Privacy. You won’t find the word in the Constitution. But the idea is some how associated with liberty. So Americans have come to expect some degree of freedom from government prying — and government protection from private snoops as well. But such hopes get dashed. At least, in Oklahoma they do. (Boy, can I say that again!) One Riccardo Gino Ferrante was arrested in 2006 for aiming a camera up a 16-year-old girl’s skirt, while in a Target store, and was convicted of a felony for his trouble. Unfortunately, four-fifths of Oklahoma’s Court of Criminal Appeals voted that no felony occurred. Why? Because “the person photographed was not in a place where she had a reasonable expectation of privacy.” Now, it is quite true that being in a public place removes or at least significantly decreases one’s expectation of privacy. But ought that extend even to the private space within one’s clothing? Well, the court answered the question in the affirmative. As Judge Gary Lumpkin wrote in his dissent, “In other words, it is open season for peeping Toms in public places who want to look under a woman’s dress.” Except for the private knuckle-sandwich penalty should the woman in question be related to me. Government won’t protect civilized society, but we as individuals still can. And must. Otherwise skirt-wearing will become the sole province of women like Britney Spears and Lindsay Lohan. The dissenting judge concluded that the majority’s ruling was“interesting and disturbing.” Nice blurb for an art house flick, but not for a judicial ruling. The judiciary must be independent. But it should be independent ofthe other branches of government, not detached from common sense, or all semblance of sanity. Meanwhile, in Washington State, non-skirt-wearing youngsters have just maintained a far higher degree of privacy. In a tiny rural county in the Evergreen State, a public school had required random drug tests of its sports participants. Since not everyone wanted to pee for the privilege, the case quickly found its way to court. And on Thursday, the issue was decided by the state’s Supreme Court. The state’s privacy guarantees nixed the program.Students have an expectation of privacy and to have their bodily fluids remain under their control. There has to be reasonable suspicion to require drug tests, at least in Washington State. Judge Richard Sanders wrote the majority opinion. It is certainly interesting: The school district asks us to adopt a “special needs” exception to the warrant requirement to allow random and suspicionless drug testing. But we do not recognize such an exception and hold warrantless random and suspicionless drug testing of student athletes violates the Washington State Constitution. 1 Article I, section 7 of the Washington Constitution provides:
No person shall be disturbed in his private affairs, or his home invaded, without authority of law. It will disturb many people, caught up in America’s war on drugs. But it does not disturb me. Just as I would not want some Peeping Tom taking pictures up the skirts of my daughters, I would not want some local school forcing them to urinate into a cup simply to make it easier for school personnel to kick out a few drug abusers. Continued... |