It’s Structural, Not Personal: Disrupting the Fallacy That Renders the Court “Unreasonably” Blind to the Meaning of Color in Policing

Abstract

Unreasonable makes a number of important contributions to discourses on race, crime and justice. First, a central claim of the book is that within policing, race discrimination is not an individual phenomenon or a problem of bad police officers. Rather, bias is seamlessly built in to policing practices, training, accountability policies, and judicial approaches to evaluating police conduct under the Fourth Amendment.

Using narratives and hypotheticals—within the Critical Race Theory tradition—to engage the holdings of foundational Fourth Amendment cases, the text reveals many subtle ways in which race shapes policing. By revealing the structure, we additionally see how the Supreme Court’s commitments to colorblindness have prevented a majority of the Justices from acknowledging the work race is doing.

A second contribution of the book is that it provides an opportunity for one to explore a disjuncture in constitutional jurisprudence. The Court that is ostensibly cannot see to the effects of race in the Fourth Amendment context, seems obsessed with limiting the consideration and impact of the social category in the context of its Equal Protection race-conscious benefits programs.

The major intervention within the text is that it challenges the reader to reimagine Fourth Amendment doctrine in a manner that asks whether the cases have ignored how racial considerations permeate policing. It does so by raising critical questions in the hypotheticals and rewriting the majority opinion from Whren v. U.S. The rewritten opinion exposes the misunderstanding of race that allowed the Court to previously conclude the presence of race bias was irrelevant as long as an officer had probable cause to believe the person stopped had committed a low-level civil infraction.

Alongside its critique of bias in policing the text introduces a number empirical studies that demonstrate the disproportionate impact of policing and police violence on Black bodies. By clearly explicating how race bias is operating in stops and the real consequences of racialized policing in people’s lives, there is hope for a future where a differently-constituted Court might see and address such issues in its Fourth Amendment jurisprudence and beyond.

In terms of areas where space for further consideration exists, there could have been an additional focus on legislative as well as judicial remedies to bias in policing. Also, while Unreasonable deftly articulates the ways in which race infects policing, it does not fully expound on the trauma racialized policing produces in the lives of those who are subject to it. Ultimately, however, Unreasonable should be praised for advancing an important critique of the limits of the Fourth Amendment through the use of an innovative mix of empirical and critical tools.

About the Author

Chancellor’s Professor of Law and Co-Director, Center on Law, Equality and Race, U.C. Irvine School of Law. Many thanks to Professor Devon Carbado for inviting me to participate in this engagement with his excellent work and the UCLA Law Review editors for their patience, thoughtfulness, and hard work.

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