RACIAL PROFILING AND THE FOURTH AMENDMENT: APPLYING THE MINORITY VICTIM PERSPECTIVE TO ENSURE EQUAL PROTECTION UNDER THE LAW

Peter A. Lyle*
Abstract:  Racial profiling was once thought the figment of an overactive minority imagination. Yet, recent media coverage has thruthe reality of racial bias in law enforcement into the national spotlight. Despite its newfound popularity, the real battle for equal protection and justice under the law has been quietly raging across American courtrooms for decades, and it is a battle that people of color continue to lose. This Note examines the judiciary’s tendency to excise racial perceptions and bias from its analysis of racial profiling cases under the Fourth and Fourteenth Amendments. Focusing on the recent profiling case of Brown v. City of Oneonta, this Note suggests that the imposition of race ignorant standards is itself a subtle but powerful vestige of racial bias in the courtroom. By more broadly considering the subjective perceptions of both police and minority victims of discriminatory police practices, courts will be more responsive to the coercive nature of certain police stops, as well as the discriminatory intent behind abusive police investigations“We the People” no longer enslave, but the credit does not belong to the framers. It belongs to those who refused to acquiesce in outdated notions of “liberty,” “justice,” and “equality,” and who strived to better them.

—Thurgood Marshall1

Fourth Amendment and Equal Protection Analysis in the Modern Courtroom: Linking Terry, Whren and Brown

Brown paints a vivid picture of how the race-ignorant approach of Terry and Whren frustrates and undermines Fourth and Fourteenth Amendment analysis in modern racial profiling cases.121 Both the original and superseding opinion in Brown were produced by a three-judge panel of the Second Circuit and offer special insight into the process of ignoring racial perceptions in the courtroom.122

Led by Judge John M. Walker, Jr., the panel began its original opinion by stating that Brown “bears on the question of the extent to which law enforcement officials may utilize race in their investigation of a crime.”123 Yet, in considering the plaintiffs’ claims that they were unconstitutionally “seized” in violation of the Fourth Amendment, the court initially refused to find that such a seizure had occurred for several victims of the police sweep.124 The panel also held that the plaintiffs in Brown had failed to demonstrate sufficient evidence of discriminatory racial animus to justify a claim under the Equal Protection Clause of the Fourteenth Amendment.125

Analyzing the Fourth Amendment component of the case, the panel failed to find any illegal searches in all but two situations.126 Initially, the judges were not persuaded that Ricky Brown, whose affidavit showed that he was stopped, surrounded and questioned in the street by three police officers, would have reasonably believed that he was unable to leave.127 Nor did the court initially believe that a police officer who had pointed a spotlight at Jamel Champen and said, “What, are you stupid? Come here. I want to talk to you,” had used [*PG259]language or a tone that indicated that compliance was compulsory.128 Instead, the court’s original opinion brushed these acts aside as merely brief, rude and harmless encounters.129

Addressing the Equal Protection component of the complaint, the panel held that when law enforcement officials possess a description of a criminal suspect’s race and gender, and when no other evidence of discriminatory racial animus exists, they can act on the basis of that description without violating the Equal Protection Clause.130 The court promptly affirmed the dismissal of the plaintiffs’ � 1983 claims under the Fourteenth Amendment as well as their claims under 42 U.S.C. �� 1981, 1985(3) and 1986.131

In reaching this conclusion in his original opinion, Judge Walker outlined the ways that a plaintiff could plead intentional discrimination in violation of the Equal Protection Clause.132 He stated that the Equal Protection Clause essentially directs that all persons similarly situated should be treated alike.133 To show intentional discrimination based on race, a plaintiff can identify a law or policy that expressly classifies persons on the basis of race.134 She can also identify a facially neutral law or policy that has been applied in an intentionally discriminatory manner.135 Finally, a plaintiff can allege that a facially neutral scheme or policy has an adverse effect and was motivated by discriminatory animus.136

The panel did not believe that most of the Brown plaintiffs had been treated in a manner that caught any of these “hooks.”137 It held that this group had not identified any law or policy containing an express racial classification.138 Judge Walker also employed a deft twist of reasoning: he challenged the plaintiffs’ factual premise as being incorrect, maintaining that the police investigation in Brown was not a discriminatory policy in itself, but rather a race-neutral policy of inves[*PG260]tigating crimes using whatever descriptors were provided.139 He wrote, in short, that “the description [was] not a suspect classification, but rather a legitimate classification of suspects.”140

The judicial reasoning in this early version of the Brown opinion demonstrates a powerful but mistaken assumption in Fourth Amendment and Equal Protection analysis: that interactions between police and minority plaintiffs are not influenced heavily by racial dynamics.141 Judges who approach cases like Brown in this race-ignorant manner fail to take into account how racial perceptions between minorities and police might make a person of color feel “seized” under the Fourth Amendment.142 Such courts also fail to consider how a police investigative policy might be fueled, even in subtle ways, by racial bias.143 To courts that follow the Brown approach, the subjective subtleties of race are subordinated to a pro-law enforcement perspective.144 Actions by both police officers and minority plaintiffs, even if corrupted by discriminatory animus, are thus treated as entirely devoid of racial influence.145 The guiding principle of ignoring race, when handed down through cases from Terry to Whren to the panel’s initial opinion in Brown, has troubling implications for resolving racially charged conflicts in the future.146

III.  Fourth Amendment and Equal Protection Claims: Constitutional Construction, Race-Ignorant Standards, and Racial Attitudes Among Minorities and Police

To be sure, Judge Walker’s original opinion in Brown shows how the race-ignorant approach can fail plaintiffs in both the Fourth Amendment context and in adjudicating claims under the Fourteenth Amendment.147 The opinion made clear that courts tend to overlook [*PG261]the subjective perceptions of plaintiffs to impose a one-sided analysis of the facts.148 More often than not, this analysis has been consonant with the views of law enforcement officials.149 Although they outlined the factors that contribute to a “seizure” under the Fourth Amendment, the three judges considering the Brown appeal did not initially give even brief consideration to the fact that some of the plaintiffs in the case might have felt threatened and detained by the police without consent.150 Furthermore, the panel dropped its guard in considering the Equal Protection claim because it ignored the possibility of discriminatory racial animus in a policy drawn along racial lines.151

A Thirteenth Amendment Framework for Combating Racial Profiling

Law enforcement officers’ use of race to single persons out for criminal suspicion (“racial profiling”) is the subject of much scrutiny and debate. This Article provides a new understanding of racial profiling. While scholars have correctly concluded that racial profiling should be considered a violation of the Fourth Amendment, the Fourteenth Amendment’s Equal Protection Clause, and existing federal statutes, this Article contends that the use of race as a proxy for criminality is also a badge and incident of slavery in violation of the Thirteenth Amendment.

Racial profiling is not only a denial of the right to equal treatment, but also a current manifestation of the historical stigmatization of all African Americans as predisposed toward criminality. This legally enforced stigma arose out of, and was essential to, slavery and the social structures necessary to maintain slavery. Courts have wrongly divorced the modern practice of racial profiling from its historical roots and instead focused solely on the subjective intent of individual police officers in discrete cases. By doing so, courts have misunderstood and undervalued the injuries inflicted by racial profiling; failed to acknowledge the systemic, historical bases of racial profiling; and failed to provide effective relief. The Thirteenth Amendment provides both courts and Congress with the authority to remedy this legacy of inequality arising from the slave system in the United States.