Segarra on Tattoos and the Unreasonable Logic of Reasonable Suspicion

Curtis Segarra, University of Michigan Law School, is publishing Tattoos and the Unreasonable Logic of Reasonable Suspicion in volume 63 of the Criminal Law Bulleting. Here is the abstract.

The U.S. is a tattooed nation, with nearly a third of the population sporting at least one tattoo. Yet law enforcement regularly uses tattoos in their justification to stop, question, pat down, and briefly detain individuals under the Terry—or reasonable suspicion—doctrine, often claiming the tattoos are gang related or indicate criminal involvement. Through interviews and case examples, I argue that such practices can lead to racialized and biased policing. Even when law enforcement interpretations of tattoos do not quite amount to biased policing, they still run afoul of the original logic of Terry, the case that created the reasonable suspicion doctrine. Given the prevalence of tattoos in the U.S., this misuse of Terry goes against the Fourth Amendment. Therefore, I argue that courts should employ a bright-line rule against the use of tattoos in the law enforcement reasonable suspicion analysis. This fills a gap in the existing literature (which focuses primarily on the use of tattoos within gang databases) by arguing for a strengthening of Fourth Amendment protection for all tattooed individuals. I show that a bright-line rule would not improperly hinder police officers' ability to do their jobs and that such a rule is consistent with similar prohibitions courts have placed on the use of race within the reasonable suspicion framework. I conclude that the use of tattoos in law enforcement's reasonable suspicion analysis is ripe for abuse and must be checked by a judicial bright-line prohibition on the use of tattoos to justify an intrusion under the Fourth Amendment, thereby addressing a growing, but under-appreciated, problem developing in American policing.

Download the article from SSRN at the link.