See Patricia J. Williams, The Alchemy of Race and Rights 3 (1991) (Since subject position is everything in my analysis of the law, you deserve to know its a bad morning.). 211 And if they do this, they never get to fully enjoy them. doea/silver_alert.html [http://perma.cc/J3CE-NSCQ] (last visited Oct. 16, 2017). This was just a couple of decades ago. Interestingly, studies show little disparity in unambiguous traffic safety stops such as running a stop sign. 253 Mapp, 367 U.S. at 64445. Dont touch my junk. In their amicus brief, they pressed for a decision that would facilitate compliance with officers requests for consent in order to combat the flow of illegal narcotics and weapons. Brief Amici Curiae of Americans for Effective Law Enforcement, Inc. et al. Asian Americans are still often perceived to be foreign. 31 Close Close by neglecting racial concerns when constructing Fourth Amendment rules that govern police-citizen interactions.). 158 What quality of citizenship did they truly deserve? Never mind that in the proverbial high-crime neighborhood, the nature of policecitizen interactions there furnishes a reason for flight totally unrelated to consciousness of guilt. See Commonwealth v. Warren, 58 N.E.3d 333, 342 (Mass. For an interesting discussion of the phenomenon of NFL players kneeling during the national anthem, and the backlash, see generally Jelani Cobb, From Louis Armstrong to the N.F.L. 528 U.S. 119, 121 (2000). 195 291 For too long, the Court has read equality as outside the purview of the criminal procedure amendments. 342 For Foucault, Benthams model prison merely reproduced, with a little more emphasis, all the mechanisms that are to be found in the social body[.] The Panthers also habitually carried with them law books from which they could quote the appropriate section of the legal code being violated by the police.); Bridgette Baldwin, In the Shadow of the Gun: The Black Panther Party, the Ninth Amendment, and Discourses of Self-Defense, in In Search of the Black Panther Party 67, 69 (Jama Lazerow & Yohuru Williams eds., 2006). when so many criminal procedure opinions are also on a certain level race opinions, justD4R, Police Officer Smashes Students Car Window After Girl Refuses to Roll It Down!, YouTube (Sept. 21, 2013), http://www.youtube.com/watch?v=MvQJKfJOako (on file with the Columbia Law Review). 364 29 http://www.thenation.com/article/fannie-lou-hamer-tired-being-sick-and-tired/. 49 136 S. Ct. 2056, 2070 (2016) (Sotomayor, J., dissenting) (For generations, black and brown parents have given their children the talkinstructing them never to run down the street;. who famously said no when officers barged into the house she owned and demanded to search her house? on Tech. 1519, 157981 (2008) (noting lower courts tend to construe strictly the requirement of an unequivocal assertion of rights, thus narrowing the duty of officers to cease or refrain from questioning). 82-414, 311, 66 Stat. Close The issue before the Court was whether this seizure was justified, since the officers did not have probable cause to believe a crime had been committed to justify an arrest, or even reasonable suspicion of criminal activity to justify a Terry stop. at 558. The Court, in these cases, does more than simply decide the legal issue of whether a particular state action infringed upon a defendants right to be free from unreasonable searches or seizures, or their privilege against self-incrimination, or their right to counsel. 2257, 227274 (2002) (discussing the black perspective in interactions with law enforcement); Camelia Simoiu et al., The Problem of Infra-Marginality in Outcome Tests for Discrimination 17 (July 18, 2016) (unpublished manuscript), http://papers.ssrn.com/ Close Close Jan. 5, 1995). Thus far, I have attempted to demonstrate that the question of race and citizenship in this country has always been fraught, that race has determined who is allowed to become a citizen, and that race has determined which rights a citizen is permitted to exercise. 412 U.S. 218, 219 (1973); see also Megan Annitto, Consent Searches of Minors, 38 N.Y.U Rev. 316 137 J. See generally Andrew Guthrie Ferguson, Big Data and Predictive Reasonable Suspicion, 163 U. Pa. L. Rev. 106 (2012). As the Court glibly put it in Korematsu v. United States, the case upholding the constitutionality of the military exclusion order, Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Capers, Crime, Surveillance, and Communities, supra note 32, at 96569 (describing the conventional reading that the Fourth Amendment provides no protection for activities conducted in public); see also Capers, Policing, Race, and Place, supra note 102, at 6970 (explaining how the enforcement of order-maintenance offenses and traffic laws are used to target minorities and others deemed out of place). United States v. Wade, 388 U.S. 218, 22223 (1967) (holding that requiring a suspect to speak and thus use his voice as an identifying physical characteristic does not violate the Fifth Amendment privilege against self-incrimination). His crime: notifying the police officer he was in possession of a licensed firearm. 997, 1020 & n.144 (2013). 298 338 56940e76e4b0c8beacf7fe2d [http://perma.cc/85MN-9UUR]. Lindsey Bever & Abby Ohlheiser, Baltimore Police: Freddie Gray Died from a Tragic Injury to His Spinal Cord, Wash. Post (Apr. Maryland v. King, 569 U.S. 435, 43750 (2013) (permitting warrantless and suspicionless DNA collection). contributed to the Courts conception of a raceless world of Fourth Amendment jurisprudence: a constructed reality in which most police officers do not act on the basis of considerations of race). In short, exhortations to be good citizens are all around us. . To be clear, I am not suggesting language that would give individuals the right to physically resist arrest or to disobey a lawful order. 281 202 www.newyorker.com/news/news-desk/from-louis-armstrong-to-the-nfl-ungrateful-as-the-new-uppity [http://perma.cc/D7WE-ZZ66]. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. See, e.g., Ritt Goldstein, U.S. Planning to Recruit One in 24 Americans as Citizen Spies, Sydney Morning Herald (July 15, 2002), http://www.smh.com.au/articles/2002/ As a result, Articles 191 to 277 of the GCP applies, See U.S. Const. See, e.g., Tracey Maclin, The Good and Bad News About Consent Searches in the Supreme Court, 39 McGeorge L. Rev. Citizenship-in-the-Community.pdf [http://perma.cc/P24W-Q2T4]. And even this understates the true error rate, since of the individuals who were arrested, nearly half of their arrests were eventually dismissed. Of course, racialized policingagain inextricable with how we conceive our equal citizenshipis not an isolated phenomenon. A hat tip to Michael Dorf for raising this possibility. 41 The case that made the exclusionary rule binding on the states began when Dollree Mapp, a black woman, demanded to see a warrant when officers showed up to search her house. . Things now are not so different. a country without ceremonies of degradation directed toward racial minorities. Weband the staff of the Columbia Law Review for their outstanding editorial assistance. For that matter, what happens when we assume that Bland, by talking back and refusing to voluntarily exit her car until the officer provided her a valid reason, was calling into question the governments eternal temptation. L. Rev. Miranda v. Arizona, 384 U.S. 436, 47778 (1966). A special thanks to Justin Murray for prompting me to think along these lines for future research. Close 7,629. 12 1 (1999) (explaining the links between the social citizenship tradition and the court-centered ideal of the Constitution as a safeguard of discrete and insular minorities). Ray Stannard Baker, Following the Color Line: American Negro Citizenship in the Progressive Era (1907). 170 See Randall Kennedy, The State, Criminal Law, and Racial Discrimination: A Comment, 107 Harv. Mark Weiner has coined the term black trials to apply to seminal civil rights cases like Dred Scott, Plessy, and Brown. .). Id. 148 Close Close The audience for Court opinions is select and small. 101 Instead, her traffic stop spawned a growing SayHerName movement. See Peggy C. Davis, Law as Microaggression, 98 Yale L.J. Close . Close, Also, if asked, the good citizen should not hesitate to open his bag, pocket, or home to the police, or to otherwise consent to a search. Right now, the message from Court opinions is that citizens should want to assist the police, should want to cooperate, should want to come forward with any information they know about themselves or others. Close Du Boiss observation: [The] widening of the idea of common Humanity is of slow growth and to-day but dimly realized. United States v. Dionisio, 410 U.S. 1, 67 (1973) (concluding that the privilege against compulsory self-incrimination did not protect handwriting exemplars). Sunil Dutta, Im a Cop. at 18285; see also 42 U.S.C. And you best say, yes, sir, or no, sir. Close Whren v. United States, Even in criminal procedure cases involving white defendants, race is often in the background. WebHunter Biden's plea deal with federal prosecutors is "far from standard operating procedure," a legal expert said. The solution I have proposedimagining a more pluralistic model of good citizenship to be embraced by the Court, imagining a space that at least tolerates if not welcomes dissent and opposition, and that valorizes rights and equalitymay not be a surefire cure-all to the problems I have identified. . Criminal Procedure 2 3. 97 . Capers, Rethinking the Fourth Amendment, supra note 16, at 612. VIDEO: Man Refuses to Let Cops Search House Without Warrant, Films Police Despite Protests, LiveLeak (Sept. 11, 2014), http://www.liveleak.com/view?i=21e_1410480562 (on file with the Columbia Law Review). 54 Close Consider again the citizenship talk decisions discussed in Part I. 63, 6364 (2010) (explaining that the perception that Asian Americans are especially attached to their culture renders Asian Americans foreign); Arvin Lugay, Book Note, In Defense of Internment: Why Some Americans Are More Equal than Others, 12 Asian L.J. 171 Close, [Citizens stopped at checkpoints should react] positively when police simply ask for their help as responsible citizens. 10 But what happens if we bracket what we have been taught and look at Blands actionsher talking backas part of a continuum of citizens engaged in resistance, in voicing dissent and dissatisfaction, in engaging in agonistic democracy? How do racial minorities prove they are good citizens when driving with the same care as their white counterparts still subjects them to racialized policing? 187 U.S. 181, 18485 (1902). 1225, 123133 (2007) (describing the impact of court-related popular culture on lay Americans perception and understanding of the legal system); June Louin Tapp & Felice J. Levine, Legal Socialization, in The Sociology of Law: A Social-Structural Perspective 121, 129 (William M. Evan ed., 1980). MLive, Grand Rapids Open Carry, YouTube (Mar. 1769, 1779 (1992) (invoking a feeling of kinship between all members of the black community based on the understanding that the current American legal framework was set up in an oppressive fashion). For example, in Floyd v. City of New York, the court found that when the police used the term High Crime Area as a factor to justify a stop based on reasonable suspicion, the term often had little correlation with actual statistics of crime. The Court in turn incorporates these beliefs as part of its Fourth Amendment balancing of the rights of the individual against the need to promot[e]. L. Rev. Close 242 47 250 Even after the Great Emancipation and ratification of the Fourteenth Amendment, which nominally granted citizenship rights to former slaves and their descendants, They regulate the behavior of citizens. 228 These concerns alone should be reason enough to question the Courts citizenship talk. and Giles v. Harris, which again upheld racially discriminatory voter registration laws. They do so still. In Schneckloth, the Court couched its talk in the language of community, but the good citizenship message is clear: [T]he community has a real interest in encouraging consent, for the resulting search may yield necessary evidence for the solution and prosecution of crime, evidence that may insure that a wholly innocent person is not wrongly charged with a criminal offense. . 232 See Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (holding that police officers may order drivers out of a vehicle after making traffic stops). 60 Whren v. United States, 517 U.S. 806, 813 (1995). Professor Hes book is timely: an opinion on a Trial-Centred Criminal Procedure System The answer involves Dajerria Becton, the fifteen-year-old black teenage girl who was body slammed to the ground by a Texas police officer at a graduation pool party. 304 26 Duncan v. Louisiana, 391 U.S. 145, 16062 (1968). such as birth certificates, marriage licenses, and property deeds that document and track individuals. , in Criminal Justice in Our Time 1, 1920 (A.E. . Wilkins sued the Maryland State Police in federal court, and discovery revealed a state police memo instructing troopers to target black males and black females. Ct. Rev. 223 Indeed, Carbado argued that it is through these encounters that black Americans learn they are black Americans, and hence second-class citizens. In this essay, Partner Joanna Wright explores the expansion of judicially created exceptions to criminal procedure rights and legislation eliminating criminal procedure rights for certain groups of people or for all people in certain situations. In extreme cases, there may be an arrest for failing to obey a police order. Professor Cooper in turn borrows this concept from the Marxist philosopher Louis Althusser. L.J. Lessig, supra note 102, at 947. See Bell, supra note 3, at 2057 (using the term to describe the feeling shared by many African Americans of being essentially statelessunprotected by the law and its enforcers and marginal to the project of making American society). Women were told to work in defense plants, to volunteer for war-related organizations, and to serve in the military in noncombat roles. perma.cc/5V5K-CRRS]. [Our decision today sends the message] that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be catalogued. The Reconstruction period, however, was followed by the undoing of the Negro as a citizen. Carter G. Woodson, Fifty Years of Negro Citizenship as Qualified by the United States Supreme Court, 6 J. Negro Hist. 23 See Elizabeth E. Joh, Privacy Protests: Surveillance Evasion and Fourth Amendment Suspicion, 55 Ariz. L. Rev. First, with respect to rights, consider the benefits that would accrue if criminal procedure opinionsrather than treating the Fourth, Fifth, and Sixth Amendments solely as regulatory limitations on government behavior vis--vis individualsalso treated themin practice and in the language in the opinionsas positive rights to be independently valued and enjoyed by citizens. 20 Close 317 C.R.-C.L. 213 See generally Jane Bambauer, Other Peoples Papers, 94 Tex. The course engages in practice and analyses of criminal On one level, her dissent is noteworthy for its references to W.E.B. is understood along lines of race. Volunteers in Law Enforcement, DiscoverPolicing, http://www.discoverpolicing.org/ In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own. 190 Close Close Id. 26 286 162 Close Pub. 251 547 U.S. 103, 11516 (2006) (noting the interest an individual has as a citizen in bringing criminal activity to light). Race & L. 109, 113 (2009) (noting that her interactions with the police during a traffic stop were informed by her status as a white woman); see also Epp et al., supra note 117, at 4748 (observing that whites begin their encounters with police assuming that they have full citizenship rights and leave these experiences with their status undiminished). at 216. But the Court avoided this problem by holding that the mere fact that the youth fled, coupled with the fact this was a high-crime neighborhooditself often a euphemism 350 2d 554, 55859 (S.D.N.Y. I carry myself knowing that I will be watched by the police, scrutinized by the police, and, at any point, potentially stopped by the police. 129 274 85 Close Close Close, Conceptualizing these criminal procedure cases as black trials and master texts helps explain and contextualize the extra work racial minorities in particular must do in order to enjoy a simulacrum of full citizenship status in their interactions with the police. 325 Recall that disciplinary power is not confined to a particular institution or state apparatus. Close 103 The good citizen, having nothing to hide, welcomes police surveillance. racial-history-behind-the-ferguson-protests.html (on file with the Columbia Law Review) (describing Professor Colin Gordons study on the housing discrimination that preceded Ferguson). I am not the only scholar to laud these aspects of Justice Sotomayors dissent. For comments, suggestions, and feedback, I am especially grateful to Liz Anker, Josh Bowers, Devon Carbado, Sherry Colb, Kristin Collins, Michael Dorf, Karen Engle, Howard Erichson, Dan Greenwood, Ben Justice, Jennifer Laurin, Youngjae Lee, Robin Lenhardt, Wayne Logan, Tracey Maclin, Tracey Meares, Eric Miller, Justin Murray, Kimani Paul-Emile, Paul Radvany, Aziz Rana, Jocelyn Simonson, David Alan Sklansky, Carol Steiker, Nelson Tebbe, Erika Thomas-Yuille, and Jordan Blair Woods. In July 2015, in Waller County, Texas, State Trooper Brian Encinia pulled over Sandra Bland for failing to use a turn signal. Even our interactions with the police are tracked. As Professor Lauren Ouziel has remarked, the Warren Courts criminal procedure cases generated intense public interest; the cases were publicized, debated, and commented upon widely in the media and the political sphere. 9EKL-5PU7]. In Discipline and Punish, Foucault expanded upon English philosopher Jeremy Benthams imaginary panopticon, an ideal prison where prisoners are housed in cells in a circular building, at the center of which is an observation tower. 236 189 L. Rev. (4) These Rules are intended to provide for the just determination of every criminal proceeding and shall be liberally construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. Pub. What liberal democratic politics requires is that the others are not seen as enemies to be destroyed, but as adversaries whose ideas might be fought, even fiercely, but whose right to defend those ideas is not to be questioned. 248 Fieldwork. 259 Rather than a decision like Devenpeck v. Alford, in which the Court stated that informing an arrestee of the basis for his arrest is not constitutionally required, Khalil Gibran Muhammad, The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America 16, 19 (2010). L. Rev. See Epp et al., supra note 117, at 7492 (describing racial disparities in the nature and frequency of police stops of drivers); see also Andrew E. Taslitz, Stories of Fourth Amendment Disrespect: From Elian to the Internment, 70 Fordham L. Rev. Dont argue with me, dont call me names, dont tell me that I cant stop you. Or Eric Garner. Close 386 U.S. 300, 308 (1967) (internal quotations omitted) (quoting 8 John Henry Wigmore, Evidence in Trials at Common Law 2374, at 762 (John T. McNaughton ed., 1961)). citation-dropped-against-man-in-street_us_58062403e4b0b994d4c152f9?section=§ion=us_ Ross E. Milloy, PUBLIC LIVES; For Seat-Belt Violator, a Jam, a Jail and Unmoved Justices, N.Y. Times (Apr. 311 Certainly, the Courts criminal procedure jurisprudence plays a role in hierarchical observation. 357 There is a reason why Claudia Rankines heralded book of poetry, which includes poems called In Memory of Trayvon Martin and Stop-and-Frisk, is titled Citizen. Subscribe to this fee journal for more curated articles on this topic FOLLOWERS. 335, 336 (2014). at 205. Political scientists Charles R. Epp, Steven Maynard-Moody, and Donald Haider-Markel make a similar point about police stops: Police stops convey powerful messages about citizenship and equality. Even in Miranda v. Arizona, the Court downplayed race. 118:653 INTRODUCTION [Our decision today sends And yes, the second-class citizen. The more I read, the more I saw asides about citizenship and what constitutes good citizenship. Rather, citizenship has also been connected to crime in the Courts criminal procedure opinions that delineate what rights citizens are entitled to and what rights they are expected to exercise. 169 Close Close . 77 at 2070 (Sotomayor, J., dissenting). Capers, Rethinking the Fourth Amendment, supra note 16, at 35. Foucault also observed that the states interest in discipline extends well beyond what one normally thinks of as the police state. 234 that the law gives an officer almost unfettered discretion to decide which citizen he will stop; which citizen he will order to step out of her vehicle; which citizen he will order to place her hands where I can see them; which citizen he will let go with a warning, or punish with a summons, an arrest, or worse still, physical violence; which citizen he will treat as an equal, as presumed innocent; and which he will not. 169 each of which vested the police with almost unfettered discretion to engage in unequal treatment. as the singing of the Star-Spangled Banner at the Super Bowl, and as Veterans Day parades. . 113 296 Trooper Encina responded by immediately ordering Bland out of the car and eventually yelling, Im going to yank you out of here. Steve Mann, Veillance and Reciprocal Transparency: Surveillance Versus Sousveillance, AR Glass, Lifeglogging, and Wearable Computing, 2013 IEEE Intl Symp. . Police Officer Lies About Terry Stop, YouTube (May 11, 2014), http://www.youtube.com/watch?v=lh9VzrAfw4g (on file with the Columbia Law Review) (documenting questioning by Colorado police officers). 314 243 Shackling prisoners has been implemented as standard procedure when transporting prisoners in labor and during childbirth. Finally, what happens when we put Bland in the same sentence as Dollree Mapp of Mapp v. Ohio, Close In this essay, Partner Joanna Wright explores the expansion of judicially created exceptions to criminal procedure rights and legislation eliminating criminal procedure rights for certain groups of people or for all people in certain situations. and Plessy v. Ferguson, in which the Supreme Court blessed racial segregation in public accommodations and enshrined the doctrine of separate but equal. common to black and brown Americans. The good citizen, at times, willingly waives their right to silence, and at other times their right to speak. See David A. Harris, Profiles in Injustice: Why Racial Profiling Cannot Work 80 (2002) (collecting studies indicating the hit rate for African Americans is not greater than that of white drivers). Ta-Nehisi Coates, Between the World and Me 7 (2015). 63 37 L.J. The course engages in practice and analyses of criminal law that centers discussion of intensively regulated low-income communities, racial justice, local power hierarchies and the role of misdemeanor legal regulation. As Professor Carol Steiker has persuasively argued, even our modern police force is traceable in part to the slave patrols, which developed many of the trademarksuniforms, arms, military drillingthat we associate with police forces.
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