Race and the Fourth Amendment is one of the most critical issues facing the criminal justice system. Lindsey Webb (University of Denver Sturm College of Law) has posted Legal Consciousness As Race Consciousness: Expansion of the Fourth Amendment Seizure Analysis Through Objective Knowledge of Police Impunity (Seton Hall Law Review, Forthcoming) on SSRN. The title might scare you off, but the content is interesting.
Here is the abstract:
Encounters between police officers and members of the community are deeply influenced by race. Yet when courts assess whether police officers have complied with the Fourth Amendment, they explicitly exclude consideration of the ways in which the police-civilian interaction was influenced by racial bias, assumptions, and fear. In determining whether law enforcement officers seized a civilian, for example, courts look to the objective circumstances of the event, such as the number of officers involved, whether police weapons were drawn, and the tone of voice the officers used. They then assess whether, under such circumstances, a reasonable person would feel free to refuse law enforcement requests or otherwise terminate the encounter. Courts disregard the racial dynamics of the interaction as falling outside of the objective parameters of the seizure inquiry.
This Article suggests a novel pathway to a racially conscious reasonable person standard that does not require courts to abandon their allegiance to objectivity.
This approach focuses attention on the assumption, already inherent to that inquiry, that a reasonable person is one with a knowledge of the controlling law. A reasonable person is thus one with an understanding both of Fourth Amendment jurisprudence and the legal doctrine intended to deter or punish police misconduct, such as criminal and civil liability and the exclusion of illegally obtained evidence from criminal trials. A reasonable person with such knowledge would understand that police officers are not meaningfully constrained in the moment and are not consistently held accountable by the law. This approach would thus serve to shift the Fourth Amendment seizure analysis closer to racial realities by requiring courts to engage with the lack of police accountability as an issue of consequence to all reasonable people.