Thursday, June 27, 2013

Ordinary people

I know this is just a silly little blog with cartoon drawings in the header. I know I talk about my dog and shoes and sports too much to be taken too seriously. I know it's too much to hope that anyone associated with the United States Supreme Court actually reads this.

But for this one post, I really hope they do. Because the justices who make the law all the rest of us live with need to see this video.

In both 4th and 5th Amendment jurisprudence, the concept of what the ordinary person would feel free to do factors in. Would the ordinary person feel free to disregard a police officer? To walk away? To invoke the right to silence in the face of police questioning?

In case after case, I have been frustrated by how willing SCOTUS and therefore lower courts are to ascribe to ordinary citizens rather extraordinary abilities to resist the power of a person in a police uniform, complete with badge, handcuffs, and handgun at the ready. According to a pile of case law, ordinary people in the US feel free to walk away from uniformed officers in all sorts of circumstances. What I know from this is that the justices of the United States Supreme Court don't often find themselves getting pulled over by cops or being stopped on the sidewalk by cops or opening their doors to cops or being asked questions in interrogation rooms by cops.

The judges and justices who makes these decisions should be confronted with the reality of what it's like when ordinary people are confronted by police. In this video, a young woman was driving home to her husband or boyfriend and their 2 week old child. She was pulled over for a broken headlight. Hardly a big, bad infraction. Usually the sort of thing a driver gets a warning for that can be wiped away if the driver shows up at the police station within the next 2 or 3 days with a fixed light. But ordinary people get very nervous when they're pulled over. Heck, this nervous person breaks into a cold sweat when she gets a phone call from a number she doesn't recognize because I always jump to the assumption I'm in trouble in some way. (I'm not, and I'm not sure what "trouble" I think I would be in anyway; it's a weird pathology I seriously need to get over.) But the point is nervousness isn't an unusual reaction to being confronted by uncertain situations.

This woman's nervousness seemed out of the norm to the police officer who pulled her over. So he assumed she was on drugs. To assess his assumption, he instructed her to lift up her shirt, pull her bra away from her body, and shake out the bra. While this was a big step up from conducting an invasive cavity search on the side of a highway, it's still pretty egregious. She wasn't exposed and she wasn't subjected to any physical search, but it was demeaning all the same. It's still something the officer had no business demanding the woman do. And it's still something the woman felt utterly powerless to resist. So now there is a dash cam video of this woman pulling her shirt up and shaking out her bra on the side of the road.

I hope the judges and justices who rule on criminal cases see this video. I hope they start to rule with an honest perspective on the authority uniformed police officers wield. Ordinary people don't feel free to walk away when a uniformed police officer is talking to them. Ordinary people don't feel free to disregard even obviously obnoxious commands by uniformed police officers. Ordinary people know that uniformed police officers have guns and handcuffs and are free to use them. Ordinary people don't want to be arrested or shot. So ordinary people comply. The fact that this very freaked out, very nervous, very ordinary young woman complied, though, does not make what happened to her a consent search. We need the judges who rule on these kinds of cases to understand that.

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