Often, the government singles out a group to search. In common parlance, and in law, some of this is called “profiling.” It happens to racial minorities in drug interdiction. It happens to ethnic and religious minorities in the war on terror. There is an ongoing and heated debate about when, or even whether, profiling is justified.1
The Fourth Amendment standing alone doesn’t really help us much in dealing with these discriminatory practices, but another part of the Constitution does: the Fourteenth Amendment’s Equal Protection Clause. When it comes to law enforcement and counterterrorism, though, judges tend to ignore the legal precedents implementing the Constitution’s guarantee of equality. Instead they make up a special set of rules under the Fourth Amendment. That’s unfortunate. Relying on settled nondiscrimination law not only would help with fraught questions regarding racial and religious profiling, it would clarify our thinking even when the group singled out is more innocuous, such as people who fly on planes rather than taking trains (and thus are subjected to extensive preboarding security), or drug-testing only students who participate in extracurricular activities.
JUSTIFIED PARANOIA
Inside the cluttered, busy office of Linda Sarsour, Executive Director of the Arab American Association of New York, there’s a clear—albeit jarring—message. A neglected computer sits in the corner, dusty and covered with papers, including a holiday card from the Obamas. (Sarsour’s a White House “Champion of Change.”) The walls and surfaces urge visitors to “Organize, Register, Vote.” But the dominant motif is spying. Police spying. Posters and cartoons declare: “#sayno2spying,” “We are not anti-police, we are anti–police spying,” “NYPD stop spying on us.” A photograph of the cadet class at the Police Academy contains cutout faces of Muslim women wearing the hijab.2
Sarsour, too, wears the hijab, though she proclaims she is not so much religious as nationalist Palestinian. She’s in constant motion, a young woman filled with nervous energy, keeping track of a bustling organization and office. The waiting room is full of people, mostly older women, who have come for social services. Eid Al-Adha, the Muslim holy day marking the end of the Hajj, the pilgrimage to Mecca, has come and gone; Islamic Relief is set up outside handing out packets of frozen beef, the product of the holiday’s ritual sacrifice, to the needy. And Sarsour is rushing around monitoring it all, while describing how paranoid she is: “I’m paranoid, I’m a paranoid executive director.”3
Between all the posters, and Sarsour’s talk, you might think she was crazy paranoid—except for the documentary record that indicates she’s not. After 9/11 the NYPD began “mapping” Muslim communities. It sent informants into mosques and other Muslim or Arab organizations, and set cameras up outside them. NYPD officers went underground as spies. People stopped lingering after prayer services, and imams closed mosques—traditional gathering places for the community—when services were not in session. Student groups doing charity work were shunned by other Muslims when word got out that informants had infiltrated them. Muslim groups of all sorts discouraged any talk of any topic remotely political or controversial.4
Sarsour describes with visible stress the time she was told by the Associated Press that it had documents showing attempts by the NYPD to put an undercover agent on her not-for-profit board. All the sudden, the most innocent-seeming events deserved scrutiny, like the guy from Libya who showed up out of the blue wanting to help, claiming he was getting a master’s degree, no apparent day job to go to, and who—after Sarsour drove him off—surfaced again at a Barnard poetry reading among some Muslim friends. She’s outraged by it all. Her board, she points out, is not a public place where anyone can enter. It is a private organization. “They have no right to be here.” The board discusses financial issues, trips they’ve taken. But “people get afraid to talk.”5
Sarsour has a complicated relationship with the NYPD. She feels close to the local precinct, has the captain’s cell phone number on hand, believes they are doing their job and doing it with integrity. It’s the top brass with whom she has issues; she objects to the creation of the “Demographics Unit”—the ones who did the spying—and the use of training materials like the NYPD’s Radicalization in the West: The Homegrown Threat, which tars the entire Muslim community. She explains how the people of her community have real needs for the police at times, but she has to reassure them it is okay to call.6
It’s hard to imagine anyone tolerating this at Catholic churches and welfare organizations in the United States, or Jewish synagogues and schools. If the First Amendment is about anything, it is that we don’t take names and pictures of people going to pray, to receive community services, to engage in political activism. Indeed, this was just the very sort of conduct that got the FBI and CIA in trouble in the 1960s and 1970s, spying on domestic organizations, on people doing what they had every right to do under the United States Constitution.7
Yet people have defended and will continue to defend what the NYPD was doing here. New York’s Mayor Michael Bloomberg did. Though his successor, Mayor Bill de Blasio, was quick to settle litigation involving stop-and-frisk, an ACLU case involving spying in the Muslim community lingered on for quite a while before settling. After all, many people say—and have said since 9/11—Isn’t that where the trouble comes from? The conservative commentator Charles Krauthammer made just this point right after 9/11. So did the liberal Michael Kinsley, who in his September 30, 2001, column in The Washington Post said, “[T]oday we’re at war with a terror network that just killed 6,000 innocents and has sent anonymous agents in our country plotting more slaughter. Are we really supposed to ignore the one identifiable fact we know about them?” 8
What should the rules be when government takes Krauthammer’s and Kinsley’s advice—not just in this instance, but generally—and singles out a particular group for surveillance or searching? We’ve already seen that when the government searches to deter crime, the proper constitutional protection is to search everyone. That’s what we do at airports, and it is exactly what Krauthammer was complaining about. Why are we patting down female flight attendants, he asked, when we know the bad guys who are part of al-Qaeda are “young, Islamic, Arab and male”?9
This sort of selective searching happens all the time. Welfare recipients are subjected to drug tests, while those who do not require government assistance are excused. Cars containing people of Latino appearance are targeted for immigration inquiries. Jurisdictions have mandatory DNA testing for some arrestees but not others.10 In fact, few searches are truly as general as the last chapter suggests they should be. We search everyone at airports, but not at bus stations or railways. Sometimes the grouping can be subtle: Roadblocks are placed at one location, not on every road, meaning only motorists in a particular neighborhood will be stopped.11
The Supreme Court has made a mess of what to do about these sorts of discriminatory searches. It is yet another example of the usual constitutional rules getting twisted beyond recognition when policing is at issue. In constitutional law, no sort of discrimination is more taboo than allowing the government to pick and choose on the basis of race. Yet, beginning with a 1975 immigration-stop case, Brignoni-Ponce, the justices have allowed law enforcement officers leeway to rely on racial characteristics in some instances. The Court has shown little confidence as to how to deal with other discriminations, be they subjecting some arrestees but not others to DNA testing, or demanding students who participate in extracurricular activities take drug tests while others need not. The justices have mostly just thrown up their hands, allowing government to choose as it will.12
Once again, the courts have lost sight of the proper concern—government arbitrariness. In cases such as these, courts should require the government to answer the perennial question under the Constitution when one is searched or seized: “Why me?” But when the target is a group, not an individual, the most apt part of the Constitution is the Fourteenth Amendment’s Equal Protection Clause, not the Fourth Amendment. Courts reviewing government discrimination among groups in the policing context should engage in the same sort of inquiry that judges employ in nonpolicing discrimination cases.13
We’ll start by looking at policing aimed at groups that traditionally have been the subjects of discrimination and get special protections under the Constitution—instances of racial, religious, ethnic, and gender and sexual-orientation-based discrimination. With these groups, the rules ordinarily would be quite clear, but the analysis ends up muddled because the issue is law enforcement. We’ll then move to even tougher cases, where the groupings don’t happen along such sensitive lines, but the constitutional right to be free from arbitrary searching or seizing is put at risk anyway.
A MANHUNT IN ONEONTA
In the wee hours of the morning, on September 4, 1992, an intruder entered a remote home in Oneonta, New York, and attacked an elderly woman who was visiting. Wielding a knife, the intruder stuffed a bandana in her mouth, and sat atop her intending to rape her. She struggled, was cut, the culprit fled. The woman could not identify her assailant, but told the police—based on her view of an arm and hand, and the timbre of voice—that it was a black male. The police concluded that he might have cut his hand. They decided, or she told them, that he was young.14
And so the search was on, for a young black man with a cut on a hand. Oneonta, population 10,000, had about 300 black citizens, and another few hundred at the nearby college. The police decided to track them all down. A top college administrator prepared a list at police request—it came to be called “the black list”—and the police then chased after every black male student at the college. Officers burst into dorm rooms, threatened to take students downtown, forced them to show their hands in front of classmates who looked on, certain they’d done something wrong. In town things were yet more chaotic. Blacks were stopped on the street and ordered to put hands on cop cars; there was so little rhyme or reason to the manhunt that some were stopped several times in the dragnet that occurred over the course of several days. So were older black men, even women. One woman, an admissions officer at the college, was told she could not board a bus to visit her grandmother if she did not produce identification. The perpetrator was never found.15
“We’ve tried to examine the hands of all the black people in the community,” explained the New York State Police investigator, H. Karl Chandler. No disrespect was intended, he insisted, it only made sense. “If your car has an accident, and there’s red paint on it, are you going to look for a green car?”16
When it came time for the federal courts to rule, they basically agreed with Investigator Chandler. The judges said they were not “blind to the sense of frustration that was doubtlessly felt by those questioned by the police during the investigation.” What happened was “understandably upsetting.” But plaintiffs “were not questioned solely on the basis of their race.” Rather, the police legitimately were following a “physical description given by the victim.”17
POLICING AND RACE: THE FIRST MISTAKE
The first of two very wrong things courts say about policing based on racial or other similar characteristics is that the Constitution’s equality provision, the guarantee of “equal protection of the laws,” is not implicated when police are simply following a description of a culprit given by witnesses or a victim. As we’ll see, in most cases it is perfectly consistent with the Constitution for police to pursue such a lead. But to say that the police can do whatever they want when looking into what is reported to them, and that the Equal Protection Clause has nothing to say about it? That’s wrong.18
The problem is that when it comes to policing, all the usual rules about race, ethnicity, gender, etc., get tossed out the window. Though proper application of those rules will not lead to a different outcome in most cases in which a witness offers a description of a perpetrator, it might well have in Oneonta. And it most certainly would in the sort of case we will be particularly concerned about here, when police are not following a victim description, but are engaging in racial profiling.
The law regarding constitutional equality is not particularly complicated. It asks only two questions. Does the government have an important reason for what it is doing? And does dividing people into groups—classifying them, discriminating among them—achieve that goal? What we are trying to figure out is whether the division into groups accomplishes what the government has set out to do in a sensible, rational way. If not, we suspect the government is engaging in discrimination for impermissible reasons, either because it is being irrational or because it is biased by dislike for the disfavored group.
What makes patrolling for discrimination tricky is that it’s impossible to govern and not divide people into groups. You have to be sixteen to drive, eighteen to vote, twenty-one to drink. Only people with incomes below a certain level get welfare benefits. Businesses over a certain size have to follow workplace safety rules, while some small businesses get off. You cannot drive over fifty-five miles an hour. Restaurants must store food at a certain temperature.19
Worse yet, the lines that government draws, putting people into groups, necessarily are often imperfect. Surely there are young adults seventeen years and nine months old who could vote as sensibly as eighteen-year-olds (and plenty of eighteen-year-olds who are not the most discriminating of voters). Why isn’t the speed limit fifty-three, or sixty for that matter? Any one of these choices might be as rational or sensible as the next. If every line could be challenged in court and struck down simply because there was another equally plausible (or imperfect) line, there would be no more laws left. Laws often are the product of interest-group bargaining, and not all the necessary compromises to get a law passed are going to make the most sensible of lines. That’s just unavoidable.20
For these reasons, the ordinary response to government line drawing and group forming is a certain amount of deference. As long as the lines are sensible enough, the groups roughly the right ones, we give the government the benefit of the doubt. Courts often say they won’t “second-guess” government choices.21
Under some circumstances, though—such as when the government draws lines among people based on race, religion, ethnicity, gender and sexual orientation, etc.—we look more closely. We call these “suspect classifications.” We believe that these categories rarely are or should be relevant to most things government does. Their very use is “suspect”: we worry that when government discriminates against someone in one of these groups, it is because of a stereotype or simple dislike, rather than a sound rationale.22
This closer look at suspect classifications has a name—“strict scrutiny.” Strict scrutiny asks the same two questions: What is government trying to accomplish? And does it need to treat this group differently to do so? But under strict scrutiny the courts are more demanding about the answers. If, say, the government wants to treat one racial or religious group differently than others, it needs a super-strong reason, and the classification must be absolutely necessary to achieve the government’s goal. If the government can’t meet that test, it must find some other, nondiscriminatory way of meeting its goals. In examining this issue we ask for proof: Is the problem we are concerned about much more prevalent in the disfavored group than any other? And is the incidence of the problem high enough to justify imposing on everyone in the group?23
Which brings us back to Oneonta, and the federal court’s claim that relying on race in a victim description simply does not implicate the Equal Protection Clause of the Constitution.
CAN THE POLICE USE A RACIAL DESCRIPTION TO FIND A SUSPECT?
The right question in a case like Oneonta is not whether the Equal Protection Clause applies—of course it does—but whether the use of a racial description of a suspect meets the test of strict scrutiny. Courts have offered a number of reasons for why policing based on a victim or witness racial description should get a free pass from any analysis under the Constitution’s equality guarantee, but none of them are very persuasive. The best one is the argument that the government didn’t dream up the racial classification itself, it is just what a witness or victim told the police. Fair enough, but still it is the government that’s using race as a basis for choosing who to stop and search. Surely government can’t evade the requirements of the Constitution because someone else gave the police the idea of doing it. And it is not like government doesn’t make decisions about what exactly to do once it gets this information: witness the dragnet that occurred in Oneonta.24
Still, it seems obvious, does it not, that in most cases a witness’s description of a suspect that includes race will easily justify police following that description. It passes the Equal Protection Clause’s strict scrutiny test. If a crime has been committed, the government’s interest in catching the perpetrator is obviously high—“compelling” in the lingo of the Equal Protection Clause. And if the witness says the perpetrator is a person of a particular race dressed in a green coat who limps, that is obviously who the police should be looking for. Looking for a person of a different race would make no more sense than seeking a marathon runner in red.
On the other hand, a suspect description that relies only on race will almost always be impermissible. That is one of the problems the Equal Protection Clause is concerned about: blaming a group for the possible actions of some of its members (or worse yet, stereotypes about those members), when most of them are innocent. That was the real problem in Oneonta. The suspect was probably a youngish black man, and maybe he cut his hand, but uncertainty on this score is the only possible explanation (other than out-and-out harassment) why the police were stopping women and older black men as well. In essence, all the police could be sure of was one fact: the culprit was black.
The only thing that made relying on race in Oneonta remotely plausible was the relatively small number of black people who lived there, but still this seems hard to swallow. If a crime was committed somewhere, and all we knew about the suspect was that he was one of a thousand or more white men in the vicinity, would we suppose the police could stop all of them? In the absence of any other information, we would be extremely reluctant to make suspects of all these people. So why were things different in Oneonta, where there were several hundred black men, all of whom were apparently quite innocent?
While the judges upheld what happened in Oneonta, lots of other people thought the police got it wrong. One kid at the college who was on the black list explained, “[T]he only list I ever wanted to be on was the Dean’s List.” In time, many expressed regret about the indignities in Oneonta. The state police apologized. The college did the same; the administrator who turned over the list was demoted. The office of New York Attorney General Eliot Spitzer defended state officials in the case. After they’d prevailed, Spitzer himself read the court opinion and told the press, “We won the case, but it makes your skin crawl.”25
RACIAL PROFILING
Agreed, then: if a suspect is described as a person of a particular race wearing a green coat, it makes no sense to search for someone of a different race wearing a red coat. But what if the characteristics that define the suspect are part of a profile, not a witness description? Are these the same thing? This was just the sort of argument people were making after 9/11: Why are we searching grandmothers from Topeka, when we should be searching Muslim men or men of some particular heritage or appearance? Should the rules be the same when there is a profile rather than a witness description?
That brings us to some recent history about racial profiling in this country.
In 1999 the then–Attorney General of New Jersey did the unthinkable: he released a report condemning his own state police for rampant racial profiling. (Prosecutors don’t succeed at their jobs by pointing fingers at law enforcement.) Troopers on the New Jersey Turnpike had been accused of stopping many more minority motorists, and searching them more often. The problem of “disparate treatment” of minorities, the AG concluded, “is real not imagined.”26
It’s no wonder the New Jersey AG did this, though: by the time he released his report, his hand had been forced by a wealth of evidence of racial profiling by the New Jersey highway patrol, including a quite remarkable study performed in a case called State v. Soto. In Soto the State of New Jersey had argued that more minorities were stopped either because there were more of them on the highway or because they broke the traffic laws more often. But Dr. John Lamberth, an expert in statistical methods and social psychology, conducted a rigorous study to prove this was not the case. To eliminate these possibilities, Lamberth put spotters by the side of the Turnpike with binoculars to count the racial makeup of drivers on the highway. Then, he utilized rolling survey vehicles to see who was violating the traffic laws. Dr. Lamberth’s study established that while some 13 percent of the drivers on the Turnpike were African American, and while some 15 percent of the traffic violators were African American, African Americans constituted from 35.6 percent to 46.2 percent of the stops. Relying on this data, and on the testimony of police officials, the judge in State v. Soto found that there was a “de facto policy” on the part of the State Police “of targeting blacks for investigation and arrest.”27
As it happened, matters in New Jersey were much, much worse than the Soto judge thought. Troopers would park their vehicles perpendicular to roadways, rendering their radar guns ineffective but making it easier to see the race of the driver. Some of the troopers pretty much arrested only minorities. Governor Christine Todd Whitman fired the superintendent of the state police, Colonel Carl Williams, for telling the press, “The drug problem is mostly cocaine and marijuana. It is most likely a minority group that’s involved with that.” State officials hid data from the Soto judge and from the U.S. Department of Justice, which conducted its own investigation, ultimately concluding that New Jersey had engaged in a consistent pattern of racial profiling.28
The Attorney General’s report documented that racial discrimination was particularly prevalent in the use of so-called consent searches. When troopers had no basis to search a vehicle—and traffic stops typically provide none, for what would be the hidden evidence of speeding or having a taillight out?—they frequently would ask the motorist for permission to search. The AG’s report found that in some instances, 80 percent of the consent search requests were directed at minorities. The more discretion a trooper had, the more likely there would be disparate treatment of minorities. In one locale, troopers operating radar guns (which can’t tell blacks from whites) were issuing tickets to about 18 percent of African Americans, while troopers with the most discretion were issuing tickets to over 34 percent of blacks. “[O]fficers who had more time to devote to drug interdiction,” said the AG, “may have been more likely to rely upon racial stereotypes.”29
New Jersey was hardly unique when it came to racial profiling. In another thorough study, Dr. Lamberth found that in Maryland 17 percent of the drivers were African American and yet a whopping 72 percent of those being stopped and searched also were, a disparity Lamberth called “literally off the charts” of statistical significance. Researchers in Michigan decided to get a peek behind the decision to stop, by examining queries to the mobile data terminals cops have inside their cars. Not only were queries of supposedly suspicious drivers made more often of African Americans, but the number of such queries increased significantly the further blacks were seen driving into whiter neighborhoods. In North Carolina, blacks were 68 percent more likely to be stopped by the North Carolina State Patrol than whites. Colorado officials paid more than $800,000 in damages to motorists stopped on I-70 based on a drug courier profile that targeted minorities, none of whom were ticketed or arrested.30
This sort of racial profiling is pervasive in society. A report by Professor Ian Ayres of Yale Law School concerning LAPD stops in 2003–2004 found, after controlling for crime rates and other variables, that “African Americans and Hispanics are over-stopped, over-frisked, over-searched, and over-arrested.” Per 10,000 residents, there were 4,500 stops of African Americans, but only 1,750 for nonminority residents. Indeed, in some districts there were more stops in the reporting period than there were residents. In New York, more than 87 percent of the 700,000 people stopped in 2011 by the NYPD were either black or Latino. From 2007 to 2010, in Boston, there were more than 200,000 “Field Interrogation/Observation/Frisk and/or Search Incidents.” More than 60 percent of that number were black even though Boston has fewer than 25 percent African Americans.31
WHY RACIAL PROFILING HAPPENS
Even if one chooses to ignore the stunning human toll of racial profiling, it is unquestionably ineffective policy. Study after study shows minorities are not carrying or using drugs at higher rates than Caucasians; indeed, just the opposite is true. When police search, the hit rates—the number of times drugs or other contraband are found—are consistently higher for whites than for minorities. In North Carolina, where the State Patrol was stopping far more blacks than whites, the “hit rate” for whites who were searched was 33 percent, while it was 26 percent for blacks. In Illinois, even after years of working on the racial profiling problem, an annual report in 2014 concluded that minority drivers are still about twice as likely to be the subject of a vehicle consent search than other drivers, relative to how frequently they are stopped, yet police officers conducting consent searches are 50 percent more likely to find contraband in a vehicle driven by a white driver than one driven by a minority driver. Ayres’s report on the LAPD found that “frisks and searches are systematically less productive when conducted on blacks and Hispanics than when conducted on whites.” As the New Jersey AG’s report pointed out, “many of the stereotypes about drug use are simply wrong”; among high school students, “white students are actually more likely than black or Hispanic students to report having ever used” drugs or alcohol.32
If profiling doesn’t work, why is it so pervasive? One possible answer is widespread intentional racism. But that answer is both too simple and too disheartening to accept without considering alternatives. And it turns out that at least one alternative is readily at hand and instructive. It is an answer grounded in the idea of unconscious racial bias.33
A chapter of the New Jersey AG’s report, titled “The Circular Illogic of Race-Based Profiles,” describes a “self-fulfilling prophecy” that explains why racial profiling occurs. Think about it this way. You like to fish, so you ask people what’s a good spot. They say Trout Pond. You go there, and sure enough you catch some fish. Occasionally you go somewhere else, and you catch some fish there, too, but you’ve been told Trout Pond is a surefire bet, and you’ve seen some evidence of that, so you keep coming back to it. Now, if you’d done a careful study, you’d have learned that Trout Pond was no better than any other spot, and in fact might have been less good. There were more fish in other places, like Town Wharf or Towd Point. But having been told of Trout Pond and had your information confirmed, that is where you went. The AG’s report described the hits officers got by stopping minorities—and then told one another about—as the “statistics … used to grease the wheels of a vicious cycle.”
Consistent with our human nature, we in law enforcement proudly display seized drug shipments or ‘hits’ as a kind of trophy, but pay scant attention to far more frequent ‘misses,’ that is, those instances where stops and searches failed to discover contraband … Logically, of course, one cannot hope to judge the overall effectiveness of any practice or program by looking solely at its successes, any more than by looking only at is failures.34
By the late 1990s all this was well-enough known that a national consensus against racial profiling had developed. President George W. Bush had condemned the practice, as did many, many others. Congress was considering legislation that would have required state and local police forces to keep statistics that would reveal profiling where it occurred. A whopping 81 percent of respondents told the Gallup poll they disapproved of the practice.35
Then came September 11. Radical Islamists attacked the United States and the consensus against racial profiling quickly melted away. On the day of the attack, New Jersey’s new Attorney General, John Farmer, Jr., was in Atlantic City at a conference talking about the progress the state was making in addressing the profiling problem. But within two weeks of 9/11 he published an article in The Star-Ledger titled “Rethinking Racial Profiling.” In it Farmer called the fact that before 9/11 “we were able to condemn universally the practice of racial profiling” a “luxury.” “More than 6,000 people are dead, some would argue, because of insufficient attention to racial or ethnic profiles at our airports … How can law enforcement not consider ethnicity in investigating these crimes when that identifier is an essential characteristic of the hijackers and their supposed confederates and supporters?”36
So, what’s right? What we said before 9/11, or after it?
WHEN IS RACIAL PROFILING OKAY?
The second incorrect thing courts—and others—say about race and policing is that profiling is okay so long as race is not the “sole” item in the profile. It’s okay to look at race, they say, so long as there are other factors in play as well. But this, too, deviates from the way we usually deal with questions of racial discrimination when the issue is not policing.
The standard rule under the Equal Protection Clause is that if race is a “motivating” factor in a government decision, strict scrutiny must be applied, even if it is not the “sole” factor. Strict scrutiny requires us to compare the incidence of the problem that the government is concerned about in both the favored and disfavored (here, searched) groups. Although in very rare occasions race may be a relevant factor in a profile, it’s unlikely to be in most instances.37
To see why race or other suspect classifications rarely will be appropriate in a profile, it helps to look at a familiar example: airport drug interdiction cases. Typical was United States v. Weaver, yet another case involving our old friend from Chapter 6, DEA Agent Carl Hicks. In this case the police spotted Arthur Weaver getting off a plane in Kansas City, coming from Los Angeles. Hicks explained Weaver was suspect because he was “a ‘roughly dressed’ young black male who was carrying two bags and walking rapidly, almost running, down the concourse toward a door leading to a taxi stand.” Hicks also testified that he “was aware that a number of young roughly dressed black males from street gangs in Los Angeles frequently brought cocaine into the Kansas City area, and “walking quickly towards a taxicab was a common characteristic of narcotics couriers at an airport.” So Hicks stopped Weaver. Weaver declined to allow Hicks to search his bags, and told him to get a warrant. Hicks persisted in grabbing at Weaver after he got in a cab, so Hicks and Weaver ended up tussling over Weaver’s bags. After Weaver hit Hicks’s hand in order to pry it off his bag, Hicks arrested Weaver, patted him down, and—having obtained a warrant—searched the bags and found drugs.38
The judges in Weaver did what judges do—they said, wrongly, that if race is “a” factor it is fine so long as it is not “the” factor: “We would not hesitate to hold that a solely race-based suspicion of drug courier status would not pass constitutional muster … had Hicks relied solely upon the fact of Weaver’s race as a basis for his suspicions, we would have a different case before us.” But, said the court wistfully, “facts are not to be ignored simply because they may be unpleasant.” Here Hicks knew that “young male members of black Los Angeles gangs were flooding the Kansas City area with cocaine.” Expressing regret about all the black drug dealers—“We wish it were otherwise, but we take the facts as they are presented to us, not as we would like them to be”—the court washed its hands of this use of race.39
The judges went shockingly astray in their analysis. In the rest of equality law, as we already have seen, if race is a motivating factor at all, strict scrutiny is to be employed. The same two familiar questions get asked: Does the government have a compelling need here? And does this use of race further the compelling need?
In order to determine whether the use of race in a profile meets strict scrutiny, we must examine the incidence of possible offenders in the two populations, those profiled on the basis of race, and those not. There are two percentages that matter. First, are blacks who meet the profile notably more likely to be drug couriers than whites? And second, what percentage of blacks who meet the profile actually are drug couriers.40
As to the first question, if blacks are not substantially more likely to be couriers than whites, then the use of race in the profile is “underinclusive” and unconstitutional. Which is to say, by looking only for blacks we are missing a lot of drug couriers of other races who are equally culpable. Thus, the profile is not narrowly tailored in the way required to meet the constitutional test of strict scrutiny.
In this regard, note the critical role race played in Agent Hicks’s story. As Judge Richard Arnold pointed out, disagreeing with the other judges in the case, many people on airplanes these days appear to be “roughly dressed.” And if walking rapidly from gate to taxicab is cause for suspicion, countless people would be under investigation. Of all the fast-walking, “roughly dressed” people on the plane from LA, it was Weaver’s black skin that made him a drug-toting gang member in Hicks’s eyes. But why? Do we have any basis for thinking that there were not plenty of whites also carrying drugs in the airport, who did not earn Agent Hicks’s attention?41
As to the second, how many fast-walking black men not dressed to Agent Hicks’s standards of couture are drug couriers? Half of them? One out of a hundred? If there are lots of fast-walking African American guys not dressed as Agent Hicks would like who are not carrying drugs, then Hicks’s profile is also “overinclusive.” It is sweeping in too many innocent people and again fails the strict scrutiny test.
So what were the facts on these vital statistical questions? We don’t know, of course. What we do know is that in the airport interdiction cases there is often evidence that minorities are being stopped at a disproportionate rate. But despite this, judges fault the defendants for not having better evidence of discrimination and send them to prison. Yet the government is the one engaging in the conduct—if it is relying on a supposed profile, then the government ought to be able to prove the factual accuracy of what it is doing.42
This is the very problem with the argument of those who said, after 9/11, that we should search only Muslims or those of Arab descent in airport security (or otherwise). First, doing so is underinclusive. High-profile arrestees for terror in the United States have hardly all been of Arab or Middle Eastern descent (not to speak of the fact that it may be impossible to discern who is a Muslim or Arab based on one’s appearance). Timothy McVeigh, Richard Reid, Jose Padilla, and John Walker Lindh all were convicted for terrorism, and none obviously met this description by looking at them. But, far more important, any such generalization is unacceptably overinclusive. There are some 3.3 million Muslims in this country and at least 1.8 million Arab Americans. It is wildly implausible that any but a minute fraction of this number has any involvement at all with terrorism. Under the Equal Protection Clause we do not visit the sins of a very few on all those of the same race, religion, or ethnicity. To the contrary, avoiding doing so is a major reason we employ strict scrutiny.43
WHAT ABOUT WHEN SUSPECT CLASSIFICATIONS ARE NOT AT ISSUE?
What should happen, though, when government is searching groups, rather than everyone, and the group is not chosen based on religion, race, gender, or some other suspect criteria? These sorts of lines get drawn all the time. Student athletes get drug tested, but other students don’t. People arrested for sex offenses are DNA tested; other arrestees aren’t. Greyhound passengers are subjected to interrogation about carrying drugs, but it doesn’t happen on Amtrak’s high-speed business-class Acela trains. If the courts have a hard time dealing with policing that discriminates on the basis of a suspect classification, they make an absolute mess of things when the discrimination is along some other sort of line.44
In cases like these the Supreme Court has said that judges should perform a balancing act. On the one side of the scale they are to place the privacy interest at stake; on the other is the reason why the government needs to search. When the government interest outweighs the individual privacy interest, the search is okay, even if there is no warrant or any cause at all.45
As we’ve seen over and over again, these kinds of balancing tests are transparently unworkable. Take, as an example, a drug-testing program of student athletes, adopted to help make a school drug-free. Consider how difficult it would be to perform this balance honestly. First, one would need to put a value on student athletes urinating in a supervised setting, and having their urine tested (including any private information it might reveal besides illegal drug use). Then one would have to have some way of knowing if this sort of program achieves any deterrent effect, which means some sort of data on drug use beforehand and afterward. Finally, there would need to be a way to reduce these very different things into the same unit of measurement. It’s not impossible to do this, but it is really hard. And we almost never have the necessary data.
That is why real balancing doesn’t take place; almost always, when courts say they are balancing, the government just wins. A perfect example is the Supreme Court’s decision in National Treasury Union Employees v. Von Raab, involving a drug-testing program for certain employees in the Customs Service. The program was adopted in 1986, at the very height of the war on drugs. The Reagan administration had proposed drug testing well over a million federal employees in “sensitive” positions, and the Customs Service effort was the tip of the spear. The Director of the Customs Service, William Von Raab, decided it was necessary to test any Customs official who worked in drug interdiction, carried a firearm, or handled classified information.46
It is generous to call the “balancing” test performed by the Supreme Court in Von Raab a farce. To begin with, there was no showing of government need at all. When he ordered the program, the Director of the Customs Service said publicly that he thought “Customs is largely drug free.” Testing proved this out: after more than three thousand tests only five people proved positive for drugs. So why were we picking on these public servants? Dissenting, Justice Scalia was properly scathing on the point:
What is absent in the Government’s justifications—notably absent, revealingly absent, and as far as I am concerned dispositively absent—is the recitation of even a single instance in which any of the speculated horribles actually occurred: an instance, that is, in which the cause of bribetaking, or of poor aim, or of unsympathetic law enforcement, or of compromise of classified information, was drug use.47
In the place of demonstrated need, the Supreme Court majority substituted gibberish. The Court’s opinion talked about how Customs officials had been “shot, stabbed, run over by vehicles, and hit with blunt objects” and nine had died in the line of duty since 1974. What any of this had to do with drug testing was a mystery. Obviously the supposed rationale was that people involved in drug interdiction could be corrupted. But it is not clear that officials had to be drug users (which is what was being tested for) to be corrupted, and it is equally unclear why Customs officials dealing with other sorts of smugglers—say of jewels—could not become corrupted as well.48
As for the other side of the supposed balance, the officers who were tested, the Supreme Court simply waived away the intrusion. While the justices conceded that having to engage in supervised urination and then having that urine tested was a notable intrusion of privacy, the Supreme Court decided that given the nature of their jobs, Customs Officials had a “diminished expectation of privacy” concerning urine testing. But why would this be? One might think that given their sometimes-dangerous jobs, those officials had done enough for their country without having to be subjected to this.49
The whole thing was nothing but a PR stunt to show how serious the government was in the war on drugs. It had zero to do with any problem of drug use in the Customs Service. Dissenting, Justice Scalia pointed to the memorandum setting up the program, explaining that “[i]mplementation … would set an important example in our country’s struggle with this most serious threat.” It is up to the government to decide to have a war on drugs, and symbolism is fine. What the Constitution forbids is doing that on the backs of these officials. If you want to test people for drugs, test all of us (good luck getting that one passed).50
What courts should be doing in cases like this is precisely what they do in cases involving suspect classifications. The courts should ask if there is a government interest at play that actually is advanced by what the government is doing. No mushy balancing. A careful analysis of whether there is a reason to be picking on a particular group. As always, the government should be prepared to respond to the question “Why me?”
Another drug testing case decided by the Supreme Court the very same day as Von Raab is an object lesson in what proper analysis should look like. This case involved a drug-testing program for train employees mandated by the Federal Railroad Administration. The program required testing train personnel in the case of certain significant train accidents, and also allowed it upon a showing of “cause” in other circumstances. In the event of an accident—as defined by the regulations—all train employees were to be tested forthwith for drug or alcohol impairment.51
Many things distinguished the sensible program in the railroad case from the ill-advised one in Von Raab. First, in adopting the railway-testing program, public input was solicited, including from those affected by the policy. That participation led to a program more focused in scope than the one the Director of the Customs Service simply mandated. Second, the government documented both the toll taken by major train accidents and the persistent presence of impaired operators as a cause. Train wrecks are a serious threat, impaired train employees are a frequent cause, and testing for impairment is designed both to deter the conduct and inform the public why the problem occurs.52
IS THE FOURTH AMENDMENT LESS IMPORTANT THAN OTHER CONSTITUTIONAL RIGHTS?
The only hard question in these cases is how closely the courts should scrutinize what the government is doing when it chooses to search one group rather than another—or everyone for that matter. As we saw above, laws that draw suspect classifications are supposed to be examined quite closely, while all others get pretty much a free pass. When the groups chosen are not based on race, gender, nationality, sexual orientation, or the like, is there nonetheless justification for a closer look?
The very fact that constitutional rights are on the line in an area fraught with arbitrariness ought to be enough to justify closer scrutiny by courts.53 When other constitutional rights are at stake, such as the right to bear arms or speak freely, the justices mandate a close look at government rationales. As the Supreme Court said in District of Columbia v. Heller, involving the Second Amendment right to bear arms, “If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment … would have no effect.” Similarly, in Plyler v. Doe, the Supreme Court applied strict scrutiny to strike down Texas’s denial of funds to educate the children of undocumented aliens, even though “[u]ndocumented aliens cannot be treated as a suspect class” and “education [is not] a fundamental right.”54
Surely the Fourth Amendment interest in avoiding arbitrary searches and seizures is as significant as the interests at stake in Heller or Plyler. In Wolf v. Colorado, in which the Supreme Court held that the Fourth Amendment applied to the states, Justice Frankfurter declared that “[t]he security of one’s privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment—is basic to a free society.” The precise level of scrutiny may be hard to fix, but where arbitrariness is a very real concern, constitutional review needs to be a darn sight more serious than simply deferring to what the government says, as the justices so typically do.55
The risk of arbitrariness is particularly high when specific groups are targeted for searching or seizing. Often this occurs in the midst of a social scare, be it terrorism, drugs, or immigration. It is precisely at these moments, when the public is worked up and urging government to do something, that rash actions are possible.
Take Linda Sarsour and her Muslim community. The NYPD’s Demographics Unit, responsible for “mapping” Muslims in New York, established in 2001 in the aftermath of 9/11, was disbanded in 2014. Initially lauded for its effectiveness in thwarting terrorist attacks, the unit never actually “helped thwart” anything. In fact, the Assistant Chief of the NYPD Intelligence Unit, Thomas Galati, testified under oath that in his six years in office, the Demographics Unit’s work had not provided one single lead or criminal investigation. However, by 2014, the unit had already done its damage, instilling fear in Muslim Americans, suppressing religious expression, and severing the trust between Muslim communities and law enforcement.56
The Constitution does not prohibit singling out groups for special treatment, even if it involves searches and seizures. But the Constitution does require that the groups deserve the treatment. That means the government producing evidence that the problem it is addressing is pervasive in that group, as opposed to others. This is precisely what has gone missing in the judiciary’s analysis of these issues, turning people into suspects because of their skin color, religion, age, or other status alone.
* * *
With that, we come to the end of our discussion of constitutional policing. The next part of the book will pick up these themes, and apply them and the idea of democratic policing to the twenty-first century’s issues of technology and terrorism. But by now we should be clear on the basic rules governing policing, and how much the courts have distorted them. That’s both peculiar and unfortunate, because nothing need be as complicated as the courts have made it. Warrants are required when time allows. When searches are suspicion-based, there should be probable cause, except for the limited use of reasonable suspicion in stop-and-frisk, subject to the proviso that still officers must say what crime they suspect is afoot. Suspicionless searches must affect everyone or be truly random. To the extent a group, but not everyone, is subjected to searches, the government must justify why members of that group should be searched, by providing evidence that the problem is prevalent in that group compared to everyone else, and that enough people in the group are implicated to justify burdening everyone in the group. Constitutional policing in one paragraph—half a paragraph, even.
It’s not that difficult. But two things have distorted this set of rules. The first is judges’ inability to sensibly connect old principles to the new policing. The second is judges’ zeal to uphold whatever the government does, often because of the distorting effect of the exclusionary rule. Neither of these is a good reason for where the law now stands.