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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

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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.

  • 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.

  • 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.

  • 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)