September 25, 2012
The White Fourth Amendment

In 2010, Paul Butler published a law review article entitled The White Fourth Amendment, (citation is [43 Tex. Tech. L. Rev 245], for those of you with access to Westlaw or Lexis).  In the article, Butler explains how legal rules established by the Supreme Court over the past fifty years have created a substantive body of law for police conduct that leads inextricably to racially disparate policing.  What follows is an excerpt from the article in which Butler describes the facts from a case called Immigration & Naturalization Service v. Delgado, in which mostly Mexican factory workers were searched based on a hunch by INS agents that the factory was populated by illegal immigrants.  What occurred in that factory provides an excellent case study of how exactly a “White” Fourth Amendment works in practice:

[I]n Immigration & Naturalization Service v. Delgado, the INS suspected numerous illegal immigrants of working at a garment factory, so the agency acquired a search warrant to investigate the facility.  During the search, some armed INS agents were stationed at the exits of the factory in order to prevent employees from escaping, while fifteen to twenty-five other armed agents systematically moved through the rows of workers-many of whom were visibly scared and some of whom tried to hide-in order to question them regarding their immigration status.  After showing his badge, an agent would question the employee about his citizenship status and would end questioning only if he could immediately establish American citizenship or provide valid immigration papers; those who could not were handcuffed and taken away to vans waiting outside the facility.  Though the Court admitted that any “brief detention” effected by an officer’s “show of authority” is unconstitutional unless supported by reasonable suspicion of a crime, the Court held that these interrogations were constitutional because the agents were “only questioning people.”  According to the majority, the employees should have felt free to refuse to answer even though those employees who failed to provide proof of citizenship were arrested, and employees should have felt free to leave even though agents detained those “who attempted to flee or evade the agents.”
Startlingly, the majority opinion failed to mention the race of the targets of the search, the vast majority of whom were Mexican. Though the controlling question was whether the individuals in question would feel “free to leave,” the majority failed to recognize that these people were immigrants to America, and therefore might be less aware of their constitutional right to be free from searches and seizures without some degree of suspicion.  The Court ignored the fact that the employees, many of whom were visibly frightened by the experience, might have had previous encounters with abusive INS agents or police using the racial-profiling tactics surely used in this instance. Moreover, only dissenting Justice Brennan, joined by Justice Marshall, noted the impossibility of visually distinguishing illegal Mexican immigrants from American-born Latinos. This task would have been especially difficult considering that the factory was located in Southern California, an area near the Mexican border where Hispanics are the largest ethnic group. [internal citations omitted.  ed.].

I want to clarify how this works: when the words “reasonable suspicion” or “probable cause” are used in Fourth Amendment case law, it refers to an individualized quantum of suspicion.  In other words, police cannot constitutionally suspect entire “groups” of people of criminal conduct.  You have to have individualized suspicion that a particular person has committed (or intends to commit) a crime.  This means that the only way the INS agents in the Delgado case could have developed reasonable suspicion or probable cause to suspect that the Mexican workers were illegal immigrants is by relying on the only external factor available to them at the time: their racial appearance.  

The Delgado Court blessed this normally unconstitutional search, however, by ruling that the INS agents above were not actually participating in a “search” or “seizure.”  Since the Fourth Amendment only protects you from unreasonable searches & seizures, it does not prevent law enforcement officials from “merely” asking questions, the way any other citizen would on the street.  By fashioning the actions of the INS officials in Delgado as mere inquiries not rising to the level of a constitutionally recognized search, the Court avoided the constitutional problem of group-based suspicion (in this case, members of a racial group).  By claiming that the INS agents were only “asking questions,” the Court was able to justify its ruling by claiming that the factory workers were under no obligation to answer any questions, and were “free to leave,” because there was no actual search or seizure taking place.

Of course, there’s one big problem with the Court’s analysis in Delgado: as anyone whose ever been stopped by police officers knows, the Court’s characterization of the actions taken by INS agents in this case are, well, bullshit.  David Cole put this best in 1999:

Few of us, [confronted by] armed police officers … would feel free to tell the officers to mind their own business… .“[i]mplicit in the introduction of the [officer] … is a show of authority to which the average person encountered will feel obliged to stop and respond.  Few will feel that they can walk away or refuse an answer.

— David Cole, No Equal Justice, at 18–20 (quoting Illinois Migrant Council v. Pilliod, 398 F. Supp. 882, 899 (N.D. Ill. 1975) (Marshall, J.)

This illusion—that police inquiries like those that took place in Delgado are not constitutionally recognizable searches & seizures—is a legal fiction that the Court has used to allow police to conduct racially motivated searches & seizures, and thus perpetuate the disparate racial impact of the substantive legal doctrines that govern the Fourth Amendment.  By pretending that people who are approached by police officers are “free to leave,” and will not instead be cowed and terrified by the officer’s implicit authority and visible weapons, the Court—whether intentionally or inadvertently—perpetuates and validates a White Fourth Amendment; a Fourth Amendment whose full protection is only enjoyed by Whites.

Under this legal standard, individualized suspicion no longer serves as a deterrent to group-based searches, because those searches are often characterized as “mere questions” which we are supposedly free to ignore.  But nobody in their right mind (particularly a person of color living in America) would feel free to simply walk away from a police officer without serious repercussions.  A search & seizure that takes place in fact is thus not recognized as one by the law, so long as police can assert that they were “merely” asking questions.

The Court’s reasoning in Delgado has appeared in many other cases like it before and since.  It is based on a complete legal fiction that hopefully one day will be dismantled.  But for now, it allows police to conduct racially-motivated searches for criminal activity without running afoul of the Fourth Amendment’s prohibition on group-based suspicion.  This is precisely what Paul Butler means by a “White Fourth Amendment:” It is an amendment that, under current Supreme Court case law, allows for police to use racial characteristics as the basis of their searches & seizures—alongside the inherently intimidating effect of visible displays of police authority—without ever conducting a constitutionally recognized search.  If you are curious as to why the racial disparities in our prisons are so absurdly high, you here have your answer.

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