Black Men Deserve Greater Constitutional Protection

The needless death of George Floyd is another reminder of the dangers black men face during police encounters. To be fair to the police, it is extremely difficult to tease out the impact of a person's race on how the police treat them, and at least one major study has concluded that police are no more likely to shoot and kill African Americans than other racial groups.

Nonetheless, even that study concluded that "blacks and Hispanics are more than fifty percent more likely to experience some form of force in interactions with police." And the Floyd case shows that police don't have to use guns to kill people. While the empirical question of how race affects policing is tricky, one thing is clear: racial minorities deserve a lot more constitutional protection from police abuse than they currently have.

The debate over "racial profiling", a notoriously difficult term to define, has obscured a more important issue. The police have too much authority to stop and question black men based on suspect descriptions. Even the most progressive people are inclined to give police reliance on race a pass when the police are acting on a suspect description. After all, if the victim says a young, black man mugged her, why would the police stop and question an old white woman? But this intuition of fairness is misleading. People often see race and gender first (witness the recent central park confrontation) and the courts allow police broad discretion to stop and question young black men on suspect descriptions that contain little more than their race, gender, and age.

For example, a case called Brown v. City of Oneonta starkly shows how the police can rely on suspect descriptions rather than profiles to engage in a racial sweep of an entire town and its state university. The facts, as described by a federal appellate court, were as follows:

“Oneonta, a small town in upstate New York about sixty miles west of Albany, has about 10,000 full-time residents. In addition, some 7,500 students attend and reside at the State University of New York College at Oneonta (’SUCO’). The people in Oneonta are for the most part white. Fewer than three hundred blacks live in the town, and just two percent of the students at SUCO are black.”

“On September 4, 1992, shortly before 2:00 a.m., someone broke into a house just outside Oneonta and attacked a seventy-seven-year-old woman. The woman told the police who responded to the scene that she could not identify her assailant's face, but that he was wielding a knife; that he was a black man, based on her view of his hand and forearm; and that he was young, because of the speed with which he crossed her room. She also told the police that, as they struggled, the suspect had cut himself on the hand with the knife. A police canine unit tracked the assailant's scent from the scene of the crime toward the SUCO campus, but lost the trail after several hundred yards.”

“The police immediately contacted SUCO and requested a list of its black male students. An official at SUCO supplied the list, and the police attempted to locate and question every black male student at SUCO. This endeavor produced no suspects. Then, over the next several days, the police conducted a ‘sweep’ of Oneonta, stopping and questioning non-white persons on the streets and inspecting their hands for cuts. More than two hundred persons were questioned during that period, but no suspect was apprehended. Those persons whose names appeared on the SUCO list and those who were approached and questioned by the police, believing that they had been unlawfully singled out because of their race, decided to seek redress.”

The Court did not use the term "sweep" lightly. This was an all-out racial dragnet of every young black man in the town and in one case a black woman. They demanded a list of every black male student and questioned every young black male they could find—over two hundred people in all.

Nonetheless, the Circuit Court held that, even though it was unquestioned that the police were operating under no criteria other than the race, gender, and age of the young black students and citizens of Oneonta, there was no violation of the Equal Protection Clause.

This should change. The Equal Protection Clause of the Constitution should be interpreted to require that police have reasonable suspicion, without taking race and gender into account, that a suspect has committed a crime before they can stop and question him. In other words, if a storekeeper tells the police that a black man tried to pass him a bad check, the police should not be able to stop and question someone just because he is the only black man near the store.

Of course, this won't fix all the racial problems with law enforcement all by itself. But this should be a floor, not a ceiling. While it may be difficult to know just how large a role race plays in police behavior, the least young black men have the right to expect is that the law will protect them from being stopped and questioned because of their race and gender and little else.

Similarly, the courts should be much clearer that it violates the equal protection clause to stop and question young black men because they are "racially out of place," meaning that they are black men in a neighborhood where one doesn't normally see a lot of black men.

There is no excuse for the excesses of some of the protests over the killing of George Floyd, such as the burning of a police station in Minnesota. And, because the police spend more time in high crime neighborhoods, it is difficult to separate the effects of race on police stops from more legitimate reasons that police might disproportionately stop and question minority men. But the least these men are entitled to is a clear legal rule that they can't be stopped just because of their race, gender, and age.