Chokehold

by Paul Butler

  Some scholars have observed that Fourth Amendment analysis has been distorted by a failure to weigh effects properly. Under the Constitution, searches and seizures must be reasonable; to determine whether they are, the Supreme Court has engaged in a cost-benefit analysis, balancing the government interest versus the individual interest. In the context of race-based assessments of suspicion, many scholars have argued that courts discount the effect on victims (and overstate the value to the government of using race as a cause for suspicion). Professor Jody Armour vividly describes the feeling of being the target of race-based suspicion as having “waves of strangers successively spit in my face.”30

  Likewise, people who have been stopped and frisked use words like “violated,” “invaded,” and “chumped” to describe how it made them feel.31 It also may affect their actions: African American and Latino men, in particular, tell stories about the measures they take to avoid being stopped and frisked; these steps may range from decisions about clothing and hair style to the kinds of cars they drive or the neighborhoods in which they choose to live.

  While not overtly brutal, stop and frisks have more consequence than what race theorists have defined as “microaggressions.”32 Racial microaggressions are “brief and commonplace daily verbal, behavioral, or environmental indignities whether intentional or unintentional that communicate hostile, derogatory, or negative racial slights and insults toward people of color. Perpetrators of microaggressions are also often unaware that they engage in such communications when they engage with racial/ethnic minorities.”33

  Stop and frisks cause injury more like police brutality than racial microaggression. The Terry opinion characterized stop and frisk as a “serious intrusion on the sanctity of the person, which may inflict great indignity and arouse strong resentment.” I would go further and say that the invasive aspect of the frisk—the “feel with sensitive fingers every portion of the prisoner’s body [including] the groin and areas about the testicles,” in the words of the police manual referenced in Terry—makes the injury analogous to sexual assault. Frisks are frequently experienced as offensive sexual touchings.

  STOP-AND-FRISK SEX

  Abuse of African American men has often had a sexual component.34 Black male victims of lynching were frequently castrated, and then their penises were stuffed in their mouths. A New York police officer inserted a broom handle into the anus of Abner Louima. In 1970, Philadelphia cops raided three offices of the Black Panther Party, ordered the men to line up against a wall and strip, and then took photos of them. Police sometimes obtain confessions by warning male suspects if they don’t cooperate with the cops, they will be raped in prison.35

  Stop and frisk is also gendered, and sexual. Frisks are frisky. The police “cop” a feel. To “assume the position” is to make oneself submissive—one turns and offers his backside to another person. Often other cops participate, either as voyeurs, or by doing another guy at the same time. In African American neighborhoods, it is not uncommon to see a row of young men facing a wall, each waiting his turn to be patted down by one officer, or a group pat down, involving several officers and several young men. The journalist Richard Goldstein, writing about the assault of Abner Louima, observed:

  Several false assumptions shape our obliviousness to the erotic element in police brutality: that men are rarely the victims of sexual assault, that straight men have no homosexual feelings, and that sexuality is limited to what we do in bed. The first perception allows police to force young black men to drop their pants—a common practice during street frisks—without risking charges of sexual harassment (imagine what would happen if black women were subject to this treatment); the second notion prevents us from imagining that cops who specialize in such tactics might find them exciting; and the third blinds us to the connection between sadism and racism.36

  Many hip-hop artists have, in their lyrics, depicted frisks as a form of sexual harassment.37 I should note that hip-hop is notorious for the homophobia of some of its artists, as well as for the distaste with which many members of the hip-hop nation regard the police. These two factors may combine to make the police prime candidates for what is, from the homophobe’s perspective, the ultimate insult—an “accusation” of homosexuality. I use hip-hop lyrics as on-the-ground reporting of lived experiences; they are victim testimony. Indeed, since part of the gratification that some police officers derive from stop and frisks is sadistic, the fact that a victim might be homophobic enhances the pleasure.

  The seminal hip-hop group NWA states, “I don’t know if [the police] are fags or what / search a nigga down and grabbin’ his nuts.”38 The most interesting aspect of this analysis isn’t the homophobia, which, sadly, is a trope in hip-hop culture. Rather, it is the words “or what,” which suggest that the male-on-male sexual harassment is not just for gays. Indeed these lyrics support all three of Goldstein’s claims about the eras of police brutality: the NWA character is a male victim of sexual assault—by officers who may or may not be gay but regardless are gratified by “grabbin’ [a “nigga”’s] nuts.”

  In fact hip-hop’s endemic homophobia makes the absence of antigay epitaphs to describe the sexual component of frisks especially revealing. Lupe Fiasco complains about “crooked police that’s stationed at the knees and they do drive-bys like up and down the thighs.”39 Likewise, Webbie raps, “The police pull me over and they raid my cash / Man they be wishin’ they could take my ass.”40 Commercial hip-hop, unfortunately, does not subscribe to a civility that prohibits the use of words like “fag”; indeed, rap music seems almost to encourage pejorative terms. Thus their absence, when the artists describe male-on-male sexual harassment, seems a recognition—from victims of frisks—that it’s possible for “straight” men to get off by doing sexual things to other men.

  African American men other than hip-hop artists have also observed the erotic nature of frisks. In an article for the Village Voice titled “The Gropes of Wrath: The NYPD Loves Touching Black Men,” the journalist Nicholas Powers wrote that “for black men, being stopped and frisked by the police is a rite of passage. But I’ve never been touched by a cop. I’m a virgin.” Recounting statistics about the number of African American and Latino men who have been stopped and frisked by the New York Police Department, Powers observed, “The NYPD is fondling our bodies.”41

  The Urban Dictionary, an online wiki that defines street slang and provides an example of usage, contains this entry for “frisk”: “When cops search you for drugs and guns by feeling you all over from behind. The big, tall, muscular security guard leaned right down behind me and felt me all over because his orders were to frisk me.”42

  I do not want to be too grandiose about hip-hop’s analysis. There certainly are artists who view frisks as standard homosexual sexual gratification, and who don’t have a problem using antigay terms to castigate the harassers. Dead Prez, for example, claims, “Every police is a punk ass bitch / this is for my niggas in the streets getting frisked gun to your head.”43 I simply make two points: first that several hip-hop artists have described frisks as sexual harassment and, second, that some of the artists have constructed the meaning of the touching as outside of the usual sexual norms.44

  The legal scholar Bernard Harcourt has also observed a sexual element in stop and frisk.45 He describes an encounter, recorded in the appendix of a study of police searches by scholars Jon Gould and Stephen Mastrofski, between a white police officer and an African American male, both in their late twenties.46 The black man, who had been riding a bike, was stopped and frisked by the police, who found no contraband. The cop then said to the black man, “I bet you are hiding [drugs] under your balls. If you have drugs under your balls, I am going to fuck your balls up.” As Harcourt relates, quoting from the study by Gould and Mastrofski, “The police officer then tells the young black suspect to ‘get behind the police car, and pull his pants down to his ankles.’ The white police officer puts on some rubber gloves. He then begins ‘feeling around’ the bl
ack suspect’s testicles.”

  The officer still found no contraband. He told the black man, “I bet you are holding them in the crack of your ass. You better not have them up your ass.” Harcourt writes, “The black man, at this point very compliant, ‘bent over, and spread his cheeks.’ The white cop, still with his rubber gloves, then ‘put his hand up [the black man’s] rectum.’”

  The police still found no evidence of a crime. They told the black man he could leave, he said “thank you” and rode off on his bike. Harcourt poses a series of questions, including, “What must have been going through the officer’s mind when he started putting on those rubber gloves? . . . Did he feel embarrassed about being white and putting his hands up a black man’s rectum? Or did that excite him? Do you think he experienced some pleasure at the idea of penetrating a black man?”

  It is difficult for some to understand sexuality between men when one or both men are perceived to be heterosexual. If I were describing a practice of police officers choosing, at will, which women they want to touch (and especially men of color choosing white women), the sexual element would seem obvious.47 Heteronormativity obscures what is going on between the police and black men.

  MAN-ON-MAN SEXUAL HARASSMENT

  Civil rights law has recognized that man-on-man sexual harassment is possible even when the harasser is heterosexual. Title VII of the Civil Rights Act of 1964 prohibits sex discrimination but does not specifically outlaw harassment between people of the same gender. The U.S. Supreme Court then extended the protection in 1998, holding in Oncale v. Sundowner Offshore Services, Inc., that sexually harassing conduct “need not be motivated by sexual desire.” Justice Scalia, writing for the majority of the Supreme Court, stated, “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.”

  Some men who have been touched by the police have brought lawsuits, but usually courts have responded skeptically. In Njaka v. Wright County, police officers responded to a call that a black male was behaving suspiciously near a water treatment facility.48 One officer frisked the suspect and, in so doing, “deliberately pinched his testicle while patting him down.”49 The subject of the frisk sued, alleging that the pat down was a “homosexual harassing; a ‘come-on,’ and a ‘homosexual fantasy.’” The court ruled that the plaintiff’s theory was “highly implausible particularly in light of the fact that the search was conducted in front of another officer.”50

  A few judges have been more receptive. In Myers v. James,51 a man accompanied a female friend to her vehicle, which was parked in an area notorious for burglaries.52 A police officer approached the man, frisked him, and “grabbed the plaintiff’s testicles and asked him if he liked the way that felt.”53 This court found “grabbing a citizen’s testicles under these circumstances is plainly unconstitutional.”54

  Likewise, in Marrie v. Nickels, military prisoners sued prison guards for sexual assault.55 The plaintiffs alleged that, during frisks, one guard would regularly “[place] his hands into [an inmate’s] pants, [caress] his buttocks, and [stroke] his genitalia.”56 The plaintiffs also challenged another policy whereby frisks were used as a punishment in which the guards “formed up to create a shakedown gauntlet wherein inmates are frisk searched dozens of times in a mere 150 feet,” causing the plaintiffs to suffer “uncountable assaults.” The prison guards tried to get the case dismissed, but the judge refused.57

  “DON’T TOUCH MY JUNK”

  In recent years, a large cross section of the public has come to know what it feels like to be felt up by law enforcement officials. Transportation Security Administration (TSA) pat downs, introduced at airports in 2010, met with swift public outcry. Stories of angry and humiliated passengers have steadily flowed forth through the media and the Internet. A poll showed that half of the public are bothered or angered by the pat downs.58 Many people perceive a sexual component in this touching.59 Some sexual assault survivors reported feeling traumatized by pat downs.60 One man’s “don’t touch my junk” video protest recording went viral on the Internet.61

  Since many people who have been subject to TSA frisks have not been frisked by police officers, the TSA experience may help some people empathize with the sexual nature of these searches. Still, there are important differences. By going on an airplane, one implicitly consents to a TSA frisk, while people who are subject to Terry frisks have no say in the matter. African American men, especially, are repeat players for police frisks. Most white people, however, don’t get pulled aside frequently for TSA “secondary screening,” although many Arabs, South Asians, and people who are perceived to be Muslim do. Finally, stop and frisks are communicative of degraded citizenship and the TSA frisks generally are not (except, again, for Arabs, South Asians, and people who are perceived to be Muslim).

  My claim is not that seize and search is the same as sexual harassment. My point is that stop and frisk shares certain features with this form of subordination, and the fact that it does should enter into our assessment of the practice.

  STOP-AND-FRISK TORTURE

  Sometimes the police have literally tortured African American men. I grew up in an all-black neighborhood in Chicago. One day when I was about thirteen years old I rode my bike to the public library, which was in the white neighborhood a few miles away. When I got close to the library, a cop car pulled up next to me and an officer rolled down his window and asked if the bike I was riding belonged to me. “Yes,” I replied. “Does that car belong to you?” And I sped off.

  When I got home I told my mother what I had done. She spanked me good. Didn’t I know what happened to black boys who talked to the police like that? I was lucky to be alive. It was one of those whoopings when the parent cries as much as the child.

  It turns out that my mother was right about the police. During this time, Chicago police commander Jon Burge was overseeing the torture of 118 black men. He and his “midnight crew” of cops coerced confessions from suspects by methods that included sticking electrical devices up their rectums, pouring soda in their noses, and burning them with curling irons. Burge’s method of choice was the “black box.” This was an electrical device that would be attached to people who were shackled to tables or chairs. One wire from the box would be placed on their hands, and another on their ankles. An officer would then place a plastic bag over the suspect’s head and crank up the electricity.

  Anthony Holmes, one of Burge’s victims, told prosecutors, “When he hit me with the voltage, that’s when I started gritting, crying, hollering. . . . It [felt] like a thousand needles going through my body. And then after that, it just [felt] like, you know—it [felt] like something just burning me from the inside, and, um, I shook, I gritted, I hollered, then I passed out.”62

  Chicago has now spent more than $100 million investigating Burge’s midnight crew and compensating its victims. Some of the people tortured into confessing have been freed, while others are still in prison. In 2011, Burge himself was convicted of obstruction of justice and perjury and did four years in federal prison. He still receives his pension from the Chicago Police Department.

  In 1883, some African Americans brought a case to the Supreme Court arguing that Jim Crow segregation violated the Thirteenth Amendment’s prohibition against “the badges and incidents” of slavery. The Supreme Court rejected the argument, saying that the black litigants were “running the slavery argument into the ground.”63 Today, however, many more people understand the relationship between slavery and segregation. By comparing stop and frisk to torture, I might be accused of “running the torture argument into the ground.” But one of the lessons of history is that it is hard to see the picture when you are inside the frame.

  Stop and frisk can be seen as a “badge and incident” of lynching, the gendered and racialized violence directed against African American men (among others) around the turn of th
e twentieth century.64 Lynching was expressive. It was not only about destroying individual bodies; it was designed to terrorize all blacks, especially African American men. It worked. Indeed it was so effective that the nation’s first civil rights organization, the National Association for the Advancement of Colored People, was formed in response to it.

  Stop and frisk is not as violent as some forms of police brutality, like the atrocities the NYPD perpetrated against Abner Louima in 1997, which included raping him with a broom handle.65 Nobody has ever died from a stop and frisk per se, although police are allowed to use deadly force when the suspect is noncompliant and the officer believes there is a risk to life. Police routinely draw their guns during Terry stops in high-crime neighborhoods.66 For example, the expert witness’s report in the recent New York City stop-and-frisk case found that “force was 14 percent more likely to be used in stops of Blacks compared to White suspects, and 9.3 percent more likely for Hispanics.”67 In any event the fact that stop and frisk does not typically draw blood does not mean it is benign.

  TORTURE-LITE

  When we think of torture, lurid images of the Iron Maiden or victims shrouded in black hoods come forth. But while all torture is “the deliberate infliction of suffering and pain,” a continuum exists.68 As philosopher David Luban has noted, “There is a vast difference . . . between the ancient world of torture, with its appalling mutilations, its roastings and flayings, and the tortures that liberals might accept: sleep deprivation, prolonged standing in stress positions, extremes of heat and cold, bright light and loud music—what some refer to as ‘torture lite.’”69

  In human rights law, torture-lite refers to interrogation techniques that don’t leave physical marks on the body. Beth Van Schaack, writing on a blog for human rights lawyers, described these techniques as “psychological humiliations (forced nudity), disguised rape (e.g., body cavity searches), prevention of personal hygiene, forced grooming, denial of privacy, infested surroundings, threats against self or family, witnessing or hearing the abuse of others, attacks on cultural values or religious beliefs, and mock executions.”70 The purpose of torture-lite is “to induce hopelessness and despair. . . . Small gestures of contempt—facial slaps and frequent insults—drive home the message of futility. Even the rough stuff, such as ‘walling’ and waterboarding, is meant to dispirit, not to coerce.”71