INTERACTIONS WITH POLICE OFFICERS1
A 2003 study conducted in San Francisco by the National Center for Lesbian Rights and the Transgender Law Center indicates that one in four respondents said that they had suffered discrimination when interacting with law enforcement officials.2 Additionally, in a 2011 nationwide survey of transgender discrimination, 22 percent of respondents who have interacted with law enforcement, reported harassment by police, with much higher rates reported by people of color.3 Almost half of the respondents (46%) reported being uncomfortable seeking police assistance.4
Stops and Searches on the Street
Much of what could potentially transpire between a police officer and someone on the street is governed by the Fourth Amendment of the United States Constitution, including when an officer may stop someone and what that officer has the authority to do after stopping someone. Even if it appears that a person has been stopped by an officer for no reason, this is often hard to prove, as the officer only needs to meet a relatively low standard of proof in order to stop an individual.
Although an officer is prohibited from stopping someone solely based on gender presentation, an officer must be able to state a “reasonable cause” (reasonable belief that someone is engaged in or about to be engaged in criminal activity) in order to stop an individual. The “reasonable cause” test, however, is easy to satisfy. Officers can cite to things such as being in a “high crime area,” the time of day, and their own expertise to support their findings of “reasonable cause.” The San Francisco Police Commission has adopted resolutions explicitly prohibiting officers from using gender presentation as a factor to meet this “reasonable suspicion” requirement.5 Under the U.S. Constitution’s Fourth Amendment and California law, the police need a reasonable suspicion that a person is armed and dangerous in order to search their person.6 This type of search is referred to as a “frisk,” or a “pat down.” The purpose of a frisk is for the officer's safety and therefore can only be done in search of weapons, and not in search of drugs. An officer may pat down a person's clothing, which may include patting the area over or near the chest, buttocks, or genitals. Grabbing at or near genitalia, however, simply to establish a person's “true sex” is inappropriate and potentially unlawful, depending on the jurisdiction. Even if the police have no other grounds for suspicion, hostility or aggressive behavior may be enough for them to justify a search. It is important that the person being stopped continues to assert that they do not consent to the search; this helps ensure that any evidence found will be inadmissible in court if the officer’s search is later ruled to have been illegal.
Regardless, even if a person is doing nothing illegal, it is fairly easy for an officer to claim that he or she felt suspicious, though constitutional reasonableness of traffic stops does not depend on the actual motivations of the individual officers involved.7 Furthermore, police officers making traffic stops may order passengers to get out of the vehicle pending the completion of a search.8
Treatment and Pronouns
Disrespectful and unsafe treatment by police officers is particularly prevalent with transgender community members. Acknowledging this reality, it can be difficult for detainees to know how to increase their chances of being treated safely and respectfully, especially in regards to pronoun use for transgender detainees. In San Francisco9 and in other municipalities, police officers are required to avoid harsh, profane or uncivil language as well as address a person with respect to their self-identified gender.
In San Francisco for instance, officers are instructed to respectfully ask individuals for clarification if uncertain of what pronoun to use; “e.g. ‘do you prefer to be referred to as ‘she’ or ‘he’?’” This means that a person arrested in San Francisco is entitled to be treated in accordance with a self-identified gender, regardless of anatomy, legal name, or gender marker. Other jurisdictions may or may not have such police protocols in place, but it is always a good idea to check just in case. If interacting with a police officer who is using the wrong pronoun, the detained person can correct this by saying to the officer, “I prefer to be referred to by female/male pronouns.” In other municipalities, it should be argued that such treatment is necessary to maintain the rights and dignity of the detainee. The law does not necessarily protect people against improper pronoun usage when the mistake is inadvertent. A persistent refusal to address a detainee in accordance with his or her gender identity, however, could be an actionable offense in a municipality such as San Francisco with a policy regarding pronoun use in place.
After making a stop, an officer might ask the person for identification. In California, the refusal or failure of a person to submit identification upon request cannot be the sole cause for arrest or detention, except where the driver of a motor vehicle refuses to produce a driver’s license upon request.10 In other words, unless an individual is pulled over while driving, it is legal to refuse to produce identification, and, in San Francisco at least, an officer may not threaten arrest in order to make a person comply.11 Individuals can also refuse to provide other personal information, such as address or immigration status. If arrested, an individual is not obligated to provide identification, but may be released more quickly if a name is provided, unless the individual is driving a vehicle, in which case refusing to provide identification can result in charges.
In some states, including New Mexico and Nevada, refusing to give a name can be cause for being detained or arrested. Regardless of the laws in a particular state, police do not always follow the law, and refusing to provide your name may make an officer suspicious and lead to a person being arrested anyway. If an individual fears that providing a legal name would lead to arrest or harassment, such as having a legal name that is obviously not congruent with gender presentation for instance, that person can claim the right to remain silent and, if arrested, this fact can be helpful later. Individuals should not give any name that is not a legal name, as providing a false name can be considered a crime, and even if the name given is the only name that person uses, it could still potentially be considered a false name for purposes of charging the individual.
Everyone has the right to talk to a lawyer before deciding whether to answer questions. If a person does agree to be interviewed, that individual has the right to have an attorney present. The lawyer’s job is to protect a person’s rights. Once a detainee requests a lawyer, the officer must stop trying to question the detainee, and the individual should make any further contact only through the lawyer. If the person does not have a lawyer, the individual can still request to speak with one before answering questions. A detainee or arrestee should remember to get the name, agency, and telephone number of any investigator who visits, and give that information to the lawyer. The government has to provide a free lawyer if the person is charged with a crime, and the National Lawyers Guild or another organization may be able to help find a lawyer for free (pro bono) or at a reduced rate.
Some people might worry that insisting on remaining silent, requesting a lawyer, or refusing a search will make an officer more suspicious. This is not necessarily the case. Silence can demonstrate to officers an awareness of rights, thus providing additional incentive for the officers to follow procedural rules to avoid accusations of misconduct. As the Miranda warning states, “anything you say can be used against you in a court of law.”12 Generally speaking, law enforcement officials are supposed to read people their Miranda rights before questioning them.13 However, the National Lawyers Guild strongly cautions individuals that come into contact with officers to remain silent and assume that anything they say will be used against them in court.14
Arrestees often believe that explaining the situation will help resolve the problem, but it is impossible to know how statements made in front of an officer will be interpreted later, often in ways that will harm the arrestee rather than helping. The safest approach is for detainees or arrestees to calmly repeat that they wish to remain silent and do not consent to a search of their person or of their vehicle.15
In San Francisco, after being arrested the arrestee is often transported to a different destination than where the arrest took place. Transport is a stage of the process where transgender people are particularly vulnerable to police misconduct. The San Francisco Police Department has enacted a policy to mitigate harm to transgender people during transport. This policy, General Order 2.01, Rule 36, “Transporting of Females and/or Transgender Individuals,” applies to women and “any transgender person or individual whose gender identity is indeterminate to the [officer] and not clearly articulated by the individual.” The orders for police in San Francisco state that when officers transport a female or transgender person, they must notify the Communications Division of the Department of the vehicle's starting mileage, the location from which they are leaving, and the destination. When the officer reaches the destination, that officer must immediately notify the Communications Division with the vehicle's ending mileage.
If a female or transgender detainee is being transported and this rule is not being followed, the detainee can self-identify to the officer, thereby making the officer aware that Rule 36 applies. An officer who does not follow this procedure could attempt to escape liability by stating that he or she was unaware that the detainee was female or transgender at the time of transportation because the detainee did not self identify. Ultimately, it is the arrestee's decision to disclose or not; arrestees may feel that disclosing prior to or during transportation may create more risk than it will prevent, but others may feel that disclosing prior to transportation will increase the chances that rules will be followed and documented, making any possible misconduct easier to prove.
It is important to remember that even when there are rules in place, these rules are not always followed. Ultimately, individuals should rely on their best judgment in a particular situation. Some arrestees would prefer to cooperate even when not required to in order to de-escalate a situation if they fear retaliation by an officer, particularly if there is no one around to witness or if the officer seems particularly aggravated. Document any suspected violation of rules and consult your attorney or consider filing a misconduct report if you believe your rights, as provided by these rules, have been violated. Again, individuals outside of San Francisco should check for the rules and policies in their jurisdiction to see what, if any, protections are offered.
Booking, which is the process of being admitted into detention after being arrested, can be complicated and stressful for transgender people. If a transgender arrestee has not already disclosed his or her transgender status or identity, the booking process is where disclosure might occur regardless of the arrestee's wishes. The booking process involves paperwork where the sex on a person's driver license or state ID is recorded, and where a person's legal name is demanded.
When a transgender arrestee is brought to the detention center, an officer will review the individual’s legal documents to see if that person meets the admission requirements of the facility. The general booking process has several steps where transgender or intersex status might be disclosed whether or not the individual wants this information known. One general step is recording of information, or the booking form. The booking form will ask for either male or female gender as well as driver license information. Similar to a job application, the form will request your address, work or school information, and emergency contact. The name on the driver license is the name that an individual will be booked under. However, if the name on your driver license is not the name that you prefer to be called, you can let the officer know when the form is being filled out. It is possible that the officer will disregard your request, but if you feel safe and are comfortable with voicing your preferred name, do so.
After the intake form, arrestees will usually have their mug shot taken and their property collected. The next step is often fingerprinting, which will likely connect your fingerprint to the gender/sex indicated on the booking form. A nurse may screen the arrestee for potential vulnerability to sexual assault and if that person has tendencies to act out with sexually aggressive behavior. If either of these are present, the nurse will notify the Associate Warden of Operations. Being a transgender individual is often considered within the scope of vulnerability to sexual assault.
However, as always, be mindful of who is making the assessment and your safety during that process. Individuals may feel that disclosing to the examining nurse is a safer choice than disclosing to the booking officer. Although it often feels like there is no safe time to disclose transgender status or identity while detained, individuals may choose to disclose during the booking process before an unclothed body search if he or she believes that this search will be uncomfortable or unsafe. Prisoners may wish to request strip search staff that make them feel more comfortable during the process (for example, female staff strip searching a male-to-female inmate), but not accommodating such requests does not necessarily mean a prisoner’s rights have been violated by prison officials.18
The San Francisco Police Department has specific regulations related to booking transgender people. The SFPD's Department Bulleting 03-246, “Standards for Interaction with Transgender Communities: Arrest and Booking” states that:
“If, in the booking process, an arrestee does not offer self-identification of gender, and does not respond to the officer's inquiry as to the individual's gender identity, Jail Health Services staff shall make the gender determination. For booking and citation purposes, an officer shall always write an individual's name as it appears on a driver's license or state identification card. If the arrestee identifies a preference for a different name, the officer shall list that name in the appropriate section of the citation or booking form. Whether or not the name on an individual's driver's license or identification card coincides with the arrestee's gender identity, the officer shall refer to the arrestee by the name that the arrestee has used to identify him or herself. The [officer] shall use the pronouns consistent with that name in addressing the arrestee or referring to the arrestee. For purposes of listing sex on citations, police reports and other official documentation, officers shall use the sex designation listed in the most recent records in the official criminal justice databases, starting with the DMV record.”
The law allows greater authority to officers stopping people in cars. In this context, there are certain actions a person can take to increase the chances of a safe and less confrontational encounter with an officer. People being stopped should keep their hands where the police can see them. If stopped while driving a vehicle, the driver is required to show license, registration, and proof of insurance. A stop of a motor vehicle is considered by law to create an exception to the warrant requirement. This means that if officers have probable cause to believe there is contraband in the vehicle, they can search without a warrant. If officers want to search the vehicle, it is best for a person to state clearly and calmly that he or she does not consent to a search. Often, police will request consent to a search because they do not have probable cause to search without asking. After all, if they had probable cause, there would be no need for consent, other than to broaden the scope of the legal search. Officers may separate passengers and drivers from each other to question them, but no one has to answer any questions.
In short, if someone is in a car, the police can search the driver and the passenger compartment of the vehicle, if they can show it was in the interest of their own safety. It is best to always state clearly that you do not consent to a search. The police may search anyway, but an illegal search may lead to suppression of the evidence in court.
Trans Realities: A Legal Needs Assessment of San Francisco’s Transgender Communities, National Center for Lesbian Rights and Transgender Law Center, 2003, Last visited August 1, 2012. ↩
Injustice at Every Turn: A Report of the National Transgender Survey, National Center for Transgender Equality and National Gay and Lesbian Task Force, 2011, Last visited August 1, 2012. ↩
Standards for Interaction with Transgender Communities, San Francisco Police Department, Department Bulletin 03-246, Dec. 2003. ↩
Cal. Pen. Code, § 833. ↩
Whren v. United States, 517 U.S. 806, 813 (1996). ↩
Maryland v. Wilson, 519 U.S. 408 (1997). ↩
General Rules of Conduct, SFPD San Francisco Police Department, General Order 2.01, #14; SFPD San Francisco Police Department, Department Bulletin, 03-243. ↩
Cal. Veh. Code, § 40302. ↩
Investigative Detentions, San Francisco Police Department, General Order 5.03. ↩
Miranda v. Arizona, 384 U.S. 436 (1966). ↩
U.S.C.A. Const. Amend. 5. ↩
You Have the Right to Remain Silent: A Know Your Rights Guide for Law Enforcement Encounters, National Lawyers Guild, Last visited August 1, 2012. ↩
San Francisco Police Department, General Order 2.01, #36. ↩
San Francisco Police Department, Department Bulletin 03-246, 2003. ↩
Konitzer v. Frank, 711 F. Supp. 2d 874 (E.D. Wis. 2010) (not “deliberately indifferent” to medical needs of male-to-female transgender person by denying her request to be strip searched by female prison staff, no evidence male staff would harm prisoner); see also Meriwether v. Faulkner, 821 F.2d 408, 410-11 (7th Cir. 1987) (transgender inmate claimed she was harassed by officers and forced to strip in front of officers and other inmates). ↩