by Linda Holmes, J.D.
July 29, 2008
When a police chief announces that he’s going to take a stand against saggy pants, he makes himself an easy target. Doesn’t he have anything, you know, important to do?
Flint, Mich., police Chief David Dicks sent out a memo June 26 telling officers to cite anyone “wearing pants and/or shorts below their waist and exposing their buttocks.” He went on to say that “this immoral self-expression goes beyond free speech; it rises to the level of indecent exposure/disorderly persons.”
Taken literally, the memo refers only to those who are “exposing their buttocks,” which aligns with the city ordinance outlawing “open exposure of the human male or female genitals, pubic area, buttocks or female breast” in public. So far, so good. Openly expose your buttocks in public, the police stop you.
But Dicks has more in mind. He wants to criminalize all sagging pants, even if all they expose is more pants. Not skin, not buttocks: clothing. A man, for instance, could wear briefs, then boxer shorts over those, then pants fastened around his hips so that the boxer shorts showed. Despite the fact that the man’s buttocks, rather than being openly exposed, would be covered fully by two layers of clothing (briefs and shorts), Dicks would cite him for indecent exposure because of his “immoral self-expression” in the form of low-slung pants. (Most likely, just the briefs and shorts would be fine; it’s adding the droopy pants that makes the buttocks exposed, which is more than a little counterintuitive.)
As controversy built, the Detroit Free Press produced an online video showing Dicks stopping four saggy-pants wearers. Three are exposing no skin and no underwear because their long shirts fully cover their low waistbands. Dicks has to pull up their shirts to see anything at all. A fourth man is showing about an inch of the waistband of his boxers above the waistband of his pants. In all cases, Dicks tells the men that having underwear extend above their pants — even if it’s all underneath a shirt — constitutes indecent exposure and warns them that they can be arrested. One of the men skeptically asks Dicks, “How is this against the law?” Dicks responds, “I’m just telling you.”
There’s really no plausible way to interpret the ordinance that authorizes Dicks’ behavior in the video. Even his own memo refers to citing only those people “exposing their buttocks.” Similarly, the Detroit Free Press reported that his explanation of the standard was that “pants pulled completely below the buttocks with underwear showing is disorderly conduct; saggy pants with skin of the buttocks showing is indecent exposure; and saggy pants, not completely below the buttocks, with underwear exposed results in a warning.”
Still, Dicks tells all of the men on the video they are committing indecent exposure, even though none are exposing skin. He isn’t even following his own interpretation, nor is it clear how, legally speaking, a boxer waistband above a pants waistband can result in a warning if it doesn’t constitute either indecent exposure or disorderly conduct. There can be no warning except for an actual underlying offense — there’s no such thing as “We don’t like this, but it isn’t actually a crime, so we’ll let you off with a warning.” His interpretation appears to have no coherent legal basis, and in the video, Dicks doesn’t even follow it.
In fact, all of the searches in the video likely are unconstitutional. Under Terry v. Ohio, the police need reasonable suspicion of a crime before they may frisk an individual on the street. Because these men are not violating the ordinance against indecent exposure, there is no reasonable suspicion of a crime, and all of the stops documented on the video violate the Fourth Amendment’s prohibition on unreasonable searches and seizures. Moreover, Dicks’ disregard for even the dubious standards he set out for the press makes it impossible for citizens to know what is supposedly illegal and what isn’t.
Even if the constitutional violation wasn’t enough, there are other problems. The prevalence of “sagging” among young black men raises obvious issues of racial profiling as well as discrimination against citizens based on age and sex.
It sounds amusing at first — a police chief bothering with baggy pants — but the video is disturbing. This is a police chief stopping and searching citizens for behavior that is not illegal, telling them that it is illegal and threatening them with arrest if they don’t obey his instructions about what’s immoral. He even implies to one guy that to comply with the law, he must wear a belt. The men don’t know that the law applies only to “open exposure of the buttocks.” When the police chief tells them what the law is, they probably take his word for it — to their detriment, in this case.
The video provoked the American Civil Liberties Union, which wrote to Dicks, challenging him to stop harassing young men who had committed no crime. Dicks responded, among other things, that he doesn’t see how his policy is illegal, in part because he’s issuing only warnings, and said, “I don’t see how issuing a warning is a civil rights violation.” If nothing else, Dicks could use a refresher on the fact that you can’t stop and warn people who haven’t done anything illegal any more than you can cite them for it.
Dicks enforces the law; he is not the law. He may detain citizens only to enforce laws that exist. Whether he’s right to want “sagging” outlawed, he’s not empowered to outlaw it. Unless the law changes or he puts forth some other theory, “sagging” is a crime only when there is open exposure of the buttocks. That means showing skin, not shorts, and it means you’re exposed as you appear in public, not after a police officer puts you against the side of a car and pulls up your shirt.
This isn’t about whether sagging is distasteful, looks stupid or communicates disrespect. It’s not about whether anyone wants to see anyone else’s boxer shorts; there’s no law requiring you to wear only what others want to see. The indecent exposure ordinance is specific; it does not allow the police to freely define “indecent.” If Dicks believes there should be a law against saggy pants, he certainly may advocate for one. Until then, stopping young men for “immoral self-expression” when they’re clearly not violating an ordinance is a constitutional violation and an abuse of authority. And in that sense, it’s really very important.
Linda Holmes is a freelance writer in Washington, D.C. She previously practiced law in Minnesota, specializing in employment law and legislative drafting.
American Civil Liberties Union of Michigan. Letter to Flint, Mich., police Chief David R. Dicks. July 14, 2008.
Dicks, David R. Memo to all sworn personnel of the Flint, Mich., police department. June 26, 2008.
Flint, Mich., Code of Ordinances § 31-12 (1978).
Guardian.co.uk. “Police chief refuses to yield on saggy pants crackdown.” July 21, 2008.
Schmitt, Ben. “Flint cops crack down on sagging pants.” Detroit Free Press, July 8, 2008.
Schmitt, Ben, and Marcin Szczepanksi. “Flints top cop battles saggy pants.” Detroit Free Press, online video (accessed July 24, 2008).
Terry v. Ohio, 391 U.S. 1 (1968).
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