|Judge Sheila Scheindlin|
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures , shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
--Fourth Amendment, Constitution of the United States of America.
In lower Manhattan, Judge Shela Scheindlin is about to rule on two cases which will offer at least a first opinion about the limits the Constitution places on the practice of New York City police--and if it goes to the Supreme Court of the United States--on policing throughout the land.
Many police chiefs aver the practice of stopping citizens who are walking down the street, throwing them up against a wall, emptying their pockets, searching them is "the most fundamental practice in American policing," according to The New Yorker's Jeffrey Toobin in the May 27th issue.
The argument from the police is that this practice is effective. The police contend it is this practice which detects guns, and prevents shooters from killing and it is this practice which has reduced the murder rates in big cities, like New York.
Sociologists, economists and others have argued the drop in the murder rate and in violence throughout the country has nothing to do with police tactics but is a result of the aging of the population. Young men perpetrate the vast preponderance of violent crime and the reduction of the proportion of young men in the population has been the single most important factor in the falling crime rates, some contend. Others have pointed to a variety of other causes, but the police want to claim credit for the drop in crime, understandably.
If police executing a "Broken Windows" strategy, are responsible for the happy result of low crime rates, that makes the police important, justifies salaries, promotions, jobs, careers, esteem, prestige, budgets, pensions and all sort of goodies.
Broken Windows refers to the theory that if you jump out of your car and arrest a youth who is throwing bricks through windows, you put someone in jail whose next act would be to shoot somebody. Round up the people who commit small violations--public urination, public drinking--and you remove the junk from the streets and put it in jail and you maintain order and discipline in society.
Judge Scheindlin says, "Do not make that argument" about efficacy in her courtroom. If all we were concerned about were efficacy in the law as it applies to arresting people, nobody would be read their Miranda rights. If efficacy were all we cared about we could round up all the 14 to 25 year old males in the South Bronx and cart them off to concentration camps until they were 40. We could erect walls around Bedford Stuyvesant and lock everyone in at night.
But the reason we have a constitution is once upon a time in America we had these guys called Redcoats, and these Redcoats could break down doors, could stop and search and imprison citizens without reason, without charges, just because they had the power of the government and orders from the king saying, "Keep order, above all else."
And you can see in the words of the 4th Amendment exactly what got the American colonists so angry. When Jefferson writes of "a long train of abuses and usurpations" in the Declaration of Independence, he was talking about things like Stop and Search. And if those English soldiers had done strip searches on American citizens, especially women and girls, one can imagine the American Revolution would have occurred far sooner.
The Stop and Frisk cases are separate cases from the strip search cases, but they are of a whole when it comes to what we are becoming in this country, when it comes to the distance between a police state and a state of laws and rights. That the American public is not outraged by strip searching in American jails is worrisome in and of itself. That every day and any day in this country an American teenaged girl can be hauled from her automobile for running a stop sign or for driving around with a six pack of beer in the back of her car--or for any of a laundry list of misdemeanors--and she can be dragged into a station house and stripped naked and have her vagina probed, all in the name of law and order, and this does not provoke dismay or outrage among the apathetic, incurious citizens who are sitting at home in their recliners, munching on nachos, watching NASCAR races or the Red Sox on TV, that is an appalling indictment of what we have become.
"Oh, she probably deserved it," the voice from the recliner says. And the hand reaches for another slice of pizza.
When the 4th amendment was written, there were still American citizens threatened with aboriginal natives (Indians) in the forests. We had militias and people who kept and bore arms to protect themselves against natives, brigands, a whole variety of threatening human beings. Law and order were as or more imperative in 1780 as they are today, and yet the authors of the Constitution wrote with anger about what they did not want to empower agents of any American government, local or national, to be allowed to do. They feared unbridled government power because they had felt its lash and it still stung.
Judge Schendlin has ruled police were not to be believed in the case of a man who was arrested and searched by police on a playground, where they discovered a small amount of marijuana and brought to the police station, where he was frisked again and a .38 caliber gun was discovered. "It is extremely difficult to believe that the same officer could have missed a bulky .38 caliber revolver hidden in Defendant's pants." Ya think? The first frisk is careful enough to detect a teabag size marijuana packet but misses a .38 caliber revolver?
It is true, Judge Schendlin describes herself as "gutsy" which is not what Mad Dog would like to hear from the bench as a characterization of self. But her heart and mind appear to be in the right place.
Mad Dog has seen all this before, on The Wire. Kima shakes her head at two male colleagues who have beaten up a suspect. "There you go, fighting the war on drugs, one brutality case at a time."
In the real world the only thing standing between brutality and strip searching and beat downs on the street are the judges.
Let us hope enough lower court judges pass the test. We have to hope, because once these cases get up to the four horseman of the Scalia-Roberts-Alito-Thomas court, there will be no sympathy for anyone but the ruling class and their hired men.