“[Our decision today sends the message] that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be catalogued.”
Utah v. Strieff, Justice Sotomayor, dissenting
Perhaps the most remarkable aspect of the Court’s recent decision in Utah v. Strieff, a case holding that even when a police stop is completely unjustified, evidence discovered during that stop may still be admissible,
is Justice Sotomayor’s dissent. On one level, her dissent is noteworthy for its references to W.E.B. Du Bois, Michelle Alexander, James Baldwin, Ta-Nehisi Coates, Jack Chin, Marie Gottschalk, Lani Guinier, and Gerald Torres; indeed, it is noteworthy, for bringing Critical Race Theory into Supreme Court jurisprudence. It is exceptional, too, for her directness in accusing the majority of further enabling the police to treat certain individuals “as second-class citizens.”
But there is another reason her dissent is remarkable: It touches on an aspect of criminal procedure decisions that for too long has gone unnoticed, unrecognized, and unremarked upon. Even in criminal procedure decisions—maybe especially in criminal procedure decisions—the Court plays a role in marking who belongs, who does not, who is entitled to be treated as a regular citizen, and who can be treated as second class. Embedded in the Supreme Court’s criminal procedure jurisprudence—at times hidden in plain sight, at other times hidden below the surface—are asides about what it means to be a “good citizen.”
As should already be evident, by “good citizen,” I am not referring directly to the Court’s discussion of citizenship as nationality, as the legal condition of an individual as a member (or not) of a state. Such a topic is certainly a worthy one. For starters, there is our history of racial, xenophobic, and religious exclusions, a history that continues to inform our present. Nor am I referring directly to the legal issue of who, based on their citizenship status, can claim criminal procedure protections under our Bill of Rights. Who are “the people” protected by the Fourth Amendment—for example, does it govern searches of non-American visitors to the country? And, given the reach of American jurisdiction, what process and protections are owed noncitizens on domestic and foreign soil? These issues inform the argument I want to make, but they are not at its core. Nor is my primary interest citizenship as belonging
—that sense of “genuine participation in the larger political, social, economic, and cultural community”
—as conceived by Professor Kenneth Karst, though this too informs my project.
Rather, what interests me—as someone who writes and teaches about equality and criminal justice—is what citizenship means when it comes to every day interactions between the police and the policed. It was this interest that led me to reread the Court’s criminal procedure decisions to uncover what these decisions say about citizenship vis-à-vis the police. What I found surprised me. Citizenship talk was everywhere, from well-known cases like Miranda v. Arizona
and Schneckloth v. Bustamonte,
to less well-known cases like McCray v. Illinois.
These asides about good citizens—though rarely phrased so bluntly—are so pervasive that I wondered how I had not noticed them before. I thought of the novelist and essayist Toni Morrison’s observation about her own astonishment while reading literature:
It is as if I had been looking at a fishbowl—the glide and flick of the golden scales, the green tip, the bolt of white careening back from the gills; the castles at the bottom, surrounded by pebbles and tiny, intricate fronds of green; the barely disturbed water, the flecks of waste and food, the tranquil bubbles traveling to the surface—and suddenly I saw the bowl, the structure that transparently (and invisibly) permits the ordered life it contains to exist in the larger world.
I had seen the holdings and the not-so-subtle curtailment in Fourth Amendment protections. I had seen the chipping away of meaning from the Fifth Amendment. What I had not seen, until now, was the way these decisions were also about citizenship, especially citizenship vis-à-vis the police.
These cases tell us that the good citizen is willing to aid the police and to consent to searches. The good citizen, at times, willingly waives their right to silence, and at other times their right to speak. The good citizen, having nothing to hide, welcomes police surveillance. And this is just the start. Read between the lines, and the Court’s citizenship talk also dictates how a good citizen should behave, move, and even speak. These decisions not only reflect ideas about good citizenship. They produce good citizenship. These decisions do not simply regulate police behavior. They regulate the behavior of citizens.
One goal of this Essay is to surface this aspect of criminal procedure decisions. But the larger goal is to raise questions. What does it mean for the Court to demarcate good citizenship vis-à-vis police power, particularly a form of citizenship that involves ceding constitutional protections in service of the state? What are we to make of the Court’s implied marking of certain citizens as not good, or indeed as insubordinate and unruly? And if part of being a participatory citizen is to test the boundaries of the law—by talking back to law enforcement, by refusing to surrender constitutional protections, and by asserting rights—how does the Court’s citizenship talk chill participatory citizenship and frustrate democratic dissent?
These concerns should be reason enough to critically examine the Court’s citizenship talk. But there is a second concern as well, at least for me.
After all, I am a black man writing in a country where race has always mattered. I am a black man writing in a country where “young plus black plus male” too often “equals probable cause.”
I am writing against a sharp white background where there exists, forever coupled, both a “racial tax”
and a “racial privilege.”
And I am a black man in a country where citizenship, at least for those of us who are black or brown, has always seemed contingent, probationary, and revocable. Indeed, citizenship, much like race itself, has always seemed policed. At this time— when Black Lives Matter has become part of the national zeitgeist,
when the criminal justice system is the primary civics education for so many individuals,
when so many criminal procedure opinions are also on a certain level race opinions,
when increasingly there is a feeling of legal estrangement,
and when retaliations and protests against police spur calls to “take America back”—the Court’s citizenship talk may very well further inequality.
This Essay proceeds as follows. Part I surfaces and shines a light on citizenship talk in the Court’s criminal procedure cases—talk that suggests what good citizenship means vis-à-vis interactions with the police. Most troubling, the dominant message in these cases seems to be that the good citizen willingly cedes their constitutional protections to aid the state. Part II turns to the work of French philosopher Michel Foucault to argue that the Court’s decisions have a disciplining effect. In ways large and small, these decisions discipline citizens into performing good citizenship. Part III argues that the Court’s citizenship talk has racial consequences. In part, this is because citizenship and race have always been interconnected in this country. But in part, it is because of the cases themselves. In a sense, every criminal procedure decision is also a race decision. The result is that the Court’s citizenship talk may further racial inequality. Part IV, perhaps the most radical part of this Essay, gestures toward a solution. It imagines an interstitial space, in criminal procedure jurisprudence and in police–citizen interactions, in which citizens would have the ability, without repercussions or recrimination, to talk back to the police, to ask why and how come, to assert their rights, to question and test the boundaries of the law, and to say “no.”
I. The Good Citizen
“Is citizenship something susceptible to improvement, so that someone might become good at being an American?”
The Good Citizen
“It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement.”
Miranda v. Arizona
A. Be Good
By now, Americans are used to exhortations to be good citizens.
We are told to vote.
To be homeowners. To marry and have children, as long as we are not excessive about it. We are even encouraged, for God and country, to shop.
These calls to citizenship are all around us and are so ubiquitous that we often absorb these messages without attending to them.
These calls to citizenship become more explicit and urgent at times of crisis. To be sure, different calls were made to different groups. During World War I and World War II, the call was to able-bodied young men—Uncle Sam Needs You!
But even those who were not expected to engage in combat were told they had a role to play. Women were told to work in defense plants, to volunteer for war-related organizations, and to serve in the military in noncombat roles.
Even American citizens who were forcibly interned, merely because they were of Japanese ancestry, were implored to do their duty as citizens and to view internment as a self-sacrifice for country. As the Court glibly put it in Korematsu v. United States, the case upholding the constitutionality of the military exclusion order, “Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier.”
The current war against terror has again brought to the fore calls to be good citizens. These calls to good citizenship are not just evident by the flags people hang in front of their doors and in the bumper stickers telling us to “Support our Troops!” We are also enlisted in more direct ways. Consider the Citizen’s Preparedness Guide that the government circulated shortly after the September 11 terrorist attacks:
Be Aware. Get to know your neighbors at home and while traveling. Be on the lookout for suspicious activities such as unusual conduct in your neighborhood, in your workplace, or while traveling. Learn to spot suspicious packages, luggage, or mail abandoned in a crowded place like an office building, an airport, a school, or a shopping center.
Take what you hear seriously. If you hear or know of someone who has bragged or talked about plans to harm citizens in violent attacks or who claims membership in a terrorist organization, take it seriously and report it to law enforcement immediately.
Consider too the government’s short-lived Terrorist Information and Prevention System (TIPS).
Although abandoned, the program called upon citizens (including those who routinely entered homes such as delivery men, utility workers, and postal deliverers) to report suspicious activity.
Even without TIPS, other demands linger. We have all become conscripted as watchers. Who among us hasn’t been told, IF YOU SEE SOMETHING, SAY SOMETHING. Or maybe some of us have been conscripted more than others. Consider President Donald Trump’s call to Muslim Americans after the San Bernardino terrorist incident: “One thing, I think, that the Muslim population of this country has to do is they have to surveil their own people.”
Even in the context of domestic crime, these calls to be good citizens are sometimes made explicit, broadcast over public speakers and on our television sets. We are sent AMBER alerts about missing children via texts; recently, following the detonation of an explosive in New York City, we were sent text alerts enlisting us to help locate the alleged perpetrator.
In Florida, America’s retirement state, billboards announce Silver Alerts, enlisting the public to help find missing senior citizens with Alzheimer’s or dementia.
In the comfort of our homes, we watch America’s Most Wanted followed by a toll-free hotline, 1-800-CRIME-TV. Soon, like our cousins in Great Britain, we may be encouraged to tap into public surveillance cameras from our networked devices so that we, too, can keep our streets safe.
There are also appeals to the more adventurous, athletic, or risk-taking of us. We are urged to volunteer with our local police departments.
Even without being asked, many of us understand we have a duty to perform, a role to play.
There is more, of course. We have now seen so many television shows and movies in which someone goes missing and the entire town responds by linking arms in a field to aid the police in search that it now seems like second nature. We wait for the scene, knowing that it is coming, and then it is there. In the old days, before there were police forces, the sheriff would summon the good citizens to help him, a posse comitatus.
Things now are not so different.
All of this is known, though often unsaid. All of this has come to be expected, even though rarely examined. We expect the government to speak and, in the First Amendment context, have even carved out an exception by which government speech is both entitled to and must receive First Amendment protections and guarantees.
In this sense it is unsurprising that the government would use that speech to inculcate good citizenship. For example, it was recently revealed that the Department of Defense paid millions of dollars to “18 NFL teams, 10 MLB teams, eight NBA teams, six NHL teams, eight soccer teams, as well as NASCAR” to make patriotic displays.
Such inculcation may seem surprising, but in fact it is as American as elementary school students being led in the Pledge of Allegiance, as joining the Boy Scouts and Girl Scouts—who doesn’t want a “Citizenship in the Community” merit badge?
—as the singing of the Star-Spangled Banner at the Super Bowl, and as Veterans Day parades. As a matter of law, we even require educational institutions receiving federal funding to hold programs each September on “Constitution Day” and “Citizenship Day.”
In short, exhortations to be good citizens are all around us.
B. The Criminal Procedure Cases
For the longest time, I assumed that the messages about good citizenship would come from the executive and legislative branches but not the judicial branch.
I certainly did not think there would be asides about good citizenship in criminal procedure cases. But then I began to reread opinions that I thought I knew.
What I found surprised me. The more I read, the more I saw asides about citizenship and what constitutes good citizenship.
In fact, what I read prompted me to recall Professor Scott Sundby’s influential article, Everyman’s Fourth Amendment: Privacy or Mutual Trust Between Government and Citizen?, in which he offered a traveler’s guide to the Fourth Amendment:
Travel is a considerable problem. One should be aware that law enforcement officers may stop someone and ask permission to look in his luggage even if the traveler has not acted in a fashion that would provoke articulable suspicion of wrongdoing. This is true whether traveling by land, air, or sea. If approached, the innocent traveler should not be alarmed but should state to the officer that he or she has no desire to converse and has other, more important appointments to keep. Although this might strike the traveler at first as rude and abrupt, and perhaps a bit frightening if the questioner is armed, the Supreme Court has made clear that the Fourth Amendment is not for the timid. Consequently, the wise traveler should carry a copy of the Fourth Amendment and display it to the questioner and thus avoid any unnecessary discourse. It is this writer’s fervent hope that travel agents soon shall issue copies of the Fourth Amendment as standard procedure when writing airplane, bus, or train tickets.
While much of what Professor Sundby wrote is still doctrinally true, my rereading of the Court’s criminal procedure cases also revealed subtle and troubling messages about good citizenship. What emerged suggests another guide may be appropriate. Allow me to add to Professor Sundby’s guide my own Criminal Procedure Guide to Good Citizenship:
With citizenship comes not only rights, but obligations. The good citizen is ready and willing to aid law enforcement officers. The good citizen voluntarily answers their questions.
The good citizen has nothing to hide and accordingly is willing to answer questions about his activities. The good citizen is also willing to answer questions about the activities of friends, neighbors, community members, and family, since the good citizen “has an interest in bringing criminal activity to light,”
and in preventing “a wrong upon the government.”
Indeed, the good citizen finds the presence of armed police officers—whether it be at an airport or a vehicle checkpoint or at his place of employment—a “cause for assurance.”
For this very reason, the good citizen would never run from the police, disobey a police order, or engage in evasive behavior, however wrong or dangerous the order may prove to be.
Also, if asked, the good citizen should not hesitate to open his bag, pocket, or home to the police, or to otherwise consent to a search.
Such consensual searches, after all, will aid the police in doing their work. It will also enhance the citizen’s safety and the safety of those around him.
And of course, while even good citizens have a privilege against self-incrimination, and while of course the burden of proof always remains with the government, good citizens, if wrongly accused of a crime, will immediately present themselves to the authorities to prove their innocence.
And if in the unusual event a good citizen in fact commits a crime—perhaps it was a malum prohibitum crime—the good citizen will go a step further and admit his wrongdoing and accept his punishment.
And lastly, should the good citizen for some reason find it absolutely necessary to assert his rights, such as his right to an attorney, he will assert those rights unambiguously to distinguish himself from other citizens who lack “linguistic skills.”
To some, this Criminal Procedure Guide to Good Citizenship may go too far. The complaint, I imagine, might be that I am reading too much into cases. My response is simple: For the most part, I am simply reading what is there in black and white. Though the language may seem epiphenomenal rather than the focus of the Court’s decisions, the language is there nonetheless. Indeed, one could argue that there is an intentionality in much of the language; the Court wanted to instantiate a particular conception of citizenship.
Consider Miranda v. Arizona,
one of the most well-known Court decisions in history.
In Miranda, the Court read the privilege against self-incrimination clause of the Fifth Amendment to require the advisement of rights as a precondition to the admissibility of statements made during custodial interrogation.
On one level, Miranda is a rights-enhancing case intended to level the playing field between citizens and the police, and as such it should be celebrated.
But in delineating what police conduct triggers the requirement of warnings—there must be police custody and police interrogation—the Court also made clear that in the normal course of business, it is the mark of good citizenship to voluntarily answer questions and otherwise assist the police. The Court emphasized this point: “General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement.”
Or consider language from two of the Court’s seminal Fourth Amendment cases. In Schneckloth v. Bustamonte, the Court gave its imprimatur to what has been described as the “most significant” exception to the Fourth Amendment’s warrant requirement: the consent exception.
Notwithstanding the Fourth Amendment’s plain language requiring probable cause before there may be a search, and the concomitant right to normally have this decided by a neutral, detached magistrate, a person’s right to be free from warrantless searches and seizures can be “consented” away.
Nor is there is any requirement that the consent be knowing. That the consent is voluntary, even if unknowing, will suffice.
In United States v. Drayton, the Court similarly limited Fourth Amendment protections, this time by ruling that a person has not been seized within the meaning of the Fourth Amendment—a search or seizure being the sine qua non to trigger Fourth Amendment protections—if a “reasonable person” would have felt free to leave or “otherwise terminate the encounter.”
These two decisions certainly tipped the scales in favor of law enforcement, a point that numerous scholars have noted.
But what interests me is the Court’s citizenship talk.
In Schneckloth, the Court couched its talk in the language of community, but the good citizenship message is clear: “[T]he community has a real interest in encouraging consent, for the resulting search may yield necessary evidence for the solution and prosecution of crime, evidence that may insure that a wholly innocent person is not wrongly charged with a criminal offense.”
In other words, consent should be encouraged; it is the right thing to do. Another message can be found in Drayton:
[B]us passengers answer officers’ questions and otherwise cooperate not because of coercion but because the passengers know that their participation enhances their own safety and the safety of those around them . . . .
. . . .
In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own. Police officers act in full accord with the law when they ask citizens for consent. It reinforces the rule of law for the citizen to advise the police of his or her wishes and for the police to act in reliance on that understanding. When this exchange takes place, it dispels inferences of coercion.
The Court, in short, starts from a baseline that the good citizen has an interest in consenting because it reinforces the rule of law. It is a privilege of citizenship—it affords us dignity—to be able to consent away Fourth Amendment protections. And this is only part of what the Court’s citizenship talk does. Rather than the government really needing to prove that consent was given voluntarily—the standard the Court sets forth elsewhere in Schneckloth—the Court has in fact already tipped the scales. After all, who except a bad citizen would not be interested in enhancing “their own safety and the safety of those around them?”
In other words, who, but a bad citizen, would refuse consent? Never mind that the government has no reciprocal obligation to advise citizens of their Fourth Amendment right to refuse consent, let alone advise them that any such refusal cannot be held against them.
In INS v. Delgado, another criminal procedure case, the Court made clear that good citizens should welcome police inquiries, and view them as consensual, even if a cadre of police have come to their workplace and positioned themselves near the exits.
Then-Justice Rehnquist observed this to be the case even when the law enforcement officers came to the workplace to ask employees about their citizenship status. Conflating a normative observation with a descriptive one, the Court stated: “While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.”
Indeed, the normative message from the Court is that the good citizen should feel comforted by the presence of officers. “Officers are often required to wear uniforms and in many circumstances this is cause for assurance, not discomfort.”
The expectation is that good citizens, even good citizens forcibly stopped in their vehicles as part of investigative checkpoints, will react “positively when police simply ask for their help as ‘responsible citizens.’”
Citizens, assuming they are good citizens, will consider their cooperation “voluntary.”
What else has the Court made explicit? Certainly, that the good citizen does not run from the police, even if there is a history of police violence against citizens. In Illinois v. Wardlow, a youth fled when he saw a police vehicle.
The officers gave chase, cornered the youth, and apprehended him. The issue before the Court was whether this seizure was justified, since the officers did not have probable cause to believe a crime had been committed to justify an arrest, or even reasonable suspicion of criminal activity to justify a Terry stop.
But the Court avoided this problem by holding that the mere fact that the youth fled, coupled with the fact this was a high-crime neighborhood—itself often a euphemism
—was enough to constitute reasonable suspicion.
The police did not have reasonable suspicion when they approached Wardlow, but they certainly had it when he fled. After all, good citizens do not flee. Indeed, in support of its holding, the Court intimated a far broader standard: Any evasive behavior—looking the other way, changing direction, avoiding the police—is suggestive of bad citizenship and can be used as a factor in assessing reasonable suspicion.
In our high-tech world, the same rule is now applied to those who use encryption tools to keep their online activities private. This, itself, is a mark of bad citizenship and has been enough to raise red flags for the NSA.
Nor is Illinois v. Wardlow the only flight case in which the Court engaged in citizenship talk. Consider California v. Hodari D.
The Court admonished citizens, even when confronted with police orders that lack legal basis, to obey:
[C]ompliance with police orders to stop should . . . be encouraged. Only a few of those orders, we must presume, will be without adequate basis, and since the addressee has no ready means of identifying the deficient ones it almost invariably is the responsible course to comply.
The Court’s Fifth Amendment and Sixth Amendment cases also contain citizenship talk. A good citizen, should they be wrongfully accused of a crime, does not keep silent, notwithstanding any Fifth Amendment privilege against self-incrimination they may have. The good citizen should “cast aside [their] cloak of silence” and come forward to proclaim their innocence.
Certainly this explains the Court’s decision in Jenkins v. Anderson, allowing the government to impeach a testifying defendant with his prearrest silence.
The citizen who has strayed from the straight and narrow and has in fact committed a crime is also encouraged to do their duty. As Justice Scalia put it in his dissent in Minnick v. Mississippi, “While every person is entitled to stand silent, it is more virtuous for the wrongdoer to admit his offense and accept the punishment he deserves.”
In Davis v. United States, the Court even weighed in on how articulate a citizen is expected to be.
The good citizen enunciates and speaks forcefully. “Maybe I should talk to a lawyer,” the language at issue in Davis, will not do to invoke the right to counsel.
The Court conceded that this might disadvantage citizens who lack “linguistic skills” to “clearly articulate their right to counsel,”
and sociolinguistic research confirms as much.
But maybe this was precisely the point.
The good citizen is an educated citizen, after all.
And these are just some of the cases in which the Court explicitly engages in citizenship talk. There is also McCray v. Illinois, in which the Court links informing the police of the criminality of others with “good citizenship,”
a sentiment the Court endorsed again in Georgia v. Randolph.
In Burt v. Union Centennial Life Insurance Co., the Court notes that “good citizens” have a “duty to furnish [evidence that would] prevent a miscarriage of justice.”
In Brown v. Walker, the Court states that “[e]very good citizen is bound to aid in the enforcement of the law.”
And in Grin v. Shine, the Court observes that the good citizen “ought to be willing” to “submit themselves to the laws of their country.”
Again, these are cases in which the Court’s citizenship talk is explicit. In other cases, the Court is more indirect, handing down what I have elsewhere termed a type of “white-letter law”
—those “societal and normative laws that stand side-by-side and often undergird black letter law but, as if inscribed in white ink on white paper, remain invisible to the naked eye.”
Read between the lines and one can glean a clear delineation in the Court’s criminal procedure opinions about what it means to be a good citizen—being willing to help the authorities and to cede constitutional protections—versus what it means to be a bad citizen. And again, it is not just that the Court is describing good citizenship. In a very real sense, these cases reflect a desire to produce good citizenship.
I can imagine that to some, the fact that the Court, however indirectly, encourages citizens to cooperate with the police is something that should be applauded rather than critiqued. For these individuals, the Court, by pressing good citizenship, is performing its role as a good citizen. My point is not that encouraging good citizenship is an inherent wrong. Rather, my point is that there is something deeply problematic about citizenship talk that encourages citizens to surrender constitutional protections
and to serve as willing posse comitatus to a criminal justice system known for overcriminalization, overincarceration, and unequal policing.
Likewise, there is something deeply problematic about citizenship talk that chills democratic dissent. My point too is this: Whatever one thinks of the substance of the Court’s citizenship talk, certainly there is merit, for the sake of transparency and legitimacy, to bringing that citizenship talk out into the open.
There are two more points to be made about the citizenship talk that emerges from the Court’s criminal procedure cases. One is that citizenship talk is racially inflected. As I have written previously, the story of the development of our criminal procedure jurisprudence is largely a story about race.
Much the same can be said about the Court’s citizenship talk. Almost all of the Court’s citizenship talk cases—Miranda, Schneckloth, Drayton, Delgado, Wardlow, Hodari D.—involve black or brown criminal defendants, though the Court often elides this fact. More to the point, how the Court’s “citizenship talk” is heard and interpreted is anything but race neutral. The result is that racial minorities, especially those who are black or brown, often find themselves having to “work” their citizenship in ways that are citizenship-diminishing.
However, before turning to race, it makes sense to begin with an exploration of the role the Court’s citizenship talk plays in disciplining everyone to be good citizens. This is the issue Part II takes up below.
“When they have established government[,] [the people] should think of nothing but obedience, leaving the care of their liberties to their wiser rulers.”
“[Citizens stopped at checkpoints should react] positively when police simply ask for their help as ‘responsible citizens.’”
Illinois v. Lidster
Borrowing from the work of Michel Foucault, this Part argues that the Court’s citizenship talk plays a role in disciplining citizens into being obedient subjects, or good citizens. To begin, this Part will discuss how the Court’s citizenship talk reaches citizens.
Thus far, I have spoken of the Court’s citizenship talk as communicating ideas about good citizenship. But the question that lurks below this assertion is one of mechanics and distribution. Concededly, there are few citizens who read Supreme Court opinions. The audience for Court opinions is select and small. Nonetheless, sometimes their messages are disseminated far and wide. As Professor Lauren Ouziel has remarked, the Warren Court’s “criminal procedure cases generated intense public interest; the cases were publicized, debated, and commented upon widely in the media and the political sphere.”
Even today, the Court’s opinions are condensed for the news. Couple this fact with the observation that the Court’s opinions contain expressive messages regarding how citizens should behave.
As Professor Lawrence Lessig observed more than a decade ago, laws indirectly communicate what behavior is inappropriate, which behavior is orthodox, and what behavior should be rewarded.
More importantly, they do so in ways that are often subtle and work below the surface.
The same is true of the Court’s opinions.
Even when not filtered through the media, the Court’s citizenship talk is still heard and absorbed by many. It is internalized by lower courts and state courts, by district attorneys and public defenders. And the public digests this citizenship talk in repackaged form in television shows from Dragnet to Law and Order, from Colombo to The Wire, from S.W.A.T. to The Night Of. Such cultural markers are, after all, part and parcel of how many citizens become legally fluent;
they exist not independent from the law but in the law’s carefully cast shadow.
And of course, the Court’s citizenship talk is filtered to police departments via police manuals and training.
Indeed, this filtering is bidirectional and dynamic. Police beliefs about how citizens should behave in their interactions with police are communicated to the Court in briefs from the solicitor general and in amicus briefs from law enforcement.
The Court in turn incorporates these beliefs as part of its Fourth Amendment balancing of the rights of the individual against the need to “promot[e] . . . legitimate governmental interests.”
Indeed, these messages are likely dynamic in yet another way. The Court’s language about who is a good citizen and who is not very likely informs and shapes constitutional doctrine.
After all, decisions regulating what the police can do are necessarily informed by beliefs about what citizens should do. While much could be unpacked here, the central point is that, in a host of ways, the Court’s language incorporates police beliefs. More importantly, in incorporating these beliefs, the Court legitimates and reinforces them.
There is one final thing to say about the Court’s criminal procedure decisions and their dissemination: Those citizens who are most policed—because of the rates of crime in the communities where they live, or because of the color of their skin—are particularly likely to be familiar with the messages in these decisions.
After all, these decisions are communicated in “Know Your Rights” pamphlets and teach-ins, and even in campaigns that Professor Devon Carbado describes as “know-your-rightlessness campaigns.”
They are communicated in driver’s education classes and in public schools, where minority youth in particular are increasingly being taught how to interact with the police,
becoming part of the “pools of knowledge”
common to black and brown Americans. And most importantly, these messages—which include messages about who belongs and who does not—are being communicated to black and brown citizens by the police themselves. In fact, it is in police interactions that many Americans, especially black and brown Americans, become legally socialized into a sense of “who is a citizen and who is a problem.”
As some scholars have argued, such encounters and other aspects of the criminal justice system function as a negative civic education.
Political scientists Charles R. Epp, Steven Maynard-Moody, and Donald Haider-Markel make a similar point about police stops: “Police stops convey powerful messages about citizenship and equality.”
In short, the Court’s citizenship talk may not reach citizens directly, but it does reach citizens.
Now the cart: The Court’s citizenship talk plays a role in disciplining citizens. The work of Foucault is instructive. In Discipline and Punish, Foucault expanded upon English philosopher Jeremy Bentham’s imaginary panopticon, an ideal prison where prisoners are housed in cells in a circular building, at the center of which is an observation tower.
The observation tower, along with the architectural contrivances of lighting and strategically placed mirrors, places prisoners under constant perceptual surveillance—perceptual, because the prisoners themselves are unable to tell when they are actually being watched and when they are not.
As Foucault remarked, this hypothetical panopticon in effect induces “in the inmate a state of conscious and permanent visibility.”
In this way, prisoners internalize a state of surveillance and a state of discipline; they behave as if they are being watched at all times. Actual continuous state surveillance is “unnecessary.”
Perceptual surveillance renders the prisoners compliant, subservient, docile, and good.
Observation, even when invisible or imagined, becomes power.
Foucault recognized the disciplinary power of Bentham’s panopticon, but he also believed that the modern era had rendered the physical edifice itself and its centralized surveillance superfluous, at least for disciplining individuals in the broader sense. For Foucault, Bentham’s model prison merely reproduced, “with a little more emphasis, all the mechanisms that are to be found in the social body[.] The prison is like a rather disciplined barracks, a strict school, a dark workshop, but not qualitatively different.”
Put differently, the modern prison is just one institution in a network of institutions forming a “great carceral continuum” in which “frontiers between confinement, judicial punishment and institutions of discipline” disappear.
Foucault also observed that the state’s interest in discipline extends well beyond what one normally thinks of as the police state. The state is also interested in disciplining bodies as “obedient subjects” in support of the state.
This discipline, Foucault argued, is diffuse and “cannot be localized in a particular type of institution or state apparatus.”
Rather, it is “a type of power, a modality for its exercise, comprising a whole set of instruments, techniques, procedures, levels of application, [and] targets.”
For Foucault, the success of this disciplinary power is traceable to its reliance on “simple instruments”: “hierarchical observation,” “normalizing judgement[s],”
and a “network of writing,”
such as birth certificates, marriage licenses, and property deeds that document and track individuals.
These simple instruments operate in tandem to encourage and normalize what the state views as acceptable behavior. The effect is to render the acceptable behavior and trajectories as natural, or at least as occurring independent of the state, when in fact the state is entangled in much of our behavior, from when and how we are educated, to when and who we marry, and to our very existence as productive citizens.
Certainly, the Court’s criminal procedure jurisprudence plays a role in “hierarchical observation.”
One has only to think of the Court’s decisions permitting the state to engage in almost unlimited surveillance;
permitting the state access to third-party records
—such as bank records,
and web-browsing records—and even allowing the state to monitor and record our speech,
our fingerprints, and even our DNA.
The Court’s criminal procedure decisions also contribute to the state’s “network of writing.”
We are no longer simply catalogued by our birth and death certificates. Now, we are knowable via Big Data, captured by our financial transactions and omnipresent surveillance, by Metrocards and E-Z passes, by our Facebook and Snapchat and Instagram use, and, generally, by the “way we live now.”
Even our interactions with the police are tracked. In New York City, for example, it is not only the fact that in just eight years the police forcibly stopped people over 4.4 million times—the vast majority of whom were innocent of wrongdoing—that should give us pause.
What should also give us pause is the fact that for each of these 4.4 million stops, police filled out a UF-250 form marking the name of the individual stopped; their date of birth and address; their race, height, and sex; and even whether or not they have tattoos.
In short, the police “marked” individuals—again, the vast majority of whom were innocent—for future records. They do so still.
However, it is the role the Court plays in providing “normalizing judgments” that interests me most. This, after all, is what the Court is doing when it engages in citizenship talk. The Court, in these cases, does more than simply decide the legal issue of whether a particular state action infringed upon a defendant’s right to be free from unreasonable searches or seizures, or their privilege against self-incrimination, or their right to counsel. The Court’s decisions also operate on a different register, creating a “penality of the norm”
by marking out which citizens have engaged in behavior warranting punishment, and which have not; which citizens warrant “heightened scrutiny,”
to repurpose an equal protection term, and which citizens do not.
Consider again the “citizenship talk” decisions discussed in Part I. These decisions mark which citizens are properly deferential to authorities
and which are not—which citizens are “responsible citizens” and the type to “give whatever information they may have to aid in law enforcement,”
and which are not; which citizens appropriately view the police in a positive light and as a “cause for assurance,”
and which do not; which citizens willingly cooperate with the authorities and voluntarily bring criminal activity to light
and which do not; and which citizens are obedient and conforming, and which are disobedient and non-conforming. In short, the decisions mark which citizens are good citizens, and which are bad.
There is one other aspect of how the Court’s language is disciplinary in a Foucauldian sense. The consequence of being a bad citizen is often punishment. The citizen may not face incarceration for failing to be “good,” but other, subtler forms of punishment often ensue. In extreme cases, there may be an arrest for failing to obey a police order. This recently happened when a hospital nurse refused a detective’s order to draw blood from a patient since the detective lacked a warrant; the detective forcibly arrested the nurse for her refusal.
More often, the punishment takes the form of a raised voice, or incredulity and exasperation, or a further delay, or disrespect, or a public dressing down.
Before turning to race in Part III, allow me to give one example of how we have internalized discipline: our response to the judicially created consent exception to the Fourth Amendment. Scholars have been almost unanimous in noting that the consent exception disregards evidence that psychological pressures often induce individuals to consent.
Scholars also point out that police are trained in how to induce drivers to give consent. For example, one well-known training manual, Tactics of Criminal Patrol, advises officers how to “position” the driver “emotionally to grant you [their] permission.”
The manual even suggests how requests for consent should be phrased, suggesting phrasing that “employs psychology in your favor. The implication is that the subject will look guilty if he does mind. . . . It’s psychologically harder to decline.”
But what scholars miss in focusing on psychological pressures is this: While such pressures play a role in why so many people consent, that role likely pales compared to the role state discipline has played. We have been told, indirectly and directly, again and again, that assisting the police is what we are supposed to do. Good, responsible citizens, after all, have nothing to hide and want to aid law enforcement. We have internalized the Court’s citizenship talk such that even when we do not want to—we have someplace to be, we are already late, we want to maintain our privacy, we think we have rights—we surrender. We consent. We cede what rights we have. We become compliant, good citizens. And when we do resist, we are met by incredulity and suspicion, badgered for being noncompliant, and marked as not good.
III. Racing Citizenship
“And you are not the guy and still you fit the description because there is only one guy who is always the guy fitting the description.”
Claudia Rankine, Citizen
“Your country? How came it yours?”
W.E.B. Du Bois
It is impossible for me to think of the Court’s citizenship talk in criminal procedure cases without also thinking about race. After all, I am a black man living in a country where “race matters,”
though as Ta-Nehisi Coates reminds us, “[R]ace is the child of racism, not the father.”
I carry myself knowing that I will be watched by the police, scrutinized by the police, and, at any point, potentially stopped by the police.
As much as I might hope that my status as an academic might insulate me from racialized policing, my own experience and the experience of numerous black professors suggest otherwise.
So for me, when I think about the Court’s citizenship talk, the sticky tar-baby of race
Add to this the fact that just as there seems to be no exit from race, there seems to be no exit from history. The simple fact is that race and citizenship in this country have always been intertwined, from the first marking of blacks with the badge of slavery, to the ratification of the Fourteenth Amendment extending legal citizenship to blacks, to continued angst over who is a “real” American. Understanding race and citizenship is thus a necessary predicate to understanding race and policing. Understanding race and policing, in turn, becomes clearer against the backdrop of the Court’s criminal procedure cases, which, even when race is unsaid, are on a certain level race cases. It is with these three points in mind—each of which I explore more fully below—that the question must be asked: What citizenship is expected of those who, by virtue of skin color, are often viewed as second class and as “always already suspect”?
A. Race and Citizenship
Race and citizenship in this country have always been interconnected. Concerns about the former have always pervaded discussions of the latter. This goes beyond the country’s original sin, slavery, and the enshrinement of that sin in the Constitution through its Great Compromise. Rather than address slavery directly, the Founders struck compromises that they revealed only through circumlocution and evasion.
This also goes beyond the fact that from the beginning, the “most radical claims for freedom and political equality were played out in counterpoint to chattel slavery, the most extreme form of servitude,” and that the “equality of political rights, which is the first mark of American citizenship, was proclaimed in the accepted presence of its absolute denial.”
This inability to see blacks as citizens was reflected in Chief Justice Taney’s decision in Dred Scott v. Sandford, which should have involved the question of whether Scott’s residence in a free state was enough to make him free.
Instead, the Court held that Dred Scott was not a “citizen,” but a being “of an inferior order . . . unfit to associate with the white race,” and as such could not even invoke diversity jurisdiction to have the issue addressed.
For American courts, blacks, whether free or not, might be citizen subjects, but they were not real citizens to be admitted into “political partnership.”
Or as Professors Jack Balkin and Sandy Levinson put it, Dred Scott made clear that “the members of one race ‘owned’ the United States; it was ‘their’ community and ‘their’ country, and all other races were permitted to remain only on its terms.”
Even after the Great Emancipation and ratification of the Fourteenth Amendment, which nominally granted citizenship rights to former slaves and their descendants,
the contours of that citizenship remained contested. As Professor Khalil Gibran Muhammad observes:
In a moment equivalent to a historical blink of the eye, four million people were transformed from property to human beings to would-be citizens of the nation.
. . . .
[Against this backdrop,] [t]he post-emancipation period demanded a fresh and immediate inquiry into the new reality of black freedom in America. What grade of humankind were these Africans in America? What quality of citizenship did they truly deserve? What manner of coexistence should be tolerated?
In short, for many white Americans, the “slavery Problem [was now] the Negro problem.”
Integral to that problem were notions of citizenship, so much so that one can glean this problem from the titles of books during the period, from Following the Color Line: American Negro Citizenship in the Progressive Era
to The Colored American: From Slavery to Honorable Citizenship
to, somewhat later, An American Dilemma: The Negro Problem and Modern Democracy.
One can also glean this concern about citizenship from thinkers like President Woodrow Wilson, who insisted that any attempt to extend voting rights to blacks was an imposition on Southern whites, the region’s “real citizens.”
For its part, the Supreme Court played a constitutive role in erecting roadblocks to the exercise of full citizenship rights by black Americans. This was true in cases like the Civil Rights Cases, in which the Court held that the Civil Rights Act of 1875, enacted to bar racial discrimination in public accommodations, exceeded Congress’s authority under the Reconstruction Amendments
and Plessy v. Ferguson, in which the Supreme Court blessed racial segregation in public accommodations and enshrined the doctrine of “separate but equal.”
It was also true in United States v. Reese, which invalidated federal voting protections designed to extend voting rights to newly freed African Americans;
Williams v. Mississippi, which upheld Mississippi’s voting laws that operated to deprive blacks of the right to vote;
and Giles v. Harris, which again upheld racially discriminatory voter registration laws.
And it was true in cases like Berea College v. Kentucky, which upheld a law barring integrated schools in Kentucky,
and Franklin v. South Carolina, which upheld the right of states to, in effect, exclude black jurors.
These cases stood for the implicit proposition that although blacks were technically “citizens,” albeit “hyphenated Americans,”
that alone meant little—or even sometimes nothing at all.
Perhaps unsurprisingly, historian Carter G. Woodson remarked in 1921, “[C]itizenship of the Negro in this country is a fiction.”
The link between race and citizenship in legal status can also be seen in another set of laws and cases. Beginning with the Naturalization Act of 1790, naturalized citizenship was limited to “free white person[s].”
According to historian George Frederickson, the target of this restriction was likely free blacks, since at the time there was little prospect of Asian immigration and Native Americans were ineligible.
The original restriction, however, proved useful once Asians began to immigrate in substantial numbers as part of the California gold rush. Indeed, race-based exclusions for naturalized citizenship continued until 1952.
As Professor Ian Haney-López has documented, over one-million whites gained citizenship through these naturalization laws.
At the same time, other immigrants—from Hawaii, China, Japan, Burma, and the Philippines—were deemed nonwhite and rejected.
Finally, even immigrant groups that were considered “white” and therefore gained the legal status of naturalized citizens nevertheless often found themselves racially excluded from social citizenship.
They were white, but not white enough. This was especially true during the early-twentieth century, when many Anglo-Saxons embraced what political scientist Rogers M. Smith terms “ascriptive Americanism”: the belief that what qualified one for “true” citizenship was a bloodline that could be traced to Northern Europe.
Southern and Eastern European immigrants—including Italians, Greeks, and Slavs—were deemed not quite ready for full citizenship on par with “old stock” white Americans.
Indeed, the fear that these new immigrants were having large families, while the birthrate was declining among Anglo-Saxons, prompted President Theodore Roosevelt, in one of his famous letters on race, to warn of “race suicide.”
Roosevelt urged Anglo-Saxons to counteract the immigrant birthrate by producing big families of their own with children who would have “strong racial qualities” and who too would become good citizens.
All of this adds context to W.E.B. Du Bois’s observation:
[The] widening of the idea of common Humanity is of slow growth and to-day but dimly realized. We grant full citizenship in the World-Commonwealth to the “Anglo-Saxon” (whatever that may mean), the Teuton and the Latin; then with just a shade of reluctance we extend it to the Celt and Slav. We half deny it to the yellow races of Asia, admit the brown Indians to an ante-room only on the strength of an undeniable past; but with the Negroes of Africa we come to a full stop, and in its heart the civilized world with one accord denies that these come within the pale of nineteenth century Humanity.
This context also points to the incontrovertible fact that it is those who are most phenotypically different who experience contested citizenship. Consider the increasingly vociferous calls to “build a wall” between America and Mexico.
Pat Buchanan’s recent book State of Emergency: The Third World Invasion and Conquest of America makes the claim explicit: “America faces an existential crisis. If we do not get control of our borders, by 2050 Americans of European descent will be a minority in the nation their ancestors created and built. No nation has ever undergone so radical a demographic transformation and survived.”
As Professor Peter Halewood has argued, even today, “the citizen is implicitly white.”
Asian Americans are still often perceived to be “foreign.”
The same is true of those who appear Muslim or South Asian and who, in the aftermath of 9/11, often had to display American flags outside their homes and stick American flag bumper stickers on their cars to demonstrate their citizenship.
It is often true of Latinos, so much so that the Court permits border officers to consider “apparent Mexican ancestry” to determine who to stop.
And to a certain extent, it is true, though we rarely acknowledge this fact, of blacks. It is their contingent citizenship, after all, that explains why black victims of Hurricane Katrina were often described in the media as “refugees,” a term normally associated with noncitizens.
It also explains why so many Americans had no trouble questioning President Obama’s “citizenship,” with its race-based undercurrents.
B. Race and Policing
Understanding how citizenship has been racialized seems indispensable to getting to the “answer” of what citizenship is expected of those of us who are black and brown. And getting to this answer is impossible without thinking about Eric Garner, the six-foot-tall “gentle giant” who died after being placed in a prohibited chokehold by Officer Daniel Pantaleo in Staten Island, New York, on July 17, 2014.
Garner’s “crime”: thinking it was “criminal” that police should be able to arrest him again for simply selling loose cigarettes on the street, and resisting their attempts to do so.
Another unarmed black man, this one just a teenager, Michael Brown, is also part of the answer. Darren Wilson, a white police officer, shot and killed Brown in Ferguson, Missouri, on August 9, 2014.
Brown’s crime: stealing cigarillos from a liquor store and running.
The answer involves Dajerria Becton, the fifteen-year-old black teenage girl who was body slammed to the ground by a Texas police officer at a graduation pool party.
Becton’s crime: crashing the pool party with other teenagers.
And it also involves Shakara, the sixteen-year-old foster student who was flipped out of her desk and dragged across a room by Senior Deputy Ben Fields, a school resource officer.
Her crime: not putting away her cell phone in class quickly enough.
I also cannot imagine reaching the right answer without thinking of Tamir Rice, the twelve-year-old black boy who was shot by a Cleveland police officer.
His crime: playing with a toy BB gun in the park.
There is Sandra Bland, who committed suicide after being taken into custody following a traffic dispute.
Her crime: talking back to the traffic officer and not exiting her vehicle fast enough.
And Freddie Gray, who suffered a spine injury and lapsed into a coma when officers, figuring they’d teach him a lesson, failed to strap him down as they transported him to a precinct.
His crime: fleeing when he saw the police.
And Philando Castile, who was shot in his car as he reached into his pocket for his license.
His crime: notifying the police officer he was in possession of a licensed firearm.
What kind of citizenship was expected of them?
These are just some of the names from the past few years. Some of the names we know. The ones many of us scratch our heads at as we wonder how this happened. The ones that result in scathing reports from the Department of Justice
or studies on how housing discrimination made Ferguson, Missouri, a hot point for unrest.
The ones that prompt debate about whether police officers belong in schools, and then talk about the school-to-prison pipeline, and then talk about why in a city like New York a black student has about a one-in-two chance of being in a school with metal detectors while a white student has only about a one-in-seven chance.
The ones that renew debates about whether broken windows policing contributed to the death of Eric Garner while protesters march and hold signs saying, “I Can’t Breathe” or “Don’t Shoot.”
What may be less obvious is that these names are part of a larger citizenship problem. They are eruptions here and there, but they also prompt the larger question: Why are some treated like second-class citizens? There is a reason why Claudia Rankine’s heralded book of poetry, which includes poems called “In Memory of Trayvon Martin” and “Stop-and-Frisk,” is titled Citizen.
Consider, as an exhibit, data from New York’s aggressive stop-and-frisk policing. In New York City alone, police executed over 4.4 million forcible stops between January 2004 and June 2012, with eighty-four percent of those stopped individuals being black or brown.
In raw numbers, this means that black or brown people were stopped approximately 3.7 million times.
Although these stops were allegedly based on reasonable suspicion of crime, in fact around nineteen of twenty of these individuals were found not to be engaged in criminal behavior warranting arrest, resulting in an error rate of approximately ninety-four percent.
And even this understates the true error rate, since of the individuals who were arrested, nearly half of their arrests were eventually dismissed.
Now carry this over to other cities: Atlanta, Washington, Baltimore, Detroit, and Los Angeles. What citizenship is expected of racial minorities there?
And it is not just large cities. One only has to say Ferguson to be reminded of that. Nor is it just areas where there are significant minority populations. Consider Oneonta, New York, a town of approximately 10,000. After a white woman claimed a black man broke into her home, the police conducted a round-up of nearly 200 of the town’s 300 black residents, including at least one black woman.
This was just a couple of decades ago. In fact, it is often in places that have the smallest percentage of African Americans—such as South Dakota, Vermont, and Wisconsin—that the largest disparities in incarceration rates exist.
Earlier, I mentioned the known error rate in stop-and-frisk policing in New York. We see similar error rates in another policing tool: pretextual traffic stops, or what blacks have long come to know as Driving While Black.
Interestingly, studies show little disparity in unambiguous traffic safety stops such as running a stop sign.
Rather, the disparity is in investigatory stops, those stops when police exercise discretion to conduct a traffic stop for a minor violation, such as changing lanes without signaling, as a pretext to look for more criminal behavior. For these investigatory stops, black drivers are nearly three times more likely than white drivers to be stopped and over five times more likely to have their cars searched.
And yet studies show that the hit rate—the rate at which officers discover contraband following a search—is not greater for African Americans.
Add to this that racial minorities are more likely to be subjected to pointless indignities, such as being ordered out of a vehicle, or told to keep their hands visible, or asked where they are going.
All of this suggests “error,” as a descriptive term, is incomplete. Error implies that the stops are solely designed to apprehend criminals. What I am suggesting is that the stops also exercise a type of control: to show whose country this is, and whose it is not.
So again, the question must be asked: What citizenship is expected of those who, by virtue of skin color, exist in what philosopher Judith Butler terms a “racially saturated field of visibility”
that frames blacks as second class? How do racial minorities prove they are good citizens when driving with the same care as their white counterparts still subjects them to racialized policing?
When they, and they alone, experience the brunt of an officer’s court-sanctioned discretion to order a driver out of a car,
a passenger out of a car,
or a family out of a car?
When joining the middle class and the upper-middle class, and moving to a predominantly white neighborhood, still subjects them to targeted policing for being “out of place”?
When they, and they alone, are “uppity” if they talk back and ask why,
ask for a warrant,
and ask under what authority? When they, simply by virtue of skin color, are often already marked as a probable threat, a “symbolic assailant,”
as a “custodial citizen,”
as an “anti-citizen”?
Of course, racialized policing—again inextricable with how we conceive our equal citizenship—is not an isolated phenomenon. As discussed above, it is tied up with history. As Professor Carol Steiker has persuasively argued, even our modern police force is traceable in part to the “slave patrols,” which developed many of the trademarks—uniforms, arms, military drilling—that we associate with police forces.
Racialized policing is tied up too with choices the Court has made—both in its holdings and in its citizenship talk—again and again. The connection between the Court’s criminal procedure jurisprudence and the race-ing of citizenship I take up in the section below.
C. Race and Criminal Procedure Cases
Thus far, I have attempted to demonstrate that the question of race and citizenship in this country has always been fraught, that race has determined who is allowed to become a citizen, and that race has determined which rights a citizen is permitted to exercise. But what is equally important is this: Citizenship has always been connected to crime. This is not only in the sense that those who have been convicted of felonies can be stripped of rights we normally associate with citizenship, or as Michelle Alexander argued in The New Jim Crow, that we seem to deliberately use crime as a way to relegate blacks to second-class status.
Nor is it only in the sense Professor Muhammad has articulated: Historically, we “wrote crime into race” and then used black criminality as an argument against full citizenship.
Rather, citizenship has also been connected to crime in the Court’s criminal procedure opinions that delineate what rights citizens are entitled to and what rights they are expected to exercise.
This is because criminal procedure cases, even when race is unsaid, are on a certain level about race. Indeed, as I and several other scholars have observed, the story of how our criminal procedure protections developed becomes completely intelligible only through the lens of race.
The right to counsel for indigent felony defendants,
the right to be free from coercion during interrogation,
the right to Miranda warnings,
the right to trial by jury,
and indeed, the entire process by which the Fourth, Fifth, and Sixth Amendments were incorporated and made applicable to the states,
owe much to the Court’s concern between the 1920s and 1960s about police treatment of minorities, especially in the South.
Even now, in part due to racialized policing, criminal procedure cases remain race cases. Even in criminal procedure cases involving white defendants, race is often in the background.
Mark Weiner has coined the term “black trials” to apply to seminal civil rights cases like Dred Scott, Plessy, and Brown.
[B]lack trials are legal events that figure symbolically and dramatically in American culture by making public certain basic ideological conflicts about race and civic life. They are legal dramas of citizenship, civic rituals through which we have come to know ourselves as a people.
But Weiner’s coinage does not go far enough. Allow me to take Weiner’s term a step further and say that seminal criminal procedure cases—think Terry v. Ohio, another case in which race was both absent and present
—also function as “black trials,”
or even “master texts that contribute to an ideology of race and racial hierarchy.”
These cases, for the most part involving black and brown defendants on one side and the state on the other, are also “legal dramas of citizenship, civic rituals through which we have come to know ourselves as people.”
Recognizing criminal procedure cases as “black trials” adds another layer to how we should think about the Court’s decision, time and time again, to use criminal procedure cases to mark out what constitutes good citizenship vis-à-vis the police. Good citizens should willingly surrender their right to require a warrant for a search. Good citizens should willingly waive their right to silence, or its opposite, their right to speak. Good citizens should voluntarily obey police orders, even patently unlawful ones. Good citizens should willingly and happily aid the police, even a police system that exacerbates inequality and incarceration. I argued before that these are messages about good citizenship, and by implication, bad citizenship as well. I have now added that these cases are, on a certain level, also “black trials.”
What I did not say is this: Those messages are anything but race-neutral. Even if racialized messages are not intended, that is how they are heard.
We know from the literary theorist and legal scholar Stanley Fish that how texts are understood depends on the interpretive communities to which readers belong.
Other literary scholars, such as Professor Michael Awkward, have made similar observations with respect to race. Professor Awkward asks, “[H]ow does blackness direct, influence, or dictate the process of interpretation? Is there a politics of interpretation that is determined or controlled by race in ways that can be compared to the ideologically informed readings of, for example, feminist critics?”
For my part, I have posited that there is something called “reading black.”
All of this has implications for how citizenship talk—even if unintended, even assuming a game of telephone
—is understood along lines of race. Allow me to offer myself as an exhibit. Again, I am a black man living in a country where “young plus black plus male” too often “equals probable cause.”
When I read United States v. Drayton, am I the suspect on the bus being asked if I would mind consenting to a search, or am I one of the “good citizens” around him—“traveling on a Greyhound bus en route from Ft. Lauderdale, Florida to Detroit, Michigan”
—who were disciplined into opening their bags by example and who deployed the Court-endorsed psychology of group pressure,
In Illinois v. Wardlow, am I the youth running when I see the police because I know, from my race-based “pools of knowledge,”
all about police violence? Or am I part of the “good citizens” who are told that running from the police in their community is reasonable suspicion, and that if anything, they should help the police grab the youth. And why do I have the impression that the citizens that the Court has in mind in these and other cases—the citizens who should have an interest in “encouraging consent,”
the citizens who are told that “compliance with police orders to stop” should be “encouraged,”
no matter how invalid the orders—are the poor, the black and brown, the disenfranchised? Is it because this is who I imagine, in United States v. Drayton, traveling the thirty-two-hour trip by Greyhound from Florida to Michigan?
Is it because the community the Court mentions in Illinois v. Wardlow is so “known for heavy narcotics trafficking” that the Court says it twice in the first six sentences of the opinion?
D. Citizenship Work
Conceptualizing these criminal procedure cases as “black trials” and “master texts” helps explain and contextualize the extra work racial minorities in particular must do in order to enjoy a simulacrum of full citizenship status in their interactions with the police. The extra work stems from the long association of American-ness with whiteness
—picture in your mind the All-American girl, or the All-American boy—and an interconnected problem: the association of black and brown minorities with criminality.
Building on sociologist Erving Goffman’s work on identity performance,
Professors Devon Carbado and Mitu Gulati have noted that members of minority groups, in response to negative stereotypes, often “do significant amounts of ‘extra’ identity work to counter those stereotypes.”
Though Carbado and Gulati’s initial observations were in the context of employment discrimination, the same is true in the context of police–citizen interactions.
Partially as a result of the Court’s jurisprudence, racial minorities in particular find themselves facing a double-bind: To be regarded as “good citizens” deserving of the treatment routinely accorded to privileged whites, these minority citizens have to first abjure or at least downplay their actual citizenship rights. And if they do this, they never get to fully enjoy them.
They must perform what I will term “citizenship work”—being extra deferential, acquiescing to demands, relinquishing citizenship rights.
Perhaps nothing better illustrates this extra “citizenship work” than “the talk” that so many black and brown parents find themselves having to give their children, a talk so well-known that Justice Sotomayor referenced it in her dissent in Utah v. Strieff.
What my own parents told me is not atypical. When you see the police:
Don’t run. Say, “yes, sir,” or “no, sir.” Don’t talk back. Keep your head down, don’t look them in the eye. That’s disrespectful. Say, “yes, sir,” or “no, sir.” “Yes, ma’am,” or “no, ma’am” if it’s a lady cop. Don’t act smart. Don’t get smart. Just keep your head down and be deferential. Don’t ask how come or why. Don’t run. If they let you go, say “thank you.” Don’t show your color. Don’t act black. A cop will kick your ass in a second, you hear? Don’t talk back. Do whatever they say, you hear? Unless he asks you something, shut your mouth and keep it shut. Don’t start talking about rights. Definitely don’t start talking about black power. What were you doing wearing baggy pants and a hoodie in the first place? What were you doing walking/driving on that side of town any old way? What were you doing looking at his badge number and name? You don’t have rights, you hear? Don’t run. And you best say, “yes, sir,” or “no, sir.”
Black and brown Americans in particular are told that we must stoically endure state-sanctioned microaggressions.
We must de-race ourselves and “appear racially non-threatening.”
We are told we must answer question after question unrelated to the stated grounds for the stop, especially in the case of investigatory traffic stops.
Where are you going? What brings you to this neighborhood? Do you mind if I look in your car? Just routine—you understand? We must, quite literally, “assume the position,” except the position is that of an at-will citizen, or a second-class citizen. Even in the face of official politeness, we must suffer what Professor Sherry Colb terms “targeting harm.”
Professor Frank Rudy Cooper adds that black men in particular must emasculate themselves.
Male or female, we certainly should not ask, as Sandra Bland famously did, “Why?”
Through all of this, we are expected to cede any Fourth Amendment right we may have to walk away (in the case of a so-called “casual encounter”), as well as any Fourth Amendment right that the length of detention be no longer than necessary (in the case of a stop).
We are expected to forego our Fourth Amendment right to decline requests to have our persons and belongings searched. We are expected to waive any common law and Fifth Amendment right to decline to answer questions that have nothing to do with the stated basis for the stop.
The double-bind is not just that to warrant the treatment normally accorded white citizens, we must “work” our citizenship. The double-bind is that the citizenship we must perform is that of the obedient citizen. The docile citizen. The nonproblem citizen. And yes, the second-class citizen.
So, allow me to return to the question that motivated this section. What performance is expected of Eric Garner, Sandra Bland, and the rest of us?
IV. Talking Back
“[H]ere is the bottom line: if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you. Don’t argue with me, don’t call me names, don’t tell me that I can’t stop you . . . .”
A seventeen-year police veteran
“[T]he most important office in a democracy is the office of the citizen. Change happens because of you. Don’t forget that.”
President Barack Obama
Thus far, I have argued that embedded in the Court’s criminal procedure jurisprudence—at times hidden in plain sight, at other times hidden below the surface—are asides about what it means to be a good citizen vis-à-vis policing power. This citizenship talk insists that good citizens should welcome the presence of police officers and consider it their duty to assist them, even if it means informing on neighbors, family, and friends. Equally troubling, this talk calls on citizens to consent to searches and seizures and waive their right to silence, or to speak. Throughout, this citizenship talk functions as a type of normalizing judgment, an integral part of state discipline in the Foucauldian sense. Moreover, this citizenship talk is almost always racially inflected.
Whether intentional or not, this citizenship talk results in the chilling of democratic dissent and the frustration of rights. The result too is further inequality.
Still, one can imagine the hesitation and resistance to this argument. For some readers the response is a straightforward one: So what if the Court encourages good citizenship? My reply is similarly straightforward. My concern is not the promulgation of good citizenship per se, or even its inculcation. That said, there is something deeply problematic about a model of good citizenship that relies on citizens foregoing their citizenship rights. Just as there is something problematic with a model of good citizenship that, in effect if not by design, chills democratic dissent. Professor Eric Miller makes a related point: “The public should not face the cruel dilemma of forgoing their rights or facing harsh treatment from the police.”
Going a step further: There is something deeply problematic, even ironic, that in the very cases defining constitutional protections, the Court’s citizenship talk encourages the surrendering of such protections. This is the first problem. But there is also a second problem that has to do with the unequal distribution of citizenship talk. We should be troubled by citizenship talk that implicitly requires minorities to prove or “work” their citizenship, and to perform as passive, nonquestioning, and, indeed, as second-class citizens. While citizenship talk may not seem like a problem, it is.
However, citizenship talk, as promulgated by the Court and as experienced every day by thousands of individuals during citizen–police interactions, does not have to be a problem. This final part of the Essay gestures towards a jurisprudential intervention that would reduce both problems, that is, the problem of suppressing rights and chilling dissent, and the problem of racial distribution. Specifically, this Part imagines an interstitial space in which it would be a mark of a healthy democracy that all citizens have the ability, without repercussions or recrimination, to talk back to the police, to ask why and how come, to assert their rights, to question and test the boundaries of the law, and to say “no.” In this space, dissenting voices, or what political theorist Chantal Mouffe might call agonistic voices,
would be heard rather than silenced, and democracy would be fostered rather than frustrated.
Allow me to return and expand upon just one incident that became a flashpoint in the national conversation about policing in this country. In July 2015, in Waller County, Texas, State Trooper Brian Encinia pulled over Sandra Bland for failing to use a turn signal.
Prior to this event, the most well-known case of a woman being pulled over was probably that of Gail Atwater, a white woman who was arrested and hauled to jail for essentially failing to secure her children in seatbelts,
an arrest that the Supreme Court gave its blessing to in Atwater v. City of Lago Vista.
Like Atwater, Sandra Bland was pulled over for a routine traffic violation, a traffic stop that could have disappeared into the thousands of stops that happen each day. Instead, her traffic stop spawned a growing “SayHerName” movement.
As captured on the state trooper’s dashboard video camera, Trooper Encina quickly says to Bland, “You mind putting out your cigarette, please? If you don’t mind?” Sandra Bland, a Black Lives Matter activist, responds with a question of her own: “I’m in my car, why do I have to put out my cigarette?” Rather than answering, Trooper Encinia orders Bland out of her car, and when she refuses, Trooper Encinia uses force to drag her from her car. The trooper’s dashboard camera captured this exchange, as well as Trooper Encina dragging Bland along the ground.
Professor Rachel Harmon, in her examination of the legal authority of police commands, suggests that Bland responded the way she did in order to question the trooper’s authority.
Professor Harmon’s reading of the incident is certainly right. But to my mind, Professor Harmon’s reading captures only part of what Bland was likely thinking.
Bland, in asking why she had to put out her cigarette, was not only questioning the officer’s authority. She was also contesting that authority, and positing a counterfactual; she was interrogating the trooper, asking whether he would have pulled her over had she been white, and whether he would have asked her to put out her cigarette if she had been white. More than this, one senses that Bland was calling into question the law itself. Without ever mentioning the names of cases—think Pennsylvania v. Mimms,
Maryland v. Wilson,
Whren v. United States,
United States v. Armstrong,
and yes, Atwater v. City of Lago Vista
—she was asking how it can possibly be legitimate in a country that espouses equality before the law and equal justice—at both “the gatehouse[s] and the mansion[s]”
—that the law gives an officer almost unfettered discretion to decide which citizen he will stop; which citizen he will order to step out of her vehicle; which citizen he will order to place her hands “where I can see them”; which citizen he will let go with a warning, or punish with a summons, an arrest, or worse still, physical violence; which citizen he will treat as an equal, as “presumed innocent”; and which he will not. One senses that in asking, “I’m in my car, why do I have to put out my cigarette?” Bland was essentially asking whether this is a country of equal citizenship,
a country without ceremonies of degradation directed toward racial minorities.
She was asking, when we say “law and order,” why does it seem that we have a particular “order,” a particular hierarchy of bodies, in mind. She was asking, when we say, “serve and protect,” who exactly are the police serving and what are they protecting? Recalling the words of civil rights activist Fannie Lou Hamer in describing the effects of the inequality she saw, Bland was saying “I’m sick and tired of being sick and tired.”
Bland was asking, “Is there a reason I have to prove my good citizenship, and others don’t?” She was both talking back, and talking black.
As a society, many of us have been taught to categorize the actions of Bland as disobedient. As insufficiently deferential. As insubordinate. Indeed, a frequent occurrence after similar highly publicized police–citizen encounters, especially those involving racial minorities as victims, is to blame said victim with comments like “people need to obey orders.”
We have been taught to think of Bland and other black and brown people like her as unruly, as confrontational, as “uppity,” and ultimately as bad citizens. After all, per the Court, Bland should have cooperated with the police. Bland should have obeyed all police orders without question.
But what happens if we bracket what we have been taught and look at Bland’s actions—her talking back—as part of a continuum of citizens engaged in resistance, in voicing dissent and dissatisfaction, in engaging in agonistic democracy? Viewed through this lens, Bland responded to the trooper’s microaggression by engaging in microresistance, knowing that such microresistance has the possibility of igniting more microresistance, and ultimately change. So, what happens when we place Bland—and the hundreds of citizens like Bland—in the same sentence as the dozens of women who, in the late nineteenth century, were arrested when they went to polling places to vote, knowing that women were barred from voting? What happens when we place Bland in the same sentence as Homer Plessy, who deliberately sat in a white car during a time of racial segregation; or Rosa Parks, arrested for refusing to give up her seat to a white person in the segregated South; or Fred Korematsu, who deliberately violated an exclusion order; or to the hundreds of drag queens and gay men and women, who refused police orders to disperse at the Stonewall Inn; or to the DREAMers, who en masse came out as “undocumented and unafraid”
to challenge immigration policies? What happens when we acknowledge that, as a society, we celebrate certain individuals—those privileged by whiteness and class and gender—precisely because they assert their rights, because they engage in agonistic citizenship? We even call them exemplars of rugged individualism, of that American fighting spirit. Take that job and shove it. Don’t touch my junk. I’ll give you my gun when you pry it from my cold, dead hands. What happens when we acknowledge that we deny these approbations to those who, by virtue of race and class, are often deemed contingent citizens?
For that matter, what happens when we assume that Bland, by talking back and refusing to voluntarily exit her car until the officer provided her a valid reason, was calling into question the government’s “eternal temptation . . . to arrest the speaker rather than to correct the conditions about which he complains?”
Do we recall that the birth of this republic began with dissent? After all, dissent is a “crucial institution for challenging unjust hierarchies and for promoting progressive change.”
Do we recall Henry David Thoreau’s insistence that the law is not necessarily just and that sometimes disobedience is more just?
Or Martin Luther King, Jr.’s “Letter from Birmingham Jail,” in which he argued that having too much respect for majoritarian law is counter to good citizenship?
Not so many years ago, Harvard Professor Henry Louis Gates talked back to an officer who suspected Gates, who had just entered his own home, of being a burglar.
“Why, because I’m a black man in America? ” Gates asked.
Gates demanded the officer’s name and badge number, and the officer arrested Gates for being “disorderly.”
I mention this incident not only as further evidence of a citizen talking back and refusing to be “good”—at least refusing to be “good” in the way the Court seems to insist—but also because of Gate’s poignant words from years before his arrest. Although Gates uses the term “critique,” one could easily substitute “talking back.” Years earlier, Gates wrote, “[C]ritique can also be a form of commitment, a means of laying a claim. It’s the ultimate gesture of citizenship. A way of saying: ‘I’m not just passing through, I live here.’”
All of this reminds me of the dissenting citizens who have posted videos of their police interactions on YouTube.
The student who refuses to roll down her car window for the police.
The man who tells the police who are insisting on searching his apartment to get a warrant.
The airline passenger telling the TSA authorities, “If you touch my junk I am going to have you arrested.”
The man, stopped for walking through a residential neighborhood with a firearm, demanding to know why officers are stopping him if carrying a firearm is not a crime and if the Second Amendment means anything.
There are hundreds of videos like these, citizens engaged in “sousveillance,” the term Steve Mann coined to describe the act of “[observing] or recording by an entity not in a position of power or authority over the subject of the veillance.”
The citizens are black and white, Hispanic and Asian, men and women, conservatives and liberals. Of course, there are the videos too of the individuals who were not thinking of cameras or of their interactions being documented. Instead they may have thought only that something was not right, and that they had been passive, docile, obedient subjects for too long, and that it was time to ask why and how come. Videos like the one of Sandra Bland. Or Eric Garner. Or still more recently, the video of a black man, Larnie Thomas, being arrested in Minnesota for walking on the shoulder of the road, even though there was no place else to walk because the sidewalk was officially closed due to construction.
In the video, Thomas can be seen and heard arguing with the police officer.
And even though, following public uproar, the police dismissed the charges, the city still blames Thomas for being “belligerent” and not obeying orders.
I think too of the Black Panthers, who in the 1960s armed themselves with firearms (asserting their rights under the Second Amendment) and with law books and watched the police, all to say that rights mattered.
All of these citizens insisted on dialogue rather than monologue. And all were engaged in dissent. Political scientist Austin Sarat might even add that they were engaged in a type of dissent traceable to Socrates, agitating not so much for destruction but for something better.
Sarat’s observation bears repeating: “The patriot loves an idealized version of the nation, while the dissenter is moved by an idealized version of a world of yet-to-bes.”
Finally, what happens when we put Bland in the same sentence as Dollree Mapp of Mapp v. Ohio,
who famously said “no” when officers barged into the house she owned and demanded to search her house?
When Mapp insisted, “I want to see the search warrant,” the officers responded by flashing a sheet of paper, which Mapp snatched and placed in her bosom.
The officers snatched it back, arrested her for being “belligerent,”
and proceeded to conduct a warrantless search of her house.
But in saying “no,” in being “belligerent,” Mapp set off a chain of events that resulted in the “most important search-and-seizure decision in history,”
one that made the exclusionary rule binding on the states.
All of this, after all, falls under what Professors Lani Guinier and Gerald Torres call “demosprudence,” or action instigated by “ordinary people,” to change “the people who make the law and the landscape in which that law is made.”
All of this is what Martin Luther King, Jr., called “present[ing] our very bodies as a means of laying our case before the local and national community.”
My hope is that what happens when we place Bland in a continuum of dissenters is this: We begin to question citizenship talk that chills democratic dissent, and we long for an interstitial space in which all citizens can call into question the supposed moral legitimacy of state power.
Imagine a citizenship talk that celebrates rights, equality, and dissent.
First, with respect to rights, consider the benefits that would accrue if criminal procedure opinions—rather than treating the Fourth, Fifth, and Sixth Amendments solely as regulatory limitations on government behavior vis-à-vis individuals—also treated them—in practice and in the language in the opinions—as positive rights to be independently valued and enjoyed by citizens. Consider the benefits that would accrue if the Court—again in practice and in its language—stressed the importance of individuals knowing and benefiting from their rights. Rather than a decision like Schneckloth, in which the Court held that officers need not advise individuals that they have a right to refuse consent,
the decision would have reached the opposite conclusion and stressed the importance of citizens being made aware of and feeling free to exercise their rights. Rather than a decision like United States v. Mendenhall, in which the Court found no Fourth Amendment violation when police waylaid Sylvia Mendenhall at the Detroit Airport, asked her a series of questions, “asked” her to come with them to a private room, and then strip-searched her for drugs,
the Court would have recognized that, at a minimum, the police should have advised Mendenhall that she was not under arrest and that she was indeed free to disregard their questions and leave. Rather than a decision like Devenpeck v. Alford, in which the Court stated that informing an arrestee of the basis for his arrest is not constitutionally required,
the Court would have recognized that a seizure is unreasonable under the Fourth Amendment without it. Or consider a case like Davis v. United States, in which the Court found no Sixth Amendment violation even though officers continued to question Robert Davis after he stated, “Maybe I should talk to a lawyer,” because his statement was not assertive enough.
A decision that stressed the importance of individual rights would have, at a minimum, required that officers ask Davis clarifying questions and readvise him of his right to remain silent and right to counsel. Instead, the decision reached the opposite conclusion, stating, “[W]e decline to adopt a rule requiring officers to ask clarifying questions. If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.”
Now add to this language that valorizes equality. For too long, the Court has read equality as outside the purview of the criminal procedure amendments. As the Court put it in Whren, the case that gave its imprimatur to pretextual traffic stops, equal protection is a matter for “the Equal Protection Clause, not the Fourth Amendment.”
In doing so, the Court adopted a worldview in which rights are “hermetically sealed units whose principles must not contaminate one another.”
The effect is something “akin to constitutional rights segregation.”
But none of this is inevitable or preordained. As Professor Akhil Amar, Professor Andrew Taslitz, and I have separately argued elsewhere, it makes textual sense to read the criminal procedure amendments as incorporating the equality concern that animates the Fourteenth Amendment’s Equal Protection Clause.
Indeed, one of the concerns of the Fourteenth Amendment was to render a dead letter various antebellum laws that gave officials free license to target blacks for searches and seizures. Certainly, the Warren Court read the Fourth, Fifth, and Sixth Amendments against the backdrop of the Fourteenth Amendment’s Equal Protection Clause.
Imagine how such an emphasis on equality under the law could change the outcomes, not only in cases like Whren, but also cases like Pennsylvania v. Mimms,
or Maryland v. Wilson,
or Atwater v. Lago Vista,
each of which vested the police with almost unfettered discretion to engage in unequal treatment. I should add one more thing in suggesting that the Court’s criminal procedure citizenship talk embrace notions of equality. This language should emphasize something more radical than equality between citizens (whatever their race, income, or status), but equally true: that the citizen and the police—in terms of citizenship rights—are equals.
Finally, and perhaps most importantly, imagine if citizenship talk in criminal procedure opinions recognized the value of dissent. Right now, the message from Court opinions is that citizens should want to assist the police, should want to cooperate, should want to come forward with any information they know about themselves or others. These messages do not stand alone. Implicit in these messages about good citizenship are messages about bad citizenship—messages that, as we have seen, chill not only the exercise of rights but also democratic dissent. Imagine opinions that allow room for citizens, including black and brown citizens, to talk back. That allow room for individuals to be oppositional, to question authority, and to challenge the law itself, without fear of repercussion. To be clear, I am not suggesting language that would give individuals the right to physically resist arrest or to disobey a lawful order. But I am suggesting that individuals should, in general, have the right to speak, or not speak, as they choose. To be “uppity” and “belligerent” and oppositional. To “take a knee,” as NFL players and others have recently done to protest racialized policing.
To even say, in the immortal words of Jay-Z, “you gon’ need a warrant for that.”
To say, in the immortalized words of Eric Garner, “Every time you see me, you want to mess with me. I’m tired of it. It stops today.”
And to not have to worry about having to say, moments afterwards, “I can’t breathe.”
For too long the Court’s citizenship talk in criminal procedure cases has gone unnoticed and unremarked upon. The goal of this Essay has been to surface this talk—especially the talk about what it means to be a good citizen vis-à-vis the police, and to demand an account. The goal, too, has been to make an argument: Quite simply, there is something troubling about citizenship talk that encourages citizens to cede their rights of citizenship, those constitutional protections we have under the Fourth, Fifth, and Sixth Amendments. There is also something disconcerting about citizenship talk that chills dissent. There is certainly something problematic about citizenship talk that furthers racial inequality in its burdens.
The solution I have proposed—imagining a more pluralistic model of good citizenship to be embraced by the Court, imagining a space that at least tolerates if not welcomes dissent and opposition, and that valorizes rights and equality—may not be a surefire cure-all to the problems I have identified. But at least it begins a conversation about a problem that has until now gone unnoticed.