Thursday, May 13, 2021

The Myth of Objectivity in Fourth Amendment Jurisprudence

From Juval Scott, FPD WDVa, The Myth of Objectivity in Fourth Amendment Jurisprudence is part of the ABA Criminal Justice Section Spring 2021 edition on Racial Justice. From a  historical perspective, Scott explains how  "objectivity" is a myth and why we need a racially informed approach to the Fourth Amendment:  

People of color, especially Black and Indigenous Americans, do not have the luxury of revising history and how it defines our existence in the United States. . . . . Embedded in the fabric of this country is a horrific history, and our legal system continues to perpetuate the less-than-equal historical legacy among Black, Indigenous, and people of color (BIPOC).

This is a powerful piece of writing, and should be required reading for all defense attorneys. Because the courts have largely failed to do so, it is incumbent on the defense bar to invoke "the influence of history, community dynamics, and policing practices in assessing whether citizens feel free to terminate an encounter with law enforcement." Does anyone really believe that a young person of color would feel free to walk away from the police? That is a myth perpetuated by police and prosecutors and embraced by the courts under the guise of objectivity.   

One particular lesson is this: Whren must be overturned. Whren says that police may stop someone for a pretextual reason when they don't have sufficient cause to stop for the real reason. It was bad law when authored by Justice Scalia in 1996, and it is worse today. "Whren provided the playbook for law enforcement to prey on communities of color under the guise of necessary traffic enforcement." When the judiciary condones and encourages police to lie--which is the foundation of Whren--the system is complicit in corruption and abuse. And that judicially-granted entitlement to lie is a significant reason that the "BIPOC community has been and still is terrorized by the police." 

Likewise, when courts continue "to protect police under the guise of qualified immunity, and, at the same time, admits illegally obtained evidence by those same officers, [they are]  complicit in gutting constitutional rights for the BIPOC community." This evinces a greater interest in "police welfare and perception than the [constitutional] deprivation itself." 

It is past time for a radical change in how we understand and apply the Fourth Amendment, if it is to ever have any meaning or credibility for our clients of color. "[I]t is past time for an honest conversation about race and the Fourth Amendment.

-- Melody


     

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