The 4th Amendment & Black Hyper-Surveillance

-- By ShianneWilliams - 22 Mar 2024

Intro

In application, the Fourth Amendment merely serves as an alternative vehicle for keeping black communities under constant surveillance. From slave patrols in the antebellum South to the surveillance of civil rights activists during the mid-20th century, black people have consistently and purposefully been subjected to heightened scrutiny and hypersurveillance. Hypersurveillance refers to the disproportionate monitoring, scrutiny, and policing of black people and communities, a phenomenon rooted in historical injustices such as slavery, Jim Crow laws, and systematic racism. The Fourth Amendment, far from rectifying these injustices, has often served to legitimize and perpetuate them under the guise of constitutional authority.

The Fourth Amendment reads, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

While ostensibly designed to balance individual privacy and law enforcement involvement, this language has often been interpreted in a manner that shields police actions against black communities from scrutiny. Rather than serving as a safeguard against abuses of power, the Fourt Amendment has been weilded as a justification for over-policing and the disproportionate incarceration of black people. Despite any legal advancements from the Reconstruction amendments or the Civil Rights Era, racial profiling and discriminatory practices persist in the face of a constitutional amendment that could have been interpreted differently.

SCOTUS Jurisprudence

Supreme Court rulings have further entrenched the intersection of the Fourth Amendment and Black hyper-surveillance. As detailed by Devon Carbado in his book "Unreasonable: Black Lives, Police Power, and the Fourth Amendment," the Fourth Amendment effectively allows police to approach, question, and search individuals without significant restraint, assuming individuals are aware of their rights and can assert them. However, in reality, law enforcement frequently targets Black individuals for arbitrary stops, searches, and interrogations, often without sufficient justification. This disparity underscores the disconnect between legal principles and lived experiences, perpetuating systemic discrimination within the criminal justice system.

For example, in the landmark case of Terry v. Ohio, the Supreme Court effectively granted law enforcement officers extensive discretion in determining what constitutes suspicious behavior. The Court explained that when a police officer has reasonable suspicion that an individual may be armed and dangerous, they may conduct a pat-down search for weapons, even in the absence of probable cause for arrest. Law enforcement has used these “Terry Stops” to disproportionately target minority communities, perpetuating a cycle of harassment, mistrust, and resentment towards law enforcement. Another significant Supreme Court decision that has impacted policing practices is Whren v. United States. In this case, the Court held that the legality of a traffic stop is determined by the objective circumstances of the stop, rather than the subjective intentions of the officer. This ruling effectively legitimized pretextual stops, wherein law enforcement officers use minor traffic violations as a pretext to investigate more serious offenses.

There is no question that racially motivated traffic stops are antithetical to the principles of our Constitution. However, when faced with an opportunity to repair this hole, the highest court of the land chose to ignore it, leaving black people without a remedy for law enforcement’s discriminatory treatment. The cumulative impact of these Supreme Court decisions has reinforced a system of hyper-surveillance and discriminatory policing practices that disproportionately target Black communities into today.

Final Thoughts

It is impossible to reconcile the premise that “all men are created equal” with the fact that the incarceration rate of black individuals is significantly higher than that of any other racial group in this country. Today, the AI facial recognition lurking in the subway system makes it even easier to target poor black and brown people. Why are we not asking more questions about the unreasonableness of our current incarceration statistics and realizing that we have a flawed amendment? And if it isn’t the words of the amendment, why aren’t we questioning the human-made decisions that allow these practices to continue? Only by interrogating both the language of the Fourth Amendment and the societal structures that uphold it can we truly understand what has allowed such blantant discrimination to continue.

I’m curious whether the words are indeed the issue or the fact that only a year before Terry when Thurgood Marshall joined the Supreme Court, all the justices had been white, from an middle to upper class background, armed with a flurry of white law clerks to help author their opinions. If it’s true that ones worldview helps shape the view of the law, then is the problem that none of our justices have lived experiences to draw on when making decisions like Terry and Whren?

I'm not sure that Marshall would have been a dissenting vote in Terry. The view that it is reasonable for officers to search and seize on the street in order to protect their own safety is supported by a consensus of which he certainly was a part. The admissibility of evidence acquired in such a search is then the constitutional question, and again I am not certain that he would have disagreed. No one who is at all racially realistic will deny that this means that street stops can and will be used in a uniformly racially unfair manner. You are undoubtedly right in your summary of the consequences. It is still possible, however, to believe that those elements of policing have to be made racially non-discriminatory by means other than changing the underlying constitutional law. Marshall at any rate seems to adhere to that point of view throughout most of his time on the Court.

Which leaves us asking something like the same question, though half a century further along and therefore even more aware of the outcome. We may reasonably enquire, given what we see around us, whether there are any changes in constitutional doctrine that would actually remedy the problems? The older view may turn out to have power precisely because what we have learned in the meantime puts the attainment of racially-just policing on a different level of difficulty altogether, as is expressed in the rise of efforts to change the public order system more fundamentally.

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