By Arthur H. Garrison, assistant professor of criminal justice at Kutztown University
This week, in another case, riots erupted due to the shooting of a black man by police officer in Charlotte, North Carolina, with the normal reactions and commentaries being said. Something that is rarely discussed in the wake of riots due to police activity is how the criminal justice system operates and how that operation helps create the rage that fuels days of riots. The rage is fueled in part by the nature of the law and how it has granted the police, specifically, and the criminal justice system, generally, great power of the lives over those the system focuses its attention on.
Leaving aside the discussion of how the criminal justice system focuses its attention, I would like to provide the reader with an eloquent summary written by Supreme Court Justice Sonia Sotomayor in her dissenting opinion in the 2016 case Utah v Strieff on the power of the criminal justice system once that attention has found a target. Because commentary on the law in the media is usually sloppy and sanitized, if not wrong outright, the case law upholding her statements have not been omitted. After reading her opinion, consider her conclusion, “unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.”
“Writing only for myself, and drawing on my professional experiences, I would add that unlawful 'stops' have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.
"Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact. Whren v. United States. That justification must provide specific reasons why the officer suspected you were breaking the law, Terry v Ohio, but it may factor in your ethnicity, United States v. Brignoni-Ponce, where you live, Adams v. Williams, what you were wearing, United States v. Sokolow, and how you behaved, Illinois v. Wardlow. The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous. Devenpeck v. Alford and Heien v. North Carolina.
"The indignity of the stop is not limited to an officer telling you that you look like a criminal. The officer may next ask for your 'consent' to inspect your bag or purse without telling you that you can decline, Florida v. Bostick. Regardless of your answer, he may order you to stand 'helpless, perhaps facing a wall with [your] hands raised.' Terry v Ohio. If the officer thinks you might be dangerous, he may then 'frisk' you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.'" Terry v Ohio.
"The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or 'driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seat belt fastened.' Atwater v. Lago Vista. At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to 'shower with a delousing agent' while you 'lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.' Florence v. Board of Chosen Freeholders of County of Burlington and Mary¬land v. King. Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the 'civil death' of discrimination by employers, landlords, and whoever else conducts a background check. And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you 'arrestable on sight' in the future.
"This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner. But it is no secret that people of color are disproportionate victims of this type of scrutiny. For generations, black and brown parents have given their children 'the talk'—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them.
"By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral [a prison] state, just waiting to be cataloged. We must not pretend that the countless people who are routinely targeted by police are 'isolated.' They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but."