Supreme Court OKs Racial Profiling

Stephen J. Fortunato Jr.

Either racial pro­fil­ing is odi­ous and uncon­sti­tu­tion­al, with per­son­al and social con­se­quences for com­mu­ni­ties of col­or – or it’s not. 

On April 23, the U.S. Supreme Court, with­out any dis­sent, decid­ed that it was not. The rul­ing oblique­ly, but force­ful­ly, slammed the cour­t­house door on any attempts to chal­lenge this wide­spread law enforce­ment practice.

In the case of Vir­ginia v. Moore, the high court saw no vio­la­tion of David Lee Moore’s Fourth Amend­ment pro­tec­tion against unrea­son­able search­es and seizures, even though his arrest was the result of a series of Key­stone Cop-like mis­cues and an out­right vio­la­tion of Vir­ginia law. 

Here’s how it played out: On Feb. 20, 2003, police offi­cers received a radio call that a man known as Chubs” was oper­at­ing an auto­mo­bile on a sus­pend­ed license. Appar­ent­ly, one of the offi­cers knew that David Lee Moore went by the nick­name of Chubs.” The offi­cers pulled over Moore’s vehi­cle and deter­mined that his license had indeed been sus­pend­ed. Under Vir­ginia law, dri­ving with a sus­pend­ed license is not an arrestable offense, and the offi­cers were oblig­ed to issue him a cita­tion for a future court appear­ance rather than take him into cus­tody. Dis­re­gard­ing this clear legal man­date, how­ev­er, the offi­cers arrest­ed Moore.

They took him to his hotel room where they searched him and found crack cocaine and $516 in cash. 

Accord­ing to Jus­tice Antonin Scalia’s opin­ion, no search of Moore was con­duct­ed when he was ini­tial­ly stopped because each offi­cer mis­tak­en­ly believed that the oth­er had already searched the sus­pect. As Scalia not­ed – pre­sum­ably with a straight face – Moore con­sent­ed” to a search of his per­son and his room. 

What is not men­tioned in the Supreme Court opin­ion – but what can be ascer­tained in low­er court deci­sions, includ­ing that of the Vir­ginia Supreme Court when it reversed Moore’s con­vic­tion – was that the Chubs” men­tioned in the orig­i­nal radio trans­mis­sion was not Moore but rather a man named Christo­pher Delbridge. 

Also, one of the police offi­cers explained at the sup­pres­sion hear­ing that they had ignored Vir­ginia law rel­a­tive to the issuance of cita­tions in such cir­cum­stances because it was just our pre­rog­a­tive; we chose to effect an arrest.”

But the most impor­tant fact in this case – which was ignored by the Vir­ginia courts, the Supreme Court and the few media accounts of this lit­i­ga­tion – is that David Lee Moore is African-Amer­i­can. (Portsmouth, Va., is a city of slight­ly more than 100,000 peo­ple, more than 50 per­cent of whom are black.)

Scalia and his equal­ly myopic and com­pla­cent col­leagues refuse to address the prob­lem of racial pro­fil­ing – or dri­ving while black” – that has been wide­ly dis­cussed in law and polit­i­cal sci­ence jour­nals, as well as report­ed anec­do­tal­ly by black males, both ordi­nary cit­i­zens and those who enjoy pro­fes­sion­al or polit­i­cal prominence.

The Moore deci­sion mir­rors that of anoth­er unan­i­mous Scalia opin­ion from more than a decade ago, Whren v. Unit­ed States (1996). In that case, every mem­ber of the high court sit­ting at that time agreed that there was no impro­pri­ety, con­sti­tu­tion­al or oth­er­wise, when plain­clothes offi­cers in an unmarked car in Wash­ing­ton, D.C., stopped two young black men for minor traf­fic vio­la­tions in order to search for drugs. The offi­cers were mem­bers of an under­cov­er nar­cotics unit and were express­ly pro­hib­it­ed by Dis­trict of Colum­bia reg­u­la­tions from mak­ing traf­fic stops unless the dri­ver was some­how threat­en­ing pub­lic safe­ty. The court went on to uphold the valid­i­ty of pre­text stops. 

Around the coun­try, schol­ars, lawyers, com­mu­ni­ty activists and even many pro­gres­sive law enforce­ment offi­cers are try­ing to elim­i­nate the scourge of racial pro­fil­ing. But read togeth­er, the Moore and Whren rul­ings demon­strate the Supreme Court’s impa­tience with munic­i­pal and state efforts designed to cir­cum­scribe arbi­trary police behav­ior often moti­vat­ed by racial stereotyping.

Stephen J. For­tu­na­to Jr. was as an Asso­ciate Jus­tice of the Rhode Island Supe­ri­or Court for 13 years. He is now an Adjunct Pro­fes­sor at the Roger Williams Uni­ver­si­ty School of Law.
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