author Kainat
Publisher Kainat
Description
Coloring in the Fourth Amendment
Coloring in the Fourth Amendment
Abstract
For decades, a question has simmered in criminal procedure: Can the Fourth Amendment seizure analysis account for a suspect’s race? Scholars have long advocated for courts to consider race when resolving Fourth Amendment questions, but to date, the Supreme Court has not provided a definitive answer. The question has now bubbled to the surface. With calls for advocates to raise race when litigating Fourth Amendment questions, and with more and more advocates heeding those calls, courts are being asked to contemplate how race factors into deciding whether a person has been seized. When the question is explicitly asked, courts have answered differently, with many refusing to consider race as part of the seizure analysis.It is easy to think that it is only a matter of time before the Supreme Court holds that race has no place in the Fourth Amendment, especially given its muscular articulation of colorblindness in the recent affirmative action cases. Indeed, the lower courts that have held that race cannot be considered as part of a seizure analysis have couched their decisions in the same rhetoric and reasoning found in the Supreme Court’s colorblind rulings. As this Article explains, when scrutinized, colorblind constitutionalism is an illogical fit for the Fourth Amendment. In fact, the analytical underpinnings of colorblindness are consistent with race being considered as part of the seizure free-to-leave analysis. That race can be relevant to a seizure is reinforced when considered against the broader backdrop of Fourth Amendment law and all of the many ways it implicitly and explicitly recognizes race. This Article therefore clarifies that it is permissible to consider the racial identity of the Fourth Amendment’s “reasonable person.”But the insights of this Article extend beyond the Fourth Amendment, because at bottom, it is a warning against “case law creep” — where case law is imported from one context to another to advance a specific ideological mission without interrogating whether the case law supports the cause in that context. It is a reminder that the law should not be an unyielding wrecking ball that swings from jurisprudence to jurisprudence, smashing any hope of progress. Thus, ultimately, this Article seeds hope that the law can catch up to our pluralistic society and learn to recognize a multitude of experiences.
Introduction
At the turn of the twentieth century, Justice John Marshall Harlan famously declared in his Plessy v. Ferguson2 dissent that “[o]ur Constitution is color-blind.”3 Of course, Justice Harlan said this in a very particular context. The Supreme Court was deciding whether a law that segregated people by race was constitutional.4 And in one of its anticanonical opinions,5 the Court held that the law was constitutional, so long as the segregated facilities were “separate but equal,”6 a concept farcical on its face.
Fast-forward one hundred years. Plessy would not only be overruled,7 but also Justice Harlan’s now-famous line about the Constitution being “color-blind” would be wrenched from its historical context and used in service of a conservative legal movement.8 “By the 1990s, the U.S. Supreme Court had adopted ‘colorblind conservatism’ as its reigning ideology. In majority opinions for successive cases regarding affirmative action in education and employment, the Court extolled race neutrality as the dominant value in equality jurisprudence.”9
At the same time colorblindness gained steam came a rapid realization of the pervasive racialization of the American criminal legal system, a realization quickened by the War on Crime. Comprehensive data on the racial disparities in policing, prosecution, and punishment started to embed in the wider collective consciousness as visuals of police misconduct simultaneously hit mainstream airwaves.10 This awakening crested in the summer of 2020, when the United States experienced a mass racial reckoning, spurred by a police officer snuffing out the life of an unarmed Black man in the middle of the day for the whole world to see.11
Despite the ascendance of colorblind constitutionalism,12 one area where colorblindness has yet to catch fire, at least through explicit rhetoric, is in the Court’s criminal procedure precedents, including its Fourth Amendment policing jurisprudence and, as relevant here, the free-to-leave13 seizure analysis. Sure, the Court rarely acknowledges the influence of race in its criminal procedure decisions, much to the chagrin of many legal scholars.14 Still, the Court has never explicitly held that race cannot be considered when resolving Fourth Amendment questions. In fact, as this Article explains, the Court has explicitly condoned the consideration of race when it comes to police building suspicion.15
The dueling phenomena — the push for colorblindness and awareness of racialized policing and punishment — are coming to a head in criminal procedure. As courts across the country have pledged to address the racial inequities in the legal system,16 and as scholars and litigators call for the adoption of more race-conscious litigation strategies,17 courts are being asked to answer a question left open by the Supreme Court: Can a Fourth Amendment seizure analysis account for a person’s race?
Courts have answered this question differently. Some courts have willingly considered race when deciding whether a person was free to terminate a police encounter. These courts have taken what can be described as a realist approach.18 They often cite statistics and anecdotes showing the disparate ways in which people of color are policed, and then they assert that this information is relevant to whether a reasonable person of the defendant’s race would feel free to terminate an encounter with a police officer.19
Other courts have held that a person’s race cannot be considered as part of a seizure analysis. These courts borrow from the colorblind constitutionalist playbook. They assert that considering race would be methodologically unsound, practically unworkable, and potentially unconstitutional.20 So far, the Supreme Court has refused to wade into the debate.21
This Article clarifies the role race should play in a Fourth Amendment seizure analysis. It explains that, to the extent one believes that colorblind constitutionalism is a legitimate theory, it is analytically unfit for a Fourth Amendment analysis. In the Fourth Amendment context, the normative foundations of colorblind constitutionalism are more consistent with race being considered as part of the seizure analysis rather than it being outright ignored.
This view is vindicated when one steps back and takes a broader view of the Court’s Fourth Amendment jurisprudence. Modern Fourth Amendment law accounts for race in both overt and coded ways. The Court has explicitly allowed for the consideration of race and ethnicity when policing immigration crimes and when creating criminal profiles.22 A police officer can engage in race-based pretextual stops consistent with the Fourth Amendment.23 An officer can consider the characteristics of a neighborhood, including characteristics that are racially coded, when determining whether they have reasonable suspicion to stop someone.24 And an officer must consider the threat posed by someone when deciding to use force, which also allows for thinly veiled racial considerations.25 The Fourth Amendment as conceived by the Court is hardly race-neutral. Rather, Fourth Amendment doctrines generally incorporate a racial perspective based on the experiences of white people.26
It is illogical to think that under Fourth Amendment law, race can be used to build suspicion under the Fourth Amendment, but the fact that people of different races experience police differently is totally irrelevant. Thus, to bring coherence to Fourth Amendment law, advocates should continue to push courts to consider race when resolving seizure questions, and courts must consider these requests seriously, rather than relying on colorblind talking points that have no logical place in Fourth Amendment jurisprudence. This Article is timely in a world where the Court is actively pressing an aggressive colorblind agenda, including its recent ruling holding Harvard’s and the University of North Carolina’s (UNC) admissions programs unconstitutional.27 It is also timeless in that it is a broader warning to guard against “case law creep,” where doctrines and methodologies are uncritically ported from one context to another, especially given the different interests at stake between civil disputes and criminal prosecutions.28 At its core, this Article is a reminder that it’s important to chart a progressive view of the law even in the face of an unabashedly conservative Supreme Court.29 This Article makes its case over the course of three parts.
Part I catalogues the debate brewing in the lower courts. It provides a descriptive account of how courts that have considered whether race can factor into a Fourth Amendment seizure analysis have reached different outcomes, categorizing the reasons courts have given for why race must be addressed or excluded.
Part II then explains how the reasons courts give for refusing to consider race sound in the register of colorblind constitutionalism. But before it does that, it sets forth the conservative theory of colorblind constitutionalism and lays out its analytical framings.
Finally, Part III argues that, even assuming (a massive assumption) colorblind constitutionalism has merit as a theory in the equal protection context, it has no place in the Fourth Amendment context. Indeed, when one conducts a broader survey of Fourth Amendment law, heeding race makes coherent sense given that Fourth Amendment law already considers race in myriad ways.
Before proceeding, it is important to recognize that there are various forms of colorblindness.30 There is judicial colorblindness, in which judges do not consider race when deciding Fourth Amendment doctrine questions. There is doctrinal colorblindness, in which Fourth Amendment doctrine is constructed in a way that fails/refuses to account for race. And there is operational colorblindness, in which police attempt to avoid racial considerations when performing their functions (for instance, rejecting associations of Blackness with criminality). This Article focuses primarily on judicial colorblindness, where judges refuse to consider race, and it attempts to stave off doctrinal colorblindness, where the Fourth Amendment seizure doctrine is construed in such a way that it is impermissible to consider race. Operational colorblindness is largely beyond the scope of this Article, although as other scholars have noted, police should not be able to consider race (or racial proxies) when building constitutional suspicion.31
Next, a disclaimer. This Article understands that, “from a racial justice perspective, the Roberts Court’s jurisprudence is ghastly.”32 This disclaimer may cause you to scratch your head and ask, “What’s the point?” First, should the Court hold that a Fourth Amendment seizure analysis cannot account for race based on an extension of its colorblind heuristic, this Article will reveal how doctrinally dishonest such a ruling would be. Second, and just as importantly, this Article thinks beyond the Supreme Court to the state and lower federal courts that will need to grapple with this and similar questions in the near future. And third, this Article strikes a cautionary note, warning courts, scholars, and advocates to interrogate the logics of legal theories before uncritically extending them. But it also strikes a positive note, envisioning a version of the law that is bold enough to view everyone as their full selves, race and all.33
Coloring in the Fourth Amendment
