Long Overdue: Confronting Race in the Fourth Amendment’s Free-to-Leave Analysis
44 Pages Posted: 26 Sep 2021 Last revised: 11 Mar 2022
Date Written: March 1, 2021
Abstract
Over the past three decades and especially over the past several years, the invidious problem of racial bias in policing and its effects have been at the forefront of public and scholarly debate. “It is no secret that people of color are disproportionate victims” of suspicionless stops by police. Statistical studies documenting racial bias in policing have been accumulating, and such “evidence of racial bias in our criminal justice system isn’t just convincing—it’s overwhelming.” Last summer, President Biden acknowledged that there was “absolutely” “systemic racism in law enforcement.”
In Fourth Amendment jurisprudence, not every encounter between citizens and police triggers constitutional review. The opening act of the criminal investigation process, a category of interaction between law enforcement and citizens known as a “consensual encounter,” is defined as any encounter with police where a reasonable person, in view of all of the circumstances surrounding the incident, would have believed that he was free to leave and disregard police presence. A consensual encounter requires no suspicion of criminal behavior and is excluded from Fourth Amendment protection.
The increasing public discussion about racism in policing is pervasive, including in Congress. And statistical evidence regarding how incidents of excessive use of force in minority communities deteriorates relationships with police is accumulating. Although “[s]cholars have examined ad nauseam the dynamics between marginalized groups—particularly African-Americans—and law enforcement, “our current framework fails to meaningfully consider the ways in which a person’s race can influence their experience with law enforcement.” Indeed, since establishing the consensual encounter paradigm in Mendenhall, the Supreme Court remains woefully silent on whether an individual’s race can be considered within the totality of circumstances used to determine whether an encounter was consensual. The Fourth Amendment’s reasonable person standard continues to ask whether a hypothetical, average individual—whose race is irrelevant— would have felt free to disregard police presence and go about his business. The Court’s continued silence on consensual encounters, despite a circuit split on the question, is particularly dangerous. Denying courts the possibility to consider an individual’s race when determining whether a reasonable person would have felt free to terminate an encounter with law enforcement unreasonably ignores the objective reality for millions of minorities in the United States, whose everyday life experience leads to a different reality when confronted by law enforcement than their white counterparts.
Recently, the Supreme Court decided that an individual’s age is a relevant consideration when deciding whether she was in custody for Miranda purposes. Permitting courts to consider race for the doctrinally similar consensual encounter will address a dangerous legal fiction, that race is irrelevant when determining whether a reasonable person feels free to ignore police presence. Taking an individual’s race into account, when appropriate, enables the totality of circumstances for consensual encounter determinations to better reflect the reality— one which has been repeatedly studied, documented, and discussed—people of color have a different relationship with law enforcement that impacts whether they would feel free to terminate an encounter with police. It is due time.
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