Stories that Swim Upstream: Uncovering the Influence of Stereotypes and Stock Stories in Fourth Amendment Reasonable Suspicion Analysis
24 Pages Posted: 12 Jun 2017 Last revised: 29 Jun 2017
Date Written: June 8, 2017
This Essay challenges courts to acknowledge and address racial bias in the courtroom at a fundamental level. It discusses the limitations of judicial review of police stops, which fail to appreciate the potential impact of implicit racial bias on a police officer’s assessment of a citizen’s behavior. Specifically, it focuses on the Supreme Court’s Fourth Amendment reasonable suspicion analysis and explains how the potential for biased decision making is worsened in a legal system where race is deemed legally irrelevant, and as a result not meaningfully considered. Moreover, this Essay discusses the specific challenge of cognitive shortcuts that can mask implicit racial bias, limiting a court’s ability to recognize its potential influence and thus engage in a robust review of police officers’ actions.
Fourth Amendment standards for assessing the lawfulness of police stops fail to acknowledge the influence of implicit racial bias. This Essay illustrates the role that implicit bias can play when courts engage in judicial review of police officers’ decisionmaking in circumstances that can trigger racially biased thinking, but in which the influence of racial bias is ignored. This Essay discusses, first, how the “objective facts” test articulated by the Supreme Court in Terry v Ohio fails to account for the impact of implicit racial bias on police officers’ perceptions of citizens’ ambiguous behavior;second, why legal standards encouraging courts’ reliance on police officers’ experiences relieve courts of the need to demand explanations for police officers’ assumptions that may in fact be the result, not of sound reason, but rather of racial bias; and, third, how courts’ failure to acknowledge the role that race can play in police officers’ decisionmaking leads to court findings of reasonable suspicion that appear to be based less on objective facts and more on negative racial stereotypes.
Keywords: unlawful stops, implicit bias, criminal justice, racial inequality, race-neutral, racial profiling, racially charged, cognitive frames, legal writing, story-telling, persuasion, legal narrative
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