Originally published at Huffington Post.
After the civil rights movement of the 1950s and 60s dismantled explicitly racist laws, racism became colorblind to survive. Today, although no law explicitly allows for racial profiling by law enforcement, it still happens at an institutional level. What’s often left out of the discussion about why racial profiling happens is that the highest court in the country has approved it ‒ in more than one case.
Terry v. Ohio (1968)
The Supreme Court’s first step to sanction racial profiling was Terry v. Ohio, 392 U.S. 1 (1968), an 8-1 ruling that developed the “reasonable suspicion” standard (also known as the “stop-and-frisk” rule). The Court, whose opinion was delivered by the usually astute Chief Justice Earl Warren, held that the Fourth Amendment’s prohibition on “unreasonable searches and seizures” is not violated when a police officer has “reasonable suspicion” “in light of his experience” that a crime has been committed. By opening the door to greater law enforcement discretion with respect to whom to stop and search, the Supreme Court in Terry gave its first approval of racial profiling.
Several studies show that police officers perceive young black boys as violent and older than they actually are. One study from 2007 found that officers display a “robust racial bias in response speed” in a simulated shooting exercise of black and white targets. So when police officers are given greater discretion “in light of their experience” as Terry offered them, it’s no surprise that they disproportionately target black people. (That’s in addition to police departments institutionally over-policing poor communities of color compared to their presence in white communities.)
Since Terry, police departments ‒ and the Burger, Rehnquist, and Roberts Courts ‒ have interpreted Warren’s decision as carte blanche for police officers, so much so that UNLV constitutional law professor Thomas B. McAffee described Terry‘s long-term impact on the Fourth Amendment as “truly disastrous.” “The Terry stop-and-frisk doctrine has lent itself too readily to supporting law enforcement efforts rooted in stereotypical generalizations and racial profiling,” he wrote in the Nevada Law Journal.
United States v. Brignoni-Ponce (1975)
United States v. Brignoni-Ponce, 422 U.S. 873 (1975) might seem on the surface to be an anti-racist decision, a good step in Fourth Amendment law. The Court ruled against law enforcement on the grounds that it violated the Fourth Amendment for stopping a vehicle solely on the basis that the driver looked Mexican.
But while the Court acknowledged that, by itself, “apparent Mexican ancestry” does not justify reasonable suspicion that occupants of a vehicle are undocumented drug smugglers, it did rule unanimously that “Mexican appearance” is a “relevant factor.” Ostensibly to help law enforcement justify a stop, Justice Lewis F. Powell offered several reasons sufficient for reasonable suspicion to stop a car near the border with Mexico: “previous experience with alien traffic,” a “heavily loaded” vehicle, a vehicle with “an extraordinary number of passengers,” and finally ‒ the part that justifies racial profiling ‒ “the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut.”
In other words, a police officer can racially profile a motorist if that officer finds an additional reason to make a stop, effectively deeming race acceptable for reasonable suspicion. As Michelle Alexander wrote in The New Jim Crow, “Because the Supreme Court has authorized the police to use race as a factor when making decisions regarding whom to stop and search, police departments believe racial profiling exists only when race is the sole factor.”
The Court in Brignoni-Ponce neglected to recognize what Kevin R. Johnson, a public interest law professor at UC Davis, pointed out in the Georgetown Law Journal: “In fact, people from Mexico run the gamut in terms of phenotypes, with there being persons of both fair and dark complexions of Mexican ancestry. Nevertheless, stereotypes of ‘Mexican appearance’ persist, and the Brignoni-Ponce Court ultimately appears to have sanctioned reliance on such stereotypes by the Border Patrol.”
Whren v. United States (1996)
In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court unanimously sanctioned racial profiling by allowing police officers to make “pretext stops,” wherein an officer pulls over a motorist for a traffic violation with the specific intention of hunting for drugs. “It does not matter, the Court declared, why the police are stopping motorists under the Fourth Amendment, so long as some kind of traffic violation gives them an excuse. The fact that the Fourth Amendment was specifically designed to prevent arbitrary stops and searches was deemed unpersuasive,” Alexander wrote of the decision.
But approving pretext stops wasn’t even the most dangerous legal precedent set in Whren. The Court barred victims of a pretext stop from challenging the admission of evidence on Fourth Amendment grounds, thus ignoring Whren’s argument that police officers may decide which motorists to stop based on factors that should be constitutionally impermissible, such as race. Justice Antonin Scalia ruled, “We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis.”
Scalia’s ruling left people of color with “an onerous evidentiary burden,” Johnson wrote. The responsibility for proving racism was once again placed on the oppressed. Pointing out that the Court “failed to cite any cases supporting its conclusion that the Equal Protection Clause offered the exclusive constitutional remedy (or, at least, that it offered a remedy where the Fourth Amendment did not),” Johnson noted how difficult it is to prove discrimination under the Equal Protection Clause:
The Fourth Amendment’s exclusionary rule bars the use of unlawfully seized evidence against a defendant; there is no counterpart in the Equal Protection Clause of the Fourteenth Amendment. The inability to exclude the fruits of a stop based on impermissible factors under the Equal Protection Clause make any such claim of limited utility to criminal defendants like Whren and Brown, who wanted to avoid conviction and imprisonment, not to recover damages in a civil action for a violation of their constitutional rights.
By ruling that the Fourth Amendment offered no protection against a racially motivated traffic stop, the Court gave law enforcement officials its approval to racially profile motorists and “closed the courthouse doors to claims of racial bias,” Alexander wrote.
The law is supposed to protect the rights of individuals against state abuse. But these cases show how the law can be manipulated by those who wield power to uphold a system of racial hierarchy.