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Devon W. Carbado
excerpted from: Devon W. Carbado, (E)racing the Fourth
Amendment, 100 Michigan Law Review 946-1044, 964-974, 1043-1044 (March,
2002)(374 Footnotes)
A growing body of literature contests the racial dimensions of Fourth
Amendment law. The central claim this literature advances is that Fourth
Amendment jurisprudence is insensitive to, and unconcerned with, the
contemporary realities of race. While this body of work is important and
illuminating, it can be expanded upon in three important ways. First,
virtually none of this literature links the Supreme Court's racial
insensitivity in the Fourth Amendment context to racial ideology--that
is, commitments about and conceptions of race. Put another way, the race
and Fourth Amendment scholarship fails to examine the nexus between the
development of Fourth Amendment doctrine on the one hand, and
ideological notions about what race is and should be on the other. Part
of the project of Critical Race Theory has been to illustrate not only
the role courts play in constructing racial identities, but also the
relationship between the construction of race in judicial opinions and
the production and legitimation of racial inequality. For the most part,
scholars writing about race and the Fourth Amendment have not
meaningfully engaged this body of work. Thus, they have failed to
consider the race constructing role the Court performs in the Fourth
Amendment context. An examination of this role could further illuminate
the disjuncture between how the Court on the one hand and police on the
other make race matter. This illumination would help to highlight the
Court's complicity in, and legitimation of, police practices that target
people of color.
Second, the literature on race and the Fourth Amendment has not fully
examined the ways in which current doctrine affects the everyday lives
of people of color. Certainly, the suggestion that suspicion is
racialized and that this racialization burdens people of color is not
novel. The literature, however, fails to capture the precise nature of
this burden. The burden includes, but is not limited to, internalized
racial obedience toward, and fear of, the police. Few people have noted
that people of color are socialized into engaging in particular kinds of
performances for the police. They work their identities in response to,
and in an attempt to preempt, law enforcement discipline. This identity
work takes place in a social atmosphere of fear and loathing. It is
intended to signal acquiescence and respectability. This under-theorized
partof the interaction between police officers and people of color
provides a more complete understanding of the racial costs of current
Fourth Amendment law. While the identification of these additional costs
may, given the current political culture of the Supreme Court, be
insufficient substantively to change existing doctrine, their
incorporation into Fourth Amendment discourse could perform an
epistemological function. Specifically, an awareness of the relationship
between identity performance and race-based policing could shape how
scholars think about Fourth Amendment law and render it more difficult
for the Court to ignore or race neutrally construct race.
Finally, the scholarship on race and the Fourth Amendment is
underinclusive, focusing primarily on blacks. The point is not that we
have a complete understanding of how the Fourth Amendment burdens black
people; indeed, part of my aim in this Article is to broaden that
understanding. Instead, the point is that to the extent that blackness
is but one--albeit significant--racial identity burdened by the Court's
formulation of Fourth Amendment doctrine, focusing exclusively on blacks
presents a black and white racial picture of this body of law. Lost in
this picture is the conception of race-based policing as a multiracial
social phenomenon. Such a conception provides scholars with a window
through which to broaden both their understanding of race and policing
and their critique of the Supreme Court. Indeed, to the extent that
race-based policing is perceived to affect only black people, the
Supreme Court's indifference to it, and the practice itself, is easier
to ignore.
The project of this Article, broadly stated, is to fill these gaps.
To do so, it examines Fourth Amendment case law as a jurisprudential
site within which the Supreme Court engages in the production of race.
What I mean to suggest here is that, in the Fourth Amendment context,
the Court both constructs race (that is, produces a particular
conception of what race is) and reifies race (that is, conceptualizes
race as existing completely outside of or apart from the very legal
frameworks within which the Court produces it). My specific aim is to
illustrate how the Supreme Court's construction and reification of race
in Fourth Amendment cases legitimizes and reproduces racial inequality
in the context of policing. In this sense, the Article will delineate
the racial world that Fourth Amendment law helps to create and sustain.
The central claim I advance is that the racial effects of the Supreme
Court's Fourth Amendment law is a function of the Court's adoption of
what I call the perpetrator perspective. Two normative and
race-constructing commitments underwrite this perspective: (1) the
notion that how people interact with and respond to the police is
neither affected by nor mediated through race; and (2) the idea that
whether and how the police engage people is not a function of race. As a
result of these commitments, the Court conceptualizes race primarily
through the racial lens of colorblindness. In this sense, the race and
Fourth Amendment problem is not just a function of the fact that the
Court ignores race. It is also, and perhaps more fundamentally, a
function of the Court's underlying investment in a particular conception
of race: race neutrality or colorblindness.
The Supreme Court's investment in colorblindness reflects a
perpetrator perspective in the sense that race becomes doctrinally
relevant only to the extent that the presumption of race neutrality and
colorblindness can be rebutted by specific evidence that a particular
police officer exhibits overtly racist behavior--in other words, is
obviously a perpetrator of racism. Put another way, race potentially
matters in the Fourth Amendment context only when a case involves a
"racially bad" cop. Police officers who cannot be so described
are presumed to be "racially good," and their racial
interactions with people on the street are presumed to be
constitutional.
Significantly, the Supreme Court has not explicitly articulated
colorblindness as a guiding principle of Fourth Amendment law. This
ideology has to be excavated. Doing so helps to reveal precisely what
the perpetrator perspective obscures: the racial allocation of the
burdens and benefits of the Fourth Amendment. The material result of
this racial allocation is that people of color are burdened more by, and
benefit less from, the Fourth Amendment than whites. Consequently, the
former are likely to feel less "secure in their persons, homes,
papers, and effects" than the latter. Stated differently, people of
color are more likely than whites to experience the Fourth Amendment as
a technology of surveillance rather than as a constitutional guardian of
property, liberty, and privacy. This problem is compounded by the fact
that, as a historical matter, people of color have not been the
beneficiaries of effective law enforcement. In other words, the privacy
losses they experience are not the price they pay for effective crime
prevention and detection, but a cost of race. This suggests that people
of color are under-protected even as they are over-policed. In effect,
from the perspective of many people of color, the Fourth Amendment has
been eraced.
This Article suggests that the Supreme Court should abandon the
perpetrator perspective in favor of the victim perspective. Fundamental
to this perspective is the idea that, because people of color often
experience their race as a crime of identity, and because this
experience derives, at least in part, from availability heuristics about
race, people of color are always vulnerable to being victims of police
abuse. The victim perspective, in other words, is explicitly
race-conscious, and not only with respect to people with vulnerable
racial identities (that is, potential victims), but also with respect to
racial interpolators like the police (that is, potential perpetrators).
The victim's perspective, then, is less concerned with whether police
officers are racially blameworthy or racially culpable in the "bad
cop" sense, and more concerned with the coercive and disciplinary
ways in which race structures the interaction between police officers
and nonwhite persons.
The shift in focus to the victim perspective from the perpetrator
perspective is not just rhetorical; it has descriptive, normative, and
doctrinal value. As discussed more fully below, the victim perspective
provides a more complete understanding of the harms of race-based
policing, a more sophisticated sense of the Court's role in legitimizing
those harms, and a normative basis for re- interpreting and
re-conceptualizing particular Fourth Amendment doctrines.
The argument proceeds as follows. Part II analyzes the Supreme
Court's interpretation of the "free to leave" test. This test
determines whether, for Fourth Amendment purposes, a particular police
activity "seizes" an individual--that is, renders the
individual unfree either to leave or to terminate the police encounter.
Focusing on Florida v. Bostick (which directly implicates blacks) and
INS v. Delgado (which directly implicates Latinas/os), this Part
specifically illustrates how the Supreme Court's seizure analysis relies
too heavily on the perpetrator perspective. This overreliance
simultaneously creates a racial-avoidance problem (that is, the Supreme
Court's willful blindness to uncontestable facts about race and
policing) and a racial-construction problem (that is, the Court's
ideological representation of defendants and police officers without
racial specificity). Identifying these problems helps to illustrate how
the Supreme Court doctrinally masks (and not simply ignores) the ways in
which race shapes (1) an officer's decision to select a particular
individual for questioning, (2) the form and substance of the
questioning, and (3) how the subject of the questioning responds. Part
II argues that this doctrinal masking legitimizes, even as it obscures,
the racial terms upon which police/citizen encounters are transacted.
Part III shifts the discussion to Fourth Amendment consent doctrine,
the body of law that is concerned with determining the circumstances
under which a person can be said to have consented to a particular
governmental intrusion (e.g., the search of one's clothing or
belongings). Broadly speaking, here, too, the project is to demonstrate
the racial productivity of this body of law--the ways in which Fourth
Amendment law constructs (not simply avoids) and reifies (not simply
discovers) race--to implicate more directly the Supreme Court in people
of color's experiences with the police. The more specific aim is to
demonstrate that the Supreme Court's adjudication of what constitutes a
valid consent race neutrally constructs suspects and police officers.
This construction renders Latinas/os, for example, just people--a
construction that erases their particular racial experiences with, and
impressions of, the police. Simultaneously, white police officers become
just police officers--a construction that erases their particular racial
impressions of, and social interactions with, Latinas/os.
This colorblind production of identities exacerbates and legitimizes
Latinas/os' (and other people of color's) racial vulnerability to
consent searches. This vulnerability derives from four important social
realities. First, given pervasive stereotypes as to the color of crime,
police officers may be racially committed to searching Latinas/os'
personal effects. Second, should a police officer ask a Latino for
permission to search his belongings, pressure exists for that person to
say yes. He may believe that, if he says no, the officer's (racial)
suspicions will intensify. Central to this thinking could be the
perception that, to the extent that this intensification occurs, the
officer will prolong the encounter. Third, Latinas/os (especially young
Latinas/os in the inner city) often will have imperfect information
about their constitutional rights. Thus, they will not always know that
they have a right to refuse consent. Fourth, assuming that police
officers know that Latinas/os may be uninformed or apprehensive about
exercising their constitutional rights, police officers have an
incentive to exploit these vulnerabilities.
Significantly, these interracial dynamics do not turn on whether
police officers are "racially bad" in the sense of exhibiting
hard racial animus. Cumulatively, they provide a basis for rethinking
consent doctrine and, more particularly, the way that doctrine was
applied in the central consent doctrine case: Schneckloth v.Bustamonte.
Together, Parts II and III broaden our understanding of the racial
dynamics between people of color and police officers, redescribe the
race and Fourth Amendment problem as a function of the Court's racial
productivity, and provide a normative basis for articulating alternative
doctrinal regimes to constitutionally regulate police conduct.
Part IV focuses on a specific race and policing problem: the Driving
While Black/Brown ("DWB") phenomenon. The section defines DWB
as an example of racial profiling and employs the perpetrator
perspective to explain how the public campaigns against, and the Supreme
Court's response to, racial profiling have functioned to manage (rather
than solve) this pervasive social problem. The Supreme Court has
responded to racial profiling through doctrinal avoidance. It
accomplishes this avoidance, in part, by conceptualizing racial
profiling as an "attitude" that resides in the minds of
"racially bad" police officers (the perpetrator perspective),
rather than as a disciplinary practice that police officers deploy and
people of color experience (the victim perspective). In effect, the
Supreme Court recognizes racial profiling--that is, acknowledges that
the phenomenon exists--only to de-recognize it--that is, to ignore how
racial profiling is actually experienced. Part IV exposes this racial
recognition/de-recognition dynamic to demonstrate how the Court
strategically uses race to achieve a particular doctrinal outcome: that
the Fourth Amendment does not reach racial profiling. Demonstrating that
this outcome is both ideologically invested and contingent creates a
doctrinal space within which to articulate approaches to the Fourth
Amendment under which racial profiling would be deemed unconstitutional.
The public's response to racial profiling has been one of
condemnation. This condemnation, however, derives not from the idea that
racial profiling is per se problematic. Instead, reflecting the
perpetrator perspective, it is based on the perception that
"racially bad" cops are profiling "racially good"
blacks and Latinas/os. Almost every public narrative about racial
profiling, including the ones with which this Article begins, involves
"respectable" people: lawyers, actors, doctors, teachers,
students, etc. The notion is that these people were not supposed to be
racially profiled. In other words, in each case, the police officer
should have known that he was profiling a "good" (nonstereotypical)
person of color. To a considerable extent, this racial mistake is what
the public discourse against racial profiling, including the ACLU's
campaign, focuses on. This focus does not fundamentally change our norms
about race and policing. Indeed, on some level, it confirms if not
entrenches our racial suspicions about crime and criminality.
. . .
Race itself has never been seen by the naked eye.
D. Marvin Jones
The stories of Timothy Campbell and Carlos Gonzalez are effective
precisely because they lack nuance. Outrage at their humiliation comes
easy. The problem with such sharp examples of racial injustice is their
tendency to blunt our sympathy for racial victims whose cases are more
difficult. The Supreme Court in Whren had an opportunity to address a
racially nuanced police encounter. Instead, the Court reinforced its
commitment to a colorblind ideology, a commitment that is in fact
racialized. The Court's move doubtlessly was made easier by the specter
of this country's history of egregious racial crimes-- particularly in
the context of policing--to which Whren's case paled in comparison.
Significantly, Whren did not emerge in a jurisprudential vacuum.
Bostick, Delgado, and Bustamonte created racial precedent. More
particularly, each case helped to structure the colorblind terms upon
which Whren would engage race. Cumulatively, these cases stand for the
proposition that race matters in the Fourth Amendment context only to
the extent that a police officer's conduct is overtly racially coercive.
The absence of avowedly racist officers does not mean, however, that
a nonwhite person's encounter with police is unaffected by race.
Historical and present-day realities complicate minorities' interactions
with good cops as well as bad. For minorities' Fourth Amendment
interests to be protected, this racial reality must be recognized and
addressed. Yet, this is precisely what the Supreme Court has failed to
do. It carefully enlists the ideology of colorblindness to elide the
complexities of race. As a result of this racial elision, people of
color continue to experience the Fourth Amendment more as a technology
of surveillance than as a constitutional provision that renders them
"secure in their persons, homes, papers and effects. |
