Note and Comment
There has been an ongoing debate regarding police-on-Black violence since the dawn of the United States police force. At every stage, the criminal justice system has had a monumental impact on the plight of the Black American community. The historical roots of racism within the criminal justice system have had adverse effects on the Black American psyche. Emerging research suggests that the upsurge in reporting police-on-Black violence—including videos shot from pedestrian camera phones and uploaded to multimedia platforms and historical accounts of the agonizing treatment Black Americans have experienced beginning with Slave Patrols—has affected individualized behavior during interactions with police officers. This is crucial because courts analyze an individual's behavior at the sight of or in the presence of police officers when deciding whether or not a police officer had the requisite reasonable suspicion to stop an individual. Courts consider an individual's nervous or evasive behavior as a factor in favor of finding a police officer had justifiable reasonable suspicion to perform a stop. In doing so, courts use a race-neutral approach, which undoubtedly discounts the Black American historical experience. This race-neutral approach ignores the specific history of racism against Black Americans by failing to explore how the sordid history of racialized terror in the criminal justice system affects individualized behavior. This article explores how the Supreme Court's creation of the reasonable suspicion standard facilitates, justifies, and perpetuates police violence against Black Americans. This article argues that this interpretation of the Fourth Amendment enables officers to manifest implicit biases and target Black Americans with little or no justification. The result is the current state of affairs, including unwarranted racial disparities at every stage of the criminal justice process. Accordingly, this article suggests that instead of using a race-neutral analysis of the law, the Supreme Court should recognize the significance of the Black experience in the United States and implement the use of race as a factor in analyzing whether or not an individual's behavior expressed enough nervousness or evasiveness to constitute justifiable reasonable suspicion for a police officer to perform a stop.
Marvel L. Faulkner
Dear Courts: I, Too, Am a Reasonable Man,
48 Pepp. L. Rev.
Available at: https://digitalcommons.pepperdine.edu/plr/vol48/iss1/14