Police Abuse Is Common
By Jim E. Reames (08/26/03)
This opinion is in direct response to a recent news article by Leah Hopkins, (Editor of the Messenger Index, Emmett, Idaho) regarding an apparent outbreak of police abuse that has surfaced in her community.
In her article “Are Our Officers Driving People Away?” Ms. Hopkins writes, “There is the general assumption that if they [citizens of the community] complain, they will become targets for further harassment.”
Some of the examples include things like: tail light too bright, tail light too dim (same person), fogged up rear window of a car parked in a driveway; improperly displayed license plates on vehicles, etc. One person was said to have been fearful of hosting a yard party, not wanting her out of town friends stopped by the police.
Events such as this are common, especially in small towns and communities. Young officers often start their careers as well meaning public servants who become complacent of our Constitutional Rights, fail to learn those rights themselves, and quickly evolve into armed bullies. They carry guns and handcuffs. They learn they do, in fact, possess power over other human beings. Unfortunately some of them fail to properly harness that power and authority. Moreover, this mistake is not reserved just for Main Street American police officers. It is quite prevalent in large cities as well.
I remember those days. I remember them well, back when I was a rookie patrolman in the 1960s, in Northern California then in SW Idaho. I even recall having been “flagged off” by a young teenage boy who stuck his arm out the window of his car to send me sign language. After committing his “Contempt of Cop” gesture he continued on down the street.
To salvage my pride I pulled him over and wrote a traffic citation. He was charged with “…made a right hand arm signal…. then failed to negotiate the turn.”
There was, of course, no such law against waiving one’s middle finger in the air from a moving vehicle. Hence, my scribbled ticket was thrown out of court. But the point is: I hated that smart-mouthed brat! And I had the power to prevail upon him. So I did.
This sort of thing happens tens of thousands of times a day all across the United States, where uniformed police officers use their powers to make people fear them even more than they already do. Often times they exercise that authority for the pure pleasure of experiencing the personal satisfaction it provides. It is a psychological high that becomes addictive. Most cops who fall into the trap are in total denial of their own police authority abuse. Even through the eyes of their co-workers such abuse is overlooked. In a very short time a police officer enters into a tightly guarded sub-culture that protects and watches out for its own, even when there are minor infractions of people’s constitutional rights. I have even seen a prosecuting attorney selectively protect a sworn police officer who was in contempt of court, even after a private citizen asked to sign a criminal complaint against that officer. As it was explained to the citizen, the prosecutor would still have to work with the department in the future. Sop he did not wish to rock the boat. Concerning that particular case justice was not served.
In the small rural town of Emmett, Idaho (a suburb bedroom community for many who work in nearby Boise) there appears to be an ongoing struggle between mature and professional law enforcement vs. the growing concerns of many local citizens.
This article is intended to educate readers concerning their basic Fourth Amendment Rights in a day… and of an age…when the Patriot Act seems to be chipping away at freedoms we Americans have. To be perfectly candid, the Patriot Act (as important as it is) scares the daylights out of me. And I hold a master’s degree in criminal justice administration. I am a 30-year veteran expert of computer science. I cut my teeth in that profession designing America’s first generation police computer systems. As I write, and even as United States Attorney General John Ashcroft is now in my own community marketing his desire to push forward an expansion of the American Patriot Act, our Fourth Amendment Rights are in the process of being redefined. So is the way by which police officers deal with unarmed citizens.
Make no mistakes about what is upon this nation’s Constitutional threshold.
Regarding the present and future laws of arrest, search, and seizure – we live turbulent times.
The Fourth Amendment to our Constitution reads:
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.
What many American citizens fail to properly learn, and what many police officers often forget, is that in 1980 there was a major United States Supreme Court decision known as the United States vs. Mendenhall. Justice Stewart wrote a person has been seized within the meaning of the Fourth Amendment if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. In that case the word “seized” actually means “arrested.”
A police officer cannot seize your person (Ie. He can not prohibit you from your coming and going) unless you have committed a crime--or, unless, the officer has “Probable Cause” to believe a crime has or is being committed. In this case the term “Probable Cause” refers to a felony (I.E. a serious crime). Hence Probable Cause does not apply to traffic infractions of the law, nor even criminal misdemeanors.
Another case comes to mind referred to is Terry v. Ohio, 392 U.S. 1 (1968). That was when the United States Supreme Court explained the circumstances under which a "stop-and-frisk" could be constitutionally permissible. Terry's detainment on the street was a sufficient intrusion on his freedom that it was a "seizure" within the meaning of the Fourth Amendment and that the "pat- down" of his clothing was a search within the meaning of the Fourth Amendment. However….the Supreme Court rejected the argument that because a Fourth Amendment search and seizure took place "probable cause" was required. The Supreme Court concluded that the only constitutional test was whether the "stop-and-frisk" was reasonable or not. The Supreme Court concluded that where a police officer observes unusual conduct which leads the officer to reasonably conclude that criminal activity is taking place and that the person involved in that activity may be armed and dangerous the officer is entitled to conduct a limited search of the person's outer clothing to discover weapons. Note the key words that drive the decision of the court.
The bottom line is this: A police officer is permitted to pull a driver over for a traffic infraction. But he or she only has a few minutes to do their official business because the United States Supreme Court has already decided, a person has been seized within the meaning of the Fourth Amendment if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Nor is a police officer permitted to physically frisk (pat down) a person’s body unless there is evidence to support justification for the search. A police pat down for the sake of performing a pat down is a violation of the United States Constitution.
But for too many American’s: The only understanding of our Constitutional Rights is what Hollywood portrays them as being. What a horrible fragility of freedom that postulate represents!
If I am approached by a police officer on the street who stops my freedom of movement I have every right under the United States Constitution to insist that I not be contained any longer than is reasonably necessary in order for the police officer to perform his or her official duties, under the law. I possess every right to verbally announce, “It is my Constitutional Right to not be stopped and held for any unreasonable time by the police unless I’m committing a crime in their personal presence (if a misdemeanor) or unless they possess “Probable Cause” that I committed a serious crime [a felony]. I have every right to ask if I’m under arrest, with a “Yes” or “No” response. And if the answer is “No” then it is my right to announce that I intend to go about my personal business, unrestrained. If I am held anyway, then according to United States vs. Mendenhall the officer has a very small period of time [we’re talking just minutes here] to conduct his or her business before allowing me to proceed on. To detain me further constitutes a “seizure” of my person – I was arrested.
In fact, I am not even compelled to speak to a police officer if I decide NOT to. And the burden is upon them to explain my being stopped.
Every American needs to understand that a police officer is not permitted to frisk you just because they arbitrarily decide to exercise that power over you. To avoid confrontation it is wise to yield. But if they violate the law, then you should know the law well enough to bring real heat upon them.
In this day and age of the US Patriot Act and of in street police authority infractions of the Fourth Amendment, every American Citizen would be well-served to study the major Fourth Amendment United States Supreme Court Decisions on the subjects pertaining to arrest, search, and seizure.
Every person in America has the right to go about his or her business un-intruded by police powers. Those sworn officers who do not reverence our Constitution ought to not be wearing the badge.
If the citizens of a community come to believe that one or more police officers are over extending their authority then the citizen(s) should start recording and documenting the facts of each and every incident. They should seek assistance of the news media and bring into play the full power of the First Amendment. If that does not bring an end to the nonsense, then the citizen should register a formal, written, complaint with local authorities, then exercise their right—using the Freedom of Information Act to secure the officer’s dispatch records, his or her personnel file, and then get a copy of every ticket the officer has written. Use fire to fight fire. My observation over the years has been that most cowardly cops who feel the need to boost their ego, hiding behind a badge, handcuffs, and a gun will end up resigning rather than face public or court room cross examination.
Unfortunately, the thin blue line between the legitimate uses of police power from the violation of it is very thin. Conversely, the proper and lawful use of police power is totally awesome! We have before us a thin “blue line” that must forever be monitored. Otherwise human nature of mankind will prevail. If we Americans fail to stand up for our rights then we will surly lose them over time. The price of freedom is never free.
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