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Excerpted From: Ekow N. Yankah, Pretext, and Justification: Republicanism, Policing, and Race, 40 Cardozo Law Review 1543 (April, 2019) (368 Footnotes) (Full Document)


EkowNYankahOn April 4, 2015, Walter Scott--a father, former Coast Guard officer, forklift operator, and licensed massage therapist who was engaged to be married--was driving his twenty-five-year-old Mercedes to buy auto-parts in North Charleston, South Carolina. Perhaps Scott was thinking about the cost of keeping up his car, his impending wedding, or mulling over his struggles to stay current on child support payments to his four children. From experience, I can well imagine how Scott's heart suddenly sank when the flashing lights and siren pierced his thoughts. Like many Black men, my heart rate escalates just thinking about it. I know the dread and tension when you see the police cruiser in the mirror. The mixed anger and humiliation as you feel--actually feel--the eyes of the police reading you, scanning your driving, drinking in your hue. Most likely, Scott thought something along the lines of, “not again,” “of course,” or even, “what Bul;I have little doubt of the mix of weariness, tension and outrage that filled him. Police officer Michael Slager pulled Walter Scott over for a non-functioning taillight.

Friends and family speculate it was Scott's fear of being jailed for an outstanding warrant for overdue child support payments that caused Scott to exit his car and run. Whatever the reason, Scott, with a lopping gait, ran from his car. Officer Slager's response--there is no other way to describe this--was to train his gun on Scott's back, set his stance, and coolly fire eight times at him. He did it with such calculation that Scott's father likened it to gunning down a deer, and his brother described it as akin to “target practice.” Scott was struck in the back by five bullets, killing him. The fatal encounter was recorded by an eyewitness, and the resultant video has been seared into the national imagination.

Understandably overlooked in the terrific anger that emerges from Scott's murder is the smoldering ember from which the fatal encounter began. I use the word smoldering advisedly in both the sense of a long burning objection and something that threatens to burst into flame at any moment. As noted, the encounter between Walter Scott and Officer Slager began with a traffic stop so innocuous, it is puzzling for some, particularly White Americans, who have never or rarely experienced such a police stop. Simultaneously, the stop instantly raises the eyebrows of many minority members, particularly men of color. African American and Hispanic men are all too accustomed to the causal humiliation of a police officer driving alongside their car and taking in their dark skin, followed by the creeping inevitability of flashing lights--expected and yet still somehow always startling--and the short blast of the siren. This ritual is so commonplace that people of color openly referred to the crime of “driving while Black” long before it was noticed in academic literature.

Of course, there is no way to know what Officer Slager's motives were or whether he stopped Walter Scott based on his race. There is never a way to know. A police officer can always offer a nominal reason for making a stop-- perhaps this time your view seemed obstructed or perhaps you swerved too close to the dividing line. Indeed, this Article will show how the law has taught police how to wink at this ritual of domination. Whatever the officer's proffered reason, such stops usually have a dangerous charge felt particularly by Black and Hispanic men who are pulled over at disproportionate rates--the feeling barely hidden by steeled voice, suppressed fury, slightly trembling hands, and knowing exhaustion. The stop may conclude safely, solely with the interruption and delay or the burden of a ticket. Too often, however, these “delays” are accompanied with the humiliation of being asked to leave the car and being cast in a roadside show. Some go further, leaving the lingering feeling of an officer's fingers after a pat-down--probing fingers reaching inside a jacket and around the groin--with a tangible sense of rough treatment and near force. The worst stops, as with Walter Scott, explode into spectacular and even fatal violence.

What these stops share for Black and Hispanic persons is the reinforced sense that the color of their skin not just causes the state authorities to treat them differently but permits state authorities to police their communities differently. While the fact that such treatment comes at the hands of the police adds to the sense of sanctioned insult, it is the legal authority that shields police behavior from accountability--that there is no one to whom you can complain--that ultimately delivers the most powerful psychic blow. With every harassing stop and shared conversation with other persons of color, one realizes with sinking hopelessness that the law has decreed that you can be made subject to a policing regime White citizens would instantly reject. It is cutting to notice that when this same arbitrary police power explicitly threatens all other (White) people, the Court has been quick to reject it. Only when this police abuse is thinly disguised in regimes likely to harm Black and Hispanic drivers does the Court turn a blind eye.

The result has been a tragic litany of unarmed Black men killed by police officers; names seared into the national conscious as emblems of the seething racial tension between the police and too many Black communities: John Crawford III, Eric Garner, Tamir Rice, Laquon McDonald, Samuel DuBose, Sandra Bland, Michael Brown, Philando Castile. (I confess with a heavy heart, the hardest thing about writing this Article has been that with every new draft I can update the mournful list.) The litany tolls on; yet, despite the seemingly endless examples, each case is governed under the Fourth Amendment as a distinct incident, leaving each horrific death denuded of their racial context. The last few years have seen the most furious and painful national conversation about policing and race in a generation, culminating in the Black Lives Matter movement. Americans everywhere are confronting our long history of police violence and race; everywhere, that is, except our Supreme Court.

That our legal system insulates racially motivated and disparate policing regimes is not happenstance. In roughly the past half-century, our Supreme Court has repeatedly turned a blind eye to the combustible intersection of criminal law, policing, and race. While unjustified police violence is disproportionately borne by young men of color--revealing ugly truths about structural racism in policing--the Supreme Court's Fourth Amendment jurisprudence has explicitly silenced the ability to use the Constitution to address racism in policing, and the current national conversation has laid bare the poverty of our legal language.

This Article illustrates that, in the area of criminal law, punishment, and policing, the Supreme Court has consciously obscured the corrosive role race plays in the everyday experiences of so many. The Court's studied indifference has led to one of the more bizarre tensions in modern American political life: we are all aware of how deeply race infuses our criminal justice system, and yet, the law gives us few ways to properly recognize and contextualize its impact. These fraught days--with videos of young African American men unjustifiably killed by police officers appearing all too regularly on the news--demand frank and courageous conversation, starting with our Supreme Court.

The inadequacy of our legal responses to oppressive policing of minority communities is clear. In the most spectacular examples, police shoot unarmed Black men and months later multi-million dollar settlements are reached, sometimes quietly registered, other times met with defiant public rejections of wrongdoing or vague bromides about ensuring “such and such” tragedy never occurs again. History has shown that hope for any meaningful structural change too often depends on rare and time consuming exogenous federal investigations-- the equivalent of hoping for justice the way one hopes for lightning to strike. A dull heartache reminds me that, as of this writing, three-and-a-half years have passed since the world watched Police Officer Daniel Pantaleo choke Eric Garner to death without the Justice Department being able to decide so much as whether to bring charges. Incredibly, Officer Slager, who executed Walter Scott, had his first trial end in a mistrial. Meanwhile, the Constitutional Amendment that directly governs the everyday use of police force has been rendered silent on the important questions of race and policing.

I am not the first legal scholar to recognize the importance of tackling the way our Fourth Amendment doctrine has institutionalized racial domination and entrenched tension between the police and minorities, which regularly bursts into confrontation, violence, and death. But understanding the failures of the current legal regime is not merely a matter of surveying individual legal doctrines and adjusting them piecemeal. No matter how thorough the doctrinal discussions, there is little long-term hope of changing the law of policing without a deeper inspection into the underlying philosophical premises upon which the Supreme Court's jurisprudence relies. Thus, this Article brings together philosophical inspection and doctrinal examination in a single reform project, uncovering how current Fourth Amendment doctrine is embedded in a very particular interpretation of individualist conception of legal rights and, in turn, revealing how that philosophical view fails to accurately describe or justify our legal practices.

Whatever the motivation for the Supreme Court's avoidance of the topic of race in policing, its jurisprudence relies implicitly on a particular rights-centric view of political rights. This rights-based view, I will argue, is central to the dominant liberal philosophy of our times. This claim may be surprising to some because the value of equality seems centrally important across the nearly countless variants of philosophical liberalism. But equality, in too many contemporary theories underlying criminal law and policing, is embedded in an unquestioned view of individual rights.

The view of rights as individualistic rather than placed in a social context is not simply of philosophical interest. Indeed, I do not attack this view because it is the most philosophically persuasive picture available. The individualistic rights view must be excavated because of its enormous practical significance; it is the justification that has come to dominate criminal theory and undergird the Supreme Court's understanding of the Fourth Amendment. Thus, this view determines the values that shape everyday interactions with the police and, more importantly, what voices and values go entirely unheard. Moreover, because this feature of liberalism cuts across the current left/right divide in American politics, it is hard for many observers to express--in a comprehensive way--their objection to this stunted form of legal reasoning. Only by refocusing our philosophical justification on a different type of political theory can we highlight critically needed changes in constitutional doctrine and imagine a world of just policing. An alternative theory must accurately capture that legal rights stem from our right to be civic equals. This Article offers such a theory, building on prior work describing a neo-Aristotelian republicanism, applying it to the Fourth Amendment.

My claim examines the Supreme Court's doctrinal law or, more precisely, the Supreme Court's disturbing silence surrounding the intersection of race and policing. The initial entry point of law is not novel; the target is the infamous Supreme Court decision in Whren v. United States. In Whren, the Supreme Court ruled unanimously that police officers could stop citizens on any pretext, even if it was not their true motivation, ignoring how pretextual stops provide thin veneer for racist policing. Whren all but insulated racialized policing practices from constitutional review, resulting in countless unjustified and tense stops inevitably leading to explosive violence.

Whren and its theoretical underpinning continue to exert important and disturbing influence today. Only a few months ago, in Utah v. Strieff, the Court recommitted itself to the thin philosophical underpinnings authorizing Whren. At the height of the Black Lives Matter movement, the Court fortified two distinct policing regimes--one for poor people of color and one for everyone else.Whren and Strieff are chosen not just because they are rightfully scorned. Understanding the deep flaws in both cases provides an insight into the fundamental way in which the Supreme Court's contemporary jurisprudence, focused solely on the question of whether one's individual rights have been violated, misunderstands the deeper justification of criminal law. More than simply correcting our understanding of the Fourth Amendment law, moving between theory and doctrine illustrates that reversing cases like Whren, Strieff, and their peers is insufficient. By clarifying our philosophical commitments, we embark on a new constitutional understanding of the Fourth Amendment--one that requires, rather than avoids, the question of whether a police stop or policing regime is racially motivated, and explicitly holds that racist police practices, even when they rely on an objective justification, are unreasonable and thus a violation of the Fourth Amendment.

This grander philosophical claim brings with it wide reaching doctrinal reforms that may initially seem shocking, but reorienting our underlying justification allows us to imagine a new world of just police practices. Until Fourth Amendment doctrine can end the discriminatory policing practices that haunt persons of color on American roads and explicitly reinforce civic equality, police officers should be restricted from conducting ordinary criminal law policing while policing traffic. That is to say, we should encourage a nationwide campaign to separate traffic maintenance and policing work. Thus, outside of well-recognized exigencies already accepted as exceptions in the Fourth Amendment, a police stop for a traffic infraction would not permit an officer to inquire about other criminal activity, ask for a“consent” search, or use the stop as an entre into any other policing duty.

Sketching this proposal even in outline will have to wait until later, but a few anticipatory comments may set the stage. A systematic restriction of one of the primary tools of policing will strike some as implausibly strange or drastic. But, it should be noted that such restrictions have some analogous foundation in too often ignored Fourth Amendment law. Indeed, it is a damning indictment that we prohibit arbitrary stops when they are aimed at the general population but ignore them so long as they happen mostly to people of color. Further, some states have enacted related regimes without dire consequences. More importantly, forbidding police from conducting criminal investigations during routine traffic stops may simply be what justice requires. Under such a system, put simply, traffic cops would handle traffic and police would police.

The plan ahead. Part I outlines the pervasive impact of race in our criminal law practices, focusing specifically on the importance of reforming the law at the intersection of race and policing.

Part II outlines the Supreme Court's jurisprudence, illustrating that the Court has consciously ignored the dangerous interaction of race in policing and its corrosive effect on the perceived legitimacy of the police.

Part III argues that the Supreme Court's jurisprudence is a natural consequence of the nearly unquestioned commitment to a particular rights-focused form of liberalism. Though the primacy of individual rights is pervasive in our political culture, it is even further entrenched in current justifications of criminal law because it shares an affinity with the retributivist criminal law theories that currently dominate legal theory. This work outlines work done elsewhere, grounding the legal reform project in a larger context.

Part IV builds on these arguments, illustrating that individualist retributivist theories of criminal law ultimately fail to properly describe our criminal law practices or best capture our normative intuitions. Rather, I argue for an understanding of criminal law based on a neo-Aristotelian republican theory, entitled “franchise,” that makes central our civic bondedness.

Part V illustrates the important natural conclusions of shifting from focusing on individual rights to policing that secures equality. The larger policing proposal is to completely divorce police powers of traffic safety regulation from those of criminal investigation in order to drain the incentive to use traffic stops as a pretext to continue a regime of racialized policing. Though in the context of our current jurisprudence, this reads as a daring claim, it is based on the simplest intuition: that we ought to collectively stand for the proposition that searching or seizing a citizen based on the color of their skin, absent narrow and specific circumstances, is unreasonable. This paper provides philosophical footing for the gathering political calls for a shift in policing from a “warrior culture” to a “guardian culture.”

[. . .]

Let me conclude by quickly addressing two points that return us to an unspoken anxiety regarding our jurisprudence surrounding pretextual stops. The first is, I fear, a subterranean anxiety causing us to turn from our collective responsibility to promote a more just policing regime. What will a world in which the police do not act on their surreptitious instincts look like? Given the widespread perception by all Americans that racial profiling is a common police tactic, many may feel “They must know better.” This accords with the Court's long deferential jurisprudence, seen as far back as its elevation of Officer McFadden's years of experience and intuition in Terry. Further, how we will know which stops are pretextual? Will the courts be inundated by drug traffickers and others concocting stories describing every stop, no matter how justified, as pretextual and racially motivated?

There are, at least, two replies to such fears. The first is to draw courage from our commitment to justice. There is always the temptation to seek harbor in the comforts of the now rather than respond to the unknown future that justice demands of us. A telling example can be found in the self-professed. well-meaning ante-bellum southerner, proclaiming that while she may not care for slavery, how could one be sure what chaos freeing the slaves would bring. Our example is much less dramatic, but that in itself should re-instill in us the courage to legally prohibit such baldly unjust institutionalized policing. Surely, whatever little security we hope to purchase comes at too high a cost when we squarely confront that our “rewards” are possible only through institutionalized and insulated racialized policing.

Secondly, as is often the case, our fears are almost certainly exaggerated. Indeed, several states have found--pursuant to their state constitutions--that pretextual police stops are invalid. Courts in such states have used a variety of common-sense methods to ascertain whether a stop was in fact pretextual, including inquiring whether the police officer was on traffic duty, whether the questions the officer posed were initially related to the traffic offense, whether the officer typically gives tickets, or whether he even possessed the materials to issue a ticket at the time of the stop. Such an obvious inquiry deflates the notion that courts would be unable to intelligently separate pretextual stops from genuine traffic stops. Other states, such as Minnesota, have found other judicial methods of cabining police discretion by, for example, not allowing searches of automobiles during routine traffic stops regardless of the consent of the occupant. It should give us the courage of our convictions that these states have not become un-policable wastelands, even as they slowly work to repair frayed relationships with poorer and minority communities.

Lastly, many might suffer from a different kind of doubt. There is neither evidence that judicial checks on pretextual stops lead to intolerably restricted police, nor evidence that judicial restraint can instantaneously cure the problems of rogue or racist police officers. An officer bent on racist harassment does not need the convenient tool of the pretextual stop. No simple legal change can thwart police officers committed to targeting persons of color. Still, there is equally no doubt that the unchecked ability to detain citizens who are driving is both a significant source of arbitrary power for the state and of friction between the police and citizen. Further, it is important to remember that legal norms do not only work by sanctioning; legal norms often have powerful effects precisely because they are norms. By prohibiting arbitrary and disproportionate targeting of minority drivers, the law not only checks the bad cop but also instills a particular vision of what the good cop does.

Just as importantly, prohibiting pretextual stops would send an important message that the law will no longer turn a blind eye to the persistent humiliation of people of color at the hands of police, acknowledging the inhumanity of laws that make a person a suspect for driving while Black or having the nerve to own too nice a car. In doing so, the Court would remove the particular civic wound of knowing that the law ignores the arbitrary casting of suspicion upon minorities. And in so doing, the Court would declare the simple message that, in the United States, police detainment of citizens due to the color of their skin is not just unequal but unreasonable. 

Professor of Law, Benjamin N. Cardozo Law School.