Public Safety and the Fourth Amendment

At a hearing the other day, a police officer testified that a caller-in reported that a man handed another man a gun in an apartment house parking lot and then drove off. Those actions warranted a stop of both men. Now, nobody was doing anything illegal. Nobody was threatening anyone or exhibiting the weapon in a dangerous manner. In fact, the two men appeared to be friends. The caller-in thought it looked dangerous.   So what justified the stop? "Reasonable suspicion"-the time honored test? I don’t think so.

Police officers often testify that if they stop a motorist for traffic and they smell alcohol, the driver gets to do field sobriety tests. It’s policy. So, you can have a drink, get stopped for traffic and suddenly you’re on the side of the road, with one leg in the air.  Is that legal? Perhaps not. But let me clue you in. The Fourth Amendment gets little respect. The Amendment tends to get in the way of “effective” law enforcement. This is no secret.  We lionize cops who have the cojones to skip procedure and get the job done. Everyone’s seen Dirty Harry or  Lt. John McClane. They're American heroes.

The stop of the man with a gun in the parking lot.   “Public safety” justified that. “Public safety?” Did I miss that in law school? I actually looked it up after the hearing. Not in the Fourth Amendment. The term, however, glided off the officer’s tongue.

The Constitution guarantees a collision over our various rights. No one interest is absolute. It’s certainly safer to strip all the handguns from a "high crime" area.  Public safety could justify that. You’d get a big argument from the Second Amendment folks, but I’d bet you’d have less opportunity for violence. Stopping everyone at a DWI roadblock at two in the morning in downtown Austin would make the streets safer. MADD would applaud.  A similar case can be made for profiling, stops of suspicious persons who make furtive movements and endless other hunches and intuitive judgments that suggest possible criminal behavior. We'd probably be safer.

Ultimately, in America, it’s a question of balance. It’s in our genes. We have made the balancing of competing interests our passion. Following a slippery concept like "public safety", has legal consequences-the sawed off shotgun seized in a search of the car in the parking lot winds up getting thrown out. Adherence to the Fourth Amendment preserves our freedom. I’ll have to admit, though, that at times, Inspector Callahan fits the emotional bill. "Pass the popcorn, will ya?”.