In Scathing Dissent, Justice Sotomayor Says Supreme Court Just Gave The Green Light To Racist Cops

SOURCEThink Progress

The U.S. Supreme Court ruled Monday that police can still arrest someone for an outstanding warrant even if they had no right to stop the person in the first place.

The opinion, authored by Justice Clarence Thomas, reverses a Utah Supreme Court order to suppress evidence discovered by a police officer during an illegal stop. After getting an anonymous tip about unspecified drug activity at a house, Officer Douglas Fackrell monitored the house for several days and ultimately decided to stop a random visitor to the house. That unlucky visitor turned out to be Edward Strieff. Fackrell had no reason to stop Strieff, yet he asked for identification and discovered a minor traffic violation on his record. Fackrell arrested him for the outstanding warrant and searched him, finding a bag of methamphetamine.

Thomas reasoned that even though the initial stop was unlawful, the discovery of the minor traffic warrant legitimized the search that produced the drugs.

Police protests have zeroed in on exactly this kind of discriminatory police practice in recent years, from the use of stop-and-frisk in New York to the shakedowns of poor people in Ferguson, Missouri, where virtually every family lives in fear of being thrown in jail due to an outstanding warrant for an unpaid fine.

The ruling, according to Justice Sonia Sotomayor, is essentially giving the green light to police to continue stopping and arresting black and brown people for little to no reason beyond their race and class.

In a searing dissent joined in part by Justice Ruth Bader Ginsburg, Sotomayor describes a police state that regards black and brown Americans in particular as “second-class citizens.” She issues a direct warning to those Americans whose profiling the court has sanctioned.

“This Court has given officers an array of instruments to probe and examine you,” she writes. “This Court has allowed an officer to stop you for whatever reason he wants — so long as he can point to a pretextual justification after the fact. That justification must provide specific reasons why the officer suspected you were breaking the law, but it may factor in your ethnicity, where you live, what you were wearing, and how you behaved. The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction — even one that is minor, unrelated, or ambiguous.”

Citing the many ways her fellow justices have expanded police powers and chipped away at basic rights within the criminal justice system, she paints a terrifying picture of what happens once you enter the hands of the police:


This is the fate that awaits a third of black men, who will face prison at some point in their lives. It’s also already happened to people like Natasha McKenna, who called the police for help, only to be arrested for an outstanding warrant and eventually killed while she was naked and strapped to a chair in jail. In places like Ferguson, which already throw people in jail for unpaid fines and fees like the one on Strieff’s record, this new ruling encourages police to openly and constantly harass anyone on the street.

In oral argument earlier this year, Sotomayor made clear that Ferguson was on her mind, warning, “If you have a town like Ferguson, where 80 percent of the residents have five minor traffic warrants out, there may be a very good incentive for just standing on the street corner in Ferguson and asking every citizen: Give me your ID. Let me see your name. And let me hope, because I have an 80 percent chance that you’re going to have a warrant.”

Simply acknowledging this reality for thousands of Americans of color is fairly radical. But Sotomayor’s dissent Monday goes even further. She argues that the decision enshrines racist double standards and betrays the very idea of an equal democracy.

“For generations, black and brown parents have given their children ‘the talk’ — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them,” she writes.

“By legitimizing the conduct that produces this double-consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights,” she says. “It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”

Finally, Sotomayor issues a subtle call to arms, invoking a certain refrain of the Black Lives Matter protests that helped call attention to exactly this kind of unlawful, racially discriminatory stop.

“We must not pretend that the countless people who are routinely targeted by police are ‘isolated,’” she says. “They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.”


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Aviva Shen is Senior Editor of ThinkProgress. Aviva's work has appeared in outlets including Smithsonian Magazine, Salon, and New York Magazine. She also worked for the Slate Political Gabfest, a weekly politics podcast from Slate Magazine. Previously, she was part of the new media team in Ohio for the 2008 Obama campaign. Aviva received a B.A. in English and Writing from Barnard College.