A Failure of the Fourth Amendment & Equal Protection’s Promise: How the Equal Protection Clause Can Change Discriminatory Stop and Frisk Policies

Abstract

Listen

Translate article

Black and Hispanic males in low income communities insist, with statistical studies on their side, that police officers regularly stop and frisk them without the required reasonable suspicion. This is a failure of the Fourth Amendment. The Equal Protection Clause should be a tool that people of color can use to redress their being denied their constitutional rights on racial grounds. The Supreme Court’s equal protection jurisprudence, however, requires that claimants prove intent to discriminate. Known as the Intent Doctrine, this requirement has almost effectively removed from the Constitution, for racial minorities at least, the guarantee of equality under the law. This Article insists that the Supreme Court should permit claimants to prove an equal protection violation either through intent or a standard I call “Plaintiff-Burdened Deliberate Indifference” (PBDI). To show how PBDI will produce transformational change for racial minorities generally, this Article examines how it will operate in one important context: discriminatory stop and frisk tactics. Under PBDI, racial minorities can enter a courtroom armed with an equal protection argument and leave with the stereotypically rogue police department having to change its stop and frisk tactics. In full, this Article’s thesis is that the Equal Protection Clause should force police departments to ensure that their stop and frisk policies, in operation, do not discriminate on the basis of race and the best way to get there is to embrace Plaintiff-Burdened Deliberate Indifference instead of other existing equal protection fixes.