Ask David Rudovsky
David Rudovsky is a renowned civil rights and criminal defense attorney. For more than three decades, he has handled major civil rights and police misconduct cases. He is a Senior Fellow at the University of Pennsylvania Law School, teaching criminal law and constitutional criminal procedure and evidence. He practices public interest law with the firm Kairys, Rudovsky, Epstein & Messing in Philadelphia.
Rudovsky will answer questions on strip-searches, citizens' rights and nuisance laws - stemming from an Inquirer series "Too tough? Tactics in suburban policing" - from Dec. 17 through Dec. 21.
This is your forum for posing questions to our staff and certain professionals. As with all information on our sites, questions and answers are published for information and discussion purposes only. Such information is not a substitute for professional advice from an adviser familiar with your particular situation. We do not guarantee the accuracy, reliability or completeness of any information provided in our forum.
QIf the US Constitution bans slavery except in the case of criminal behavior, is it possible a class action lawsuit could be built that addresses attempts to criminalize and re-enslave a people and then force them to pay fines as a new form of generating revenue? If we consider this a commerce issue then my black sons are more valuable as fine payers, all of their lives. Is intentional theft of their time, dignity and money actionable under PA or constitutional law?
AThe Thirteenth Amendment does not provide a basis for suit as it has been applied strictly to the "badges and incidents" of slavery. On the other hand there have been some successful suits based on equal protection principles of the Fourteenth Amendment on a showing of intentional race discrimination. As you might imagine, you would need very strong proof of a pattern of discrimination for such a case to be worth bringing.
QI've made two postings to Lt. Healy's section of the "Ask" column, neither of which he's posted. I've also noticed that he only shows four comments total.
Maybve he is engaging in screening out comments based on his own personal biases? Isn't this similar to the the whole problem that the series is addressing?
AI simply do not know how he may be handling the questions.
QAre these racially based stops this a matter that should be reviewed and challenged by the United States Department of Justice?
AThe Department of Justice does have jurisdiction to investigate and file civil suits regarding practices of police departments that violate civil rights. For example, in New Jersey the DOJ filed suit regarding racial profiling on the NJ Turnpike. But this Administration has rarely done so, and unless the case presents overwhelming evidence of racial profiling or other systemic violations, I would not expect that the current DOJ will intervene.
QI have a question about what is “reasonable suspicion” that would justify a stop and frisk. If a police officer reasonably suspects someone is carrying a concealed weapon (bulge in a jacket, for example), would that justify a stop and frisk? Or would such a stop and frisk not be justified because the person may in fact have a permit to carry the concealed weapon and so is not doing anything illegal?
AA bulge in a jacket might support a finding of reasonable suspicion but only if the bulge or other factors suggest it is a gun. If so, the frisk would be legitimate unless the officer had reason to know that the suspect had a permit to carry a concealed weapon.
QMr. Rudovsky,
I view policework as being a very difficult type of work and, of course, sometimes very dangerous.
I assume that most police perform their job with integrity.
However, I often wonder whether, unfortunately, due to the power of the position, whether it can also be an attractive job to some personality types that should never be in that type of position of power.
AI agree with your observations. Police departments should do careful screening of applicants (and review any officer if there is tangible signs of abuse of power), to do their best to ensure against hiring of officers who are not psychologically fit for service.
QYou keep saying that the only thing to do is to file a complaint or file a lawsuit. What happens after that. Is the officer or police department ever punished? Wouldn't it be far more effective to file a class action law suit?
AA class action lawsuit requesting an order preventing the police from engaging in certain unconstitutional conduct may be the most effective means of remedying the situation, but there are a number of legal requirements that have to be met, and in many situations, a class action is simply not a viable option.
QWhat ever happened to probable cause? I think the public safety dept where such actions occur should be fined $ 2500 per incident and a point given to each offender. No citizen, police or not, should have that much uncontrolled power over another citizen.
AYou make a very good point. In many cases, the officer does not have probable cause to search or arrest, or even the minimal reasonable suspicion to make the stop in the first place. The critical issue is how to deter such conduct. Automatic fines and discipline might be useful, but only if the process for determining whether cause existed is fair and a sufficient number of complaints are made by those whose rights have been violated.
QIt seems to me that a very human endeavor like police work would be very error-prone, even if there were no racial biases at work in our culture. Do you think it would be better for us as a society to err on the side of too-vigorous police tactics or not-vigorous-enough?
QOne more question. You received a question regarding someone's son in school accused of stealing an Ipod. You state in your answer that the police could question him about the alleged incident, but only after they read him his rights. If he's not in custody (he was only "pulled out of class") why do the police need to read him his rights? Aren't police entitled to ask any citizen questions about a crime, which they can refuse to answer if they want. These mere encounters don't require police to read the person their rights.
A
You are right: unless the individual is in custody (not free to leave) there is no requirement for the Miranda warnings. I assumed from the question that he was not free to leave and believed he had to answer questions.
QWhat is the legal basis for the "stop and frisk" proposal of Mayor Nutter's. Sounds like his proposal has been implemented in other cities, and it seems to allow the police to stop/frisk people without reason in certain designated (by the Mayor) high-crime areas. How does this square with Terry v. Ohio?
AVery good question. I do not think that Mayor Nutter's proposal authorizes stops and frisks without reasonable suspicion that the person is involved in criminal activity. If it does, it is unconstitutional regardless of high crime area designations or not. Terry v. Ohio requires that the police have articulable reasonable suspicion to stop or frisk and I would hope that whatever plan the Mayor implements, it will be in accord with the Supreme Court's rulings in this area.
This is your forum for posing questions to our staff and certain professionals. As with all information on our sites, questions and answers are published for information and discussion purposes only. Such information is not a substitute for professional advice from an adviser familiar with your particular situation. We do not guarantee the accuracy, reliability or completeness of any information provided in our forum.
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