Janine Jackson interviewed Nirej Sekhon about the Supreme Court ruling on illegal searches for the June 24, 2016, episode of CounterSpin. This is a lightly edited transcript.
Nirej Sekhon: “The Court has pretty explicitly taken racial selectivity, racial disparity, off the table…insofar as Fourth Amendment claims go.”
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Janine Jackson: From the media accolades for Sonia Sotomayor’s dissent in a recent Supreme Court case involving the use of illegally obtained evidence, it’s almost unclear if media realized that the ruling represents a loss for her point of view. With a 5-3 decision in the case Utah v. Strief, the Court said that a police officer may detain someone without cause and run their identification, and, if they uncover a warrant, may arrest them and charge them with additional crimes, based on what they find in a search. Previously, the fact that the initial stop was illegal would mean evidence unearthed would be inadmissible. Sotomayor, Kagan and Ginsburg dissented, with Sotomayor especially powerfully noting the disproportionate impact the ruling will have on communities of color.
The dissents are worth reading in full. They raise a lot of questions about the Court’s understanding of how the Fourth Amendment, and indeed the law, is applied in the real world. Joining us now to help us understand the ruling and its potential effects is Nirej Sekhon. He’s associate professor at Georgia State University College of Law. He joins us now by phone from Atlanta. Welcome to CounterSpin, Nirej Sekhon.
Nirej Sekhon: Thank you for having me.
JJ: Well, what is the significance of Utah v. Strief for everyone, but in particular for communities of color? How would you explain it?
NS: I think the good news is that it’s not actually going to dramatically affect police practices in minority communities. The bad news is that police practices in minority communities are deplorable. Minority communities bear the brunt of police abuses and excesses, as we already know, and I read Strief less as cutting new legal ground and more as just underscoring or highlighting or putting an exclamation point behind the extent to which the Court is really kind of disinterested in the realities of policing in minority communities.
“Justice Sotomayor takes issue not just with the result in the Strief opinion, but with the results in a range of Fourth Amendment opinions,” says Nirej Sekhon.
JJ: I’ve been a little bit bemused, you could say, by the tone of some coverage that suggests that Sotomayor in particular’s dissent was “personal,” as though it were qualified, but in an approved way. There’s a sense that she’s putting a “sassy Latina touch” on the law, rather than what you’re referring to, interpreting law with regard to lived experience. I mean, isn’t that really what we would hope any judge would do, is interpret the law according to how life is lived?
NS: Well, one would hope. I think it’s important to note that Justice Sotomayor takes issue not just with the result in the Strief opinion, but with the results in a range of Fourth Amendment opinions. I mean, she’s going back almost a generation, looking at Fourth Amendment law as it has evolved since the 1970s, and making the point, as many have, that the Fourth Amendment hasn’t been interpreted in a manner that allows for courts to respond to the realities of policing in minority communities.
And so I think that Strief was—she was reacting to it as the proverbial straw, right? I mean, it’s symbolizing a broader refusal to address the systemic injustices that are endemic to police search and seizure practices in minority communities.
JJ: And let me ask you, an argument around stop and frisk: We often hear law enforcement say, essentially, well, we stop more black people because they commit more crimes. And then the pushback sometimes amounts to, well, we just don’t like that impact. But there is a way to get at how police policies can be unfair, but you have to pull back from this focus that we tend to have on the individual encounter between the citizen and the police officer. I wonder, could you tell us in simple terms about the idea of departmental discretion? What does that get at?
NS: And I can use a moment in the Strief opinion to do that. In the majority opinion written by Justice Thomas, there’s a line in which he suggests that a warrant, an outstanding warrant, is essentially a directive to police to make an arrest. And, of course, that’s true at some abstract level, but a warrant really creates discretion to arrest. I think police officers ignore criminal law violations, they ignore warrants all of the time. To the extent that officers are being sent to particular neighborhoods to maximize street stops, I mean, that’s an example of departmental discretion. And the officers understand their responsibility, their mandate, to be to stop people in the street and ask them questions and frisk them for whatever purpose. It might be to interdict drugs, it might be to interdict weapons. The fault doesn’t, in any simple way, lie with individual officers in those kinds of cases.
There’s other examples of departmental discretion as well, but I think we too often tend to focus on individual cases, individual encounters, at the expense of thinking more broadly and systematically about how police departments make policy, how they imagine enforcement priorities, and the manner in which they direct their officers to affect those policy choices. And the Fourth Amendment has evolved in such a way that the Supreme Court isn’t really putting any pressure on police departments to do anything differently.
JJ: Well, not to hammer the point home too hard, but years ago, when I was working in the Financial District, I used to think, if you set up a checkpoint in this hallway, and checked every person for cocaine, you could hit your quota in 15 minutes. You know, it’s a matter of where law enforcement is. So when we hear the argument that, oh, we’re just trying to find crime wherever it is, you’re saying, well, choices are being made, beyond the level of an individual officer, that have an impact on who gets arrested.
NS: To the extent that — let’s just use the checkpoint example that you just articulated—to the extent that some hypothetical department elects to set up checkpoints exclusively in minority neighborhoods, there’s no Fourth Amendment claim that can be brought to challenge any discrimination that may be inherent in that choice. The Court has pretty explicitly taken racial selectivity, racial disparity, off the table—the constitutional table, that is—insofar as Fourth Amendment claims go. That was in a case called Whren, a case in the ’90s. And Justice Sotomayor explicitly references that case. So her upset, again, is not just about the result in Strief, but she’s very much looking at Strief as just another moment in this long-standing judicial disinterest or hostility, really, to conceptualizing or engaging with the problems confronted by minority communities as Fourth Amendment issues.
JJ: Let me ask you, finally: Media seem to have made a place—Black Lives Matter and social media and others have forced a place, if you will—for these questions that we haven’t seen for some time. If you could change something about media coverage of this set of issues that you work on, or if you could see more of something or less of something else, what would that be?
NS: Well, I think it goes back to a theme that you have mentioned a couple of times. I know that individual, sensationalist individual cases are the ones that capture eyeballs. But I think the preoccupation with the sensationalist case leads the public to think that problems — at least some significant segment of the public—it leads them to believe that the problems of race and policing are reducible to questions of individual bias. Right? The bad cop, the bad, racist cop who harbors racist animosity and malevolence for minorities.
And I think that we really need to start thinking about how police bureaucracy makes choices, how they make enforcement choices, how they prioritize particular enforcement choices, and the kinds of practices and protocols that they use. It’s a much less juicy, headline-getting approach to the question, but I think it would be more constructive and useful if more members of the media were willing to engage with these questions at that level of determination.
JJ: We’ve been speaking with Nirej Sekhon of Georgia State University College of Law. Thank you very, very much for joining us this week on CounterSpin.
NS: Well, thank you for including me. I’m happy to be part of the conversation.
Police are protectors of stolen goods, for the college educated upper half of society owns all the land and wealth. Enough said.