Thursday, April 19, 2018

In 1968, the Supreme Court gutted the Fourth Amendment, certain that it would all work out in the end. It didn't.

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In 1968, the Supremes ruled in Terry v. Ohio that the police did not need "probable cause" to stop a person, it was sufficient that they have "reasonable suspicion."

The justices on the majority side said that this erosion of the Fourth Amendment would be relatively innocuous, serving to streamline police procedures without real harms. But in his dissent, Justice William Douglas predicted that Terry would be the basis for the effective criminalization of being black in America, giving the police legal cover to stop anyone who seemed "suspicious," and making it nearly impossible to prove that stops were racially motivated.

Half a century later, Douglas has been vindicated. Terry created the crimes of Walking While Black, Driving While Black, Going to Starbucks While Black, and Being Alive While Black. The Framers wrote the Fourth Amendment out of fury at the British government's practice of using "writs of assistance" to stop and search anyone they didn't like the looks of. Terry has revived them, and with modern, high-tech, militarized policing, Terry has ushered in an era where cops are like the Robocop versions of colonial Redcoats, converting the Crown's retail authoritarianism to a wholesale business that runs like an assembly line on double-speed.

Last month, Cleveland City Councilman Kevin Conwell was out for a walk when a couple of campus cops decided he was "reasonably suspicious." They were following up on a report of a black homeless man with missing teeth who had been "mumbling." Conwell, who has all his teeth -- but who is, in fact, black, and had roughly similar clothes-- "fit the description."

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