WASHINGTON (LN) — A legal scholar on Wednesday criticized the federal government’s cert petition in United States v. Carter, arguing that its request to categorically exclude race from Fourth Amendment seizure analysis is a "double standard" that conflicts with the government’s own recent arguments and Supreme Court precedent.
The government’s petition asks the Supreme Court to establish a categorical rule that race is constitutionally off-limits in any Fourth Amendment reasonable-person analysis. This request follows the court’s summary reversal in District of Columbia v. R.W., where the court corrected a specific lower court error on the facts of another Fourth Amendment seizure case from the District of Columbia.
The Carter case arises from a D.C. sidewalk encounter involving officers from the District’s notorious gun recovery unit. The officers approached Donte Carter and several other Black men to conduct a "firearm interdiction" based on an alleged "uptick in shootings and sounds of gunfire." After asking Carter if he had anything on him and directing him to hike his pants up, officers discovered a stolen firearm.
The D.C. Court of Appeals held that Carter had been improperly seized at that point. In reaching that conclusion, the court considered his race as part of the totality of the circumstances, explaining that its "consideration of [Carter]’s race recognizes that a Fourth Amendment reasonable-suspicion seizure inquiry would be incomplete, and indeed, incongruent with the objective reality that people of color face during interactions with law enforcement."
The lower court gave two reasons why Carter’s race was relevant to the seizure inquiry. First, the court highlighted the disproportionate police violence Black people face and observed that this "has led to the perception among Black Americans, and Black men in particular, that they are unsafe around law enforcement and that they must engage in ‘particular kinds of performances’ around the police to ‘preempt’ and mitigate the risks of ‘law enforcement discipline.’"
Second, given the long history of racially disparate policing, the court recognized that Black people may be "especially distrustful of law enforcement and... thus less likely to terminate a police encounter due to skepticism that any attempt to exercise their constitutional rights will be respected." The court then applied these general observations to the facts, noting that Carter was "confronted in a predominately Black area in a group consisting entirely of Black men," and that the officers who conducted the stop were known for their "selective targeting" of Black men and had a "reputation for aggression."
The government now seeks to make that kind of analysis – that race can be taken into account in such encounters – constitutionally impermissible. But the government’s position is hard to square with what it had argued mere months ago. In Noem v. Vasquez-Perdomo, the government contended that "by definition, no particular circumstantial factor is categorically off-limits" in a Fourth Amendment analysis, and explicitly argued that race and ethnicity "can be a factor supporting reasonable suspicion in appropriate circumstances."
Justice Brett Kavanaugh agreed, writing in a concurrence that race or ethnicity can be a "relevant factor" in determining whether an officer had sufficient cause to stop someone.
While the author of the analysis, Daniel Harawa, previously argued that Vasquez-Perdomo was "terribly decided," he contends that if the court were to adopt the government’s position in Carter, the result would further compound its incoherent treatment of race.
Consider what the government is asking the court to hold: that race may inform the officer’s side of an encounter – helping establish the suspicion that justifies the stop – but must be invisible on the citizen’s side, when assessing whether that same person felt free to leave. Race, on this account, does constitutional work for the government and then disappears when it is the citizen’s turn. That is untenable.
The government grounds its seemingly newfound colorblind position in equal-protection principles such as those found in Students for Fair Admissions v. Harvard, in which the court largely banned the use of race in college admissions programs. But there is a profound difference here between the equal protection clause and the Fourth Amendment.
Equal protection doctrine asks whether the government has classified individuals by race or acted with a discriminatory purpose. The Fourth Amendment’s seizure inquiry, by contrast, asks whether, under all the circumstances, a reasonable person would feel free to leave a police encounter. The two doctrines do not map onto each other, and the SFFA majority did not say otherwise.
Indeed, Justice Sonia Sotomayor noted in her SFFA dissent that the court’s Fourth Amendment precedents – including United States v. Martinez-Fuerte and United States v. Brignoni-Ponce – have permitted consideration of race in policing contexts. As Sotomayor pointed out, those cases allowed Border Patrol agents to consider a person’s "Mexican appearance" and "apparent Mexican ancestry" as factors supporting a stop. And in response, Chief Justice John Roberts did not disagree. Instead, he simply responded that those cases arose in a different constitutional setting. But that response concedes the point: equal protection principles do not travel automatically to the Fourth Amendment.
The court’s own precedent points direction. Beyond allowing police to consider race when deciding whom to seize, in the 1980 case of United States v. Mendenhall, the court noted the defendant’s race and explained it was "not irrelevant" to the question of whether she would have felt free to leave. In other words, the court recognized what scholars have long argued: courts cannot honestly assess police encounters while pretending race is irrelevant.
The court would be wise to deny review in Carter. A rule that permits race to enter the Fourth Amendment analysis when it helps police establish suspicion, but forbids courts from considering race when evaluating coercion, is the worst of all worlds. It is selective colorblindness, and the court should decline to constitutionalize it.
Daniel Harawa is a Professor of Law at NYU School of Law, where he directs the Federal Appellate Clinic.