For many years now, I have looked to the work of Devon W. Carbado for guidance on how to read, understand, and teach Constitutional Criminal Procedure. In his latest book, Unreasonable: Black Lives, Police Power, and the Fourth Amendment, Professor Carbado summarizes, expands upon, and refines many of the useful insights that he has offered to his readers over the past decade in his law review articles. This book is a readable introduction to the Fourth Amendment, and one that would be a great teaching tool in a Criminal Procedure class.
Unreasonable offers a systematic critique of the Supreme Court’s interpretation of the Fourth Amendment over the past fifty years. A central claim of the book is that conduct that is often described in popular discourse as “police misconduct” is, in fact, entirely within the legal bounds of constitutional criminal policing. Courts have interpreted the Fourth Amendment in ways that allow police to engage in intrusive, preemptive, and racially discriminatory policing practices. While Carbado does not discount the problem of police acting outside of the bounds of the law, his focus is on the many ways that unreasonable police conduct is promoted and encouraged by law. His goal is to articulate an alternative vision for the boundaries of constitutional policing.
The body of the book consists of seven chapters, the first five of which are framed around a case or set of cases that set forth baseline rules of policing. Chapter 1, Pedestrian Checks, explores several cases that facilitate coercive police encounters with civilians in the absence of any sort of individualized justification. The chapter explains how police can stop and question people about their activities and immigration status, search homes and vehicles after obtaining nominal (and generally coerced) “consent,” and even chase someone, without having any legal basis for singling that person out in the first place. This Chapter explains how race often motivates these initial encounters, and how racial dynamics shape how they play out, even as the Court’s analysis in cases approving this type of policing ignores the racial context for these policing practices.
Chapter 2, Traffic Stops, describes how pretextual stops, embraced in cases like Whren v. United States, generate substantial racial disparities in the policing of vehicular traffic. The chapter also illustrates how racially-motivated investigative stops can quickly escalate into questioning, searches, and seizures, including (thanks to Atwater v. City of Lago Vista) the arrest of people who have committed no arrestable offense. Arrests, in turn, pave the way for extreme governmental intrusions, including deprivation of liberty, of course, but also legal swabbing for DNA and strip searching.
Chapter 3, Stop and Frisk, explores how the “stops” and “frisks” approved by the Court in Terry v. Ohio in 1968 are deployed in racially discriminatory ways, sometimes with deadly consequences. Chapter 4, Stop and Strip, uses the case of United States v. Montoya de Hernandez to explore how the logics of Terry have been used to justify strip searches upon mere “suspicion” of criminal conduct, and in the absence of a judicial warrant, in cases where the government’s interests are purportedly elevated – in the case of Montoya de Hernandez, because the search takes place at an international border. In both chapters, Carbado illustrates the racial impacts of these decisions. Chapter 3 highlights the data on the racial disparities of stops conducted by the New York Police Department. Chapter 4 includes the stories of lawsuits brought by Black and Latina women against US Customs and Border Protection agents in recent years. These lawsuits uncovered data revealing significant racial and gender disparities in who gets stopped, and the suits themselves highlight the abusive nature of officials’ conduct during these stops.
Chapter 5, Predatory Policing, explores cases that have greenlighted abusive civil asset forfeiture practices, and have permitted the collection of excessive fines and fees from individuals facing criminal charges. The chapter highlights the insufficiencies of the exclusionary rule as a deterrent remedy to police misconduct, including misconduct in the form of sexual predation.
The final two chapters explore the possibility of alternative visions of the Fourth Amendment. After a brief introduction, Chapter 6 reprints in full the Supreme Court’s unanimous decision, authored by Justice Scalia, in Whren v. United States. As discussed in Chapter 2, that case allows for pretextual investigative stops, including stops clearly made as a direct result of racial profiling. Chapter 7 reimagines the Whren decision. The rewritten opinion centers the relationship between policing practices in the U.S. and racial subordination, tracing the long history of judicially tolerated racial discrimination in cases such as Korematsu and Brignoni-Ponce. Drawing on the logics of Brown v. Board of Education, the rewritten Whren decision opines that it seems “plain wrong that the Fourth Amendment, which is intended to ensure that police conduct is reasonable, would invite, let alone permit a rule that inoculates racially discriminatory policing – including discrimination rooted in racial animus – from constitutional scrutiny.” (P. 211.) This Whren opinion braids together equal protection doctrine and Fourth Amendment reasonableness to bring the highest level of judicial scrutiny to bear on racially discriminatory policing practices.
When reading these final two chapters, it is difficult not to wonder how much difference doctrine actually makes. Would a rewritten Whren transform US policing? But Unreasonable is more than a clear and sustained doctrinal critique. This book is also a window into how race is made, and racial hierarchies maintained, through policing in the United States. Professor Carbado is one the foremost Critical Race Theorists working on questions of criminal procedure, and his brilliance is on full display in this book. In the narrative tradition embraced by CRT, the prologue opens with the story of Carbado’s own first encounter with police in the U.S. – a moment that he has described here and elsewhere as his racial naturalization; the moment when he, an immigrant from the United Kingdom, “became a Black American.” (P. 1.)
The book’s jacket also reminds the reader that Unreasonable was “published on the second anniversary of the global protests over the police killings of George Floyd,” and the author is clearly conscious of the interaction of doctrinal arguments and broader calls for police reform and abolition. Each chapter underscores this point. The policing excess and violence in Ferguson, Missouri, threads through several chapters, along with the stories of Black people killed by the police, or subjected to other forms of state violence. Carbado also shows the percussive effects of decisions that permit policing excesses in the name of national security and immigration control.
The text also nods to abolitionist claims. While ultimately noncommittal about the broader project of prison-industrial complex (PIC) abolitionism, Carbado endorses the narrower goal of “abolishing or minimalizing racially subordinating forms of power Fourth Amendment law allocates to police officers.” (P. 22.) The book focuses on doctrine, but thankfully, it does not try to convince the reader that the problems of policing can be fixed through the courts alone. Carbado writes: “I do not intend to suggest that Black people can find our way out of being over-policed through legal reforms alone – we certainly cannot. But we cannot afford to cede the terrain of law completely.” (P. 195.) Carbado is fully aware that his recommended changes to doctrine must be accompanied by broader changes to funding, governance structures, and social relations. But he also embraces the positive legal orientation of CRT – one that does not give up on the law, but that instead calls upon us to struggle for its amelioration, even as we recognize its limitations.
