The quote in the heading of this post is from Judge Calabresi's "sad but respectful" dissent this week in the Second Circuit case United States v. Weaver. His point? That a lack of empathy by those on the bench with people who bear the burden of searches & seizures has led to a "disastrous" Fourth Amendment jurisprudence:
We are not the ones who are stopped and made to spread eagle. The price for what we believe to be greater public safety will be borne disproportionately by “them,” whoever “they” may be. As a result, we are only willing to say, “stop,” in those situations in which the challenged police practices are ones that might make us the subjects of police actions.
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The failure to appreciate a burden because it falls only on others is so universally human that it can only be controlled structurally. . . . Unlike the framers, we have established structural norms that, as to the issues in the case before us and in many other similar areas, make it infinitely easier to let the burdens that accompany possibly desirable actions fall only on “them.” The result is injustice.
In Weaver, the Second Circuit, sitting en banc, reversed a panel decision that an officer's pat-down of Mr. Weaver was unreasonable. Two judges concurred ("reluctantly"), and three dissented (separately, though they each joined the others' dissents).
Read Judge Lohier's concurrence for a deep dive into the problems with the "high crime area" concept (and what evidence falls short of establishing a relevant "high crime area"), as well as for his explanation why "Whren should be reconsidered."
Read Judge Pooler's dissent for a discussion of Whren's "tragic ramifications."
Read Judge Calabresi's dissent to learn "how . . . we got to such a state in the law," and for the wise observation that an officer's subjective race-based motivation, even if not relevant to the ultimate Fourth Amendment question (per Whren), may nonetheless be relevant to whether or not the officer is a reliable witness with respect to the historical facts of a stop.
Read Judge Chin's dissent for an explanation how, "even taking the law as it exists," the police violated Mr. Weaver's rights.
And then get to work.