Scholarship@WashULaw

Document Type

Article

Publication Date

2020

Abstract

How should an African American respond to a race-based police stop? What approach, disposition, or tactic will minimize his risk within the context of the police stop of being subject to police violence? This Essay advances a conversation among criminal procedural theorists about citizen agency within the field of police-administered criminal procedure, highlighting “The Talk” that parents have with their African American children regarding how to respond to police seizure. It argues that the most prominent version of The Talk—the one in which parents call for absolute deference to police authority in the event of a police stop—may be as reasonable as it is ineffective. If African Americans, as a matter of course, respond to the race-based stop with unqualified submission to police authority, the race-based stop becomes a tidy and efficient exercise, the ease of which is likely to raise the rate at which African Americans are stopped and battered by police. Blanket conformity would seem to create a deleterious feedback loop for this targeted racial cohort. African Americans could instead opt for a discrete, transactional form of nonconformity in response to the race-based stop—one that accords with the principle of police accountability. Rather than reflexive submission, when subject to such stops African Americans could follow a nonconformist protocol that includes a request for the name and badge number of the seizing officer(s) followed by the filing of a formal complaint. I identify these and similar discretionary maneuvers taken during and after the race-based police stop as “administrative nonconformity.” Such practices require an alternative disposition toward the race-based stop—a reformulation of the African American procedural habitus.

Keywords

Police Violence, Racial Profiling, Police Stops, Fourth Amendment, Agency, African-American

Publication Citation

Trevor G. Gardner, Police Violence and the African American Procedural Habitus,100 B.U. L. Rev. 849 (2020)

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