New Jersey provides a road map for fighting racially biased traffic … – Slate

When the Supreme Court struck down the use of race-conscious admissions at Harvard and the University of North Carolina last term, the conservative justices behind the decision robustly claimed to seek the end of racial discrimination, espousing a view that eliminating racial discrimination means eliminating all of it. Meanwhile, Justice Sonia Sotomayor noted a major irony: Despite claiming that consideration of race violates the guarantee of the 14th Amendments equal protection clause, the court has repeatedly condoned racial profiling as a law enforcement tool that does not violate the Fourth Amendment. The court tolerates pretextual traffic stops and has sanctioned police reliance on an individuals apparent Mexican ancestry at the border and its functional equivalents to be a relevant factor justifying a traffic stop based on reasonable suspicion.

The federal landscape for addressing racialized policing is thus deeply baffling. Although racial profiling is permitted, the mechanism for challenging racially discriminatory policingselective enforcement in violation of the 14th Amendmentrequires showing an officers discriminatory intent. Finding evidence of an officers racist intent is increasingly improbable, given that police are unlikely to state (or write) their racial biases. Like most of us, they possess implicit racial biases that are inaccessible even to themselves.

Within this incredibly difficult legal context, one New Jersey appellate court earlier this year boldly addressed implicit racial bias in the decisions of ordinary policing. The facts of State v. Scott presented a unique instance in which racial bias could be proved, and this New Jersey court provides a road map for other state courts to offer similar protections.

On Dec. 9, 2019, a woman was robbed in Jersey City. She quickly reported it to a 911 dispatcher and provided a description. When the dispatcher asked whether the suspect was Black, white or Hispanic, she responded that she did not know. But when relaying the description to police officers, the dispatcher improperly added to the womans account that the suspect was a Black male. It appears this error was inadvertent, a mistake reflecting a pernicious implicit bias linking Blackness with criminality.

William L. Scott subsequently challenged the constitutionality of the police stop leading to his arrest, maintaining that the improper injection of race into the be-on-the-lookout description violated the states constitutional guarantee of equal protection under the law. The appellate court agreed. Emphasizing the importance of deterring discriminatory policing in all of its permutations, the court suppressed all evidence obtained from the subsequent unlawful stop. Scott is the first example of a state appellate court holding that evidence ofimplicit racial biasin policing establishes a prima facie case of racial discrimination justifying the exclusion of evidence. Other state courts across the nation should take note and adopt similar determinations.

Scott makes a few significant doctrinal moves. First, the court decided that the dispatchers actions were attributable to police for the purposes of Scotts constitutional claim. Second, analyzing the problematic assumption that the suspect was a Black male, the court reasoned that the dispatcher either intentionally injected race based on a belief about Black men and criminality or accidentally included race because she unconsciously associates Black men with criminality. In either case, the panel held that Scott did not need to show that the state had acted with conscious racial animus to prove the violation of his right to equal protection.

Claims of selective police enforcement based on racial discrimination normally require proof of an officers intent. Remarkably, Scott held that evidence of implicit, unconscious racial bias influencing the dispatchers erroneous injection of race into the be-on-the-lookout description sufficed. The long history of racialized oppression in the United States, and especially in the criminal legal system, has resulted in widespread racist stereotypes associating Blackness with criminality. Here, implicit racial bias led to a documented error in the BOLO description and to race becoming an explicit factor in the police search. Recognizing that federal cases on racial discrimination, such as in jury selection, involve intentional discrimination, Scott relied on the New Jersey Supreme Courts recent statement that implicit bias is no less real and no less problematic than intentional bias.

Finally, after finding that police violated the state constitution, Scott considered whether two well-known exceptions to the exclusionary rule, independent source and inevitable discovery, should apply to save the evidence recovered against Scott. Each of these exceptions to the exclusionary rule contains a flagrancy factor, in which the reviewing court measures the gravity and culpability of the police constitutional violation against the practical consequence of excluding evidence in a criminal case. Here, Scott boldly concluded, discriminatory policing does not just taint specific bits of information; rather, it infects an entire police-citizen encounter in a way that cannot be cured with surgical redaction. In other words, once a court has found that police violated New Jerseys guarantee of equal protection under the law, this finding cannot be set aside to permit evidence obtained as a result of that violation into criminal proceedings.

Expressly motivated by a desire to deter racialized policing in all of its permutations, Scott suppressed all evidence obtained from the illegal stop. The state downgraded its charge to second-degree robbery, to which Scott pleaded guilty. He was sentenced to three years in state prison, which he had already served, and therefore this resolution resulted in his immediate release.

This unique case surfaces an underexamined question of how intent figures into the context of racialized policing. Scott highlights the glaring doctrinal contradiction: the Fourth Amendment permits race to be considered in policing, while the equal protection clause prevents proving racial discrimination without evidence of intent. In fact, the unique way that implicit racial bias was proved in the BOLO description here shows why its difficult to legally challenge racially motivated police actions. However, it presents an alternative avenue for state courts depending on the language in state constitutions.

To truly address implicit racial bias in policing, we must challenge a Fourth Amendment that empowers police with wide discretion to employ a racialized selection process. Because present constitutional doctrine permits discretionary police decisions yielding systemically racist outcomes, courts should review these police interventions without requiring evidence of an officers conscious intent to discriminate.

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New Jersey provides a road map for fighting racially biased traffic ... - Slate