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Sotomayor's Blistering Dissent Against 'Frisk While Brown'

Justice Sonia Sotomayor takes on racial profiling in her dissent in Utah v. Streiff.
Sotomayor's Blistering Dissent Against 'Frisk While Brown'

The Supreme Court this morning announced their ruling in the case of Utah v Strieff. The case concerned a pedestrian who was stopped by a police officer. SCOTUSblog explains it like this:

Utah v. Strieff (argued February 22, 2016). When a police officer stops a pedestrian in violation of the law, asks him for identification, discovers that there is a traffic warrant for his arrest, arrests him, and in the process of searching him discovers drug paraphernalia and methamphetamines, can the evidence found in the search of the pedestrian be used against him? Edward Strieff argues that it cannot: because the police officer’s stop was illegal, then anything obtained as a result of the stop is also tainted. The state, on the other hand, contends that the evidence should be admitted because it resulted from the lawful warrant for his arrest, rather than the illegal stop.

The Supreme Court found for the state in a 5-3 decision.

What is not mentioned in this description is the frequent, blatant practice among police departments of Stop and Frisk while Black or Brown. Sonia Sotomayor noticed that aspect of the argument, as she often does in cases like this. Stopping a pedestrian based on race should be illegal, right? And that underlying cause is so often lost once the individual is arrested. Sotomayor let loose on the decision in a scathing dissent, that refers to W.E.B. Dubois, Michelle Alexander, James Baldwin, and Ta Nahisi Coates.

I want to take a moment here and point out that Donald Trump's imaginary list of potential Supreme Court justices are all conservatives likely to agree with the majority in this case, And they are highly unlikely to say this:

Most striking about the Court’s opinion is its insistence that the event here was “isolated,” with “no indication that this unlawful stop was part of any systemic or recurrent police misconduct.” Respectfully, nothing about this case is isolated.

And then Sotomayor goes on for SIX PAGES to show why. Police routinely stop people on the street for the primary reason that they are people of color on the street. In case after case, police departments have tremendous records of outstanding warrants for minor violations that are being used (in this case and others) as pretense for illegal searches. (Here Sotomayor brings out the sledge hammer of the Justice Department's report on the Ferguson Police Department). And police departments around the country TRAIN their officers to use outstanding small warrants as ways to make more arrests. This is how criminal justice is practiced in the so-called "war on drugs."


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Here's the end, but you should really read the whole thing. (Dissent starts on page 14.)

...it is no secret that people of color are disproportionate
victims of this type of scrutiny. See M. Alexander, The
New Jim Crow 95–136 (2010). For generations, black and
brown parents have given their children “the talk”—
instructing them never to run down the street; always
keep your hands where they can be seen; do not even
think of talking back to a stranger—all out of fear of how
an officer with a gun will react to them. See, e.g., W. E. B.
Du Bois, The Souls of Black Folk (1903); J. Baldwin, The
Fire Next Time (1963); T. Coates, Between the World and
Me (2015).

By legitimizing the conduct that produces this double
consciousness, this case tells everyone, white and black,
guilty and innocent, that an officer can verify your legal
status at any time. It says that your body is subject to
invasion while courts excuse the violation of your rights.
It implies that you are not a citizen of a democracy but the
subject of a carceral state, just waiting to be cataloged.

We must not pretend that the countless people who are
routinely targeted by police are “isolated.” They are the
canaries in the coal mine whose deaths, civil and literal,
warn us that no one can breathe in this atmosphere. See
L. Guinier & G. Torres, The Miner’s Canary 274–283
(2002). They are the ones who recognize that unlawful
police stops corrode all our civil liberties and threaten all
our lives. Until their voices matter too, our justice system
will continue to be anything but.

* * *

I dissent.

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