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Tuesday, June 21, 2016

Sotomayor’s Blistering Dissent Rails Against ‘Unlawful Police Stops’

Joseph P. Williams
The Supreme Court justice got personal in her argument opposing the majority opinion on a Fourth Amendment case.
It's rare for a Supreme Court justice to reference prominent African-American intellectuals like James Baldwin, Ta-Nehisi Coates, W.E.B. Du Bois and Michelle Alexander in a written dissent. Rarer still: a justice pointing to "the talk," advice black parents give their teenage sons on how to survive during the seemingly inevitable police stop.

Yet Justice Sonia Sotomayor went there and then some in an epic, groundbreaking dissent Monday that one critic compared to a manifesto for the Black Lives Matter movement while another placed in the black literary tradition that produced Baldwin and Du Bois.

Drawing on history and her own personal experiences as a Latina and former prosecutor, Sotomayor argued that the court's 5-3 ruling in an illegal-search case has given police a green light to treat African-Americans and Latinos as "second-class citizens."

Alluding to the death of Michael Brown, an unarmed black teenager fatally shot by a white police officer in Ferguson, Missouri – a case that spurred local unrest and galvanized Black Lives Matter activists – Sotomayor said the majority ruling in Utah v. Strieff sanctions a pernicious law-enforcement "consciousness," that people can be considered criminal suspects based on nothing more than a hunch.

"It allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants – even if you are doing nothing wrong," she wrote.

At issue is the case of Utah resident Edward Strieff, who was arrested for possession of narcotics after a police officer stopped him on the street. The officer, who had been monitoring a house for suspected drug activity, stopped Strieff, who is white, searched him and found the drugs.

Checking Strieff's driver's' license, the officer learned he had an outstanding warrant for a traffic violation and arrested him.

Utah's highest court ruled that the officer stopped Strieff illegally because there was no clear reason to suspect he'd committed a crime. Therefore, the court ruled, the narcotics evidence against him could not be used in court – a fairly straightforward interpretation of the Fourth Amendment.

But the Supreme Court majority – including Justice Stephen Breyer, who typically sides with the court's liberal bloc – ruled that the stop was justified because of the traffic warrant, and Strieff could be prosecuted because the officer didn't engage in egregious misconduct.

"The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer [Douglas] Fackrell to arrest Strieff," the majority wrote. "And, it is especially significant that there is no evidence that Officer Fackrell's illegal stop reflected flagrantly unlawful police misconduct."

That logic led Sotomayor to unload on her colleagues in a blistering dissent, joined in parts by Justices Ruth Bader Ginsburg; Justice Elena Kagan also dissented.

Besides using a technicality to justify an illegal search, "Most striking about the Court's opinion is its insistence that the event here was 'isolated,' with 'no indication that this unlawful stop was part of any systemic or recurrent police misconduct," she writes, alluding to long-standing complaints that police are more likely to view and treat minorities with suspicion "But in truth, nothing about this case is isolated."

Pointing to the Department of Justice's recent report on unrest in Ferguson, Sotomayor argues that outstanding warrants "are surprisingly common," and not always fairly issued.
The Ferguson report notes that in "a [town with a] population of 21,000, 16,000 people had outstanding warrants against them," meaning more than three-quarters of the population will have effectively given up Fourth Amendment protections under the court ruling, she wrote. In nearby St. Louis, she adds, "officers 'routinely' stop people – on the street, at bus stops, or even in court – for no reason other than 'an officer's desire to check whether the subject had a municipal arrest warrant pending.'"

Sotomayor notes that African-Americans and Latinos are stopped more often than whites, and the ruling gives police "an array of instruments to probe and examine you."

She goes on to reference Alexander's "The New Jim Crow," a book about disparate incarceration rates of African-Americans; Coates' "Between the World and Me," about how the author is preparing his adolescent son for institutional racism, including encounters with police; and Du Bois and Baldwin, both of whom wrote powerful essays on race and unequal justice during the civil rights movement.

At the same time, "When we condone officers' use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner," Sotomayor wrote. "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," leading to invasive and humiliating frisking.

Then, announcing that she's writing for herself and reflecting her own experiences as a Latina in America, Sotomayor drops a rhetorical hammer on the court.

The case "tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time, and "your body is subject to invasion while courts excuse the violation of your rights," she writes. "It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged."

Victims of police suspicion aren't "isolated;" she writes; rather, "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," Sotomayor writes. "Until their voices matter too, our justice system will continue to be anything but."
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