Quit harassing the tourists!
“Don’t get me wrong. I respect law enforcement. It is important that they ensure public safety on Lake Cumberland. But they need to respect the right to privacy of our boaters. We have a lot of tourists on the lake, and they come to have a good time, and they are going to quit coming if the harassment continues.” So said a Senator at a recent Senate Judiciary Committee meeting in Kentucky. He and his witnesses went on to tell of armed law enforcement officers boarding house boats without a warrant, asking boaters whether they were drinking, arresting boaters for having one beer in plain sight, and children crying and expressing fear of the police. The remedy was in a proposed bill that would require “reasonable suspicion” prior to any boarding or search of a boat in the waters of Kentucky. Nothing was said about boats being a “closely regulated industry”. New York v. Burger, 482 U.S. 691 (1987) was not cited. Instead, the justification was that persons who had come to Kentucky to spend their money and have a good time had a right to privacy and to be left alone. It was hard to disagree.
The Fourth Amendment lives!
I was there as a legislative agent for the Kentucky Association of Criminal Defense Lawyers, which I do each winter in addition to being Executive Director of the National Association for Public Defense. As a heart and soul public defender, my celebration of the right to privacy in Kentucky’s waters was short-lived. Instead, my mind went back to a client of mine when I was a lawyer in the Richmond, Kentucky Public Defender’s Office. He had been arrested for possession of cocaine. He had been detained for walking while black. At the preliminary hearing, I questioned the police officer about why he had arrested my client. The officer said that my client had been walking from a housing project in a “high drug area.” I asked if that was all, and the officer agreed that the young man had done nothing else to draw attention to himself. Just walking. The officer justified the stop by saying that he had a right to question anyone coming out of a housing project funded in part by the federal government. He also asserted that he had a right to pat down my client for safety purposes and that his seizure of cocaine had been a legal Terry search. An annoyed district court judge stopped further inquiry since he had long ago “found probable cause” (which I always thought he came to court each morning having already found probable cause for all cases he was to hear that day. It saved time, don’t you know.)
What different lives and different interests were represented by these two stories. The Fourth Amendment indeed lives for wealthy tourists in house boats. The home is one’s castle. People have a right to be left alone. Unless…Unless you are a poor young African-American man leaving a housing project. Unless you wear clothes of a particular color. Unless you are in a gang. Unless the music coming out of your car is too loud. Unless you are wearing a hoodie. Unless you are sitting near graffiti in a subway. Unless…unless…unless…
My mind stopped. I had gone there again, as I often have done, thinking about the double standard adhered to in our courts, among law enforcement, in the halls of our capitols, in our society. It’s not fair. It’s not right. And one day it has to stop.