Friday, December 24, 2010
Police/TSA opposite-sex groping and stripping (minus) the Fourth Amendment (plus) Tennessee v. Garner (equals) sexual felonies
The TSA has introduced into administrative (warrant-less) searches a species of sexual permissiveness that 99.9% of Americans have no idea courts have already extended to police departments for making routine frisks with either probable cause of crime or for supposed safety of officers -- which invasiveness ladies discover too late when they fall literally into male police hands or under male police gaze stripped completely (at 2:00).
I am talking routine male on female frisking when no TSA officers are conveniently available (almost universal police policy) as well as the electronic stripping of women and children before whatever gender happens to be manning a remote screen. Male TSA officers, just like most local police officers, are actually trained in specific techniques and “limits” of touching all female private areas: for instance, using the blade (along the pinky) of the hand to lift breasts. Not all local police officers are trained in less invasive techniques.
Yes, Mary, any male police officer may, if no female officer is immediately available, conduct the most intimate frisk as a routine precaution, not because of an immediate threat, which need would not justify any other form of violent assault. Self-identified officers on online forums even assert that if a female officer is present, the police still get to decide who will search and who will back up and the citizen has no legal say.
Some male officers on online forums complain they hate to frisk females and other officers of how they always have always have a witness and/or do it in front of a camera to avoid charges. How often do they do it? Small departments with no female officers apparently feel perfectly free to strip search females in front of male officers every single arrest.
Enter the TSA at small airports where only three or four TSA male agents may be present and where there may not yet be a whole body scanner. Upshot: if no female agents present (coffee break?) TSA feels perfectly free to permit – even mandate! – its male agents intimately touch (in accordance with the same training female agents get) every sexually private part of every female passenger, 13 years and older (perhaps in practice only when females are traveling alone or with small children): policy.
The Fourth Amendment has evaporated in current jurisprudence anytime anybody cites officer safety – if not yet in TSA dragnet mode and not yet with public (instead of officer) safety for justification.
We know the Constitution is safe from dragnet mode and public safety justification at school houses: “Don’t worry young lady; the officer who will view your naked form is not even in this building; oppsey, something showed up and you cannot go back through; sorry, no female friskers showed today.”. The criminality of such a practice is too easily evident to everyone's sensibilities. But, mention officer or airplane safety to the courts and who knows what state constitutional privacy may land in.
The Fourth Amendment reasoning in Tennessee v. Garner (1985) 471 US 1 (wildly misused against border guards who were at life threatening hazard, -- not alone with a handcuffed female) can be used to rope in Rodney-King-day-every-day for females at police departments nationwide (the last civil rights movement?) and to pull an extra tight knot around TSA’s opposite-sex groping (what emergency?) and child and opposite-sex naked viewing with everyday criminal law – even if there had never been any constitutional Bill of Rights.
Tennessee v. Garner, 471 U.S. 1 (1985):
Concluding that "[i]t is not better that all felony suspects die than that they escape,"13 Justice White's majority ruling noted that it was constitutionally unreasonable to shoot a fleeing suspect "[ w]here the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.
Substitute: where the female detainee or interstate traveler poses no immediate threat to the officer or to other travelers, the harm resulting from failing to make a male on female frisk does not justify the use inherent violence of the legal definition of sexual assault to do so.
Did someone say "popping up at courthouses" (exactly what AP said)? What criminal law (don't bother with constitutional) difference is there between a courthouse and a high school or a skating rink? At courthouses these days officer safety is mixed together with public safety to justify dragnet (routine) male on female frisks along with naked view of all by any!
Extending the practice of male police routinely frisking and even stripping females into the area of warrant-less search and for public safety (airports, ball parks -- what difference?) the TSA has gone so far out on the legal (and constitutional) limb that it must fall of its own over obnoxious weight. Roll routine sexual assault all the way back to the police station and jail house or to let it roll over the whole country: courts today, colleges tomorrow?
[I have left out of this essay any Fourth Amendment questions about gruesome same-sex groin and personal female area frisking because they are not strictly criminal and not as easily dispatched applying criminal law comparisons alone.]