Everyone has been impacted by the COVID-19 pandemic, and our office is no exception. Because of the pandemic, we are changing the way we work. Our physical offices are closed to protect our staff and the public, but we continue to work remotely. If you need to reach us, please email or call. If you don’t get an answer, leave a message and we will get back to you as soon as possible.
We are continuing to work on cases. But our immediate responsibility—everyone’s immediate responsibility—is to slow the spread of the contagion. And we do that by limiting contact with each other and other members of the general public. Thank you for your patience and understanding.
The Myth of Objectivity in Fourth Amendment Jurisprudence
By Juval O. Scott
JUVAL O. SCOTT is the Federal Public Defender for the Western District of Virginia, which has offices in Roanoke, Charlottesville, and Abingdon. Her office collaborates to provide compassionate, creative, and courageous representation for the indigent accused at all stages of federal criminal litigation. She can be reached at Juval_Scott@fd.org.
People of color, especially Black and Indigenous Americans, do not have the luxury of revising history and how it defines our existence in the United States. Though this country was founded on the principle that all men are created equal, the founders intended something else. By men, they meant white men— not women nor anyone with melanin in their skin, and especially not the people whose land they stole or whose bodies they owned. Embedded in the fabric of this country is a horrific history, and our legal system continues to perpetuate the less-than-equal historical legacy among Black, Indigenous, and people of color (BIPOC).
Decades of litigation have assured the BIPOC community access to the promises of the Constitution. But the centimeter-by-centimeter approach to providing basic human rights has done little to truly even the imbalance. The inequity inherent in Fourth Amendment jurisprudence is one of many areas that must be reconsidered from a racially informed perspective. A court that continues to protect police under the guise of qualified immunity, and, at the same time, admits illegally obtained evidence by those same officers, is complicit in gutting constitutional rights for the BIPOC community. This is especially true for the individuals who reside in poor neighborhoods.
In March 1991, the world watched in horror as Los Angeles Police Department officers were caught on camera savagely beating an unarmed Black man named Rodney King. The community was outraged. Then there was the shock—for everyone except the Black community. The Black community understood that it was watching a common scene. White people were shocked; the Black community could only acknowledge the familiar rage. The white shock did not result in recognition by the white community that poor policing tactics wreaked havoc on the Black community. Instead, the conversation shifted to the negative characteristics of Mr. King and then the sheer denial that what the world saw with its own eyes on video was anything more than a fluke.
More than 20 years would pass before a spate of videos recorded the slaughter of unarmed Black boys and men. These images were regularly rotated on social media, and then on television, in an unending loop, showcasing the violence of police officers captured in real time. Again, there was white shock and outrage. Again, there was no true recognition of the decades of horror that police practices rooted in both explicit and implicit bias perpetuated on communities of color. The BIPOC community has been and still is terrorized by the police.
Each slaughter was met with demonization of the victim and an attempt to justify the police perpetrator’s actions. Tamir Rice, a 12-year-old boy gunned down in seconds by a police officer, should not have been playing with that toy gun in the open. How dare Philando Castile carry a firearm he legally possessed. Charles Kinsey should have abandoned his duty to his autistic patient. Eric Garner had no business selling those untaxed cigarettes. Rayshard Brooks had no business sleeping in his own car. Breona Taylor’s fiancée had no right to protect the home from would-be home invaders. And George Floyd, who cried out for his mother as the police officer who stole his last breath knelt on his neck for eight minutes and 46 seconds, had no business trading counterfeit money. The message communicated: One does not necessarily have to be engaged in violent behavior, or any wrongdoing, to be brutalized by law enforcement. One may be killed by a police officer for merely existing while Black.
Again, the BIPOC community always understood their vulnerability to police brutalization, merely for existing. As acknowledged in Justice Sotomayor’s dissent in Utah v. Strieff, “[f]or generations, Black and Brown parents have given their children ‘the talk’—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them.” 136 S. Ct. 2056, 2070 (2016). In other words, the talk did not start this decade, or even back in 1991 with the Rodney King beating—it has been around since the inception of policing, through the brutality of lynching and Jim Crow, and continues today as families discuss the too-often-seen slaughter of Black bodies on the nightly news.
What does the history of lynching, police-inflicted community trauma, and “the talk” have to do with the Fourth Amendment? Everything. There is a myth of objectivity in Fourth Amendment litigation. And a candid conversation about these constitutional protections cannot take place without an acknowledgment of the role that race plays in our history and society.
Courts have repeatedly ignored the influence of history, community dynamics, and policing practices in assessing whether citizens feel free to terminate an encounter with law enforcement. The current concept of the Fourth Amendment fails to contemplate the BIPOC reality; the lived experiences of millions of BIPOC in this country have never been accepted and incorporated. This reductive approach deprives BIPOC communities of inalienable constitutional protections.
In United States v. Mendenhall, the Supreme Court held a “person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” 446 U.S. 544, 554 (1980). Seizure only occurs when there is physical force or a show of authority. Id. And Mendenhall and its progeny insist that there be an objective reason provided to the court that a person believed they were not free to walk away. Michigan v. Chesternut, 486 U.S. 567, 573 (1988); Florida v. Bostick, 501 U.S. 429, 436 (1991); California v. Hodari D., 499 U.S. 621, 628 (1991). The Chesternut court stressed the need for a seizure test that “calls for consistent application from one police encounter to the next” and permits police “to determine in advance whether the conduct contemplated will implicate the Fourth Amendment.” 486 U.S. at 574. While this test is an “objective” one, it is “necessarily imprecise” because “what constitutes a restraint on liberty prompting a person to conclude that he is not free to ‘leave’ will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs.” Id. at 573–74. In other words, courts have been more concerned with the police welfare and perception than the deprivation itself. And to take it a step further, the court-created protection known as qualified immunity has permitted police officers to navigate ways to use body language, disrespectful tones, and aggressive words to terrorize and violate BIPOC communities.
This term the Supreme Court will decide whether an unsuccessful attempt to use physical force is a seizure. Torres v. Madrid, 140 S. Ct. 680 (2019). In Torres, the plaintiff was shot in the back 13 times when she fled from the New Mexico State Police under the mistaken notion they were carjackers rather than officers attempting to arrest her on a warrant. Police claimed she was driving toward them, placing them in danger, but evidence proved otherwise. The plaintiff drove herself to the hospital, despite suffering from multiple gunshot wounds, where she was later charged and placed under arrest. After pleading no contest to three felonies, she sued police for use of excessive force. The district and circuit courts dismissed her lawsuit, granting qualified immunity to the police officer. The Tenth Circuit found that “a suspect’s continued flight after being shot by police negates a Fourth Amendment claim.” Torres v. Madrid, 769 F. App’x 654, 657 (10th Cir. 2019). “In other words, because she did not voluntarily stop for carjackers or because the police did not completely incapacitate her, law enforcement escapes any liability for shooting her in the back.” Melody Brannon, Torres v. Madrid: What Is a Seizure?, Kan Fed. Pub. Def. (Sept. 22, 2020),.
The US Supreme Court has decided that police encounters look the same everywhere; the same test must be used across the board. A police encounter with a Black man in inner-city Chicago or Baltimore is deemed to have the same respectful undertone as one with a wealthy white community member in affluent Atherton, California, or Scarsdale, New York. This is the common standard, despite overwhelming research and data demonstrating otherwise. It is patently unfair to have a standard or test that focuses solely on the police officer’s perspective and centers reasonableness through the lens of the affluent white male experience, while ignoring the perspective, experience, and history of the BIPOC community members subject to police power. It is worth noting that some state courts, like Massachusetts, have opened to the idea that Fourth Amendment issues merit a more nuanced approach. See, i.e., Commonwealth of Massachusetts v. Long, 152 N.E.3d 725 (Mass. 2020); Commw. of Mass. v. Jimmy Warren, 58 N.E.3d 333 (Mass. 2016).
Objectivity is ultimately determined by the bench. The bench has historically been overwhelmingly white and male, financially privileged, and completely disconnected from the plight of melanated individuals. See Biographical Directory of Article III Federal Judges, 1789–Present, Fed. Jud. Ctr., Justice Thurgood Marshall, the first of only two African American jurists to ever be appointed to the high court, dissented in Mendenhall, Chesternut, Bostick, and Hodari D. His dissents were rooted in a fundamental understanding of ordinary citizens, Black Americans in particular, and what it meant to walk in their shoes.
There is no such thing as true objectivity. Life experiences—both personal and professional—inform the way people process information. Lifetime tenure, political appointments, or winning of elections does not change the way the brain operates. Intending to be fair and striving to do the right thing do not eliminate bias.
People who have not been exposed to over-policing are generally inclined to disbelieve that it is real. In New York City, thousands of people were frisked, most of them African American and Latinx, because then-Mayor Bloomberg said they were more likely to be violent criminals and victims of violent crime. Michael R. Bloomberg, Opinion, Michael Bloomberg: “Stop and Frisk” Keeps New York Safe, Wash. Post (Aug. 18, 2013), . The city was sued, and information was made public. Very few people subjected to the baseless, degrading stops had contraband; instead, statistically, contraband was more likely to be found on white people. See N.Y. Civil Liberties Union, Stop-and-Frisk in the de Blasio Era (Mar. 2019).
What’s a mere inconvenience for the greater good? Well, as noted in Floyd v. City of New York, “[w] hile it is true that any one stop is a limited intrusion in duration and deprivation of liberty, each stop is also a demeaning and humiliating experience. No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life. Those who are routinely subjected to stops are overwhelmingly people of color, and they are justifiably troubled to be singled out when many of them have done nothing to attract the unwanted attention.” 959 F. Supp. 2d 540, 557 (S.D.N.Y. 2013). Policies that deprive BIPOC communities of constitutional protections under the disingenuous notion that government actors are there to protect them from themselves is offensive. If police encounters in affluent, primarily white communities were handled the way they are in BIPOC communities, the laws would have been changed long ago.
Race-related Fourth Amendment issues extend beyond the flawed reasonable person standard courts employ. Once the courts “objectively” decide that a citizen would have felt free to terminate the encounter, the continued contact is deemed consensual and the Fourth Amendment no longer protects the citizen. What does that mean? There are very few circumstances where an ordinary person, at least an ordinary person of color, would be comfortable declining contact, or even a search, from a police officer. The consequences of asserting one’s rights could be fatal, and it is unreasonable to assume that the average BIPOC community member would perceive it to be proper or safe to turn on their heels and go about their business. Doing so could have dire consequences, and a typical person of sound mind is not going to take that risk. And, hopefully, not a young man of color who has been given “the talk” by his elders. Given this dynamic, the courts must take a critical race-conscious look at so-called consensual encounters to determine whether that doctrine remains valid. An objective, nonemotional review suggests that it is not. At a minimum, the doctrine must be revamped to incorporate the historical legacy and lived experiences of the BIPOC community.
Then there’s the legally sanctioned racial profiling permitted in Whren v. United States. 517 U.S. 806 (1996). Whren provided the playbook for law enforcement to prey on communities of color under the guise of necessary traffic enforcement. It has become yet another tool that chips away at the relationship between BIPOC communities and law enforcement. A study evaluating nearly 100 million traffic stops across the United States found that Black drivers were about 20 percent more likely to be stopped than white drivers, relative to their share of the population. They were searched almost twice as often as white drivers—even though, similar to the New York stop-and-frisk fiasco, they were less likely to be carrying drugs, guns, or other illegal contraband compared to their white peers. Emma Pierson et al, A Large-Scale Analysis of Racial Disparities in Police Stops Across the United States, 4 Nat. Hum. Behav. 736 (2020). This pattern is a direct result of Whren and the court’s willingness to overlook the role that race plays in policing. As long as courts fail to limit Whren’s impact, law enforcement will continue to be rewarded for predatory practices that disparately impact BIPOC drivers. It must stop.
Fourth Amendment jurisprudence is, by court decree, fact specific. Race and its nexus to the constitutionality of a search or seizure is important. It is a driver for how citizens view encounters with law enforcement and how law enforcement chooses to conduct itself in communities. Simply put, race matters.
Everyone with a role in the criminal courts—prosecutors, judges, and defense attorneys—can engage in efforts to minimize the marginalization of BIPOC communities in the criminal justice system. Conscientious prosecution is a start. Prosecutors should refuse to embolden poor police practices that are detrimental to BIPOC communities by declining charges or dismissing cases where law enforcement employed racially biased tactics. Judges should engage in open-minded factfinding that explicitly acknowledges that the lived existence of BIPOC communities is different and informs their “objective” perspective on whether they can terminate an encounter or are compelled to engage in unwanted contact with law enforcement. Courts must also stop minimizing the impact of harmful law enforcement behavior that runs afoul of the Constitution. Defense attorneys must litigate race-related issues more aggressively and intentionally. That means listening to their clients and their stories. Silencing the voice of the accused because conversations about race are uncomfortable harms society as a whole. An honest conversation about race and its impact on the criminal justice system, and especially in connection with the Fourth Amendment, cannot exist in an environment devoid of the impacted population. And it is past time for an honest conversation about race and the Fourth Amendment.