Dignity or Death: The Black Male Assertion of the Fourth Amendment
55 Pages Posted: 28 Feb 2023
Date Written: December 31, 2022
Much of Fourth Amendment jurisprudence and scholarship place abstract principles against unreasonable searches of persons and/or things. But when law enforcement officials inject themselves into the lives of Black men, those interactions extend beyond abstract concepts, and fundamental questions of dignity — or alternatively death — emerge. Every time police officers stop Black men while walking, driving, or, in their homes, Black men are triggered into a prescribed exercise of submission or a rebellious exercise of right. Black men must instantaneously decide between preservation or potential death — because any perceived affront to police dominance is met with a show of force, arrest, imprisonment, brutality, and the possibility of death. This Article challenges the narrative of Fourth Amendment jurisprudence and scholarship as a constitutional right, steeped in discussions of reasonable articulable suspicion, probable cause, pretext, exigency, and consent, and highlights an untapped discussion about what occurs in the mind of one such Black man, me, when forced to deal with the police. Legitimate and illegitimate interactions place Black men on a tightrope where one false move could kill or leave one without dignity, thus dying a thousand deaths.
In Part II of this Article, I provide a basic overview of scholarly writings on race and the Fourth Amendment, which will frame the Part to follow. In Part III, I detail three personal incidents where my Fourth Amendment rights were violated by law enforcement. Each incident sketched in my memory, faced with a choice between risking the consequences of asserting my known rights as a college graduate, then lawyer, and then law professor, or letting those rights die at the hands of the police. I discuss the choice Black people living in the United States face: either insisting upon dignity by risking death at the hands of police or electing a spiritual death through submission to a contrary law enforcement system. In Part IV, I conclude the Article with some thoughts on prescriptions: submission, resistance, and repatriation. This Article is written in the tradition of Critical Race Theory and uses personal narrative to illuminate and explore the lived experience of racial oppression. This Article centers the Black male experience and provides insight into being Black in America, a group, to which I am a member, to whom the Fourth Amendment was never intended to apply.
Keywords: Fourth Amendment, Black Male, Dignity
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