How Supreme Court Opened The Door For Racist Profiling

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On the day of his death at the hands of a police officer, Phillando Castille was experiencing what had become a common occurrence in his life – being pulled over by the police. Before he was killed by a police officer, the 32 year old Teamster and school nutrition services supervisor, had been pulled over by the police over 50 times. Stemming from these police-citizen encounters, Castille had been charged with 86 traffic violations, all such minor violations like driving without proof of insurance, speeding, or driving without a muffler. Of these 86 charges, more than half were dismissed and he was only convicted of 31 misdemeanor traffic violations – usually stemming from his having pled guilty. And the record also shows, that Castille had some of the same charges, such as driving without proof of insurance, dismissed multiple times.

The sheer number of traffic stops, as well as the high rate of dismissals, has raised serious questions about racist profiling.* Additional information has come to light about the reason Castille was pulled over on the day a police officer took his life. According to an unconfirmed audio recording from the police dispatch, the officer who pulled Castille over stated he was doing so not, because of a broken tail light, as later claimed. Instead, he told police dispatch that the driver of a vehicle (Castille) had a “wide set nose” and thus matched the description of an armed robbery suspect.

It is nearly impossible to imagine how thoroughly (if at all) a police officer can assess the width of someone’s nose as they pass by in a moving automobile. It also is questionable as whether such a stop would even be constitutional under the Fourth Amendment. A police officer can only stop a vehicle if he has reasonable suspicion of a crime or traffic violation. While reasonable suspicion is an extremely low standard, it seems unlikely that a stop based on nose width would be permissible. Lavish Reynolds, Castille’s girlfriend who was present during the shooting and livestreamed its aftermath has stated that the car did not have a busted taillight.

It is still not yet known if this dispatch recording is authentic, nor is it known whether Castille did have a busted taillight. However, while the Dissent NewsWire does not wish to engage in speculation, with people discussing these facts we do feel like now is an important to discuss, understand, and organize against one of the main vehicles of racist profiling in the US – the “pretextual” or “prext stop.”

A pretextual stop is when an officer lacks the adequate level of suspicion to stop a car and investigate it for a major crime, but uses another offense, usually a minor traffic violation, to achieve this purpose. For example, a police officer cannot pull over an individual, because they are African-American and the officer believes African-Americans are more likely to be involved in crime. Such a belief would not constitute reasonable suspicion. However, if an officer holds this belief he could follow an African-American motorist for several blocks until the motorist commits a minor traffic infraction–perhaps she turned right on red at an intersection where such an act is prohibited. The officer now has reasonable suspicion to pull her over – for the right turn.

Such a stop is a clear example of racist profiling and a clear example of the type of harassment that African-American motorists encounter daily. Yet, in 1996 an unanimous Supreme Court refused to rule that pretextual stops violate the Fourth Amendment, as doing so required the Court to take into account the “subjective intent” of the officer, as opposed to the objective reasonableness of the stop (the Court acknowledged that the plaintiffs argued they were not asking the Court to look at subjective intent, but the Court disagreed). Justice Scalia, writing for the entire court, stated,  “[w]e of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.” It is the Fourth Amendment, which allows for evidence to be excluded from court and thus has the actual teeth needed to deter such actions. This is to say nothing of the multiple hurdles the Supreme Court have placed to challenging racist profiling under the Equal Protection Clause.

It cannot be said that the Supreme Court’s 1996 decision opened the floodgates of racist profiling; they were clearly already wide open. What the Supreme Court did though was essentially sanction racist profiling in fact, while simultaneously maintaining that it was “of course” unconstitutional. This is not surprising, as The Dissent NewsWire explained last month, “The Supreme Court has transformed the Fourth Amendment from a shield to be used against the state, into a tool to legitimize the actions of law enforcement.”

We don’t yet know why the officer pulled Castille over, if what is being reported to the dispatch tape is in fact authentic, or if Castille had a busted taillight. What we do know is that Castille was frequently pulled over for minor traffic violations, that many of those violations were dismissed, and that it was a traffic stop that led to an officer claiming his life just days before his 33rd birthday. By allowing the use of pretextual stops, the Supreme Court has legitimated a vehicle for racist profiling, which allows police to disproportionately stop African-American motorist. This increased encounter with police means not only a constant harassment, but an increased chance of being a victim of police violence.

* The author of this piece declines to use the more conventional phrase “racial profiling.” While it may be more palatable to some, it sanitizes what it is ultimately taking place – an act of discrimination. There is a qualitative difference between pulling over African-American motorist at a higher rate than their white counterparts, because a police officer believes African-Americans are more susceptible to criminal tendencies than using race as part of a broader range of descriptors of a non-suspect (“police are looking for a suspect who witnesses describe as 6’2 white male, 18-24, with brown hair, and a snake tattoo on his right bicep”). The innocuous sounding phrase “racial profiling” purposefully obscures this.