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Legal hurdles are high when it comes to seeking redress

Limits on ‘stop and frisk’ open to interpretation by Japan’s police and courts

by Akira Ishizuka

Foreign Tokyo resident P writes:

On a recent Sunday at 6:25 p.m. in Roppongi, I was stopped by two police officers for apparently no reason in a clear case of racial discrimination. After showing my ID, the police gave me no explanation relating to any criminal act they suspected me of, and they harassed me.

They started touching me, grabbing me and putting their hands on me without my permission. When I declined to cooperate with a bag and body search, I was held captive and refused permission to leave. I was held hostage and interrogated.

I was surrounded by 10 men with guns and handcuffs for an hour and 45 minutes. All but three of the officers were pressed up against me as if we were on a crowded train. They pulled at my garments, my bag and eventual sexually harassed me. I asked for their names and badges but received zero cooperation. They badgered and provoked me in an attempt to make me assault them, so that they would have cause to legally arrest me. They were determined to create a criminal out of an innocent man.

I felt intimidated, violated and publicly humiliated. I was held and constrained while forcefully being frisked like a criminal against my will. My genitals were eventually groped during the forceful illegal search.

I was not under arrest, and I wasn’t in violation of any law. Is it illegal to not answer questions or explain myself? Is it illegal to resist voluntary cooperation while not under arrest?

I wish for reparations for what I suffered from these men. I wish for the officer who groped me to serve time in jail. I wish for each of them to be suspended. I wish for all of them to memorize the law and keep a copy of it on them at all times with an English translation. These men must pay the price for their disregard for non-Japanese civilians, their ignorance of the law and their abuse of authority.

If a woman on the street is stopped by 10 men, all of whom touch her without her permission, can she not press charges for sexual harassment and have them sued? If a little child is prevented from going home by 10 men, what charges could be pressed again them? If money was lost because of the time wasted, are the police not held responsible?

This sounds like a typical “stop and frisk” case that somehow spiraled out of control. Known in Japanese as shokumu shitsumon, or shokushitsu for short, “stop and frisk” is a common procedure among Japanese police. The rules that apply to this kind of questioning are set down in the Police Duties Execution Act of 1948, but since the clauses of this act are ambiguous and contradictory, there have been a lot of arguments about the legal limits on this kind of behavior, and precedents have been accumulating.

In short, the police are permitted to:

1) stop a person for questioning, and, if they try to escape, to seize them (although the officers are not allowed to restrain or arrest them).

2) question them (although they have no obligation to answer these questions).

3) request (but not force) them to accompany the officers to a nearby police station or police box for the questioning.

4) frisk them with or without consent. (This is not written in the act, but precedents have established this. Basically, the frisking is limited to patting down over their clothing.)

Legal precedents in these cases have tended to stress the importance of balancing the public’s right to privacy with the necessity and urgency of the specific investigation and the public interest in preventing the crime the individual stopped by the police was suspected of being involved in.

Thus, it is impossible to give completely accurate advice without having more details about P’s case, such as what he was doing at the time he was stopped — for example, whether he was simply walking along the street or standing for a long time on a corner. That said, I will try my best to give a quick assessment of each of P’s questions.

Regarding the profiling, considering it was in Roppongi, which has a bit of a reputation for crime involving foreigners, the police officials could probably come up with a number of explanations for why they stopped P, such as a suspicion that he was carrying or selling drugs. It is unlikely that any judge would rule that this was a case of profiling and that the questioning was illegal.

As for the frisking, it was legal for the officers to pat P down over his clothes and bag, even without his consent. However, it would be illegal if an officer searched inside P’s pockets or clothing without consent or intentionally touched his genital area, even over his clothes.

One hour and 45 minutes is far too long for police to be able to justify holding P for shokushitsu, and this could be regarded as illegal detention. But again, it depends on the particulars of the situation. I would not be at all surprised if the police officers were to claim that they did not force P to stay and that he was free to leave at any point during the questioning.

If P wishes to take this matter further, there are three avenues open to him: to bring a criminal case, a civil case or to seek an administrative remedy.

P could try bringing a criminal case against the police based on several laws. If a police officer confines a citizen arbitrarily while they are on duty, the official can be punished under Penal Code Article 194 (“Abuse of authority by special public officers”). If an officer harasses a citizen while on duty, they can be punished under Article 195 (“Assault and cruelty by special public officers”).

The usual way to file charges is to submit a statement to the police or prosecutors indicating the facts of the crime and your desire to seek punishment and, preferably, the names of the accused.

As a victim of crime, P can also seek help from the Japan Legal Support Center (known in Japanese as Ho Terasu), including with preparing the necessary documentation to file the accusation. Also, depending on his financial situation, P may be eligible for the Japan Bar Association’s legal aid program. The decision on whether to indict lies with the prosecutor; generally speaking, it is unlikely that a prosecutor would decide to indict the officers in this kind of case.

P also has the option of filing a civil lawsuit against the Tokyo metropolitan government, arguing that they are liable for the behavior of the police. Under the State Redress Act, public servants cannot be sued in person for actions carried out while they are conducting their duties, so it would be unlikely that the police officers would suffer financially. P, on the other hand, would have to shoulder all the legal fees himself.

Considering the obstacles for P in establishing a civil or criminal case, his best bet would probably be to start down the administrative route. If he believes his human rights have been infringed, P should report this to the Human Rights Counseling Office for Foreigners at the Tokyo Legal Affairs Bureau (1-1-15 Kudanminami, Chiyoda-ku; 03-5213-1372; www.moj.go.jp/JINKEN/jinken21.html) Free English consultation is available every Tuesday and Thursday.

Depending on the strength of the case, the Human Rights Bureau, a branch of the Justice Ministry, may initiate an investigation and send a letter to the poice inquiring as to the facts of the matter. In response, the police department would hold a hearing with the officers concerned. P would then be informed of the results of the probe and, based on those, P could then decide whether to file a civil or criminal complaint.

So, in conclusion, what can you do if you are approached and questioned by police officers? Cooperating may be the smartest option and the fastest way to get the whole ordeal over as quickly as possible, but if you don’t feel like being cooperative, you can try asking the police officers what crime they are investigating and attempt to explain that you are not doing anything illegal, clearly express the will to leave and then do just that. Don’t touch the police officers, don’t run and don’t stop walking — and don’t forget to turn on the recorder on your smartphone in front of the officers, thus making it clear that you have evidence of any untoward behavior.

You cannot be forced to turn the recorder off, no matter what the police officers yell at you. Best of luck!

Akira Ishizuka is an attorney with the Foreigners and International Service Section at Tokyo Public Law Office, which handles a wide range of cases involving foreigners in the Tokyo area (www.t-pblo.jp/fiss; 03-6809-6200). FISS lawyers address readers’ queries once a month. Questions: lifelines@japantimes.co.jp

  • Phil Blank

    NewYork City cops are know for this on US citizens.
    Look at the bad behavior or the Police brutality in our other cities, recently the police did this to a 400-pound man killing him.
    All US police now have battle field equipment on our streets, dress and act like they are in a war zone and abuse citizens rights almost daily.

    • jason roberts

      What exactly does this have to do with law breaking J cops? Stick to the damn subject and quit using the bloody excuse of other countries do it so we can too.

  • RonBurgundy

    I’ve seen a lot of this around Azabu and Minato-ku in general and have even been subjected to it a couple of times. Unfortunately, your best bet is to cooperate and get it over with as soon as possible. The cops here will actively break the law and illegally detain and harass you if you resist in any way. These searches and frisks are supposedly voluntary but I’ve seen people refuse searches and the cops just seized them and went through their things anyway.

    • Inniskilling Fusiliers

      I don’t think so, unless one is causing trouble and you wouldn’t know the reason for that person being stopped would you? And how good is your Japanese that you could hold your own with them in an interrogation? I would suggest you stop defaming them if you have no proof. Japanese cops are quite good and correct, a lot better than their counterparts in New York for example.

      • Ron Burgundy

        “I don’t think so, unless one is causing trouble and you wouldn’t know the reason for that person being stopped would you?”

        It’s only happened to me a total of two times and I was never given a clear reason. One time they just wanted to see my residence card and let me go pretty quickly and the other time they demanded to go through my wallet. I just complied because even though the Japanese constitution protects people against unreasonable searches and seizures, when you’re a foreigner, everything becomes kind of a gray area.

        As for my Japanese, I’m somewhat conversational but the cops actually approached me in English, which was nice.

        “I would suggest you stop defaming them if you have no proof.”

        1. I am not defaming them, just relaying my experience.
        2. Proof of what?

        “Japanese cops are quite good and correct, a lot better than their counterparts in New York for example.”

        I’ve never been to New York (or anywhere in America for that matter) so I can’t speak to that but I’ve seen a lot of police abuses in Japan, so there’s that.

      • Inniskilling Fusiliers

        Hi Ron,

        I, like you have lived (or continue to live) in Japan for a over 14 years now and of course, I’ve had cops over the years ask me to show them my gaijin card, but interestingly never my wallet. I work in law in Tokyo and I suggest that if they ever stop you again and ask to see your wallet (that’s very odd) then I would be very polite but firm (not in an aggressive way) to ask them to walk you back to to the station (not koban) and demand to speak to a senior officer (they will be flummoxed that you will have asked them to accompany you to a station) and will almost certainly back off I’m sure. Lastly, this is where I took exception to your quote where I asked for proof, which is, in the eyes of the law quite damning; …..”the cops here will actively break the law and illegally detain and harass you if you resist in any way.” That’s patently untrue and unless you have personally witnessed this, I would place a grain of salt on the stupid gaijin gossip. It’s not worth your while.

      • Ron Burgundy

        Interesting. A lot of people say that you should in fact try to avoid going to the koban because that’s where they can “detain” you and get away with a lot more than on the street. I don’t know about that but it sounds plausible. Despite the fact that I’m a law abiding citizen, I don’t trust law enforcement very much and will generally cooperate so as to get out of those situations as fast as possible.

        As for cops breaking the law, I’ll give you a fairly recent example: my
        friend was riding a bike late at night and he got pulled over because some local cops wanted to check his residence card and bike registration. The exact same cops have been pulling him over at least once a week for a few years now and they know who the guy is and the fact that he’s a model citizen (clear harassment). He finally lost it and got into a (non-aggressive) argument about this unreasonable treatment, said he would go to their superiors and then one of the cops started screaming at him and said “Get out of here or I’ll write you a speeding ticket!”. The cop saw it fit to threaten him and break the law by doing so, simply to gain leverage over the situation.

        Then there were situations where the cops raid a night club, detain a few people and refuse to let them go until they submit to a “voluntary” urine test. I’ve only read about these online, but if there’s any truth to these stories, then it’s a gross violation of human rights.

        Now, I’m not saying that all cops are bad apples, but the fact that someone is stopping you for no reason when you’re just going about your business, is telling of the fact that they might not be very reasonable or fair. If you’re dealing with a person like that, who thinks they can violate your rights simply because they’re wearing a shiny piece of metal and you happen to look foreign, then your best bet probably giving what they want and get out of the situation before it gets worse. I’ve seen cops get really nasty and invent lies in order to get back at people simply for pushing back, both abroad and in Japan.

      • Inniskilling Fusiliers

        Interesting but not that I doubt you, but I think your friend or the person on the net made up the story or else embellished it. I have a mountain bike and have been riding it for 12 years in both Kyoto and Kamakura and when I got stopped (mostly the latter; a lot of bike thefts in Kansai) I immediately break out my smile and produce my card without being asked; I find this immediately puts them at their ease and cannot give them an excuse to ‘abuse the law’. One time in the middle of Ginza, near Yurakucho station, I passed in full view of three cops who were outside the koban, when I noticed at the corner of my eye (I’m forever a New Yorker) the Sergeant detailed his poor subordinate, a rookie cop to follow me to ask my card. Now, by this point I had rounded the corner. He caught up to me (now this was on a Saturday afternoon and I was very hot in August) and the young man clearly embarrased asked to see my card. I lost my temper which was clearly in a tourist area being asked by a bored cop (his boss not the poor kid) and I said to him to follow me back to Koban where I sought out his boss who detailed this poor kid to do his dirty work, asked the idiot to follow me INTO the bloody koban where I threw my card, US Passport on the table and yelled (not too loud but enough to raise the attention of everyone) that to check me out completely for I lived in the neigbourhood (I lived near Wako Dept) and that they had better get used to seeing me. The stupid sergeant took one look at my card, seeing I was a lawyer and duly apologised; PROFUSELY. No doubt he was embarrassed because I was a lawyer and thought, s–t, I got the wrong foreigner! I left and the next day an officer from the station came over to my place to apologise again which I thanked them. No issues with them again. BUT here is the point. Its the law to check cards, its the law to have them stop us, its the law to detain us if they suspect us of a crime BUT they cannot detain you for over 2 hours without an arrest. That’s impossible for they have to answer to the Public Pros. Dept who are really their bosses. I translate for the police on occasion when a foreigner is arrested so I know the system inside out. I am not saying that no bad cops exist, but I cannot believe the net story. If one’s Japanese very good, then they back off and let you off.

      • Ron Burgundy

        Thanks for this, it’s an interesting story. Yeah, I’d say that being able to communicate clearly definitely helps.

        The time they went through my wallet, they actually asked if they could. I didn’t know my rights back then so I let them (and I just wanted it to be over ASAP). It was unpleasant because we were standing on a crowded sidewalk and one of them was making a point of yanking every single card out of wallet and checking it with a flashlight in front of amused observers. I asked “Is something wrong? Did something happen?” and he just said “No no, just checking”, so obviously no probable cause there. There are less unpleasant ways and places to do things like that and I thought the whole ordeal was completely unnecessary as I’d been cooperative and nice to them the whole time.

        The second time they stopped me I was also polite, but I made sure to put the wallet back into my pocket the moment I produced the residence card, as I remember reading something along the lines of them not being allowed to go through your pockets and things that are not visible on your person… but who knows. My opinion is that in a country where the concept of human rights is a fairly new thing, it’s better to be generally cooperative.

        I really love Japan and Japanese people and it’s a shame that things like this happen and leave generally a bad taste in your mouth.

  • Demosthenes

    Free feel-ups from people in uniform : just one of the many perks that comes with living in one of the most foreigner friendly countries in the world – Japan!

  • Paul Bell

    I was stopped in and searched in Roppongi too. They were firm but polite, and so was I.
    I showed my reg. card, and was asked to show my belongings. It took about two mins in total. . At the end, the Policemen handed my card back to me, said thank you, bowed, and left. They appreciated that I respected their request and that I was polite.
    It’s their country, these are their rules. It’s just an ID check and search. They search because they are looking for knives, drugs, and possibly guns. They are not interested in your personal belongings.
    Also… I see them stop and search Japanese people regularly.

  • http://www.turning-japanese.info/ Eido INOUE

    Did you read the article? The lawyer specifically goes over what is legal and what isn’t; “random stops such as [he] experienced” is not unequivocally “not legal”.

    You might be surprised to find that Japanese law lines up VERY closely with other countries on this kind of thing”

    I agree with you on this. You might want to read up on what a “Terry Stop” is, where the U.S. Supreme Court and many high courts have ruled consistently since 1968 that stopping and questioning, as well as “stop and frisk” and forcing the presentation of ID is not illegal nor unconstitutional. In many ways, Japan’s procedures are very similar and consistent with U.S. federal and state laws.

    And yes, both Japan and U.S. courts have ruled that the “context of the area” (ex. if you’re in a relatively high crime area like Roppongi or Kabukicho etc) is one (but not the only) factor that may be used to justify a stop-and-question, stop-and-frisk, or stop-and-identify.

    Not saying that what the person above claimed happened is okay or right. However, claiming that what seems to be a “random stop” is flat out “not legal” is not correct.

    • robertds47385

      sterven.

  • Inniskilling Fusiliers

    I don’t know what bloody country you are living in but you are the type of foreigner I despise. You have no life, hate yourself because you can’t get a job back home hence why you moved to Japan and can’t speak a word of the language to save yourself. So, instead of giving worthless advice, why don’t you leave and stop giving us decent foreigners a bad name because of some loudmouth Yank like you who is an abject failure?

    (An American attorney in Japan)