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Brando Simeo Starkey

excerpted from: Brando Simeo Starkey , A Failure of the Fourth Amendment & Equal Protection's Promise: How the Equal Protection Clause Can Change Discriminatory Stop and Frisk Policies, 18 Michigan Journal of Race and Law 131 (Fall, 2012) (423 Footnotes)



      In August of 2006, Nicholas K. Peart, a young, Black New Yorker, was sitting on a Manhattan bench with his cousin and a friend, celebrating his eighteenth birthday. As they were conversing and enjoying their evening, squad cars suddenly encircled them. “Get on the ground,” hollered an officer from a window of a marked police vehicle. With multiple guns pointed at their heads, one officer reached into Peart's pockets and pulled out his photo identification. “Happy birthday,” the cop sarcastically remarked. After asking Peart and his companions a few questions, the cops bid their adieus and left the young men lying on the sidewalk.

      Not even two years later, in the spring of 2008, Peart was stopped and frisked again, this time after leaving his grandmother's Flatbush, Brooklyn, residence. As he strolled down the street to a nearby bus stop, an unmarked police car passed him and then backed up. Three cops quickly jumped out and ordered him to put his hands against a garage door. They snatched his wallet out of his pocket and looked at his identification; Peart was then let go. In September 2010, it happened again. He was stopped, frisked, searched, identified, and then left alone.

      In May 2011, Peart was leaving his apartment building on his way to a local store when two officers hopped out of an unmarked car and directed him to stop and put his hands against a wall. Peart, now unfortunately accustomed to following the dictates of those wearing the shield, did as he was commanded. One officer grabbed Peart's cell phone from his hand and another reached into his pockets and removed his wallet and keys. The officer rummaged through his wallet and handcuffed him. One cop then asked which one of the keys opened his apartment door. Next, the cop entered his building and tried to enter his apartment. A different police officer, meanwhile, put the handcuffed Peart in the back of a police car. That officer asked Peart whether he had any marijuana. Peart responded, “No.” The officer then removed and searched his shoes and patted down his socks. Peart drew the officers' attention because they said he supposedly fit the description of someone who had been ringing a neighbor's doorbell. When the officer who had taken Peart's keys returned, the handcuffs were removed; the officers told Peart to get out of the police car and drove off.

      Given all of the police attention he has drawn, one might presume that Peart is a dangerous, hardened criminal with a long rap sheet. He isn't. Peart is just a twenty-three year old college student, who, due to the color of his skin, looks like a criminal.

      Terry v. Ohio changed everything. Before Terry, Fourth Amendment law was settled. The Fourth Amendment had long required that police officers have probable cause in order to conduct Fourth Amendment invasions; to administer a “reasonable” search and seizure, the state needed probable cause. But in 1968, the Warren Court, despite its liberal reputation, lowered the standard police officers had to meet to conduct a certain type of search: the so-called “‘stop’ and ‘frisk.”’ A “stop and frisk” occurs when a police officer, believing a suspect is armed and crime is afoot, stops the suspect, conducts an interrogation, and pats him down for weapons. In Terry, the Supreme Court detached reasonableness from probable cause for such “limited” searches and seizures; if a police officer's suspicions, based on articulable facts, lead her to believe that crime is afoot and that a perpetrator is armed, then under the Fourth Amendment, a search for weapons is constitutionally permissible. Despite reversing precedent, Terry and its Supreme Court progeny allowed police officers to rely upon their reasonable suspicions to conduct searches only under narrow conditions. Lower courts, however, have enlarged Terry beyond recognition. Indeed, police officers now have wide latitude to stop and frisk suspects.

      As the trajectory of American race relations predicts, minorities, particularly males in lower-income communities, have complained of police harassment in the wake of Terry. Indeed, Blacks and Hispanics contend that police officers stop and frisk them even when no “reasonable” basis for doing so exists. It seems that “reasonableness” highly correlates to melanin.

      The practice is particularly troubling in the nation's most populous city. In 2011 alone, New York police officers made over 680,000 stops. 87 percent of those stopped were Black and Hispanic, despite constituting only slightly more than half of the city's population. The practice is not even particularly effective. For instance, in eight-square blocks of a low-income Brooklyn neighborhood, from January 2006 to March 2010, NYPD officers made nearly 52,000 stops. Yet, less than 1 percent of those stops resulted in an arrest, and the police recovered a paltry twenty-five guns. Such aggressive policing tactics targeted largely at Black men have correlated with their extraordinarily high incarceration rates, leading many to conclude that the criminal justice system is the new Jim Crow.

      From the New York stop and frisk numbers flows the class-action Floyd v. City of New York. In Floyd, minority plaintiffs contend that the city's stop and frisk practices unconstitutionally infringe upon personal liberty. The Fourth Amendment as currently interpreted, however, permits cities like New York to promulgate stop and frisk practices that result in racial harassment. What constitutional tool, then, can compel local governments and police departments to revamp their discriminatory stop and frisk techniques?

      The answer must be the Equal Protection Clause. The Equal Protection Clause of the Fourteenth Amendment, however, has been shredded. With the maintenance of the Intent Doctrine, which requires a claimant to trace a purported equal protection deprivation back to a discriminatory motive, the Supreme Court has nearly nullified a clause that reads as a guarantee of legal equality. The work of the 39th Congress has been annulled. Only tattered remains survive. The Equal Protection Clause, however, can be pieced back together, as this Article demonstrates. Those words, “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws,” adopted in 1868, though now functionally dead for people of color, can be resuscitated if the highest Court is so inclined.

      Some in the legal community--practitioners, judges, and law professors-- are eager to supplant the Intent Doctrine. Criticizing, however, is easy. Devising a solution, on the other hand, is drastically more difficult. Realizing that the Court's equal protection decisions have made it nearly pointless for racial minorities to take their grievances to court, the legal sphere has responded by proffering various replacements for the Intent Doctrine. But has anyone proffered the right solution?

      This Article argues “no” and presents a moderate fix for equal protection jurisprudence: Plaintiff-Burdened Deliberate Indifference (PBDI). Under PBDI, the plaintiff carries the burden of proving that (1) the plaintiff alerted the state to the existence of a law, policy, or manner of conducting business that constrains races unequally; (2) the plaintiff provided the governmental body with an alternative law, policy, or manner of conducting business that is likely to greatly diminish or solve the complained of racial disparities; and (3) the government failed to act. After these three prongs are proven, (4) the government carries the burden of proving that its failure to act furthered a compelling governmental interest. If the government fails to produce a compelling governmental interest, equal protection has been denied.

      This Article does not, to be clear, call for a complete dismantling of the Intent Doctrine. Intent can stay. Its death grip, rather, needs to be loosened, and the Intent Doctrine must be buttressed by another means of proving an equal protection violation. There should be, in other words, two different ways of establishing any equal protection deprivation: intent and Plaintiff-Burdened Deliberate Indifference.

      To show how PBDI will produce transformational change for racial minorities generally, this Article examines how it would operate in one important context: discriminatory Terry stops. Under PBDI, racial minorities can enter a courtroom armed with an equal protection argument and leave with the stereotypically rogue police department having to change its stop and frisk tactics. In full, this Article argues that the Equal Protection Clause should force police departments to ensure that their stop and frisk policies, in operation, do not discriminate on the basis of race and the best way to get there is to embrace Plaintiff-Burdened Deliberate Indifference instead of other existing equal protection fixes.

      This Article proceeds as follows: Part I argues that Fourth Amendment jurisprudence has failed to restrain racially discriminatory Terry stops. After pinpointing that constitutional vacuum, Part II makes the case that the Equal Protection Clause should fill the void and force police departments to ensure that their policies and officers' conduct are not racially discriminatory in operation. Part III surveys the landscape and analyzes a few proffered solutions to the Intent Doctrine. These solutions are critically examined and found to be fatally flawed. Most fail to provide the result this Article seeks to achieve: requiring police departments to take necessary steps to ensure that their officers are not conducting Terry stops in a discriminatory manner. Another is unacceptable because it is tantamount to a disparate impact test which the Court has already rebuffed. Part IV fleshes out Plaintiff-Burdened Deliberate Indifference and features a defense of it. PBDI survives rigorous inspection. Part V features an application of PBDI to the Floyd class action. If the Supreme Court declared that claimants could prove an equal protection violation through PBDI, police departments and local governments would be forced to change their policies.

      Before proceeding, it's necessary to define this Article's parameters. Its central goal is to explore the possibilities of using the Equal Protection Clause to force local governments and police departments to change the way they police their streets. There is the obvious issue of, say, a Latino, believing that he has been targeted for racial reasons, who seeks to pursue an individual remedy whether it may be exclusion of evidence in a criminal prosecution or a § 1983 lawsuit. While these are important inquiries, such individual remedies are not the concern of this article. As Professor George C. Thomas III argues, individual remedies are not the best way to stop racial profiling. People of color, instead, need to focus on police departments. This Article's focus, therefore, is on how minority communities might use equal protection jurisprudence as a tool to stop discriminatory stop and frisk tactics. How can Blacks and Hispanics, as a class, employ the Equal Protection Clause to halt the abuses in New York City, for instance, that Mr. Peart and others experience all too often? That is the question this Article seeks to answer.

      This Article contributes to both equal protection and criminal procedure literatures. Undoubtedly its biggest contribution to equal protection scholarship is the argument that claimants should be permitted to prove an equal protection violation through Plaintiff-Burdened Deliberate Indifference. If PBDI is adopted, the Equal Protection Clause suddenly becomes relevant again for racial minorities. As this Article will detail, existing solutions are imperfect, and thus, a promising equal protection fix is sorely needed. Also important is that equal protection scholars studying other groups, particularly women and members of the LGBT community, might consider PBDI and find that it helps those communities in securing equality as well. But beyond proffering a new standard, this Article takes up Professor Samuel R. Bagenstos on his call for scholars to forge a new normative understanding of antidiscrimination law, one that responds to our deeper scientific understanding of discrimination in the twenty-first century.

      From a criminal procedure perspective, this Article directly confronts Justice Scalia's unanimous opinion in Whren v. United States. Justice Scalia wrote that racially discriminatory criminal law enforcement violates the Equal Protection Clause though he knows, or should know, that the odds of such a claim being proved under the Intent Doctrine are minuscule. This Article offers a standard that might enable some to prove, as was charged in United States v. Armstrong, that criminal law officials are carrying out their duties in a discriminatory fashion.

* * *

      Racial minorities endeavoring to prove an asserted denial of equal protection must establish that a state actor intended to cause a discriminatory result. Intent is an exceedingly onerous burden. Claimants, moreover, cannot argue that unconscious bias is the reason for an asserted equal protection deprivation. Does America, then, truly offer its citizens equal protection under the law? If our understanding of equal protection does not respond to the difficulties of proving intent and the salience of implicit bias can we truly claim to offer our citizens equal protection of the laws? This Article insists we cannot. Plaintiff-Burdened Deliberate Indifference is the solution to the problem. By requiring that the state opts for the nondiscriminatory path when presented with one, PBDI, unlike the Intent Doctrine, gives true power to the words “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”



. Visiting Assistant Professor, Villanova University School of Law. Harvard Law School, J.D., 2008; The Ohio State University, B.A., 2004.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law