexual assault, but it’s hard to see how it’s better when a police officer does it.In fact, if a stranger does it, at least you can slap them away, or simply run away. Try that with a cop and you’ll be arrested.

(You might object to my calling this a sexual assault when the officer’s not doing it for his own sexual gratification, but that would only make a difference if we were considering charging the cop with a crime. In this post, I’m more concerned about harm to the victim, which doesn’t seem much reduced by the assailant’s benign motives. That said, don’t forget that lots of sex crimes aren’t motivated by a desire for sexual pleasure, but by a desire to dominate, control, and humiliate the victim. An abusive body search sure seems like a good way to do that.)

Stop and think for a minute about how insane this is. You can be minding your own business–standing at the bus stop, or walking in a park–and a cop can come up to you and begin interrogating you. Then, even though he has injected himself into the situation, he can now use his own safety concerns as a pretext to fondle your body to check for weapons or (realistically) anything else he can find, and if you resist his groping hands, he can subdue and arrest you. Put simply, you can be doing nothing wrong, and a cop can still legally create a reason to arrest you.

If you ask a cop why he’s allowed to interrogate you in a situation like this, he’ll explain that it’s just a conversation, and in the land of the free, anyone can start a conversation. If you ask a Supreme Court Judge (or at least Scalia) why the fruits of this interrogation are admissible as evidence, he’ll explain that it was non-custodial, meaning you were free to leave. However, even though your leaving would ensure the officer’s safetly (much as his leaving you alone would), that’s off the table during a Terry stop.

Besides, does anybody really believe the argument that the search is necessary for officer safety? It’s probably a really good idea to search someone before transporting them, but I have trouble believing a pat-down is a serious part of police street safety, especially when compared to police weapons, armor, and tactics.

Besides, why are people with concealed weapons only dangerous to police? Under the offered safety rationale, shouldn’t we all be allowed to pat down the people standing next to us at the bus stop? I know some of my readers are criminal defense lawyers, and I have a question: Doesn’t this I-was-patting-them-down-for-weapons-because-I-was-concerned-for-my-safety argument sound like something one of your less reality-bound clients might offer as an excuse for groping women on the bus?

There’s one more thing I just have to comment on. In his post about these abusive searches, New York criminal defense lawyer Scott Greenfield suggests a strange solution to this problem. It’s a solution that lacks any of the practicality and sensibility we normally expect from him. It’s a solution that seems utterly disconnected from the reality of law enforcement and criminal law.

Naturally, I thought of it years ago, and I like it a lot. Here’s Scott’s idea:

Struggling with this question, however, I’ve come up with a solution.  Every time a cop frisks someone and comes up empty, he should have to pay the person $10.  Not so much as to strike fear in the wallet of a police officer, but enough to make a cop think twice before hassling someone for nothing.  After, ten dollars here and ten dollars there, and pretty soon you’re talking about a day without donuts.

(Scott, I think you’ve been reading my blog way too much.)

The beauty of this idea lies in the way it makes use of a couple of principles of economics–incentives and revealed preference. I’ve been an amateur student of economics for years, and one of the most important lessons is that people respond to incentives.

Scott’s solution is a classic example of solving a problem by adjusting the incentives. When police do a stop-and-frisk, the incentives are lopsided. If they’re right, and they find something, they get an arrest. But if they’re wrong, then despite the discomfort they’ve cause for others, they lose nothing except a few minutes of their time. Naturally, police do a lot of stop-and-frisks.

Making police pay a price for all those stop-and-frisks would change the incentives. It would force police to choose more carefully when they want to grope people’s bodies. And it’s a tunable solution: If cops are still doing too many searches, you just raise the stop-and-frisk price to $20. If they’re not doing enough searches, you lower it a bit.

Another thing I like about this proposal is the way it makes use of revealed preferences. You see, economists are a lot like Dr. Greg House: They think everybody is lying. If you want to know what people want, don’t listen to what they say, watch what they do. For example, a lot of people will say that it’s wrong for a business to hire illegal immigrants, but when they’re looking for a cheap contractor to remodel their house, they don’t inquire into the immigration status of his employees. They say they want one thing, but their true preferences and motives are revealed by the choices they make.

So while there’s not a chance in hell of anything like Scott’s fee-for-search plan ever being implemented (and I’m sure he knows it), it would sure be interesting to try it for a few months just to see how police respond to the change, and what this reveals about their true preferences. I imagine police place a high value on their own safety, so if stop-and-frisks really are a safety measure, we wouldn’t expect their frequency to decline very much. Ten dollars here and there would be worth it to the officers making the decisions.

On the other hand, if the stop-and-frisks are not really about officer safety–that is, if the officer safety rationale is just a ruse to bypass constitutional search and seizure protections–then we could expect police officers to respond to the fee by significantly reducing the number of stop-and-frisk searches they perform, thus revealing their true motivations.

I’m pretty cynical about these things, so my guess is that implementing Scott’s $10-per-search fee would cause cops to greatly reduce the number of stop-and-frisks they perform. And if we set the fee just a little higher, maybe at $25, I wouldn’t be surprised to see the stop-and-frisk rate go all the way to zero.