Wednesday, August 15, 2018




excerpted from: Kristin Henning, The Reasonable Black Child: Race, Adolescence, and the Fourth Amendment, 67 American University Law Review 1513 (June, 2018) (388 Footnotes) (Full Document)


Kristin HenningIn 2015, Andre, a fifteen-year-old black male was walking down the street with a friend, James, of the same age. There was no report of crime, and the boys were not engaged in any suspicious activity. Yet the police drove up next to them and asked them if they had heard any gunshots. When the boys said “no” and kept walking, the police asked them to “show me your waist.” Both boys complied. Still unsatisfied, the police asked the boys for permission to search them, at which point either Andre or his friend said “yes.” Four uniformed officers exited their marked police car, forced the boys against the wall, and frisked them. The police found a gun on Andre.

Under the most common reading of the Fourth Amendment, the police conduct was lawful. A reviewing court would likely view the officer's initial request as a mere contact and the search as consensual. But is this a fair and accurate interpretation of the interaction between Andre and the police? Would a reasonable black child in Andre's position really have felt free to ignore the officers or deny their request? Was the consent to search truly voluntary?

Now imagine that Andre had refused to cooperate. Imagine that Andre and James refused to look at the officers when they appeared in the block--or that they ran when the officers approached in a marked police car. The officers would likely characterize Andre's conduct as nervousness, furtive movement, or flight indicative of consciousness of guilt and sufficient to provide reasonable articulable suspicion to justify a stop. But would that be a fair evaluation of Andre's behavior? Would his refusal to cooperate--or even his flight--be fairly interpreted as consciousness of guilt?

The Fourth Amendment protects individuals like Andre from unreasonable searches and seizures. Anytime the police restrain Andre's liberty in any significant way, they must justify that restraint with evidence of Andre's consent or with facts sufficient to demonstrate reasonable articulable suspicion to believe Andre was engaged in some kind of criminal conduct. On review, the legality of the officers' interaction with Andre will be evaluated on a standard of reasonableness, but the vantage point of reasonableness will fluctuate depending on the question posed. Reviewing courts will evaluate the seizure and consent-to-search inquiries from the lens of the person being seized and searched. Thus, a court will decide whether Andre has been seized by asking whether a reasonable person in Andre's position would have felt free to leave. A court will assess the validity of Andre's consent by asking whether a reasonable person in Andre's circumstance would have felt free to give or decline consent. By contrast, courts will evaluate justifications for police intrusion from the lens of a reasonable police officer. That is, a court will ask whether the officers in the scenario above had reasonable articulable suspicion to believe Andre and his friend were engaged in some criminal activity. The reasonableness of the officers' assessment will turn on the totality of the officers' observations as well as the commonsense judgments the officers make about the meaning of those observations.

Historically, courts have gauged the reasonableness of a child's conduct and perceptions in the Fourth Amendment framework against the same “reasonable person” standard applied to adults. Thus, in the synopsis above, courts would presume that Andre had the same freedom and capacity as an adult to ignore the police and walk away. Andre's flight and furtive gestures would also tend to convey an adult-like consciousness of guilt, or otherwise suggest that he had something to hide. Recently, courts have begun to retreat from presumptions like these as they consider the commonsense conclusions that should be drawn about how youth think and behave.

In 2011, the Supreme Court announced a major shift in criminal justice jurisprudence when it held in J.D.B. v. North Carolina that the test for determining whether a child was in “custody”--and no longer free to terminate a police interrogation--for purposes of Miranda v. Arizona, must be evaluated through the lens of a “reasonable child” rather than a reasonable adult. Since then, several scholars have called for the extension of the reasonable child standard to other aspects of criminal law and procedure, including the courts' evaluation of a minor's mens rea and criminal responsibility, affirmative defenses, waiver of the right to counsel, Terry stops, and consent to search among other critical Fourth Amendment questions. These shifts provide a critically important advance in criminal procedure but may not go far enough to protect the rights of black youth who are disproportionately overrepresented in the juvenile justice system.

This Article urges courts to go further and consider the commonsense judgments and inferences that flow readily from the unique interplay between race and adolescence in a typical police-youth encounter. Specifically, this Article explores four contexts in which race and adolescence affect the Fourth Amendment analysis: (1) seizure; (2) the consent to search doctrine; (3) an officer's observation of facts that provide reasonable articulable suspicion to justify a stop; and (4) the assignment of meaning to those facts. To what extent does the child's race affect the objective assessment of whether a police-youth encounter ventures from a “contact” to a seizure? To what extent does the child's race affect the voluntariness of consent? To what extent should the child's race affect the officers' interpretation of a child's behavior in the reasonable articulable suspicion or probable cause analysis? In the encounter described above, few, if any, black boys in Andre's circumstances would have felt free to ignore the officer's intrusion. Andre's age and race would necessarily affect the reasonableness of his perception about whether he was free to leave and disregard the police contact.

Several scholars have advocated for a reasonable African American standard in the Fourth Amendment context. This Article advances that discourse by urging law enforcement officers and reviewing courts to consider the intersection of race and adolescence in the search and seizure analysis and incorporate the Supreme Court's evolving jurisprudence regarding a reasonable child standard into the Fourth Amendment framework.

Part I of this Article surveys the Court's recent articulation of a reasonable child standard in criminal law and procedure and then advocates for an extension of that standard to the Fourth Amendment seizure analysis and consent-to-search doctrine. Recognizing that even a reasonable child standard may be inadequate to protect black youth from unreasonable police intrusions, Part I also considers the impact of race on the child's perception of his freedom to leave and the voluntariness of his consent.

Part II draws upon race and adolescence to examine the adequacy of the reasonable articulable suspicion standard as a safeguard against arbitrary and unnecessary stops and frisks. This Part also explores the impact of implicit racial bias on police interpretations of innocuous and ambiguous behaviors as violent or aggressive and urges courts to abandon long-held, but inaccurate “commonsense judgments” about the meaning of behaviors such as flight and furtive gestures among adolescents, especially black adolescents, in contemporary police-youth encounters. Part III identifies likely objections to the consideration of race and age in the Fourth Amendment analysis and responds to them in turn.

Part III concludes with suggestions for police reform, such as training on adolescent development, organizational commitment to developmentally appropriate policing, and less police involvement in school discipline.

. . .

“No right is held more sacred, or is more carefully guarded ... than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” This Article contends that the current interpretation of the search and seizure doctrine does not adequately protect the Fourth Amendment rights of black youth. Examining four aspects of the Fourth Amendment framework, this Article urges police and courts to consider the unique interplay between race and adolescence in evaluating the onset of a seizure, voluntariness in the consent to search doctrine, the reliability of an officer's observed facts in the reasonable articulable suspicion rubric, and the court's assignment of meaning to those facts.

This Article argues that our current reliance on a reasonable person standard in the seizure analysis fails to account for what we know about adolescent development and the ever-growing tensions between black youth and law enforcement. Further, although the voluntariness test in the consent-to-search doctrine allows courts more flexibility to consider the unique vulnerabilities of individuals who consent, reviewing courts rarely, if ever, consider the intersecting effects of race and age on a child's capacity to freely and voluntarily consent. Similarly, police and courts rarely acknowledge the impact of implicit racial bias on the accuracy of an officer's objective factual observations in the reasonable articulable suspicion standard. Even when the officer's factual observations are not distorted by race, current judgments about the meaning of behaviors like nervousness and flight from police are outdated and ignore the realities of normal adolescent behavior and police-on-black violence that provide black youth with many reasons to flee.

To ensure adequate Fourth Amendment protection for black youth, police and courts must be honest and thoughtful about how race and age affect every critical decision in the Fourth Amendment framework. To this end, it is incumbent upon police officers to better understand the key features of normal adolescent development and the cognitive science of implicit racial bias. It is equally incumbent upon reviewing courts to hold the police accountable for conscious and subconscious biases by inquiring specifically about the role of race and adolescence at each stage of the Fourth Amendment analysis.

Agnes N. Williams Research Professor of Law and Director, Juvenile Justice Clinic, Georgetown Law.

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