Racial Profiling Lives On

N.Y. Times, Aug. 14, 2013

By Devon W. Carbado, Cheryl I. Harris, and Kimberlé W. Crenshaw

Los Angeles — The historic ruling by Judge Shira A. Scheindlin that the stop-and-frisk practices of the New York Police Department violate the Constitution is being applauded as a major victory against unreasonable policing.

Mayor Michael R. Bloomberg, meanwhile, is bitterly disappointed. “This is a very dangerous decision made by a judge who I think does not understand how policing works,” he said after the decision was handed down Monday.

But if unrestrained policing is, for Mr. Bloomberg, policing that works, it turns out that he can still have it. The ruling by Judge Scheindlin, of the Federal District Court in Manhattan, does nothing to disrupt the authority the Supreme Court has given police officers to target African-Americans and Latinos with little or no basis. Despite the Fourth Amendment’s protection against unreasonable searches and seizures, the Supreme Court’s interpretation of that provision gives the police frighteningly wide discretion to follow, stop, question, frisk and employ excessive force against African-Americans and Latinos who have shown virtually no indication of wrongdoing.

That might sound hyperbolic. But consider these 10 actions a hypothetical Officer Bloomberg could still take against a hypothetical black man, Tony.

First, Officer Bloomberg can follow Tony without any hint that Tony had done anything wrong. The officer could ask: “What’s your name? What are you doing here? What have you got in the bag? May I see some identification?” The Supreme Court would rule that because the suspect was free to walk away, the Fourth Amendment doesn’t apply.

Officer Bloomberg could ask Tony for permission to search his person or his belongings. He would not be required to tell Tony that he has the right to refuse consent or walk away — the Supreme Court has held that people do not have a right to know that they can say no to an officer’s request to conduct a search.

Despite this week’s decision, Officer Bloomberg could stop and frisk Tony for weapons based on the officer’s “reasonable suspicion” — a standard the Supreme Court defines as more than a hunch but less than probable cause. Nothing in Judge Scheindlin’s opinion challenges this standard, one that is relatively easy for the police to meet.

For example, the Supreme Court has made clear that simply being in a “high crime” (which often means a predominantly black or Latino) area can be a factor in determining whether a person is armed and dangerous.

And suppose Tony ran away upon seeing Officer Bloomberg? The officer would be free to chase Tony, even if he had no reason to believe that Tony had violated any law. The Supreme Court has ruled that people who are chased and captured by the police are not “seized” within the meaning of the Fourth Amendment.

Moreover, Tony’s running away would be counted in determining reasonable suspicion, and if he fled in a “high crime” area, the standard would likely be met.

This all assumes Tony was on foot. If he was driving, Officer Bloomberg could easily stop and arrest him if he had probable cause that Tony had committed a traffic infraction, no matter how minor. Even if Officer Bloomberg specifically targeted Tony for arrest because he was black, the Fourth Amendment is not a bar, as long as probable cause exists.

If Tony were a Latino, Officer Bloomberg could argue that Tony “looked Mexican,” and therefore believed that Tony was undocumented. Under a 1975 Supreme Court decision that remains good law, apparent Mexican ancestry can be a factor in determining whether a person is undocumented. Lots of local police departments, not just those in Arizona, regularly take race into account in enforcing immigration laws.

Upon arrest, no matter how minor the charge, Officer Bloomberg could handcuff Tony, conduct a full search of his person and haul him off to the police station.

In each of the preceding examples, Officer Bloomberg could successfully argue that he did not impermissibly rely on race. In immigration enforcement, using race is permitted, and the Supreme Court has largely ignored the role of race in ordinary policing.

Finally, even if Tony, like Rodney G. King or Oscar Grant III, didn’t resist, but was beaten or shot and killed by Officer Bloomberg, the likelihood of winning an excessive-force claim would be difficult. Courts and jurors defer to police judgments, even if those judgments are inflected by racial stereotypes that inevitably render an unarmed black man more dangerous than an armed policeman.

None of this is to say that Judge Scheindlin’s ruling is unimportant. But she was ruling on a particular policy. The victory leaves in place a higher body of law, Supreme Court doctrine, that continues to expose African-Americans and Latinos to surveillance, harassment, violence — and death.

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Devon W. Carbado and Cheryl I. Harris are law professors at the University of California, Los Angeles. Kimberlé W. Crenshaw is a law professor there and at Columbia University.

© 2013 New York Times