Pretext and Justification: Republicanism, Policing, and Race

Authors

Ekow N. Yankah, Benjamin N. Cardozo Law School

Abstract

On April 4, 2015, Police Officer Michael Slager gunned down Walter Scott in North Charleston, South Carolina with a cool that resembled target practice. Scott's name joined a heartbreaking list of men of color killed by unjustified police violence. The video of the incident also broadcast to the world the spectacular violence always lurking beneath the surface of daily interactions between police and men of color.

The "Black Lives Matter" movement has fiercely insisted Scott's death not be viewed as an isolated incident but understood as woven into the fabric of American policing. American policing harms individual people of color, guts communities and establishes an image of Black or brown men as criminal. Tragically, current Fourth Amendment law insulates the very police practices that allow a different policing regime for communities of color and ensures that the rising death toll of unjustly killed Black and brown men will continue.

This Article reveals why policing reform cannot be achieved by piecemeal alteration of case law or even by focusing on doctrinal law alone. First, the Article makes clear why the racial harms of contemporary policing are borne by individual persons of color, unravel communities of color, and change the very social meaning of race. Yet, careful examination of Fourth Amendment doctrine reveals the Supreme Court's commitment to viewing Fourth Amendment rights as individually held and thus devoid of racial and social context. This view purposefully silences the Fourth Amendment's ability to address the volatile interaction of race and policing. Without a philosophical transformation placing the Fourth Amendment on different theoretical grounds, our bonds as civic equals, there can be little progress.

Changing our understanding of Fourth Amendment justification allows us to imagine a new world of policing. A world where policing must secure civic bonds requires disabling the ability of police to use pretextual stops as a tool of racial domination. But further, this Article illustrates how a different political justification naturally leads to untying powers of police we take for granted; separating traffic or order maintenance from criminal investigation. Thus, this Article serves as the philosophical grounding for the often-invoked shift of policing from a warrior culture to a guardian culture, illustrating not only how to prevent policing from standing as racial oppression but viewing policing as in service of our civic bonds.

Disciplines

Civil Rights and Discrimination | Criminal Law | Criminal Procedure | Fourteenth Amendment | Law | Law and Race | Law and Society | Law Enforcement and Corrections | Science and Technology Law

Recommended Citation

Ekow N. Yankah, Pretext and Justification: Republicanism, Policing, and Race, 40 Cardozo L. Rev. 1543 (2019).
Available at: https://larc.cardozo.yu.edu/clr/vol40/iss4/3