Abstract
Excerpted From: Aliza Hochman Bloom, Objective Enough: Race Is Relevant to the Reasonable Person in Criminal Procedure, 19 Stanford Journal of Civil Rights & Civil Liberties 1 (April, 2023) (312 Footnotes) (Full Document)
Late at night on January 26, 2018, in Tampa, Florida, Anthony Knights, a young Black man, was sitting in his parked car with a friend. Two officers patrolling in a marked police car saw them, drove past, but then swung around to approach, crossed the median and parked their patrol car against the flow of traffic in a manner that boxed in Mr. Knights's car and constrained his freedom of movement. Then, both police officers emerged shining flashlights. One unsuccessfully pursued Mr. Knights's friend, who left the parked car and entered the residence without having any police interaction, and then returned towards Mr. Knights, sitting in his parked car. At that point, the two officers stood on either side of Mr. Knights's parked car and targeted him for interrogation, despite his efforts to signal that he did not wish to engage.
The magistrate judge in the case--the judge who heard the testimony and evidence--concluded upon consideration of the totality of the circumstances that Mr. Knights had been seized within the meaning of the Fourth Amendment without considering his race. Following the government's appeal and further review, however, the Eleventh Circuit concluded that Mr. Knights had not been seized, and instead that “[i]n this encounter, a reasonable person would have felt free to leave.” Compounding its surprising conclusion that Mr. Knights's encounter with law enforcement was consensual, the Eleventh Circuit held upon rehearing that lower courts were precluded from ever considering an individual's race among the totality of circumstances they consider when making the Fourth Amendment seizure determination. Despite the inexorable conclusion that race can influence whether a reasonable person feels free to leave a police encounter, the Eleventh Circuit singled out race and excluded it from the totality of the circumstances analysis. In December 2021, the Supreme Court declined to address the circuit split over whether race can be considered in the reasonable person analysis for the seizure determination.
Upon stepping back from Knights and surveying the role of race in seizure and related doctrines, the reality is that a Black man may feel that it is unreasonable for him to deny consent to a search, to leave an interrogation, or to terminate a police encounter. Excising that racial reality from the set of factors included in a trial court's post hoc determination using the “reasonable person” standard merely distorts each of these criminal procedure analyses.
The paper deconstructs three criminal procedure doctrines where the Supreme Court has traditionally preferred to use an “objective” reasonable person: consent to a search, seizure analysis (when a consensual encounter becomes a seizure), and custody for the purposes of Miranda. In Part I, I review some of the accumulated data showing why racial minorities, and especially Black males, “reasonably” fear interactions with law enforcement; present the current conflicting approaches to treating race under these doctrines; and summarize the primary critiques of the “reasonable person” in criminal procedure. Part II details the doctrines, showing that despite a preference for objectivity, characteristics that the Court sometimes considers “subjective”--regarding an individual's traits--have been permitted in two of these three. In Part III, I argue that these three doctrines address a common question about the coerciveness of interactions between individuals and law enforcement. Race may not be included in what has been traditionally considered “objective” factors for each of these analyses, but it is nonetheless highly relevant to the evaluation of how a “reasonable person” responds to police encounters. Excluding race perpetuates a “reasonable person” that is divorced from reality for many Americans, and, at a minimum, there is no reasoned basis to insist on an “objective” reasonable person for one of the three doctrines but not the others.
[. . .]
In a country where Black Americans have long experienced disproportionate and well-publicized violence in law enforcement encounters, a reasonable person who is a young, Black male, for example, is more likely to pause before declining a police officer's request or attempting to leave the officer's presence. In light of substantial evidence documenting racial bias in law enforcement and the objective reality facing young Black men in particular during police-citizen interactions, “a true consideration of the totality of the circumstances” for each of these three related criminal procedure determinations must be permitted to encompass a defendant's race. Indeed, any rule that endeavors to account for objective realities--and “the whole” of a police encounter, cannot ignore the role that race plays, alongside myriad other factors, in amplifying the coercive nature of a police confrontation.
When assessing the voluntariness of consent, the existence of a seizure, or custody for the purposes of Miranda, an individual's race is relevant to the totality of circumstances courts consider. Conversely, prohibiting any consideration of race further distorts the “reasonable person” from reality and, as a result, provides diminished constitutional protection to already marginalized groups.
Assistant Professor of Law, Northeastern University School of Law | Boston; J.D., Columbia Law School; B.A., Yale University.
