The Supreme Court Declines Racially Charged Petition

The US Supreme Court declined to grant a controversial Petition for Writ of Certiorari filed by the US government, prompting a strident dissent on June 22 by Justices Samuel Alito and Clarence Thomas. The petition asked the Court to review a decision by the District of Columbia Court of Appeals, which had overturned the criminal convictions of a black defendant. The appeals court based its decision in part on the defendant’s unique racial perspective during a police investigation. In their dissent, Alito and Thomas argued that this reasoning was unconstitutional because it relied on race.

A DC Firearms Sweep

Donte Carter was gathered with a group of friends in Washington, DC, when four officers approached them as part of a firearm interdiction operation. An officer requested that he “hike up” his pants to see if he was concealing a weapon, revealing a bulge that proved to be a stolen (from police) handgun. Carter filed in court to suppress the weapon as the product of an illegal seizure in violation of his Fourth Amendment rights. His motion was denied.

The crux of the legal issue centered on the moment when the officer asked him to raise his pants. Carter and his lawyers argued that when the police told him to hike up his pants, they had “seized” him or his property without probable cause, and thus anything obtained thereby is inadmissible. The government argued that the police did not seize the defendant until after he lifted his pants and revealed the hidden weapon, at which point the officers possessed reasonable suspicion.

In the United States District of Columbia Court of Appeals, Carter received a sympathetic audience. That court recited research suggesting black Americans are more likely to comply with police commands than white people. What created controversy in the Supreme Court (resulting in a rather sharp dissent) was that the appellate court infused its analysis with controversial racial justifications that were arguably themselves racist. Justice Alito did not mince words in his dissent:

“After concluding that the officers’ conduct did not enable the court to ‘objectively determine’ whether Carter was seized, the court—relying on its precedent—said that it ‘must look’ to a further fact: the ‘defendant’s race.’ … The proper inquiry, the court stated, was ‘whether an objective and reasonable person sharing the defendant’s generalized lived experiences arising out of their racial status’—that is, ‘sharing Mr. Carter’s racial status as a Black man’—‘would have felt free to terminate the police encounter.’”

Surmising Supreme Court Reasoning

Alito wrote that he “would grant the petition” for review and complained that failure to correct the lower court’s analysis would require dangerous and unconstitutional race-based assessments. The dissent warned, “Under the test, officers will need to quickly assess a person’s race, and if officers and courts must craft special rules for black persons, what about dark-skinned Latinos, other Latinos, and members of other minority groups?”

However, studying the lower court decisions and the underlying facts of the case, it is easy to see why the majority of the Supreme Court did not vote to grant the petition, especially when reconsidering the pivotal moment when Carter pulled up his pants and revealed an illegal handgun

The police could not see that Donte Carter had a gun when they first walked up to the group. The officers were responding to recent shootings in the area, but they were on a wild (armed) goose chase, with no specific information about Carter or the gun he carried. Without the “search” of his person by having him hike up his pants, the weapon would not have been discovered. The police cannot search and then use the results thereof as probable cause – it works the other way around.

Moreover, this issue of timing has nothing to do with race. If the suspect were black, white, or iridescent, the question of the legality of the search and thus the legitimacy of the conviction would depend on the rights of people to resist illegal requests. The police do not have the authority to walk around on American streets and randomly search people for weapons – legal or illegal.

Many justices might view the Court of Appeals’ decision as the right result for the wrong reason. (Certain justices of the more progressive persuasion might hold that it was the right result for the right reason). The decision is narrow, is not binding on other federal circuits, and its rationale can still be challenged in the highest court at a future juncture. In declining to hear the case, the Supreme Court has not forsaken a golden calf of Equal Protection, as the dissent suggests; it is merely upholding the Fourth Amendment following an illegal search and seizure.