Although Crumiller P.C. doesn’t focus on issues of race specifically, I am a firm believer in the necessity of fighting racism in achieving equality for all. While we focus on issues of family rights – pregnancy discrimination, maternity and paternity leave – which are not specifically racial issues, we find that, as in all areas, people of color suffer disproportionately from harsh treatment and negative stereotypes, along with the many structural barriers to equality. I believe white people have a special responsibility to speak up about these issues.
To that end, and in honor of her 62nd birthday on Saturday, I step back for a minute this week to examine Sonia Sotomayor’s historic dissent in Utah v. Streiff, 579 U.S. ___ (2016), a case which serves as an important microcosm for the ways in which racial injustice is viewed and addressed in our society.
In this case, a police officer stopped someone walking down the street, who had been seen emerging from a house in which drug activity was suspected. The stop itself was without reasonable suspicion, and importantly, the State conceded that. The officer then ran a search and found an outstanding arrest warrant. With the warrant as justification, the officer searched the man, and found drugs.
the Court faced the issue whether evidence obtained by police at an illegal stop could be used against the defendant if, after the stop, an outstanding arrest warrant was discovered. Generally, such evidence is inadmissible under the age-old “exclusionary rule” which provides that “fruit of the poisonous tree” – evidence obtained illegally – cannot be used against a person.
Applying precedent, the court evaluated three factors. First, the amount of time elapsed between the unlawful search and the discovery of the evidence. Because here, the discovery was immediate, this factor weighed in favor of suppression. Second, “intervening circumstances.” Justice Thomas found that because the warrant was valid and predated the stop, and imposed an obligation to arrest upon the officer, the “arrest … was a ministerial act that was independently compelled by the pre-existing warrant.”
Lastly, the Court considered the “purpose and flagrancy of the official misconduct”. Because the stop was concededly improper, this factor should have clearly weighed in favor of suppression. But Justice Thomas felt compelled to make excuses for the officer, observing his were “good-faith mistakes”. Most bafflingly, Thomas found there to be “no indication that this unlawful stop was part of any systemic or recurrent police misconduct.” (8). In sum, the absence of probable cause for the stop is not necessarily “flagrant” justifying exclusion and evidence obtained illegally can be admissible if it seems like the officer meant well.
Sotomayor dissected and refuted each of these points. As Sotomayor pointed out (as did Kagan, in her also-excellent dissent), 16,000 out of the 21,000 residents of Ferguson, MO have outstanding warrants. Salt Lake City itself, where this case occurred, “had a ‘backlog of outstanding warrants’ so large that it faced the ‘potential for civil liability’”. In response to the majority’s justification that running the warrant was could have been to protect the officer’s safety, Sotomayor posited that we would never “allow officers to warrant-check random joggers, dog walkers, and lemonate vendors just to ensure they pose no threat to anyone else.”
Sotomayor’s dissent is important because she went beyond refuting Thomas’s legal arguments and evaluating the facts in light of a broader societal context. After refuting each of Thomas’s legal arguments, Sotomayor continued, ‘[w]riting only for myself, and drawing on my professional experience, I would add that unlawful ‘stops’ have severe consequences much greater than the inconvenience suggested by the name.” She discussedthe power officers have over you once you are stopped – using “an array of instruments to probe and examine you” – they can inspect you, handcuff you, bring you to jail, raise your hands, search your body intimately, swab your DNA, lift your tongue or your genitals.
The defendant in this case was white. “But it is no secret that people of color are disproportionate victims of this type of scrutiny,” Sotomayor explained. Sotomayor gave a nod to the #blacklivesmatter movement, and the slogan “We Can’t Breathe”, in two final paragraphs that deserve quoting in their entirety:
By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.
We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breath in this atmosphere. . . They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.
Traditional (conservative) legal reasoning often equates purity of reasoning and logic with a willful ignorance of the broader societal contexts. We are supposed to ignore reality and focus only on the facts before us, as though each incident occurs in a magic bubble untouched by histories of racism and structural oppression. But the truth is that nothing happens in a vacuum, and an erosion of the protections against police abuse invariably disproportionately impact communities of color. Kudos to Justice Sotomayor for having the courage and power of mind to refuse to acquiesce to the fiction that neutrality means setting aside personal experience.