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Criminal procedure and the good citizen

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Abstract

There is an aspect of criminal procedure decisions that has for too long gone unnoticed, unrecognized, and unremarked upon. Embedded in the Supreme Court’s criminal procedure jurisprudence—at times hidden in plain sight, at other times hidden below the surface—are asides about what it means to be a “good citizen.” The good citizen, for example, is willing to aid the police, willingly waives their right to silence, and welcomes police surveillance. And this is just the start. Read between the lines, and the Court’s “citizenship talk” also dictates how a good citizen should behave, move, and even speak. Criminal Procedure and the Good Citizen surfaces this aspect of the Court’s criminal procedure decisions to explore a series of questions about the nature of power, participation, and citizenship today, especially with respect to the police. These concerns alone should be reason enough to question the Court’s citizenship talk. But there is another concern as well. At this time-when the criminal justice system is the primary civics education for so many individuals, when so many criminal procedure opinions are also on a certain level race opinions-the Court’s citizenship talk may very well further inequality. This Essay addresses these concerns. And it takes a first step in imagining a space in which citizens would have the ability, without repercussions or recrimination, to talk back to the police, to ask why and how come, to assert their rights, to question and test the boundaries of the law, and to say “no.”.
1
ESSAY
CRIMINAL PROCEDURE AND THE GOOD CITIZEN
I. Bennett Capers*
There is an aspect of criminal procedure decisions that has for too
long gone unnoticed, unrecognized, and unremarked upon. Embedded
in the Supreme Court’s criminal procedure jurisprudence—at times
hidden in plain sight, at other times hidden below the surface—are
asides about what it means to be a “good citizen.” The good citizen, for
example, is willing to aid the police, willingly waives their right to
silence, and welcomes police surveillance. And this is just the start.
Read between the lines, and the Court’s “citizenship talk” also dictates
how a good citizen should behave, move, and even speak. Criminal
Procedure and the Good Citizen surfaces this aspect of the Court’s
criminal procedure decisions to explore a series of questions about the
nature of power, participation, and citizenship today, especially with
respect to the police.
These concerns alone should be reason enough to question the
Court’s citizenship talk. But there is another concern as well. At this
time—when the criminal justice system is the primary civics education
for so many individuals, when so many criminal procedure opinions
are also on a certain level race opinions—the Court’s citizenship talk
may very well further inequality. This article addresses these concerns.
And it takes a first step in imagining a space in which citizens would
have the ability, without repercussions or recrimination, to talk back to
the police, to ask why and how come, to assert their rights, to question
and test the boundaries of the law, and to say “no.”
* Visiting Professor of Law, Boston University School of Law (Fall 2017); Visiting
Professor of Law, University of Texas School of Law (Fall 2016); Stanley A. August
Professor of Law, Brooklyn Law School. This Essay benefited from faculty presentations at
Boston University School of Law and Cornell Law School, presentations at the
“Deconstructing Ferguson” Working Group at the Institution of Social and Policy Studies
at Yale University, and Fordham Law School’s Speaker Series on Race and Ethnicity
sponsored by Fordham’s Center on Law, Race, and Justice. For comments, suggestions,
and feedback, I am especially grateful to Liz Anker, Josh Bowers, Devon Carbado, Sherry
Colb, Kristin Collins, Michael Dorf, Karen Engle, Howard Erichson, Dan Greenwood, Ben
Justice, Jennifer Laurin, Youngjae Lee, Robin Lenhardt, Wayne Logan, Tracey Maclin,
Tracey Meares, Eric Miller, Justin Murray, Kimani Paul-Emile, Paul Radvany, Aziz Rana,
Jocelyn Simonson, David Alan Sklansky, Carol Steiker, Nelson Tebbe, Erika Thomas-Yuille,
and Jordan Blair Woods. Matthew Drecun, Christopher Duffy, and Tenisha Williams
provided invaluable research assistance. Finally, I owe a special thanks to Alexsis Johnson
and the staff of the Columbia Law Review for their outstanding editorial assistance.
2 COLUMBIA LAW REVIEW [Vol. 118:1
INTRODUCTION
“[Our decision today sends the message] that you are not a citizen of a
democracy but the subject of a carceral state, just waiting to be catalogued.”
Utah v. Strieff, Justice Sotomayor, dissenting1
Perhaps the most remarkable aspect of the Court’s recent decision
in Utah v. Strieff, a case holding that even when a police stop is
completely unjustified, evidence discovered during that stop may still be
admissible,2 is Justice Sotomayor’s dissent. On one level, her dissent is
noteworthy for its references to W.E.B. Du Bois, Michelle Alexander,
James Baldwin, Ta-Nehisi Coates, Jack Chin, Marie Gottschalk, Lani
Guinier, and Gerald Torres; indeed, it is noteworthy, for bringing Critical
Race Theory into Supreme Court jurisprudence. It is exceptional, too,
for her directness in accusing the majority of further enabling the police
to treat certain individuals “as second-class citizens.”3 But there is another
reason her dissent is remarkable: It touches on an aspect of criminal
procedure decisions that for too long has gone unnoticed, unrecognized,
and unremarked upon. Even in criminal procedure decisions—maybe
especially in criminal procedure decisions—the Court plays a role in
marking who belongs, who does not, who is entitled to be treated as a
regular citizen, and who can be treated as second class. Embedded in the
Supreme Court’s criminal procedure jurisprudence—at times hidden in
plain sight, at other times hidden below the surface—are asides about
what it means to be a “good citizen.”
As should already be evident, by “good citizen,” I am not referring
directly to the Court’s discussion of citizenship as nationality, as the legal
condition of an individual as a member (or not) of a state. Such a topic is
certainly a worthy one. For starters, there is our history of racial,
xenophobic, and religious exclusions, a history that continues to inform
our present. Nor am I referring directly to the legal issue of who, based
on their citizenship status, can claim criminal procedure protections
under our Bill of Rights. Who are “the people” protected by the Fourth
Amendment—for example, does it govern searches of non-American
visitors to the country? And, given the reach of American jurisdiction,
what process and protections are owed noncitizens on domestic and
foreign soil? These issues inform the argument I want to make, but they
are not at its core. Nor is my primary interest citizenship as belonging4
1. 136 S. Ct. 2056, 2070–71 (2016) (Sotomayor, J., dissenting).
2. Id. at 2059 (majority opinion).
3. Id. at 2069–71 (Sotomayor, J., dissenting) I am not the only scholar to laud these
aspects of Justice Sotomayor's dissent. See Monica C. Bell, Police Reform and the
Dismantling of Legal Estrangement, 126 Yale L.J. 2054, 2057--58 (2017).
4. See generally Kenneth L. Karst, Belonging to America: Equal Citizenship and the
Constitution 1–14 (1989) (suggesting that American law has both reflected and defined
what it means to be an American).
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 3
that sense of “genuine participation in the larger political, social, eco-
nomic, and cultural community”5—as conceived by Professor Kenneth
Karst, though this too informs my project.
Rather, what interests me—as someone who writes and teaches
about equality and criminal justice—is what citizenship means when it
comes to every day interactions between the police and the policed. It
was this interest that led me to reread the Court’s criminal procedure
decisions to uncover what these decisions say about citizenship vis-à-vis
the police. What I found surprised me. Citizenship talk was everywhere,
from well-known cases like Miranda v. Arizona 6 and Schneckloth v.
Bustamonte,7 to less well-known cases like McCray v. Illinois.8 These asides
about good citizens—though rarely phrased so bluntly—are so pervasive
that I wondered how I had not noticed them before. I thought of the
novelist and essayist Toni Morrison’s observation about her own astonish-
ment while reading literature:
It is as if I had been looking at a fishbowl—the glide and
flick of the golden scales, the green tip, the bolt of white
careening back from the gills; the castles at the bottom,
surrounded by pebbles and tiny, intricate fronds of green; the
barely disturbed water, the flecks of waste and food, the tranquil
bubbles traveling to the surface—and suddenly I saw the bowl,
the structure that transparently (and invisibly) permits the
ordered life it contains to exist in the larger world.9
I had seen the holdings and the not-so-subtle curtailment in Fourth
Amendment protections. I had seen the chipping away of meaning from
the Fifth Amendment. What I had not seen, until now, was the way these
decisions were also about citizenship, especially citizenship vis-à-vis the
police.
These cases tell us that the good citizen is willing to aid the police
and to consent to searches. The good citizen, at times, willingly waives
their right to silence, and at other times their right to speak. The good
citizen, having nothing to hide, welcomes police surveillance. And this is
just the start. Read between the lines, and the Court’s citizenship talk
also dictates how a good citizen should behave, move, and even speak.
These decisions not only reflect ideas about good citizenship. They produce
good citizenship. These decisions do not simply regulate police behavior.
They regulate the behavior of citizens.
One goal of this Essay is to surface this aspect of criminal procedure
decisions. But the larger goal is to raise questions. What does it mean for
5. Jennifer Gordon & R.A. Lenhardt, Citizenship Talk: Bridging the Gap Between
Immigration and Race Perspectives, 75 Fordham L. Rev. 2493, 2494 (2007).
6. 384 U.S. 436, 460, 477–81 (1966).
7. 412 U.S. 218, 229, 232, 243 (1973).
8. 386 U.S. 300, 308 (1967).
9. Toni Morrison, Playing in the Dark: Whiteness and the Literary Imagination 17
(1992).
4 COLUMBIA LAW REVIEW [Vol. 118:1
the Court to demarcate good citizenship vis-à-vis police power, partic-
ularly a form of citizenship that involves ceding constitutional protec-
tions in service of the state? What are we to make of the Court’s implied
marking of certain citizens as not good, or indeed as insubordinate and
unruly? And if part of being a participatory citizen is to test the
boundaries of the law—by talking back to law enforcement, by refusing
to surrender constitutional protections, and by asserting rights—how does
the Court’s citizenship talk chill participatory citizenship and frustrate
democratic dissent?
These concerns should be reason enough to critically examine the
Court’s citizenship talk. But there is a second concern as well, at least for
me.10 After all, I am a black man writing in a country where race has
always mattered. I am a black man writing in a country where “young
plus black plus male” too often “equals probable cause.”11 I am writing
against a sharp white background where there exists, forever coupled,
both a “racial tax”12 and a “racial privilege.”13 And I am a black man in a
country where citizenship, at least for those of us who are black or brown,
has always seemed contingent, probationary, and revocable. Indeed,
citizenship, much like race itself, has always seemed policed. At this time—
when Black Lives Matter has become part of the national zeitgeist,14
when the criminal justice system is the primary civics education for so
many individuals,15 when so many criminal procedure opinions are also
on a certain level race opinions,16 when increasingly there is a feeling of
10. Like Professor Patricia Williams, I subscribe to the notion that my identity matters
when it comes to thinking about the law. See Patricia J. Williams, The Alchemy of Race
and Rights 3 (1991) (“Since subject position is everything in my analysis of the law, you
deserve to know it’s a bad morning.”).
11. See generally, Elizabeth A. Gaynes, The Urban Criminal Justice System: Where
Young + Black + Male = Probable Cause, 20 Fordham Urb. L.J. 621 (1993) (explaining
how the criminal justice system disproportionately targets African American young men).
12. Randall Kennedy, Race, Crime, and the Law 159 (1997).
13. For more on racial privilege, especially in the context of criminal justice, see
generally I. Bennett Capers, The Under-Policed, 51 Wake Forest L. Rev. 589, 593 (2016)
(“[I]n this time when we are again discussing white privilege and telling each other,
‘Check your privilege,’ and at this time when the hashtag #Crimingwhilewhite has become
a phenomenon, are there advantages to talking about white privilege—or more generally,
privilege—and criminal justice?” (footnote omitted)).
14. See John Eligon, One Slogan, Many Methods: Black Lives Matter Enters Politics,
N.Y. Times (Nov. 18, 2015), http://www.nytimes.com/2015/11/19/us/one-slogan-many-
methods-black-lives-matter-enters-politics.html (on file with the Columbia Law Review).
15. Benjamin Justice & Tracey L. Meares, How the Criminal Justice System Educates
Citizens, 651 Annals Am. Acad. Pol. & Soc. Sci. 159, 165–75 (2014). See generally Amy E.
Lerman & Vesla Weaver, Arresting Citizenship: The Democratic Consequence of
American Crime Control (2014) (“[C]riminal justice institutions have come to play a
socializing role in a substantial subset of Americans, fundamentally influenc[ing] how they
come to conceptualize the democratic state and their place in it.”).
16. I. Bennett Capers, Rethinking the Fourth Amendment: Race, Citizenship, and
the Equality Principle, 46 Harv. C.R.-C.L. L. Rev. 1, 12–35 (2011) [hereinafter Capers,
Rethinking the Fourth Amendment]; cf. Michael J. Klarman, The Racial Origins of
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 5
legal estrangement,17 and when retaliations and protests against police
spur calls to “take America back”—the Court’s citizenship talk may very
well further inequality.
This Essay proceeds as follows. Part I surfaces and shines a light on
citizenship talk in the Court’s criminal procedure cases—talk that sug-
gests what good citizenship means vis-à-vis interactions with the police.
Most troubling, the dominant message in these cases seems to be that the
good citizen willingly cedes their constitutional protections to aid the
state. Part II turns to the work of French philosopher Michel Foucault to
argue that the Court’s decisions have a disciplining effect. In ways large
and small, these decisions discipline citizens into performing good
citizenship. Part III argues that the Court’s citizenship talk has racial
consequences. In part, this is because citizenship and race have always
been interconnected in this country. But in part, it is because of the cases
themselves. In a sense, every criminal procedure decision is also a race
decision. The result is that the Court’s citizenship talk may further racial
inequality. Part IV, perhaps the most radical part of this Essay, gestures
toward a solution. It imagines an interstitial space, in criminal procedure
jurisprudence and in police–citizen interactions, in which citizens would
have the ability, without repercussions or recrimination, to talk back to
the police, to ask why and how come, to assert their rights, to question
and test the boundaries of the law, and to say “no.”
I. THE GOOD CITIZEN
“Is citizenship something susceptible to improvement, so that someone might
become good at being an American?”
The Good Citizen18
“It is an act of responsible citizenship for individuals to give whatever
information they may have to aid in law enforcement.”
Miranda v. Arizona19
Modern Criminal Procedure, 99 Mich. L. Rev. 48, 50–77 (2000) (describing four cases
sentencing black criminal defendants to death after “egregiously unfair trials”); Carol S.
Steiker, Second Thoughts About First Principles, 107 Harv. L. Rev. 820, 841–44 (1994)
(“Racial discrimination in law enforcement has not escaped the Supreme Court’s notice.
Indeed, in the last half century or so . . . the Court’s criminal procedure cases have
frequently presented some of the most appalling racially discriminatory abuses of police
power imaginable.”).
17. See See Bell, supra note 3, at 2057 (using the term to describe the feeling shared
by many African Americans of being “essentially stateless—unprotected by the law and its
enforcers and marginal to the project of making American society”).
18. David Batstone & Eduardo Mendieta, What Does it Mean to be an American?, in
The Good Citizen 1, 3 (David Batstone & Eduardo Mendieta eds., 1999).
19. 384 U.S. 436, 477–78 (1966).
6 COLUMBIA LAW REVIEW [Vol. 118:1
A. Be Good
By now, Americans are used to exhortations to be good citizens.20
We are told to vote.21 To be homeowners. To marry and have children, as
long as we are not excessive about it. We are even encouraged, for God
and country, to shop.22 These calls to citizenship are all around us and
are so ubiquitous that we often absorb these messages without attending
to them.
These calls to citizenship become more explicit and urgent at times
of crisis. To be sure, different calls were made to different groups.
During World War I and World War II, the call was to able-bodied young
men—Uncle Sam Needs You!23 But even those who were not expected to
engage in combat were told they had a role to play. Women were told to
work in defense plants, to volunteer for war-related organizations, and to
serve in the military in noncombat roles.24 Even American citizens who
were forcibly interned, merely because they were of Japanese ancestry,
were implored to do their duty as citizens and to view internment as a
self-sacrifice for country. As the Court glibly put it in Korematsu v. United
States, the case upholding the constitutionality of the military exclusion
order, “Citizenship has its responsibilities as well as its privileges, and in
time of war the burden is always heavier.”25
20. The term “citizen” in this Essay, especially when I speak of the “good citizen,” is
not meant in an exclusionary sense to distinguish between those who are legally
recognized as citizens and those who are not. Far from it. Rather, I use the term “citizen”
in a far broader sense to refer to being a contributing member of society. In this sense,
anyone, regardless of legal status, can be a good citizen. For example, a person who sees a
suspicious package and notifies authorities is being a “good citizen” regardless of their
legal status.
21. Perhaps most notably, Michael Schudson’s book The Good Citizen equates
citizenship with “how individuals come to participate in political life, how they arrive at an
understanding of political questions, and how they think about what obligations their
citizenship entails.” Michael Schudson, The Good Citizen: A History of American Civic
Life 315 n.2 (1998). As such, the book is largely devoted to political citizenship through
voting and how such political citizenship has changed over centuries. See id.
22. See Andrew J. Bacevich, He Told Us to Go Shopping. Now the Bill Is Due., Wash.
Post (Oct. 5, 2008), http://www.washingtonpost.com/wp-dyn/content/article/2008/
10/03/AR2008100301977.html [http://perma.cc/54JV-LURC] (discussing President George
W. Bush’s response after 9/11 urging Americans to “carry on as if there were no war”).
23. See generally Christopher Capozzola, Uncle Sam Wants You: World War I and
the Making of the Modern American Citizen 5–8 (2008) (explaining the visual metaphor
of the Uncle Sam poster and Americans’ sense of obligation during wartime).
24. See generally Emily Yellin, Our Mothers’ War: American Women at Home and at
the Front During World War II, at xiv (2004) (exploring the experiences of women—“the
other American soldiers”—in the war effort).
25. 323 U.S. 214, 219 (1944); see also Duncan v. Kahanamoku, 327 U.S. 304, 349 n.4
(1946) (Burton, J., dissenting) (quoting the proclamation issued by Hawaii’s military
governor following the attack on Pearl Harbor that “good citizens will cheerfully obey this
proclamation and the ordinances to be published”). The Court made a related statement
in Buck v. Bell, in which it gave its blessing to forced sterilization:
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 7
The current war against terror has again brought to the fore calls to
be good citizens. These calls to good citizenship are not just evident by
the flags people hang in front of their doors and in the bumper stickers
telling us to “Support our Troops!” We are also enlisted in more direct
ways. Consider the Citizen’s Preparedness Guide that the government
circulated shortly after the September 11 terrorist attacks:
Be Aware. Get to know your neighbors at home and while
traveling. Be on the lookout for suspicious activities such as
unusual conduct in your neighborhood, in your workplace, or
while traveling. Learn to spot suspicious packages, luggage, or
mail abandoned in a crowded place like an office building, an
airport, a school, or a shopping center.
Take what you hear seriously. If you hear or know of some-
one who has bragged or talked about plans to harm citizens in
violent attacks or who claims membership in a terrorist organi-
zation, take it seriously and report it to law enforcement
immediately.26
Consider too the government’s short-lived Terrorist Information
and Prevention System (TIPS).27 Although abandoned, the program
called upon citizens (including those who routinely entered homes such
as delivery men, utility workers, and postal deliverers) to report
suspicious activity.28 Even without TIPS, other demands linger. We have
all become conscripted as watchers. Who among us hasn’t been told, IF
YOU SEE SOMETHING, SAY SOMETHING. Or maybe some of us have
been conscripted more than others. Consider President Donald Trump’s
call to Muslim Americans after the San Bernardino terrorist incident:
We have seen more than once that the public welfare may call upon the
best citizens for their lives. It would be strange if it could not call upon
those who already sap the strength of the State for these lesser sacrifices,
often not felt to be such by those concerned, in order to prevent our
being swamped with incompetence.
274 U.S. 200, 207 (1927).
26. Nat’l Crime Prevention Council, United for a Stronger America: Citizens’
Preparedness Guide 2 (2002), http://dps.sd.gov/application/files/3815/0161/4337/United-
For-A-Stronger-America-Citizens-Preparedness-Guide.pdf [http://perma.cc/RSS8-XXG2];
see also Karen Engle, Constructing Good Aliens and Good Citizens: Legitimizing the War
on Terror(ism), 75 U. Colo. L. Rev. 59, 102 (2004).
27. See, e.g., Ritt Goldstein, U.S. Planning to Recruit One in 24 Americans as Citizen
Spies, Sydney Morning Herald (July 15, 2002), http://www.smh.com.au/articles/2002/
07/14/1026185141232.html [http://perma.cc/4JDX-FW2G] (discussing the development
and ramifications of the TIPS program); see also Frank James, Bush Scales Back Terror
Tip Program: Postal and Utility Workers Dropped, Chi. Trib. (Aug. 10, 2002),
http://articles.chicagotribune.com/2002-08-10/news/0208100203_1_utility-workers-tip-
line-tips [http://perma.cc/6TXW-MLUF] (detailing the scaling back of the TIPS program
in response to controversy).
28. See James, supra note 27.
8 COLUMBIA LAW REVIEW [Vol. 118:1
“One thing, I think, that the Muslim population of this country has to do
is they have to surveil their own people.”29
Even in the context of domestic crime, these calls to be good citizens
are sometimes made explicit, broadcast over public speakers and on our
television sets. We are sent AMBER alerts about missing children via
texts; recently, following the detonation of an explosive in New York City,
we were sent text alerts enlisting us to help locate the alleged perp-
etrator. 30 In Florida, America’s retirement state, billboards announce
Silver Alerts, enlisting the public to help find missing senior citizens with
Alzheimer’s or dementia.31 In the comfort of our homes, we watch
America’s Most Wanted followed by a toll-free hotline, 1-800-CRIME-TV.
Soon, like our cousins in Great Britain, we may be encouraged to tap into
public surveillance cameras from our networked devices so that we, too,
can keep our streets safe. 32 There are also appeals to the more
adventurous, athletic, or risk-taking of us. We are urged to volunteer with
our local police departments.33 Even without being asked, many of us
understand we have a duty to perform, a role to play.
There is more, of course. We have now seen so many television shows
and movies in which someone goes missing and the entire town responds
by linking arms in a field to aid the police in search that it now seems like
second nature. We wait for the scene, knowing that it is coming, and then
it is there. In the old days, before there were police forces, the sheriff
29. Esther Yu Hsi Lee, Trump Has a Suggestion for What Muslims Should Do About
Terrorism, ThinkProgress (Dec. 18, 2015), http://thinkprogress.org/trump-has-a-suggestion-
for-what-muslims-should-do-about-terrorism-650d35151b0e/ [http://perma.cc/JGL7-EDDN];
see also Sahar F. Aziz, Policing Terrorists in the Community, 5 Harv. Nat’l Security J. 147,
147–55 (2014) (offering critical commentary on the government goal of community
policing in counterterrorism); Jessica Glenza, Donald Trump’s Message to Muslims: ‘We
Want You to Turn in the Bad Ones,’ Guardian (Dec. 8, 2015), http://www.theguardian.com/
us-news/2015/dec/08/donald-trump-defends-muslim-ban [http://perma.cc/8MA4-R6PQ]
(analyzing Trump’s controversial rhetoric on Muslims and other politicians’ responses).
30. J. David Goodman & David Gelles, Cellphone Alerts Used in New York to Search
for Bombing Suspect, N.Y. Times (Sept. 19, 2016), http://www.nytimes.com/2016/09/
20/nyregion/cellphone-alerts-used-in-search-of-manhattan-bombing-suspect.html?mcubz=1
(on file with the Columbia Law Review).
31. See Silver Alert Program, Fla. Dep’t of Elder Affairs, http://elderaffairs.state.fl.us/
doea/silver_alert.html [http://perma.cc/J3CE-NSCQ] (last visited Oct. 16, 2017).
32. As Professor Christopher Slobogin has reported, Britain has over 800 local public
video surveillance programs involving “between two and three million cameras . . .
creating more video images per capita than any other country in the world.” Christopher
Slobogin, Public Privacy: Camera Surveillance of Public Places and the Right to
Anonymity, 72 Miss. L.J. 213, 222 (2002) (footnote omitted). Britons can “earn cash
rewards by watching live-streamed CCTV footage on their home computers and assisting
the police in apprehending criminals.” I. Bennett Capers, Crime, Surveillance, and
Communities, 40 Fordham Urb. L.J. 959, 963 (2013) [hereinafter Capers, Crime,
Surveillance, and Communities].
33. Volunteers in Law Enforcement, DiscoverPolicing, http://www.discoverpolicing.org/
find_your_career/?fa=volunteers [http://perma.cc/XZ6G-LPZK] (last visited Oct. 16, 2017).
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 9
would summon the good citizens to help him, a posse comitatus.34 Things
now are not so different.
All of this is known, though often unsaid. All of this has come to be
expected, even though rarely examined. We expect the government to
speak and, in the First Amendment context, have even carved out an
exception by which government speech is both entitled to and must
receive First Amendment protections and guarantees.35 In this sense it is
unsurprising that the government would use that speech to inculcate
good citizenship. For example, it was recently revealed that the Department
of Defense paid millions of dollars to “18 NFL teams, 10 MLB teams,
eight NBA teams, six NHL teams, eight soccer teams, as well as NASCAR”
to make patriotic displays.36 Such inculcation may seem surprising, but in
fact it is as American as elementary school students being led in the
Pledge of Allegiance, as joining the Boy Scouts and Girl Scouts—who
doesn’t want a “Citizenship in the Community” merit badge?37—as the
singing of the Star-Spangled Banner at the Super Bowl, and as Veterans
Day parades. As a matter of law, we even require educational institutions
receiving federal funding to hold programs each September on
“Constitution Day” and “Citizenship Day.”38 In short, exhortations to be
good citizens are all around us.
34. See Lawrence M. Friedman, Crime and Punishment in American History 29
(1993). See generally David B. Kopel, The Posse Comitatus and the Office of Sheriff: Armed
Citizens Summoned to the Aid of Law Enforcement, 104 J. Crim. L. & Criminology 761
(2015).
35. See David Fagundes, State Actors as First Amendment Speakers, 100 Nw. U. L.
Rev. 1637, 1664–76 (2006) (describing three approaches to the First Amendment right for
government speech: derivative rights, institutional rights, and public rights).
36. Cindy Boren, Report: At Least 50 Teams Were Paid by Department of Defense for
Patriotic Displays, Wash. Post (Nov. 4, 2015), http://www.washingtonpost.com/news/
early-lead/wp/2015/11/04/report-at-least-50-teams-were-paid-by-department-of-defense-
for-patriotic-displays/?utm_term=.5d5b6cde96be (on file with the Columbia Law Review).
37. The badge application contains such requirements as: “Discuss with your counselor
what citizenship in the community means and what it takes to be a good citizen in your
community” and “[d]iscuss the rights, duties, and obligations of citizenship, and explain
how you can demonstrate good citizenship in your community, Scouting unit, place of
worship, or school.” See U.S. Scouting Serv. Project, Inc., Citizenship in the Community:
Merit Badge Workbook 1–2 (2017), http://www.usscouts.org/usscouts/mb/worksheets/
Citizenship-in-the-Community.pdf [http://perma.cc/P24W-Q2T4].
38. 36 U.S.C. § 106 (2012). For more on Constitution Day and Citizenship Day, see
generally Alan E. Garfield, What Should We Celebrate on Constitution Day?, 41 Ga. L.
Rev. 453, 458 (2007) (describing Constitution Day as an attempt to rectify public
ignorance about the Constitution). Indeed, we have long “relied upon government
schools as a principal purveyor of deeply cherished democratic values . . . [and] civic
assimilation.” Diane Ravitch & Joseph P. Viteritti, Introduction, in Making Good Citizens:
Education and Civil Society 1, 5 (Dianne Ravitch & Joseph P. Viteritti eds., 2001).
10 COLUMBIA LAW REVIEW [Vol. 118:1
B. The Criminal Procedure Cases
For the longest time, I assumed that the messages about good
citizenship would come from the executive and legislative branches but
not the judicial branch.39 I certainly did not think there would be asides
about good citizenship in criminal procedure cases. But then I began to
reread opinions that I thought I knew.40 What I found surprised me. The
more I read, the more I saw asides about citizenship and what constitutes
good citizenship.
In fact, what I read prompted me to recall Professor Scott Sundby’s
influential article, Everyman’s Fourth Amendment: Privacy or Mutual Trust
Between Government and Citizen?, in which he offered a traveler’s guide to
the Fourth Amendment:
Travel is a considerable problem. One should be aware that
law enforcement officers may stop someone and ask permission
to look in his luggage even if the traveler has not acted in a
fashion that would provoke articulable suspicion of wrongdo-
ing. This is true whether traveling by land, air, or sea. If
approached, the innocent traveler should not be alarmed but
should state to the officer that he or she has no desire to
converse and has other, more important appointments to keep.
Although this might strike the traveler at first as rude and
abrupt, and perhaps a bit frightening if the questioner is armed,
the Supreme Court has made clear that the Fourth Amendment
is not for the timid. Consequently, the wise traveler should carry a
copy of the Fourth Amendment and display it to the questioner
and thus avoid any unnecessary discourse. It is this writer’s
fervent hope that travel agents soon shall issue copies of the
Fourth Amendment as standard procedure when writing air-
plane, bus, or train tickets.41
While much of what Professor Sundby wrote is still doctrinally true,
my rereading of the Court’s criminal procedure cases also revealed subtle
and troubling messages about good citizenship. What emerged suggests
another guide may be appropriate. Allow me to add to Professor Sundby’s
guide my own Criminal Procedure Guide to Good Citizenship:
39. Even in the education cases that I knew, like Brown v. Board of Education, the
message was simply that “[education] is the very foundation of good citizenship.” 347 U.S.
483, 493 (1954). The Court did not elaborate on what such good citizenship entailed.
40. Although my focus is on criminal procedure cases relating to police–citizen
interactions, “citizenship talk” may also appear in adjudicatory criminal procedure areas,
such as plea bargaining, in the notion of “acceptance of responsibility,” or in how the
Court endorses what Professor Jeff Bellin calls a silence penalty for defendants. See Jeffrey
Bellin, The Silence Penalty, 103 Iowa L. Rev. (forthcoming 2017) (manuscript at 16–20)
(on file with the Columbia Law Review) (exploring empirical results from mock juror
experiments that reveal “jurors will penalize defendants who do not testify”). A special
thanks to Justin Murray for prompting me to think along these lines for future research.
41. Scott E. Sundby, “Everyman”’s Fourth Amendment: Privacy or Mutual Trust
Between Government and Citizen?, 94 Colum. L. Rev. 1751, 1793–94 (1994).
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 11
With citizenship comes not only rights, but obligations. The
good citizen is ready and willing to aid law enforcement officers.
The good citizen voluntarily answers their questions.42 The
good citizen has nothing to hide and accordingly is willing to
answer questions about his activities. The good citizen is also
willing to answer questions about the activities of friends,
neighbors, community members, and family, since the good
citizen “has an interest in bringing criminal activity to light,”43
and in preventing “a wrong upon the government.”44 Indeed,
the good citizen finds the presence of armed police officers—
whether it be at an airport or a vehicle checkpoint or at his
place of employment—a “cause for assurance.”45 For this very
reason, the good citizen would never run from the police,
disobey a police order, or engage in evasive behavior, however
wrong or dangerous the order may prove to be.46
Also, if asked, the good citizen should not hesitate to open
his bag, pocket, or home to the police, or to otherwise consent
to a search.47 Such consensual searches, after all, will aid the
police in doing their work. It will also enhance the citizen’s
safety and the safety of those around him.48 And of course, while
even good citizens have a privilege against self-incrimination,
and while of course the burden of proof always remains with the
government, good citizens, if wrongly accused of a crime, will
immediately present themselves to the authorities to prove their
innocence.49 And if in the unusual event a good citizen in fact
commits a crime—perhaps it was a malum prohibitum crime—
the good citizen will go a step further and admit his wrongdoing
42. See Miranda v. Arizona, 384 U.S. 436, 447–48 (1966) (arguing that police should
not resort to physical or psychological compulsion to obtain confessions, and thus, by
extension, that citizens should voluntarily submit to police questioning).
43. Georgia v. Randolph, 547 U.S. 103, 115–16 (2006) (finding that a warrantless
search was unreasonable as to a defendant who was physically present and expressly
refused to consent).
44. Beals v. Cone, 188 U.S. 184, 187 (1903) (“There is no suggestion in the pleadings
that the protestants were in any way interested in the ground applied for, or that they were
acting other than as good citizens, seeking to prevent a wrong upon the government.”).
45. See United States v. Drayton, 536 U.S. 194, 204 (2002) (claiming that officers in
uniform should comfort citizens rather than make them uncomfortable); see also United
States v. Martinez-Fuerte, 428 U.S. 543, 558 (1976) (indicating that the presence of officers
and their visible signs of authority at checkpoint stops should not engender fear).
46. See California v. Hodari D., 499 U.S. 621, 627 (1991) (encouraging compliance
with police orders to “stop,” relying on the assumption that only a few of those orders
would be without adequate basis).
47. See Schneckloth v. Bustamonte, 412 U.S. 218, 243 (1973) (noting that there is
nothing “constitutionally suspect” about a citizen voluntarily allowing a search and that
“the community has a real interest in encouraging consent”).
48. See Drayton, 536 U.S. at 205.
49. See Jenkins v. Anderson, 447 U.S. 231, 238 (1980) (holding that “the Fifth
Amendment is not violated by the use of prearrest silence to impeach a criminal
defendant’s credibility”).
12 COLUMBIA LAW REVIEW [Vol. 118:1
and accept his punishment.50 And lastly, should the good citizen
for some reason find it absolutely necessary to assert his rights,
such as his right to an attorney, he will assert those rights
unambiguously to distinguish himself from other citizens who
lack “linguistic skills.”51
To some, this Criminal Procedure Guide to Good Citizenship may go too
far. The complaint, I imagine, might be that I am reading too much into
cases. My response is simple: For the most part, I am simply reading what
is there in black and white. Though the language may seem epiphe-
nomenal rather than the focus of the Court’s decisions, the language is
there nonetheless. Indeed, one could argue that there is an intentionality
in much of the language; the Court wanted to instantiate a particular
conception of citizenship.
Consider Miranda v. Arizona,52 one of the most well-known Court
decisions in history.53 In Miranda, the Court read the privilege against
self-incrimination clause of the Fifth Amendment to require the advise-
ment of rights as a precondition to the admissibility of statements made
during custodial interrogation.54 On one level, Miranda is a rights-
enhancing case intended to level the playing field between citizens and
the police, and as such it should be celebrated.55 But in delineating what
police conduct triggers the requirement of warnings—there must be
police custody and police interrogation—the Court also made clear that
in the normal course of business, it is the mark of good citizenship to
voluntarily answer questions and otherwise assist the police. The Court
emphasized this point: “General on-the-scene questioning as to facts
surrounding a crime or other general questioning of citizens in the fact-
finding process is not affected by our holding. It is an act of responsible
citizenship for individuals to give whatever information they may have to aid in
law enforcement.”56
Or consider language from two of the Court’s seminal Fourth
Amendment cases. In Schneckloth v. Bustamonte, the Court gave its impri-
matur to what has been described as the “most significant” exception to
the Fourth Amendment’s warrant requirement: the consent exception.57
Notwithstanding the Fourth Amendment’s plain language requiring
50. Minnick v. Mississippi, 498 U.S. 146, 167 (1990) (Scalia, J., dissenting).
51. Davis v. United States, 512 U.S. 452, 460 (1994).
52. 384 U.S. 436 (1966).
53. See 1 Joshua Dressler & Alan C. Michaels, Understanding Criminal Procedure
§ 24.01 (4th ed. 2006).
54. Miranda, 384 U.S. at 437.
55. But see Louis Michael Seidman, Brown and Miranda, 80 Calif. L. Rev. 673, 673
(1992) (arguing Miranda presents only the illusion of enhancing rights, when in fact it
legitimates the status quo).
56. Miranda, 384 U.S. at 477–78 (emphasis added).
57. 412 U.S. 218, 219 (1973); see also Megan Annitto, Consent Searches of Minors,
38 N.Y.U Rev. L. & Soc. Change 1, 19 (2014).
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 13
probable cause before there may be a search, and the concomitant right
to normally have this decided by a neutral, detached magistrate, a
person’s right to be free from warrantless searches and seizures can be
“consented” away.58 Nor is there is any requirement that the consent be
knowing. That the consent is voluntary, even if unknowing, will suffice.59
In United States v. Drayton, the Court similarly limited Fourth Amendment
protections, this time by ruling that a person has not been seized within
the meaning of the Fourth Amendment—a search or seizure being the
sine qua non to trigger Fourth Amendment protections—if a “reasonable
person” would have felt free to leave or “otherwise terminate the
encounter.”60 These two decisions certainly tipped the scales in favor of
law enforcement, a point that numerous scholars have noted.61 But what
interests me is the Court’s citizenship talk.
In Schneckloth, the Court couched its talk in the language of
community, but the good citizenship message is clear: “[T]he commu-
nity has a real interest in encouraging consent, for the resulting search
may yield necessary evidence for the solution and prosecution of crime,
evidence that may insure that a wholly innocent person is not wrongly
charged with a criminal offense.”62
In other words, consent should be encouraged; it is the right thing
to do. Another message can be found in Drayton:
[B]us passengers answer officers’ questions and otherwise coop-
erate not because of coercion but because the passengers know
that their participation enhances their own safety and the safety
of those around them . . . .
. . . .
In a society based on law, the concept of agreement and
consent should be given a weight and dignity of its own. Police
officers act in full accord with the law when they ask citizens for
consent. It reinforces the rule of law for the citizen to advise the
police of his or her wishes and for the police to act in reliance
on that understanding. When this exchange takes place, it
dispels inferences of coercion.63
The Court, in short, starts from a baseline that the good citizen has
an interest in consenting because it reinforces the rule of law. It is a
58. See Schneckloth, 412 U.S. at 219.
59. Id. at 233–34.
60. 536 U.S. 194, 202 (2002) (internal quotation marks omitted) (quoting Florida v.
Bostick, 501 U.S. 429, 436 (1991)).
61. See, e.g., Tracey Maclin, The Good and Bad News About Consent Searches in the
Supreme Court, 39 McGeorge L. Rev. 27, 28 (2008); Janice Nadler, No Need to Shout: Bus
Sweeps and the Psychology of Coercion, 2002 Sup. Ct. Rev. 153, 156, 208–09; Stephen A.
Saltzburg, Lecture, The Supreme Court, Criminal Procedure, and Judicial Integrity, 40
Am. Crim. L. Rev. 133, 141 (2003).
62. Schneckloth, 412 U.S. at 243.
63. Drayton, 536 U.S. at 205–07.
14 COLUMBIA LAW REVIEW [Vol. 118:1
privilege of citizenship—it affords us dignity—to be able to consent away
Fourth Amendment protections. And this is only part of what the Court’s
citizenship talk does. Rather than the government really needing to
prove that consent was given voluntarily—the standard the Court sets
forth elsewhere in Schneckloth—the Court has in fact already tipped the
scales. After all, who except a bad citizen would not be interested in
enhancing “their own safety and the safety of those around them?”64 In
other words, who, but a bad citizen, would refuse consent? Never mind
that the government has no reciprocal obligation to advise citizens of
their Fourth Amendment right to refuse consent, let alone advise them
that any such refusal cannot be held against them.65
In INS v. Delgado, another criminal procedure case, the Court made
clear that good citizens should welcome police inquiries, and view them
as consensual, even if a cadre of police have come to their workplace and
positioned themselves near the exits.66 Then-Justice Rehnquist observed
this to be the case even when the law enforcement officers came to the
workplace to ask employees about their citizenship status. Conflating a
normative observation with a descriptive one, the Court stated: “While
most citizens will respond to a police request, the fact that people do so,
and do so without being told they are free not to respond, hardly elimi-
nates the consensual nature of the response.”67
Indeed, the normative message from the Court is that the good
citizen should feel comforted by the presence of officers. “Officers are
often required to wear uniforms and in many circumstances this is cause
for assurance, not discomfort.”68 The expectation is that good citizens,
even good citizens forcibly stopped in their vehicles as part of inves-
tigative checkpoints, will react “positively when police simply ask for their
64. Id. at 205.
65. Schneckloth, 412 U.S. at 232–34. Arguably, even the Court’s ruling that law
enforcement officers need not inform citizens of their right to refuse consent is traceable
to ideas about citizenship, and to hierarchies of citizenship. Since the Progressive Era, one
mark of being a good citizen has been being an “informed citizen.” See Schudson, supra
note 21, at 294, 298–99. Thus, the good citizen would already be aware of his right to
decline consent, making a warning unnecessary. Conversely, the bad citizen would likely
be less aware of his right to refuse consent. In this way, the Court’s ruling gave law
enforcement an added boon: In theory at least, it allowed the police to take advantage of
the lack of knowledge of bad citizens.
66. 466 U.S. 210, 210 (1984).
67. Id. at 216.
68. Drayton, 536 U.S. at 204; United States v. Martinez-Fuerte, 428 U.S. 543, 558
(1976) (suggesting that when citizens “can see visible signs of the officers’ authority,” they
are “much less likely to be frightened or annoyed by the intrusion” (internal quotation
marks omitted) (quoting United States v. Ortiz, 422 U.S. 891, 894–95 (1975)).
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 15
help as ‘responsible citizens.’” 69 Citizens, assuming they are good
citizens, will consider their cooperation “voluntary.”70
What else has the Court made explicit? Certainly, that the good
citizen does not run from the police, even if there is a history of police
violence against citizens. In Illinois v. Wardlow, a youth fled when he saw a
police vehicle. 71 The officers gave chase, cornered the youth, and
apprehended him. The issue before the Court was whether this seizure
was justified, since the officers did not have probable cause to believe a
crime had been committed to justify an arrest, or even reasonable
suspicion of criminal activity to justify a Terry stop.72 But the Court
avoided this problem by holding that the mere fact that the youth fled,
coupled with the fact this was a high-crime neighborhood—itself often a
euphemism73 —was enough to constitute reasonable suspicion.74 The
police did not have reasonable suspicion when they approached Wardlow,
but they certainly had it when he fled. After all, good citizens do not flee.
Indeed, in support of its holding, the Court intimated a far broader
standard: Any evasive behavior—looking the other way, changing
direction, avoiding the police—is suggestive of bad citizenship and can
be used as a factor in assessing reasonable suspicion.75 In our high-tech
world, the same rule is now applied to those who use encryption tools to
keep their online activities private. This, itself, is a mark of bad citizen-
ship and has been enough to raise red flags for the NSA.76
69. Illinois v. Lidster, 540 U.S. 419, 425 (2004) (quoting Miranda v. Arizona, 384 U.S.
436, 477–78 (1966)).
70. Id. at 426.
71. 528 U.S. 119, 121 (2000).
72. Id. at 123–25 (explaining that under Terry, “an officer may . . . conduct a brief,
investigatory stop when the officer has a reasonable, articulate suspicion that criminal
activity is afoot”).
73. Id. For example, in Floyd v. City of New York, the court found that when the police
used the term “High Crime Area” as a factor to justify a stop based on reasonable
suspicion, the term often had little correlation with actual statistics of crime. 959 F. Supp.
2d 540, 581 (S.D.N.Y. 2013); see also Andrew Guthrie Ferguson & Damien Bernache, The
“High-Crime Area” Question: Requiring Verifiable and Quantifiable Evidence for Fourth
Amendment Reasonable Suspicion Analysis, 57 Am. U. L. Rev. 1587, 1609 (2008); Hannah
Rose Wisniewski, Note, It’s Time to Define High-Crime: Using Statistics in Court to
Support an Officer’s Subjective “High-Crime Area” Designation, 38 New Eng. J. on Crim.
& Civ. Confinement 101, 105–06 (2012) (discussing the standards courts use to determine
which areas are “high crime,” which often do not require statistical evidence).
74. Never mind that in the proverbial “high-crime neighborhood,” the nature of
police–citizen interactions there furnishes “a reason for flight totally unrelated to
consciousness of guilt.” See Commonwealth v. Warren, 58 N.E.3d 333, 342 (Mass. 2016)
(recognizing the understandable “desire to avoid the recurring indignity of being racially
profiled”).
75. Wardlow, 528 U.S. at 124 (“Our cases have also recognized that nervous, evasive
behavior is a pertinent factor in determining reasonable suspicion.”).
76. See Elizabeth E. Joh, Privacy Protests: Surveillance Evasion and Fourth Amendment
Suspicion, 55 Ariz. L. Rev. 997, 1020 & n.144 (2013).
16 COLUMBIA LAW REVIEW [Vol. 118:1
Nor is Illinois v. Wardlow the only flight case in which the Court
engaged in citizenship talk. Consider California v. Hodari D.77 The Court
admonished citizens, even when confronted with police orders that lack
legal basis, to obey:
[C]ompliance with police orders to stop should . . . be encour-
aged. Only a few of those orders, we must presume, will be
without adequate basis, and since the addressee has no ready
means of identifying the deficient ones it almost invariably is
the responsible course to comply.78
The Court’s Fifth Amendment and Sixth Amendment cases also
contain citizenship talk. A good citizen, should they be wrongfully accused
of a crime, does not keep silent, notwithstanding any Fifth Amendment
privilege against self-incrimination they may have. The good citizen
should “cast aside [their] cloak of silence” and come forward to proclaim
their innocence.79 Certainly this explains the Court’s decision in Jenkins
v. Anderson, allowing the government to impeach a testifying defendant
with his prearrest silence.80 The citizen who has strayed from the straight
and narrow and has in fact committed a crime is also encouraged to do
their duty. As Justice Scalia put it in his dissent in Minnick v. Mississippi,
“While every person is entitled to stand silent, it is more virtuous for the
wrongdoer to admit his offense and accept the punishment he
deserves.”81 In Davis v. United States, the Court even weighed in on how
articulate a citizen is expected to be.82 The good citizen enunciates and
speaks forcefully. “Maybe I should talk to a lawyer,” the language at issue
in Davis, will not do to invoke the right to counsel.83 The Court conceded
that this might disadvantage citizens who lack “linguistic skills” to
“clearly articulate their right to counsel,”84 and sociolinguistic research
77. 499 U.S. 621, 626 (1991) (holding that a command to stop, without voluntary
submission or a physical apprehension, does not constitute a seizure).
78. Id. at 627.
79. Jenkins v. Anderson, 447 U.S. 231, 238 (1980).
80. Id.
81. 498 U.S. 146, 167 (1990) (Scalia, J., dissenting).
82. See 512 U.S. 452, 459 (1994) (holding that a suspect “must articulate [their]
desire to have counsel present sufficiently clearly” to trigger a requirement that the police
cease questioning).
83. Id. at 462.
84. Id. at 460.
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 17
confirms as much.85 But maybe this was precisely the point.86 The good
citizen is an educated citizen, after all.87
And these are just some of the cases in which the Court explicitly
engages in citizenship talk. There is also McCray v. Illinois, in which the
Court links informing the police of the criminality of others with “good
citizenship,” 88 a sentiment the Court endorsed again in Georgia v.
Randolph.89 In Burt v. Union Centennial Life Insurance Co., the Court notes
that “good citizens” have a “duty to furnish [evidence that would]
prevent a miscarriage of justice.”90 In Brown v. Walker, the Court states
that “[e]very good citizen is bound to aid in the enforcement of the
law.”91 And in Grin v. Shine, the Court observes that the good citizen
“ought to be willing” to “submit themselves to the laws of their country.”92
Again, these are cases in which the Court’s citizenship talk is explicit.
In other cases, the Court is more indirect, handing down what I have
elsewhere termed a type of “white-letter law”93 —those “societal and
normative laws that stand side-by-side and often undergird black letter
law but, as if inscribed in white ink on white paper, remain invisible to
the naked eye.”94 Read between the lines and one can glean a clear
delineation in the Court’s criminal procedure opinions about what it
means to be a good citizen—being willing to help the authorities and to
cede constitutional protections—versus what it means to be a bad citizen.
85. See Yale Kamisar, The Warren Court and Criminal Justice: A Quarter-Century
Retrospective, 31 Tulsa L.J. 1, 18 (1995) (citing studies that find women and minorities
use “indirect and hedged speech patterns”).
86. For illustrations of how lower courts have applied Davis, see Charles D.
Weisselberg, Mourning Miranda, 96 Calif. L. Rev. 1519, 1579–81 (2008) (noting lower
courts “tend to construe strictly the requirement of an unequivocal assertion of rights,
thus narrowing the duty of officers to cease or refrain from questioning”).
87. See Schudson, supra note 21, at 182–85, 294, 298–99 (noting citizenship became
equated with intelligence during the Progressive Era). Arguably, the Davis ruling also
reflects a ranking of citizenship insofar as it favors and benefits those with “linguistic
skills.” Indeed, the Court’s language is, on a certain level, reminiscent of the literacy tests
that were used to limit the voting rights of southern blacks and many poor whites, as well
as many recent immigrants, before passage of the Civil Rights Act of 1964 and the Voting
Rights Act of 1965. See id. at 182–85; see also 42 U.S.C. § 1973b (2012). Those groups
could access their rights only by meeting someone else’s standard of knowledge or
eloquence.
88. 386 U.S. 300, 308 (1967) (internal quotations omitted) (quoting 8 John Henry
Wigmore, Evidence in Trials at Common Law § 2374, at 762 (John T. McNaughton ed.,
1961)).
89. 547 U.S. 103, 115–16 (2006) (noting the interest an individual has “as a citizen in
bringing criminal activity to light”).
90. 187 U.S. 362, 369 (1902).
91. 161 U.S. 591, 600 (1896).
92. 187 U.S. 181, 184–85 (1902).
93. I. Bennett Capers, Reading Back, Reading Black, 35 Hofstra L. Rev. 9, 19 n.42
(2006) [hereinafter Capers, Reading Back, Reading Black].
94. Id.
18 COLUMBIA LAW REVIEW [Vol. 118:1
And again, it is not just that the Court is describing good citizenship. In a
very real sense, these cases reflect a desire to produce good citizenship.
I can imagine that to some, the fact that the Court, however indirectly,
encourages citizens to cooperate with the police is something that should
be applauded rather than critiqued. For these individuals, the Court, by
pressing good citizenship, is performing its role as a good citizen. My point
is not that encouraging good citizenship is an inherent wrong. Rather,
my point is that there is something deeply problematic about citizenship
talk that encourages citizens to surrender constitutional protections95 and
to serve as willing posse comitatus to a criminal justice system known for
overcriminalization, overincarceration, and unequal policing.96 Likewise,
there is something deeply problematic about citizenship talk that chills
democratic dissent. My point too is this: Whatever one thinks of the sub-
stance of the Court’s citizenship talk, certainly there is merit, for the sake
of transparency and legitimacy, to bringing that citizenship talk out into
the open.
There are two more points to be made about the citizenship talk
that emerges from the Court’s criminal procedure cases. One is that
citizenship talk is racially inflected. As I have written previously, the story
of the development of our criminal procedure jurisprudence is largely a
story about race.97 Much the same can be said about the Court’s
citizenship talk. Almost all of the Court’s citizenship talk cases—Miranda,
Schneckloth, Drayton, Delgado, Wardlow, Hodari D.—involve black or brown
criminal defendants, though the Court often elides this fact. More to the
point, how the Court’s “citizenship talk” is heard and interpreted is
anything but race neutral. The result is that racial minorities, especially
those who are black or brown, often find themselves having to “work”
their citizenship in ways that are citizenship-diminishing.98
However, before turning to race, it makes sense to begin with an
exploration of the role the Court’s citizenship talk plays in disciplining
everyone to be good citizens. This is the issue Part II takes up below.
95. There may be exceptions at the extreme. For example, although individuals may
have the right to burn crosses on their own front lawns under the First Amendment, we
may want the Court to discourage such behavior, and to do so strongly. Even here, though,
we can imagine the Court framing such cross burning as bad behavior, but not necessarily
bad citizenship. This is a distinction with a difference. A hat tip to Michael Dorf for raising
this possibility.
96. See infra note 236.
97. Capers, Rethinking the Fourth Amendment, supra note 16, at 1. Indeed, Professor
Charles Ogletree suggests that much criminal procedure should be considered a branch
of American race law. See Gary Peller, Criminal Law, Race, and the Ideology of Bias:
Transcending the Critical Tools of the Sixties, 67 Tul. L. Rev. 2231, 2245 (1993) (citing
Charles Ogletree, Lecture at the Association of American Law Schools Annual Meeting
(Jan. 1990)).
98. See infra section III.D.
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 19
II. DISCIPLINED
“When they have established government[,] [the people] should think of
nothing but obedience, leaving the care of their liberties to their wiser rulers.”
James Madison99
“[Citizens stopped at checkpoints should react] positively when police simply
ask for their help as ‘responsible citizens.’”
Illinois v. Lidster 100
Borrowing from the work of Michel Foucault, this Part argues that
the Court’s citizenship talk plays a role in disciplining citizens into being
obedient subjects, or good citizens. To begin, this Part will discuss how
the Court’s citizenship talk reaches citizens.
Thus far, I have spoken of the Court’s citizenship talk as communi-
cating ideas about good citizenship. But the question that lurks below
this assertion is one of mechanics and distribution. Concededly, there are
few citizens who read Supreme Court opinions. The audience for Court
opinions is select and small. Nonetheless, sometimes their messages are
disseminated far and wide. As Professor Lauren Ouziel has remarked, the
Warren Court’s “criminal procedure cases generated intense public
interest; the cases were publicized, debated, and commented upon
widely in the media and the political sphere.”101 Even today, the Court’s
opinions are condensed for the news. Couple this fact with the observa-
tion that the Court’s opinions contain expressive messages regarding
how citizens should behave.102 As Professor Lawrence Lessig observed
99. James Madison, Who Are the Best Keepers of the People’s Liberties?, Nat’l
Gazette, Dec. 20, 1792, reprinted in 6 The Writings of James Madison, 1790–1802, at 120
(Gaillard Hunt ed., 1906) (imagining a dialogue between republican and anti-republican
responses to the title question).
100. 540 U.S. 419, 425 (2004) (quoting Miranda v. Arizona, 384 U.S. 436, 477–78
(1966)).
101. Lauren M. Ouziel, Beyond Law and Fact: Jury Evaluation of Law Enforcement, 92
Notre Dame L. Rev. 691, 721 (2016).
102. See, e.g., Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law:
A General Restatement, 148 U. Pa. L. Rev. 1503, 1571 (2000) (“Legal communications of
state attitudes typically impose social relationships on people . . . .”); I. Bennett Capers,
Policing, Race, and Place, 44 Harv. C.R.-C.L. L. Rev. 43, 46 (2009) [hereinafter Capers,
Policing, Race, and Place] (arguing that the number of minority professors who have been
stopped by police in predominately white neighborhoods “sends the expressive message . . .
about who belongs and who does not”); Lawrence Lessig, The Regulation of Social
Meaning, 62 U. Chi. L. Rev. 943, 947 (1995) (arguing that “social meanings . . . constitute
what is authority for a particular society, or a particular culture”); Richard H. McAdams &
Janice Nadler, Coordinating in the Shadow of the Law: Two Contextualized Tests of the
Focal Point Theory of Legal Compliance, 42 Law & Soc’y Rev. 865, 868–75 (2008)
(considering expressive theories of legal compliance); Cass R. Sunstein, On the Expressive
Function of the Law, 144 U. Pa. L. Rev. 2021, 2022 (1996) (“Many people support law
20 COLUMBIA LAW REVIEW [Vol. 118:1
more than a decade ago, laws indirectly communicate what behavior is
inappropriate, which behavior is orthodox, and what behavior should be
rewarded.103 More importantly, they do so in ways that are often subtle and
work below the surface.104 The same is true of the Court’s opinions.105
Even when not filtered through the media, the Court’s citizenship
talk is still heard and absorbed by many. It is internalized by lower courts
and state courts, by district attorneys and public defenders. And the
public digests this citizenship talk in repackaged form in television shows
from Dragnet to Law and Order, from Colombo to The Wire, from S.W.A.T.
to The Night Of. Such cultural markers are, after all, part and parcel of
how many citizens become legally fluent;106 they exist not independent
from the law but in the law’s carefully cast shadow.
And of course, the Court’s citizenship talk is filtered to police
departments via police manuals and training.107 Indeed, this filtering is
bidirectional and dynamic. Police beliefs about how citizens should behave
in their interactions with police are communicated to the Court in briefs
from the solicitor general and in amicus briefs from law enforcement.108
The Court in turn incorporates these beliefs as part of its Fourth
Amendment balancing of the rights of the individual against the need to
because of the statements made by law, and disagreements about law are frequently
debates over the expressive content of law.”).
103. Lessig, supra note 102, at 947.
104. See, e.g., I. Bennett Capers, Real Women, Real Rape, 60 UCLA L. Rev. 826, 854–
56 (2013) (describing the subtly, and sometimes contradictory, expressive messages
communicated by rape shield laws).
105. Numerous Supreme Court opinions have contributed to changing social
meaning in ways that are readily discernible. The school desegregation case Brown v.
Board of Education, 347 U.S. 483 (1954), and the gay rights case Lawrence v. Texas, 539
U.S. 558 (2003), are but two examples. More often, however, such change occurs in ways
that are less noticeable, though no less potent.
106. See, e.g., David Ray Papke, The Impact of Popular Culture on American
Perceptions of the Courts, 82 Ind. L.J. 1225, 1231–33 (2007) (describing the impact of
court-related popular culture on lay Americans’ “perception and understanding” of the
legal system); June Louin Tapp & Felice J. Levine, Legal Socialization, in The Sociology of
Law: A Social-Structural Perspective 121, 129 (William M. Evan ed., 1980).
107. One has only to think of the successive editions of the police manual Criminal
Interrogations and Confessions. Each edition digests case law so that the authors can opine
on what interrogation techniques are permissible. See, e.g., Fred E. Inbau et al., Criminal
Interrogations and Confessions (5th ed. 2013). For a discussion of how the authors of the
manual parse the language of Supreme Court cases to read between the lines and see what
the decisions portend, see generally Joseph D. Grano, Selling the Idea to Tell the Truth:
The Professional Interrogator and Modern Confessions Law, 84 Mich. L. Rev. 662, 662–65
(1986).
108. Consider for example the amicus brief jointly filed by the International
Association of Chiefs of Police, the National Sheriffs Association, and Americans for
Effective Law Enforcement in the case United States v. Drayton, 536 U.S. 194 (2002). In
their amicus brief, they pressed for a decision that would facilitate compliance with
officers’ requests for consent in order “to combat the flow of illegal narcotics and
weapons.” Brief Amici Curiae of Americans for Effective Law Enforcement, Inc. et al. at 9,
Drayton, 536 U.S. 194 (2002) (No. 01-631), 2002 WL 316503.
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 21
“promot[e] . . . legitimate governmental interests.” 109 Indeed, these
messages are likely dynamic in yet another way. The Court’s language
about who is a good citizen and who is not very likely informs and shapes
constitutional doctrine.110 After all, decisions regulating what the police
can do are necessarily informed by beliefs about what citizens should do.
While much could be unpacked here, the central point is that, in a host
of ways, the Court’s language incorporates police beliefs. More impor-
tantly, in incorporating these beliefs, the Court legitimates and
reinforces them.
There is one final thing to say about the Court’s criminal procedure
decisions and their dissemination: Those citizens who are most policed—
because of the rates of crime in the communities where they live, or
because of the color of their skin—are particularly likely to be familiar
with the messages in these decisions.111 After all, these decisions are
communicated in “Know Your Rights” pamphlets and teach-ins, and
even in campaigns that Professor Devon Carbado describes as “know-your-
rightlessness campaigns.”112 They are communicated in driver’s education
classes and in public schools, where minority youth in particular are in-
creasingly being taught how to interact with the police,113 becoming part
109. Wyoming v. Houghton, 526 U.S. 295, 300 (1999).
110. For example, the ruling in Illinois v. Wardlow—that flight from the police in a
high crime neighborhood is enough to justify reasonable suspicion to forcibly detain the
person—is only fully legible against the Court’s assumption that Wardlow was a bad
citizen. 528 U.S. 119, 123–25 (2000). Similarly, the Court’s many rulings that deny Fourth
Amendment protection to individuals when only contraband can be discovered—see, e.g.,
United States v. Place, 462 U.S. 696 (1983)—is legible only against the backdrop that only
good citizens are worthy of Fourth Amendment protection. For similar observations, see
generally Sherry F. Colb, Innocence, Privacy, and Targeting in Fourth Amendment
Jurisprudence, 96 Colum. L. Rev. 1456, 1459 (1996) (“People feel differently about guilty
versus innocent holders of Fourth Amendment privacy rights.”); William J. Stuntz, Waiving
Rights in Criminal Procedure, 75 Va. L. Rev. 761, 766, 780–82 (1989) (arguing that
embedded in the Supreme Court’s Fourth Amendment jurisprudence is a desire to
protect only “law-abiding privacy”).
111. At present, “the scale of citizen contact with the American criminal justice system
is unmatched in the nation’s history.” Lerman & Weaver, supra note 15, at 8. Justice and
Meares add, “Because interactions with police officers are among the most common sites
of official action that people have with the state they obviously play a key role in shaping
an individual’s civic identity.” Justice & Meares, supra note 15, at 172. As in a game of
telephone, this citizenship talk likely gets distorted along the way, though one senses the
distortion is unidirectional. Consider the Court’s many statements that it is a mark of good
citizenship to voluntarily assist the police and answer questions. One can imagine that by
the time this talk reaches line officers, it has morphed into a different message: Citizens
who decline to answer questions or grant consent are bad citizens and have something to
hide. In short, the Court has indicated that uncooperative behavior can contribute to the
officer’s reasonable suspicion or probable cause, notwithstanding case law to the contrary.
112. Devon W. Carbado, From Stopping Black People to Killing Black People: The
Fourth Amendment Pathways to Police Violence, 105 Calif. L. Rev. 125, 131 (2017).
113. See Editorial, Lifesaving Lessons for Driving While Black, N.Y. Times (May 12,
2017), http://www.nytimes.com/2017/05/12/opinion/driving-while-black.html (on file
with the Columbia Law Review) (observing that a newly enacted Virginia law requires
22 COLUMBIA LAW REVIEW [Vol. 118:1
of the “pools of knowledge”114 common to black and brown Americans.
And most importantly, these messages—which include messages about
who belongs and who does not—are being communicated to black and
brown citizens by the police themselves. In fact, it is in police interactions
that many Americans, especially black and brown Americans, become
legally socialized into a sense of “who is a citizen[] and who is a
problem.”115 As some scholars have argued, such encounters and other
aspects of the criminal justice system function as a negative civic
education.116 Political scientists Charles R. Epp, Steven Maynard-Moody,
and Donald Haider-Markel make a similar point about police stops:
“Police stops convey powerful messages about citizenship and equality.”117
In short, the Court’s citizenship talk may not reach citizens directly, but it
does reach citizens.
Now the cart: The Court’s citizenship talk plays a role in disciplining
citizens. The work of Foucault is instructive. In Discipline and Punish,
Foucault expanded upon English philosopher Jeremy Bentham’s imagi-
nary panopticon, an ideal prison where prisoners are housed in cells in a
circular building, at the center of which is an observation tower.118 The
observation tower, along with the architectural contrivances of lighting
and strategically placed mirrors, places prisoners under constant percept-
ual surveillance—perceptual, because the prisoners themselves are
unable to tell when they are actually being watched and when they are
not.119 As Foucault remarked, this hypothetical panopticon effect induces
“in the inmate a state of conscious and permanent visibility.”120 In this
way, prisoners internalize a state of surveillance and a state of discipline;
driver’s education courses to teach students how to interact with police officers during
traffic stops to minimize the risk of police escalation); see also Mary Emily O’Hara, NJ
Assembly Passes Bill Requiring Kids Be Taught to Interact with Police, NBC News (June
22, 2017), http://www.nbcnews.com/news/us-news/nj-assembly-passes-bill-requiring-kids-
be-taught-interact-police-n775516 [http://perma.cc/26D5-QWUJ] (discussing a New Jersey
bill that would mandate K-12 instruction in how to talk to police officers).
114. See Russell K. Robinson, Perceptual Segregation, 108 Colum. L. Rev. 1093, 1120
(2008) (“In general, black and white people obtain information through different
informational networks, which results in racialized pools of knowledge.”); see also David
R. Maines, Information Pools and Racialized Narrative Structures, 40 Soc. Q. 317, 319–20
(1999) (noting that information is often race-based, with blacks being privy to certain
information that is largely unknown by whites, and vice versa).
115. Justice & Meares, supra note 15, at 162.
116. See Lerman & Weaver, supra note 15, at 10 (arguing that citizens “learn to stay
quiet, make no demands, and be wary and distrustful of political authorities”); Justice &
Meares, supra note 15, at 161.
117. Charles R. Epp et al., Pulled Over: How Police Stops Define Race and Citizenship
2 (2014).
118. See Jeremy Bentham, Panopticon; or, The Inspection House (1787), reprinted in
4 The Works of Jeremy Bentham 37, 40–41 (John Bowring ed., 1843).
119. Id. at 40.
120. Michel Foucault, Discipline and Punish: The Birth of the Prison 201 (Alan
Sheridan trans., Vintage Books 1979) (1977) [hereinafter Foucault, Discipline and Punish].
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 23
they behave as if they are being watched at all times. Actual continuous
state surveillance is “unnecessary.”121 Perceptual surveillance renders the
prisoners compliant, subservient, docile, and good.122 Observation, even
when invisible or imagined, becomes power.
Foucault recognized the disciplinary power of Bentham’s panop-
ticon, but he also believed that the modern era had rendered the
physical edifice itself and its centralized surveillance superfluous, at least
for disciplining individuals in the broader sense. For Foucault, Bentham’s
model prison merely reproduced, “with a little more emphasis, all the
mechanisms that are to be found in the social body[.] The prison is like a
rather disciplined barracks, a strict school, a dark workshop, but not
qualitatively different.”123 Put differently, the modern prison is just one
institution in a network of institutions forming a “great carceral contin-
uum” in which “frontiers between confinement, judicial punishment and
institutions of discipline” disappear.124
Foucault also observed that the state’s interest in discipline extends
well beyond what one normally thinks of as the police state. The state is
also interested in disciplining bodies as “obedient subjects” in support of
the state.125 This discipline, Foucault argued, is diffuse and “cannot be
localized in a particular type of institution or state apparatus.”126 Rather,
it is “a type of power, a modality for its exercise, comprising a whole set
of instruments, techniques, procedures, levels of application, [and]
targets.”127 For Foucault, the success of this disciplinary power is traceable
to its reliance on “simple instruments”: “hierarchical observation,”
“normalizing judgement[s],”128 and a “network of writing,”129 such as
birth certificates, marriage licenses, and property deeds that document
and track individuals.130 These simple instruments operate in tandem to
encourage and normalize what the state views as acceptable behavior.
The effect is to render the acceptable behavior and trajectories as natu-
ral, or at least as occurring independent of the state, when in fact the
state is entangled in much of our behavior, from when and how we are
121. Id.
122. See Bentham, supra note 118, at 40 (concluding that “the more constantly the
persons to be inspected are under the eyes of the persons who should inspect them, the
more perfectly will the purpose of the establishment have been attained”).
123. Foucault, Discipline and Punish, supra note 120, at 233.
124. Id. at 297.
125. Michel Foucault, The History of Sexuality: An Introduction 144 (Robert Hurley
trans., Pantheon Books 1990) (1978).
126. Foucault, Discipline and Punish, supra note 120, at 26.
127. Id. at 215.
128. Id. at 170.
129. Id. at 189.
130. See id. at 189–90 (noting “the formation of a whole series of codes of disciplinary
individuality that made it possible to transcribe . . . individual features”).
24 COLUMBIA LAW REVIEW [Vol. 118:1
educated, to when and who we marry, and to our very existence as
productive citizens.
Certainly, the Court’s criminal procedure jurisprudence plays a role in
“hierarchical observation.”131 One has only to think of the Court’s
decisions permitting the state to engage in almost unlimited surveil-
lance;132 permitting the state access to third-party records133—such as
bank records,134 telephone records,135 and web-browsing records—and
even allowing the state to monitor and record our speech,136 our hand-
writing,137 our fingerprints, and even our DNA.138
The Court’s criminal procedure decisions also contribute to the
state’s “network of writing.”139 We are no longer simply catalogued by
our birth and death certificates. Now, we are knowable via Big Data,
captured by our financial transactions and omnipresent surveillance, by
Metrocards and E-Z passes, by our Facebook and Snapchat and
Instagram use, and, generally, by the “way we live now.”140 Even our
interactions with the police are tracked. In New York City, for example, it
is not only the fact that in just eight years the police forcibly stopped
people over 4.4 million times—the vast majority of whom were innocent
131. That the Court plays such a role, however unremarked upon, should not surprise
us. Recall that disciplinary power is not confined to a particular institution or state
apparatus. As another scholar has written, “[I]t is the policing power that never passes for
such.” D.A. Miller, The Novel and the Police 17 (1988).
132. Capers, Crime, Surveillance, and Communities, supra note 32, at 965–69
(describing the conventional reading that the Fourth Amendment provides no protection
for activities conducted in public); see also Capers, Policing, Race, and Place, supra note
102, at 69–70 (explaining how the enforcement of order-maintenance offenses and traffic
laws are used to target minorities and others deemed out of place).
133. See generally Jane Bambauer, Other People’s Papers, 94 Tex. L. Rev. 205 (2015)
(critiquing the third-party doctrine of the Fourth Amendment, which permits the
government to collect consumer records).
134. United States v. Miller, 425 U.S. 435, 437 (1976) (holding that the Fourth
Amendment did not prohibit the government from obtaining checks and other records
conveyed to a third-party bank).
135. Smith v. Maryland, 442 U.S. 735, 735 (1979) (holding that a phone company’s
creation of a registry of dialed numbers at police request did not constitute a search for
purposes of the Fourth Amendment).
136. United States v. Wade, 388 U.S. 218, 222–23 (1967) (holding that requiring a
suspect to speak and thus “use his voice as an identifying physical characteristic” does not
violate the Fifth Amendment privilege against self-incrimination).
137. United States v. Dionisio, 410 U.S. 1, 6–7 (1973) (concluding that the privilege
against compulsory self-incrimination did not protect handwriting exemplars).
138. Maryland v. King, 569 U.S. 435, 437–50 (2013) (permitting warrantless and
suspicionless DNA collection).
139. Foucault, Discipline and Punish, supra note 120, at 189.
140. See generally Andrew Guthrie Ferguson, Big Data and Predictive Reasonable
Suspicion, 163 U. Pa. L. Rev. 327, 365–69 (2015) (describing how law enforcement
personnel identify and link individuals to accumulated data).
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 25
of wrongdoing—that should give us pause.141 What should also give us
pause is the fact that for each of these 4.4 million stops, police filled out
a UF-250 form marking the name of the individual stopped; their date of
birth and address; their race, height, and sex; and even whether or not
they have tattoos.142 In short, the police “marked” individuals—again, the
vast majority of whom were innocent—for future records. They do so
still.
However, it is the role the Court plays in providing “normalizing
judgments” that interests me most. This, after all, is what the Court is
doing when it engages in citizenship talk. The Court, in these cases, does
more than simply decide the legal issue of whether a particular state
action infringed upon a defendant’s right to be free from unreasonable
searches or seizures, or their privilege against self-incrimination, or their
right to counsel. The Court’s decisions also operate on a different
register, creating a “penality of the norm”143 by marking out which
citizens have engaged in behavior warranting punishment, and which
have not; which citizens warrant “heightened scrutiny,”144 to repurpose
an equal protection term, and which citizens do not.
Consider again the “citizenship talk” decisions discussed in Part I.
These decisions mark which citizens are properly deferential to author-
ities145 and which are not—which citizens are “responsible citizens” and
the type to “give whatever information they may have to aid in law
enforcement,”146 and which are not; which citizens appropriately view the
police in a positive light and as a “cause for assurance,”147 and which do
not; which citizens willingly cooperate with the authorities and volun-
tarily bring criminal activity to light148 and which do not; and which
citizens are obedient and conforming, and which are disobedient and
141. See Floyd v. City of New York, 959 F. Supp. 2d 540, 556, 584, 588 (S.D.N.Y. 2013);
see also Tracey L. Meares, The Law and Social Science of Stop and Frisk, 10 Ann. Rev. L. &
Soc. Sci. 335, 336 (2014).
142. See Greg Ridgeway, RAND Corp., Analysis of Racial Disparities in the New York
Police Department’s Stop, Question, and Frisk Practices 54–55 (2007), http://www.rand.org/
content/dam/rand/pubs/technical_reports/2007/RAND_TR534.pdf [http://perma.cc/
U67E-PZ5P].
143. Foucault, Discipline and Punish, supra note 120, at 183.
144. I. Bennett Capers, Race, Policing, and Technology, 95 N.C. L. Rev. 1241, 1290
(2017) [hereinafter Capers, Race, Policing, and Technology].
145. See, e.g., California v. Hodari D., 499 U.S. 621, 629 (1991) (holding that a
juvenile running from police was not “seized” until he was tackled, even if police officer’s
pursuit constituted a “show of authority”).
146. Miranda v. Arizona, 384 U.S. 436, 477–78 (1966).
147. United States v. Drayton, 536 U.S. 194, 204 (2002); United States v. Martinez-
Fuerte, 428 U.S. 543, 558 (1976).
148. Georgia v. Randolph, 547 U.S. 103, 115–16 (2006); Florida v. Jimeno, 500 U.S.
248, 252 (1991) (holding that consent to search a car generally implies consent to search
closed containers within a car); McCray v. Illinois, 386 U.S. 300, 308 (1967) (supporting
privilege of identities of informants who may be motivated by “good citizenship” to
cooperate with law enforcement).
26 COLUMBIA LAW REVIEW [Vol. 118:1
non-conforming. In short, the decisions mark which citizens are good
citizens, and which are bad.
There is one other aspect of how the Court’s language is disciplinary
in a Foucauldian sense. The consequence of being a bad citizen is often
punishment. The citizen may not face incarceration for failing to be
“good,” but other, subtler forms of punishment often ensue. In extreme
cases, there may be an arrest for failing to obey a police order. This
recently happened when a hospital nurse refused a detective’s order to
draw blood from a patient since the detective lacked a warrant; the
detective forcibly arrested the nurse for her refusal.149 More often, the
punishment takes the form of a raised voice, or incredulity and exasper-
ation, or a further delay, or disrespect, or a public dressing down.150
Before turning to race in Part III, allow me to give one example of
how we have internalized discipline: our response to the judicially
created consent exception to the Fourth Amendment. Scholars have
been almost unanimous in noting that the consent exception disregards
evidence that psychological pressures often induce individuals to
consent.151 Scholars also point out that police are trained in how to
induce drivers to give consent. For example, one well-known training
manual, Tactics of Criminal Patrol, advises officers how to “position” the
driver “emotionally to grant you [their] permission.”152 The manual even
suggests how requests for consent should be phrased, suggesting
phrasing that “employs psychology in your favor. The implication is that
the subject will look guilty if he does mind. . . . It’s psychologically harder
to decline.”153 But what scholars miss in focusing on psychological
pressures is this: While such pressures play a role in why so many people
consent, that role likely pales compared to the role state discipline has
played. We have been told, indirectly and directly, again and again, that
assisting the police is what we are supposed to do. Good, responsible
citizens, after all, have nothing to hide and want to aid law enforcement.
We have internalized the Court’s citizenship talk such that even when we
do not want to—we have someplace to be, we are already late, we want to
maintain our privacy, we think we have rights—we surrender. We consent.
149. See Derek Hawkins, ‘This is Crazy,’ Sobs Utah Hospital Nurse as Cop Roughs Her Up,
Arrests Her for Doing Her Job, Wash. Post (Sept. 2, 2017), http://www.washingtonpost.com/
news/morning-mix/wp/2017/09/01/this-is-crazy-sobs-utah-hospital-nurse-as-cop-roughs-her-
up-arrests-her-for-doing-her-job/?utm_term=.752a28fffe15 (on file with the Columbia Law
Review).
150. Capers, Policing, Race, and Place, supra note 102, at 68–69; Capers, Rethinking
the Fourth Amendment, supra note 16, at 24–25.
151. See, e.g., Alafair S. Burke, Consent Searches and Fourth Amendment Reasonableness,
67 Fla. L. Rev. 509, 511–16 (2015); Brian R. Gallini, Schneckloth v. Bustamonte : History’s
Unspoken Fourth Amendment, 79 Tenn. L. Rev. 233, 278 (2012); Nadler, supra note 61,
at 211.
152. Charles Remsberg, Tactics for Criminal Patrol: Vehicle Stops, Drug Discovery and
Officer Survival 217–31 (1995).
153. Id. at 216.
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 27
We cede what rights we have. We become compliant, good citizens. And
when we do resist, we are met by incredulity and suspicion, badgered for
being noncompliant, and marked as not good.
III. RACING CITIZENSHIP
“And you are not the guy and still you fit the description because there is
only one guy who is always the guy fitting the description.”
Claudia Rankine, Citizen154
“Your country? How came it yours?”
W.E.B. Du Bois155
It is impossible for me to think of the Court’s citizenship talk in
criminal procedure cases without also thinking about race. After all, I am
a black man living in a country where “race matters,”156 though as Ta-
Nehisi Coates reminds us, “[R]ace is the child of racism, not the
father.”157 I carry myself knowing that I will be watched by the police,
scrutinized by the police, and, at any point, potentially stopped by the
police.158 As much as I might hope that my status as an academic might
insulate me from racialized policing, my own experience and the expe-
rience of numerous black professors suggest otherwise.159 So for me,
when I think about the Court’s citizenship talk, the sticky tar-baby of
race160 is inevitable.161 Add to this the fact that just as there seems to be
154. Claudia Rankine, Citizen: An American Lyric 105 (2014).
155. W.E.B. DuBois, Souls of Black Folk 392 (1903).
156. See generally Cornel West, Race Matters (2001).
157. Ta-Nehisi Coates, Between the World and Me 7 (2015).
158. See infra notes 228–230 and accompanying text.
159. As I have detailed elsewhere, a number of law-abiding minority professors—
Cornel West, William Julius Wilson, Paul Butler, and Devon Carbado, to name just a few—
have been subjected to police stops. Capers, Rethinking the Fourth Amendment, supra
note 16, at 18.
160. See generally Leslie Espinoza & Angela P. Harris, Afterword: Embracing the Tar-
Baby—LatCrit Theory and the Sticky Mess of Race, 85 Calif. L. Rev. 1585 (1997)
(illustrating the proposition that race in the United States is a “Tar-Baby,” in that scholars
get stuck “in the messiness of their own critique”).
161. To be sure, notions of citizenship are connected to other identities as well,
particularly class. The poor have always been cast as undeserving and bad citizens. See
generally William E. Forbath, Caste, Class, and Equal Citizenship, 98 Mich. L. Rev. 1
(1999) (explaining the links between the social citizenship tradition and the court-
centered ideal of the Constitution as a safeguard of discrete and insular minorities). For
the purposes of this Essay, I focus on race. I am reminded of Paul Butler’s recent
discussion of race and class. Butler writes:
I want to note that it is impossible to disaggregate the effects of race and
class. The answer to the questions, “Are poor defendants treated unfairly
because many of them are black, are black defendants treated unfairly
28 COLUMBIA LAW REVIEW [Vol. 118:1
no exit from race, there seems to be no exit from history. The simple fact
is that race and citizenship in this country have always been intertwined,
from the first marking of blacks with the badge of slavery, to the ratifi-
cation of the Fourteenth Amendment extending legal citizenship to
blacks, to continued angst over who is a “real” American. Understanding
race and citizenship is thus a necessary predicate to understanding race
and policing. Understanding race and policing, in turn, becomes clearer
against the backdrop of the Court’s criminal procedure cases, which,
even when race is unsaid, are on a certain level race cases. It is with these
three points in mind—each of which I explore more fully below—that
the question must be asked: What citizenship is expected of those who,
by virtue of skin color, are often viewed as second class and as “always
already suspect”?162
A. Race and Citizenship
Race and citizenship in this country have always been intercon-
nected. Concerns about the former have always pervaded discussions of
the latter. This goes beyond the country’s original sin, slavery, and the
enshrinement of that sin in the Constitution through its Great Compro-
mise. Rather than address slavery directly, the Founders struck compro-
mises that they revealed only through circumlocution and evasion.163
This also goes beyond the fact that from the beginning, the “most radical
claims for freedom and political equality were played out in counterpoint
to chattel slavery, the most extreme form of servitude,” and that the
“equality of political rights, which is the first mark of American
citizenship, was proclaimed in the accepted presence of its absolute
denial.”164 This inability to see blacks as citizens was reflected in Chief
because many of them are poor, or is there some other dynamic at work?”
is “yes.”
Paul D. Butler, Poor People Lose: Gideon and the Critique of Rights, 122 Yale L.J. 2176,
2180 (2013).
162. Frank Rudy Cooper, Always Already Suspect: Revising Vulnerability Theory, 93
N.C. L. Rev. 1339, 1363 (2015); see also Frank Rudy Cooper, We Are Always Already
Imprisoned: Hyper-Incarceration and Black Male Identity Performance, 93 B.U. L. Rev.
1185, 1203 (2013). Professor Cooper in turn borrows this concept from the Marxist
philosopher Louis Althusser. For a discussion of what it means to be “always-already”
constituted, see generally Louis Althusser, Ideology and Ideological State Apparatuses, in
Lenin and Philosophy 127, 175–76 (1971) (“Ideology has always-already interpellated
individuals as subjects . . . . Hence individuals are ‘abstract’ with respect to the subjects
which they always already are.”).
163. See U.S. Const. art. I, § 2, cl. 3, amended by U.S. Const. amend. XIV, § 2
(apportioning representatives to the states based on “the whole Number of free Persons”
and “three fifths of all other Persons”); U.S. Const. art. I, § 9, cl. 1 (setting out the states’
ability to import “such Persons as any of the States now existing shall think proper to
admit”); U.S. Const. art. IV, § 2, cl. 3 (obligating all states to return fugitives if they were
“Person[s] held to Service or Labour in one State” who escaped); U.S. Const. art. V
(protecting until 1808 the “first . . . Clause[] in the Ninth Section of the First Article”).
164. Judith N. Shklar, American Citizenship: The Quest for Inclusion 387 (1991).
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 29
Justice Taney’s decision in Dred Scott v. Sandford, which should have
involved the question of whether Scott’s residence in a free state was
enough to make him free.165 Instead, the Court held that Dred Scott was
not a “citizen,” but a being “of an inferior order . . . unfit to associate
with the white race,” and as such could not even invoke diversity
jurisdiction to have the issue addressed.166 For American courts, blacks,
whether free or not, might be citizen subjects, but they were not real
citizens to be admitted into “political partnership.”167 Or as Professors
Jack Balkin and Sandy Levinson put it, Dred Scott made clear that “the
members of one race ‘owned’ the United States; it was ‘their’ community
and ‘their’ country, and all other races were permitted to remain only on
its terms.”168
Even after the Great Emancipation and ratification of the Fourteenth
Amendment, which nominally granted citizenship rights to former slaves
and their descendants,169 the contours of that citizenship remained con-
tested. As Professor Khalil Gibran Muhammad observes:
In a moment equivalent to a historical blink of the eye, four
million people were transformed from property to human
beings to would-be citizens of the nation.
. . . .
[Against this backdrop,] [t]he post-emancipation period
demanded a fresh and immediate inquiry into the new reality of
black freedom in America. What grade of humankind were these
Africans in America? What quality of citizenship did they truly
deserve? What manner of coexistence should be tolerated?170
In short, for many white Americans, the “slavery Problem [was now]
the Negro problem.” 171 Integral to that problem were notions of
citizenship, so much so that one can glean this problem from the titles of
books during the period, from Following the Color Line: American Negro
165. 60 U.S. 393 (1856).
166. Id. at 407.
167. See James H. Kettner, The Development of American Citizenship, 1608–1870, at
316–17 (1978) (discussing the Pennsylvania Supreme Court, which in 1853 held “‘the
black population’ . . . had [not] yet been admitted ‘into political partnership’ . . . [and]
could not yet aspire to ‘the exercise of the elective franchise, or to the right to become our
legislators, judges, and governors’” (quoting Foremans v. Tamm, 1 Grant 23, 23 (Pa.
1853))).
168. Jack M. Balkin & Sanford Levinson, Thirteen Ways of Looking at Dred Scott, 82
Chi. Kent L. Rev. 49, 54 (2007).
169. The Fourteenth Amendment accomplished this by extending citizenship to all
“persons born or naturalized in the United States.” U.S. Const. amend. XIV, § 1, cl. 1.
170. Khalil Gibran Muhammad, The Condemnation of Blackness: Race, Crime, and
the Making of Modern Urban America 16, 19 (2010).
171. Id. at 20. See generally N. S. Shaler, The Negro Problem, Atlantic (Nov. 1884),
http://www.theatlantic.com/magazine/archive/1884/11/the-negro-problem/531366/
[http://perma.cc/6KV3-T9X3] (detailing the societal tensions that resulted from the
“experiment of making a citizen of the negro”).
30 COLUMBIA LAW REVIEW [Vol. 118:1
Citizenship in the Progressive Era172 to The Colored American: From Slavery to
Honorable Citizenship173 to, somewhat later, An American Dilemma: The
Negro Problem and Modern Democracy.174 One can also glean this concern
about citizenship from thinkers like President Woodrow Wilson, who
insisted that any attempt to extend voting rights to blacks was an
imposition on Southern whites, the region’s “real citizens.”175
For its part, the Supreme Court played a constitutive role in erecting
roadblocks to the exercise of full citizenship rights by black Americans.
This was true in cases like the Civil Rights Cases, in which the Court held
that the Civil Rights Act of 1875, enacted to bar racial discrimination in
public accommodations, exceeded Congress’s authority under the
Reconstruction Amendments176 and Plessy v. Ferguson, in which the
Supreme Court blessed racial segregation in public accommodations and
enshrined the doctrine of “separate but equal.”177 It was also true in
United States v. Reese, which invalidated federal voting protections
designed to extend voting rights to newly freed African Americans;178
Williams v. Mississippi, which upheld Mississippi’s voting laws that
operated to deprive blacks of the right to vote;179 and Giles v. Harris,
which again upheld racially discriminatory voter registration laws.180 And
it was true in cases like Berea College v. Kentucky, which upheld a law
barring integrated schools in Kentucky,181 and Franklin v. South Carolina,
which upheld the right of states to, in effect, exclude black jurors.182
These cases stood for the implicit proposition that although blacks were
technically “citizens,” albeit “hyphenated Americans,”183 that alone meant
172. Ray Stannard Baker, Following the Color Line: American Negro Citizenship in
the Progressive Era (1907).
173. J.W. Gibson & W.H. Crogman, The Colored American: From Slavery to
Honorable Citizenship (1903).
174. Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern
Democracy (1944).
175. Woodrow Wilson, Reconstruction of the Southern States, Atlantic (Jan. 1901), http://
www.theatlantic.com/magazine/archive/1901/01/the-reconstruction-of-the-southern-
states/520035/ [http://perma.cc/DT2U-JY7T].
176. 109 U.S. 3, 3 (1883).
177. 163 U.S. 537, 537–38 (1896); id. at 552 (Harlan, J., dissenting).
178. 92 U.S. 214, 214–15 (1875).
179. 170 U.S. 213, 213 (1898).
180. 189 U.S. 475, 475 (1903).
181. 211 U.S. 45, 45–46 (1908).
182. 218 U.S. 161, 161–62 (1910) (finding no violation of the Equal Protection Clause
when a state jury commissioner used a “good moral character” test as a proxy to exclude
black jurors).
183. Lolita K. Buckner Inniss, Tricky Magic: Blacks as Immigrants and the Paradox of
Foreignness, 49 DePaul L. Rev. 85, 85–88 (1999) (discussing “the image of blacks as
foreigners and the phenomenon of blacks as hyphenated Americans” as a result of being
“a de facto permanent immigrant class”).
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 31
little—or even sometimes nothing at all. 184 Perhaps unsurprisingly,
historian Carter G. Woodson remarked in 1921, “[C]itizenship of the
Negro in this country is a fiction.”185
The link between race and citizenship in legal status can also be seen
in another set of laws and cases. Beginning with the Naturalization Act of
1790, naturalized citizenship was limited to “free white person[s].”186
According to historian George Frederickson, the target of this restriction
was likely free blacks, since at the time there was little prospect of Asian
immigration and Native Americans were ineligible.187 The original re-
striction, however, proved useful once Asians began to immigrate in
substantial numbers as part of the California gold rush. Indeed, race-
based exclusions for naturalized citizenship continued until 1952.188 As
Professor Ian Haney-López has documented, over one-million whites
gained citizenship through these naturalization laws.189 At the same time,
other immigrants—from Hawaii, China, Japan, Burma, and the
Philippines—were deemed nonwhite and rejected.190
Finally, even immigrant groups that were considered “white” and
therefore gained the legal status of naturalized citizens nevertheless
often found themselves racially excluded from social citizenship.191 They
were white, but not white enough. This was especially true during the
early-twentieth century, when many Anglo-Saxons embraced what
political scientist Rogers M. Smith terms “ascriptive Americanism”: the
184. As historian Carter G. Woodson noted, in the immediate years following
emancipation, blacks enjoyed rights guaranteed by the Constitution. The Reconstruction
period, however, was followed by “the undoing of the Negro as a citizen.” Carter G.
Woodson, Fifty Years of Negro Citizenship as Qualified by the United States Supreme
Court, 6 J. Negro Hist. 1, 6 (1921). In short, blacks were reduced “to the position of the
free people of color, who before the Civil War had no rights but that of exemption from
involuntary servitude.” Id.
185. Id. at 1.
186. Naturalization Act of 1790, ch. 3, 1 Stat. 103 (repealed 1795).
187. See George M. Frederickson, The Historical Construction of Race and Citizenship
in the United States 1 (2003), http://www.unrisd.org/80256B3C005BCCF9/(httpAuxPages)/
8A0AE7EACD11F278C1256DD6004860EA/$file/Fredrick.pdf [http://perma.cc/YMG6-XAX9].
188. See Ian F. Haney López, White by Law: The Legal Construction of Race 1, 183
n.2 (2006) (citing the Immigration and Nationality Act of 1952, Pub. L. No. 82-414, § 311,
66 Stat. 163, 239 (codified as amended at 8 U.S.C. § 1422 (1988))).
189. Id. at 1 (noting “countless people found themselves arguing their racial identity
in order to naturalize” under Congress’s “‘white person’ prerequisite”).
190. Id. Such exclusions were rarely contested, though a couple did make it to the
Supreme Court. See Ozawa v. United States, 260 U.S. 178, 197 (1922) (rejecting Japanese-
born Takao Ozawa’s petition for citizenship notwithstanding his “white” skin, because
“white” under the Nationalization Act meant “a person of what is popularly known as the
Caucasian race,” not merely someone with seemingly white skin); see also United States v.
Thind, 261 U.S. 204, 210, 213 (1923) (reaching the same conclusion as to the petition for
citizenship by a “high caste Hindu”).
191. The same was sometimes true of native born poor whites, as Nancy Isenberg
recently documented. See generally Nancy Isenberg, White Trash: The 400-Year Untold
History of Class in America 105–32, 207 (2016).
32 COLUMBIA LAW REVIEW [Vol. 118:1
belief that what qualified one for “true” citizenship was a bloodline that
could be traced to Northern Europe.192 Southern and Eastern European
immigrants—including Italians, Greeks, and Slavs—were deemed not
quite ready for full citizenship on par with “old stock” white Americans.193
Indeed, the fear that these new immigrants were having large families,
while the birthrate was declining among Anglo-Saxons, prompted
President Theodore Roosevelt, in one of his famous letters on race, to
warn of “race suicide.”194 Roosevelt urged Anglo-Saxons to counteract
the immigrant birthrate by producing big families of their own with
children who would have “strong racial qualities” and who too would be-
come good citizens.195
All of this adds context to W.E.B. Du Bois’s observation:
[The] widening of the idea of common Humanity is of slow
growth and to-day but dimly realized. We grant full citizenship
in the World-Commonwealth to the “Anglo-Saxon” (whatever
that may mean), the Teuton and the Latin; then with just a
shade of reluctance we extend it to the Celt and Slav. We half
deny it to the yellow races of Asia, admit the brown Indians to
an ante-room only on the strength of an undeniable past; but
with the Negroes of Africa we come to a full stop, and in its
heart the civilized world with one accord denies that these come
within the pale of nineteenth century Humanity.196
This context also points to the incontrovertible fact that it is those
who are most phenotypically different who experience contested
citizenship. Consider the increasingly vociferous calls to “build a wall”
between America and Mexico.197 Pat Buchanan’s recent book State of
Emergency: The Third World Invasion and Conquest of America makes the
192. See Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S.
History 507–08 n.5 (1997).
193. See Frederickson, supra note 187, at 4–5 (discussing the “racialization of
immigrants from Southern and Eastern Europe” based on the latter of “two distinct
systems of hierarchical racial classification”—one that focused on skin color, and one that
focused on “the cultural characteristics of certain European nationalities”).
194. Letter from Theodore Roosevelt to Bessie Van Vorst (Oct. 18, 1902), in Mrs. John
Van Vorst & Marie Van Vorst, The Woman Who Toils Being the Experiences of Two
Gentlewomen as Factory Girls, at vii–ix (1903) [hereinafter Letter from Roosevelt to Van
Vorst]; see also Theodore Roosevelt, A Letter from President Roosevelt on Race Suicide,
35 Am. Monthly Rev. Revs. 550 (1907) (asserting that “[t]he greatest problem of
civilization is to be found in the fact that the well-to-do families tend to die out,” and
worrying about the low birth rates of “the average native American family of native
American descent”).
195. Letter from Roosevelt to Van Vorst, supra note 194, at vii–viii.
196. W.E. Burghardt Du Bois, The Philadelphia Negro: A Social Study 386–87
(Boston, Ginn & Co. 1899).
197. See, e.g., Julie Hirschfield Davis, David E. Sanger & Maggie Haberman, Trump to
Order Mexican Border Wall and Curtail Immigration, N.Y. Times (Jan. 24, 2017),
http://www.nytimes.com/2017/01/24/us/politics/wall-border-trump.html (on file with
the Columbia Law Review) (noting the “raucous [Trump] campaign rallies [that] frequently
featured chants of ‘build the wall’”).
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 33
claim explicit: “America faces an existential crisis. If we do not get
control of our borders, by 2050 Americans of European descent will be a
minority in the nation their ancestors created and built. No nation has
ever undergone so radical a demographic transformation and survived.”198
As Professor Peter Halewood has argued, even today, “the citizen is
implicitly white.”199 Asian Americans are still often perceived to be
“foreign.”200 The same is true of those who appear Muslim or South
Asian and who, in the aftermath of 9/11, often had to display American
flags outside their homes and stick American flag bumper stickers on
their cars to demonstrate their citizenship.201 It is often true of Latinos,
so much so that the Court permits border officers to consider “apparent
Mexican ancestry” to determine who to stop.202 And to a certain extent, it
is true, though we rarely acknowledge this fact, of blacks. It is their
contingent citizenship, after all, that explains why black victims of
Hurricane Katrina were often described in the media as “refugees,” a
198. Patrick J. Buchanan, State of Emergency: The Third World Invasion and Conquest
of America 11–12 (2006).
199. See Peter Halewood, Citizenship as Accumulated Capital, 1 Colum. J. Race & L.
313, 322 (2012) (contesting the claim that the United States has become a postracial
society and instead highlighting underlying themes of racism and xenophobia in U.S. law
and culture).
200. See Ronald Takaki, Race at the End of History, in The Good Citizen, supra note
18, at 81–82 (explaining that Asian Americans are widely viewed as foreigners and not
American); see also Ronald Takaki, Strangers from a Different Shore 6–7 (1989)
(explaining that Asian Americans are often excluded from American history); Frank H.
Wu, Yellow: Race in America Beyond Black and White 80–81 (2002) (explaining that Asian
Americans often encounter a presumption of not being American); Leti Volpp, The
Excesses of Culture: On Asian American Citizenship and Identity, 17 Asian Am. L.J. 63,
63–64 (2010) (explaining that the perception that Asian Americans are especially attached
to their culture renders Asian Americans “foreign”); Arvin Lugay, Book Note, “In Defense
of Internment”: Why Some Americans Are More “Equal” than Others, 12 Asian L.J. 209,
209–12 (2005) (reviewing Michelle Malkin, In Defense of Internment (2004)).
201. I. Bennett Capers, Flags, 48 How. L.J. 121, 149 (2004) (noting how Muslim
Americans “cloak[ed] themselves in the American flag to ward against everything from job
discrimination, to racial profiling, to harassment, to violence” (footnotes omitted)).
202. See United States v. Martinez-Fuerte, 428 U.S. 543, 563 (1976) (allowing race as a
permissible factor in conducting border stops); United States v. Brignoni-Ponce, 422 U.S.
873, 885–87 (1975) (rejecting the notion that race can by itself justify a border stop but
affirming that race is a relevant factor); see also Kevin R. Johnson, How Racial Profiling in
America Became the Law of the Land: United States v. Brignoni-Ponce and Whren v. United
States and the Need for Truly Rebellious Lawyering, 98 Geo. L.J. 1005, 1007–09 (2010)
(explaining that the Supreme Court has allowed racial profiling in federal immigration
enforcement under Brignoni-Ponce and Whren); Sheri Lynn Johnson, Race and the
Decision to Detain a Suspect, 93 Yale L.J. 214, 230–33 (1983) (discussing the use of race at
border stops). It is similarly telling that many Americans do not consider Puerto Ricans to
be American citizens. See Nick Visser, Most Americans Don’t Know Puerto Ricans Are
American, Huffington Post (Nov. 22, 2016), http://www.huffingtonpost.com/entry/
americans-puerto-rico_us_573d4900e4b0aee7b8e90e32 [http://perma.cc/G2L7-UHQC]
(discussing a survey of 2,000 U.S. citizens, which found that “just 43 percent of Americans
knew the citizenship status of Puerto Ricans”).
34 COLUMBIA LAW REVIEW [Vol. 118:1
term normally associated with noncitizens.203 It also explains why so many
Americans had no trouble questioning President Obama’s “citizenship,”
with its race-based undercurrents.204
B. Race and Policing
Understanding how citizenship has been racialized seems indis-
pensable to getting to the “answer” of what citizenship is expected of
those of us who are black and brown. And getting to this answer is
impossible without thinking about Eric Garner, the six-foot-tall “gentle
giant” who died after being placed in a prohibited chokehold by Officer
Daniel Pantaleo in Staten Island, New York, on July 17, 2014.205 Garner’s
“crime”: thinking it was “criminal” that police should be able to arrest
him again for simply selling loose cigarettes on the street, and resisting
their attempts to do so.206 Another unarmed black man, this one just a
teenager, Michael Brown, is also part of the answer. Darren Wilson, a
white police officer, shot and killed Brown in Ferguson, Missouri, on
August 9, 2014.207 Brown’s crime: stealing cigarillos from a liquor store
and running.208 The answer involves Dajerria Becton, the fifteen-year-old
black teenage girl who was body slammed to the ground by a Texas
police officer at a graduation pool party.209 Becton’s crime: crashing the
pool party with other teenagers.210 And it also involves Shakara, the
sixteen-year-old foster student who was flipped out of her desk and
203. For a discussion of the use of the term “refugees” for those displaced by
Hurricane Katrina and what it implied about the full citizenship of those individuals, see
Gordon & Lenhardt, supra note 5, at 2495–97; see also Jocelyn Noveck, Use of the Word
‘Refugee’ Stirs Newsroom Debate, Editor & Publisher (Sept. 6, 2005), http://
www.editorandpublisher.com/news/use-of-the-word-refugee-stirs-newsroom-debate/ [http://
perma.cc/TLR7-MQEN]; Robert E. Pierre & Paul Farhi, ‘Refugee’: A Word of Trouble,
Wash. Post (Sept. 7, 2005), http://www.washingtonpost.com/wp-dyn/content/article/
2005/09/06/AR2005090601896_pf.html (on file with the Columbia Law Review).
204. See Janie Velencia, Republicans Still Don’t Think Obama Is American, But Don’t
Care Ted Cruz Was Born in Canada, Huffington Post (Jan. 12, 2016), http://
www.huffingtonpost.com/entry/republicans-trump-cruz-canadian-birth-eligibility_us_
56940e76e4b0c8beacf7fe2d [http://perma.cc/85MN-9UUR].
205. Al Baker, J. David Goodman & Benjamin Mueller, Beyond the Chokehold: The
Path to Eric Garner’s Death, N.Y. Times (June 13, 2015), http://www.nytimes.com/
2015/06/14/nyregion/eric-garner-police-chokehold-staten-island.html (on file with the
Columbia Law Review).
206. Id.
207. See Jake Halpern, The Cop, New Yorker (Aug. 10 & 17, 2015), http://
www.newyorker.com/magazine/2015/08/10/the-cop (on file with the Columbia Law
Review).
208. Id.
209. Carol Cole-Frowe & Richard Fausset, Jarring Image of Police’s Use of Force at
Texas Pool Party, N.Y. Times (June 8, 2015), http://www.nytimes.com/2015/06/09/
us/mckinney-tex-pool-party-dispute-leads-to-police-officer-suspension.html (on file with
the Columbia Law Review).
210. Id.
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 35
dragged across a room by Senior Deputy Ben Fields, a school resource
officer.211 Her crime: not putting away her cell phone in class quickly
enough.212 I also cannot imagine reaching the right answer without
thinking of Tamir Rice, the twelve-year-old black boy who was shot by a
Cleveland police officer.213 His crime: playing with a toy BB gun in the
park.214 There is Sandra Bland, who committed suicide after being taken
into custody following a traffic dispute.215 Her crime: talking back to the
traffic officer and not exiting her vehicle fast enough.216 And Freddie
Gray, who suffered a spine injury and lapsed into a coma when officers,
figuring they’d teach him a lesson, failed to strap him down as they
transported him to a precinct.217 His crime: fleeing when he saw the
police.218 And Philando Castile, who was shot in his car as he reached
into his pocket for his license.219 His crime: notifying the police officer he
was in possession of a licensed firearm.220 What kind of citizenship was
expected of them?
These are just some of the names from the past few years. Some of
the names we know. The ones many of us scratch our heads at as we
wonder how this happened. The ones that result in scathing reports from
the Department of Justice221 or studies on how housing discrimination
211. Alan Blinder, Ben Fields, South Carolina Deputy, Fired over Student Arrest, N.Y.
Times (Oct. 28, 2015), http://www.nytimes.com/2015/10/29/us/south-carolina-deputy-
ben-fields-fired.html?_r=0 (on file with the Columbia Law Review); Robert Parmer, The
Spring Valley High School Incident: How Cell Phones Helped Uncover Police Brutality,
Thought Catalog (Nov. 10, 2015), http://thoughtcatalog.com/robert-parmer/2015/11/
the-spring-valley-high-school-incident-how-cell-phones-helped-uncover-police-brutality/
[http://perma.cc/N3FV-RNVY].
212. Blinder, supra note 211.
213. See Sean Flynn, The Tamir Rice Story: How to Make a Police Shooting Disappear,
GQ (July 14, 2016), http://www.gq.com/story/tamir-rice-story [http://perma.cc/286U-
GAXB].
214. Id.
215. James Queally, What Happened to Sandra Bland Before She Died in a Texas Jail?,
L.A. Times (July 28, 2015), http://www.latimes.com/nation/nationnow/la-na-nn-sandra-
bland-20150728-htmlstory.html (on file with the Columbia Law Review).
216. Id.
217. Lindsey Bever & Abby Ohlheiser, Baltimore Police: Freddie Gray Died from a
‘Tragic Injury to His Spinal Cord,’ Wash. Post (Apr. 20, 2015), http://www.washingtonpost.com/
news/morning-mix/wp/2015/04/20/baltimore-police-freddie-gray-arrested-without-force-
or-incident-before-fatal-injury/ (on file with the Columbia Law Review).
218. Id.
219. Mitch Smith, Minnesota Officer Acquitted in Killing of Philando Castile, N.Y.
Times (June 26, 2017), http://www.nytimes.com/2017/06/16/us/police-shooting-trial-
philando-castile.html (on file with the Columbia Law Review).
220. Id.
221. See, e.g., Civil Rights Div., U.S. Dep’t of Justice, Investigation of the Baltimore
Police Department 21 (2016) (finding that the Baltimore Police Department engaged in a
practice of unlawful conduct); Civil Rights Div., U.S. Dep’t of Justice, Investigation of the
Ferguson Police Department 1 (2015) (finding a pattern and practice of unlawful conduct
by the Ferguson Police Department).
36 COLUMBIA LAW REVIEW [Vol. 118:1
made Ferguson, Missouri, a hot point for unrest.222 The ones that prompt
debate about whether police officers belong in schools, and then talk
about the school-to-prison pipeline, and then talk about why in a city like
New York a black student has about a one-in-two chance of being in a
school with metal detectors while a white student has only about a one-in-
seven chance.223 The ones that renew debates about whether broken
windows policing contributed to the death of Eric Garner while pro-
testers march and hold signs saying, “I Can’t Breathe” or “Don’t Shoot.”
What may be less obvious is that these names are part of a larger
citizenship problem. They are eruptions here and there, but they also
prompt the larger question: Why are some treated like second-class
citizens? There is a reason why Claudia Rankine’s heralded book of
poetry, which includes poems called “In Memory of Trayvon Martin” and
“Stop-and-Frisk,” is titled Citizen.224 Consider, as an exhibit, data from
New York’s aggressive stop-and-frisk policing. In New York City alone,
police executed over 4.4 million forcible stops between January 2004 and
June 2012, with eighty-four percent of those stopped individuals being
black or brown.225 In raw numbers, this means that black or brown
people were stopped approximately 3.7 million times.226 Although these
stops were allegedly based on reasonable suspicion of crime, in fact
around nineteen of twenty of these individuals were found not to be
engaged in criminal behavior warranting arrest, resulting in an error rate
of approximately ninety-four percent.227 And even this understates the
222. See Editorial, The Death of Michael Brown: Racial History Behind the Ferguson
Protests, N.Y. Times (Aug. 12, 2014), http://www.nytimes.com/2014/08/13/opinion/
racial-history-behind-the-ferguson-protests.html (on file with the Columbia Law Review)
(describing Professor Colin Gordon’s study on the housing discrimination that preceded
Ferguson).
223. Kat Aaron et al., More than 90,000 New York City Students Are Searched Before
School, WNYC (Sept. 15, 2015), http://www.wnyc.org/story/school-metal-detectors/
[http://perma.cc/X8RL-6KRY] (“Citywide, almost half of black high school students are
scanned every day –– compared to about 14 percent of white students.”).
224. Rankine, supra note 154.
225. Floyd v. City of New York, 959 F. Supp. 2d 554, 558–59 (S.D.N.Y. 2013).
226. Id.
227. Id. at 558. This error rate is staggering on its own, but it is even worse when one
remembers that the Fourth Amendment offers no help in these situations. An innocent
person gets no benefit from the exclusionary rule, and the injury from a single unjustified
stop-and-frisk is far too small to warrant a civil rights suit. The primary beneficiaries of the
exclusionary rule are, by definition, those individuals who have something to exclude. By
contrast, the citizen who is wrongfully stopped or searched is essentially left without
recourse. Perhaps this is simply a collateral cost of good citizenship, at least what the Court
delineates as good citizenship. Implicit in the Court’s criminal procedure jurisprudence is
that the good citizen willingly accepts the error rate that comes with legally justified stops.
The Court tells the good citizen that such error is acceptable and necessary. Because
acceptance of such risk is in service of the state, the good citizen does not seek a remedy
nor is one really available.
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 37
true error rate, since of the individuals who were arrested, nearly half of
their arrests were eventually dismissed.228
Now carry this over to other cities: Atlanta, Washington, Baltimore,
Detroit, and Los Angeles. What citizenship is expected of racial
minorities there?229 And it is not just large cities. One only has to say
Ferguson to be reminded of that. Nor is it just areas where there are
significant minority populations. Consider Oneonta, New York, a town of
approximately 10,000. After a white woman claimed a black man broke
into her home, the police conducted a round-up of nearly 200 of the
town’s 300 black residents, including at least one black woman.230 This
was just a couple of decades ago. In fact, it is often in places that have the
smallest percentage of African Americans—such as South Dakota, Vermont,
and Wisconsin—that the largest disparities in incarceration rates exist.231
Earlier, I mentioned the known error rate in stop-and-frisk policing
in New York. We see similar error rates in another policing tool:
pretextual traffic stops, or what blacks have long come to know as Driving
While Black.232 Interestingly, studies show little disparity in unambiguous
traffic safety stops such as running a stop sign.233 Rather, the disparity is
228. Eric T. Schneiderman, N.Y. State Office of the Attorney Gen., A Report on
Arrests Arising from the New York City Police Department’s Stop-and-Frisk Practices 3, 10
fig.7 (2013), http://www.ag.ny.gov/pdfs/OAG_REPORT_ON_SQF_PRACTICES_NOV_2013.pdf
[http://perma.cc/X2ES-K9HY] (analyzing the efficacy of stop-and-frisk by looking at the
dispositions of the arrests made under the program).
229. Throughout this Essay, I struggled with when to say “them” and when to say “us,”
especially when referring to people of color. By settling on “them,” the last thing I mean
to suggest is a “politics of distinction,” such as that embraced by Randall Kennedy. See
Randall Kennedy, The State, Criminal Law, and Racial Discrimination: A Comment, 107
Harv. L. Rev. 1255, 1260 n.20 (1994) (describing his decision to use a politics of distinction,
which distinguishes between different parts of the African American community). Far
from it. Like Regina Austin, I recognize the importance of a politics of identification. See
Regina Austin, “The Black Community,” Its Lawbreakers, and a Politics of Identification,
65 S. Cal. L. Rev. 1769, 1779 (1992) (invoking a feeling of kinship between all members of
the black community based on the understanding that the current American legal
framework was set up in an oppressive fashion).
230. Brown v. City of Oneonta, 221 F.3d 329, 334, 338 (2d Cir. 2000).
231. Marc Mauer & Ryan S. King, The Sentencing Project, Uneven Justice: State Rates
of Incarceration by Race and Ethnicity 6 tbl.2 (2007), http://www.sentencingproject.org/
wp-content/uploads/2016/01/Uneven-Justice-State-Rates-of-Incarceration-by-Race-and-
Ethnicity.pdf [http://perma.cc/C4BF-LZMJ].
232. For recent statistics, see Capers, Race, Policing, and Technology, supra note 144,
at 1255–57; David A. Harris, The Stories, the Statistics, and the Law: Why ‘Driving While
Black’ Matters, 84 Minn. L. Rev. 265, 275–88 (1999) (giving statistical analysis for excessive
traffic stops against black drivers in cities across the United States); Christopher Ingraham,
You Really Can Get Pulled over for Driving While Black, Federal Statistics Show, Wash.
Post (Sept. 9, 2014), http://www.washingtonpost.com/news/wonk/wp/2014/09/09/you-
really-can-get-pulled-over-for-driving-while-black-federal-statistics-show/ [http://perma.cc/
W6GB-MUZ5] (reporting that black drivers are around thirty-one percent more likely to
be pulled over than white drivers).
233. See Epp et al., supra note 117, at 72 (noting that “[w]hen police are engaged” in
pure traffic-safety enforcement, “they make stops without regard to the driver’s race”).
38 COLUMBIA LAW REVIEW [Vol. 118:1
in investigatory stops, those stops when police exercise discretion to con-
duct a traffic stop for a minor violation, such as changing lanes without
signaling, as a pretext to look for more criminal behavior. For these
investigatory stops, black drivers are nearly three times more likely than
white drivers to be stopped and over five times more likely to have their
cars searched.234 And yet studies show that the hit rate—the rate at which
officers discover contraband following a search—is not greater for
African Americans.235 Add to this that racial minorities are more likely to
be subjected to pointless indignities, such as being ordered out of a
vehicle, or told to keep their hands visible, or asked where they are
going.236 All of this suggests “error,” as a descriptive term, is incomplete.
Error implies that the stops are solely designed to apprehend criminals.
What I am suggesting is that the stops also exercise a type of control: to
show whose country this is, and whose it is not.
So again, the question must be asked: What citizenship is expected
of those who, by virtue of skin color, exist in what philosopher Judith
Butler terms a “racially saturated field of visibility”237 that frames blacks
as second class? How do racial minorities prove they are good citizens
when driving with the same care as their white counterparts still subjects
them to racialized policing?238 When they, and they alone, experience
the brunt of an officer’s court-sanctioned discretion to order a driver out
of a car,239 a passenger out of a car,240 or a family out of a car?241 When
234. Id. at 64, 105–06 (finding that blacks are 2.7 times more likely than whites to be
pulled over for investigatory stops and 5.19 times more likely to be subjected to vehicle
searches).
235. See David A. Harris, Profiles in Injustice: Why Racial Profiling Cannot Work 80
(2002) (collecting studies indicating the hit rate for African Americans is not greater than
that of white drivers).
236. See Epp et al., supra note 117, at 74–92 (describing racial disparities in the
nature and frequency of police stops of drivers); see also Andrew E. Taslitz, Stories of
Fourth Amendment Disrespect: From Elian to the Internment, 70 Fordham L. Rev. 2257,
2272–74 (2002) (discussing the “black perspective” in interactions with law enforcement);
Camelia Simoiu et al., The Problem of Infra-Marginality in Outcome Tests for
Discrimination 17 (July 18, 2016) (unpublished manuscript), http://papers.ssrn.com/
sol3/papers.cfm?abstract_id=2811449 (on file with the Columbia Law Review) (finding a
substantively lower standard for searching black and Hispanic drivers compared to white
drivers in a dataset of 4.5 million police stops).
237. Judith Butler, Endangered/Endangering: Schematic Racism and White Paranoia,
in Reading Rodney King/Reading Urban Uprisings 15, 15 (Robert Gooding-Williams ed.,
1993).
238. See Epp et al., supra note 117, at 64, 105–06; Capers, Race, Policing, and
Technology, supra note 144, at 1255–57; Jeffrey Fagan et al., Stops and Stares: Street Stops,
Surveillance, and Race in the New Policing, 43 Fordham Urb. L.J. 539, 611–14 (2016).
239. See Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (holding that police
officers may order drivers out of a vehicle after making traffic stops).
240. See Maryland v. Wilson, 519 U.S. 408, 410 (1997) (extending the Court’s holding
in Mimms to passengers).
241. In a well-known case, a Maryland state trooper stopped Harvard Law School
graduate Robert Wilkins—now a judge on the D.C. Circuit Court of Appeals—as he was
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 39
joining the middle class and the upper-middle class, and moving to a
predominantly white neighborhood, still subjects them to targeted po-
licing for being “out of place”?242 When they, and they alone, are
“uppity” if they talk back and ask why,243 ask for a warrant,244 and ask
under what authority? When they, simply by virtue of skin color, are
often already marked as a probable threat, a “symbolic assailant,”245 as a
“custodial citizen,”246 as an “anti-citizen”?247
Of course, racialized policing—again inextricable with how we
conceive our equal citizenship—is not an isolated phenomenon. As
discussed above, it is tied up with history. As Professor Carol Steiker has
persuasively argued, even our modern police force is traceable in part to
the “slave patrols,” which developed many of the trademarks—uniforms,
arms, military drilling—that we associate with police forces.248 Racialized
driving with his family and ordered them out of the vehicle, requiring them to stand in the
rain, while the officer arranged for a canine sniff. See Robert L. Wilkins, U.S. Court of
Appeals, D.C. Circuit, http://www.cadc.uscourts.gov/internet/home.nsf/Content/VL+-
+Judges+-+RLW [http://perma.cc/XN8K-T24A] (last visited Nov. 1, 2017); see also
Complaint at 7–8, Wilkins v. Md. State Police, No. MJG-93-468 (D. Md. filed Feb. 12,
1993). Failing to find contraband, the trooper eventually permitted Wilkins and his family
to leave. Id. at 8–9. Wilkins sued the Maryland State Police in federal court, and discovery
revealed a state police memo instructing troopers to target black males and black females.
See David A. Harris, “Driving While Black” and All Other Traffic Offenses: The Supreme
Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544, 551 n.44 (1997).
Shortly afterwards, the State settled with Wilkins. See Settlement Agreement, Wilkins, No.
MJG-93-468 (D. Md. Jan. 5, 1995). For more on this case, see generally Harris, supra, at
563–66.
242. Capers, Policing, Race, and Place, supra note 102, at 66.
243. Consider the trooper’s response to Sandra Bland, the African American driver
who asked why she needed to put out her cigarette since she was sitting in her car. See
Abby Ohlheiser & Abby Phillip, “I Will Light You Up!”: Texas Officer Threatened
Sandra Bland with Taser During Traffic Stop, Wash. Post (July 22, 2015), http://
www.washingtonpost.com/news/morning-mix/wp/2015/07/21/much-too-early-to-call-jail-cell-
hanging-death-of-sandra-bland-suicide-da-says/ [http://perma.cc/27TU-F2MW]. Trooper
Encina responded by immediately ordering Bland out of the car and eventually yelling,
“I’m going to yank you out of here. I’m going to drag you out of here.” Id. (internal
quotations marks omitted) (citing Police Center, Sandra Bland Dashcam Video Release,
YouTube (July 21, 2015), http://www.youtube.com/watch?v=jpSEemvwOn4). Pointing his
Taser at her he added, “I will light you up!” Id.
244. Mapp v. Ohio, 367 U.S. 643 (1961). The case that made the exclusionary rule
binding on the states began when Dollree Mapp, a black woman, demanded to see a
warrant when officers showed up to search her house. Id. at 644.
245. Jerome H. Skolnick, Justice Without Trial: Law Enforcement in Democratic
Society 44–47, 212–13 (1994).
246. Lerman & Weaver, supra note 15, at 7–8, 30 (using the term “custodial citizens”
to refer to individuals, mostly minority men, who are likely to come into contact with the
criminal justice system, whether as offenders or suspects).
247. D. Marvin Jones, Darkness Made Visible: Law, Metaphor, and the Racial Self, 82
Geo. L.J. 437, 493 (1993) (noting the “idea of the black man as anticitizen, as the
archetypical threat to law and order”).
248. Steiker, supra note 16, at 839; see also Sally E. Hadden, Slave Patrols: Law and
Violence in Virginia and the Carolinas 72–73 (2001) (noting that, in the eighteenth and
40 COLUMBIA LAW REVIEW [Vol. 118:1
policing is tied up too with choices the Court has made—both in its
holdings and in its citizenship talk—again and again. The connection
between the Court’s criminal procedure jurisprudence and the race-ing
of citizenship I take up in the section below.
C. Race and Criminal Procedure Cases
Thus far, I have attempted to demonstrate that the question of race
and citizenship in this country has always been fraught, that race has
determined who is allowed to become a citizen, and that race has
determined which rights a citizen is permitted to exercise. But what is
equally important is this: Citizenship has always been connected to crime.
This is not only in the sense that those who have been convicted of
felonies can be stripped of rights we normally associate with citizenship,
or as Michelle Alexander argued in The New Jim Crow, that we seem to
deliberately use crime as a way to relegate blacks to second-class status.249
Nor is it only in the sense Professor Muhammad has articulated:
Historically, we “wrote crime into race” and then used black criminality
as an argument against full citizenship.250 Rather, citizenship has also
been connected to crime in the Court’s criminal procedure opinions
that delineate what rights citizens are entitled to and what rights they are
expected to exercise.
This is because criminal procedure cases, even when race is unsaid,
are on a certain level about race. Indeed, as I and several other scholars
have observed, the story of how our criminal procedure protections
developed becomes completely intelligible only through the lens of
race.251 The right to counsel for indigent felony defendants,252 the right
nineteenth centuries, “slave patrols” were combined with legitimate law enforcement
duties); Andrew E. Taslitz, Reconstructing the Fourth Amendment: A History of Search
and Seizures, 1789–1868, at 109 (2006) (“For all practical purposes, patrols had nearly
unlimited authority to search, seize, and exercise violence.”); Kristian Williams, Our
Enemies in Blue: Police and Power in America 40–43 (2004) (describing the various state
slave-patrol systems).
249. See generally Michelle Alexander, The New Jim Crow: Mass Incarceration in the
Age of Colorblindness (2010) (discussing the way in which American law has been created
and enforced so as to confine and criminalize black people).
250. Muhammad, supra note 170, at 51–60.
251. See, e.g., Capers, Rethinking the Fourth Amendment, supra note 16, at 5–9; see
also Klarman, supra note 16, at 48–50 (contending “that the linkage between the birth of
modern criminal procedure and southern black defendants is no fortuity”); Tracey L.
Meares, What’s Wrong with Gideon, 70 U. Chi. L. Rev. 215, 230–31 (2003) (“[I]t is simply
impossible to understand the foundation of constitutional criminal procedure without
understanding that racial inequality played a key role in the Court’s decision to intervene
in the administration of southern justice.”); Steiker, supra note 16, at 841–44 (noting that
the Court “constru[ed] the Fourth Amendment’s prohibition of ‘unreasonable’ government
action in light of” persistent racism).
252. Gideon v. Wainwright, 372 U.S. 335, 344 (1963); Powell v. Alabama, 287 U.S. 45,
73 (1932).
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 41
to be free from coercion during interrogation,253 the right to Miranda
warnings,254 the right to trial by jury,255 and indeed, the entire process by
which the Fourth, Fifth, and Sixth Amendments were incorporated and
made applicable to the states,256 owe much to the Court’s concern between
the 1920s and 1960s about police treatment of minorities, especially in
the South.257 Even now, in part due to racialized policing, criminal
procedure cases remain race cases. Even in criminal procedure cases
involving white defendants, race is often in the background.
Mark Weiner has coined the term “black trials” to apply to seminal
civil rights cases like Dred Scott, Plessy, and Brown.258 Weiner writes:
[B]lack trials are legal events that figure symbolically and
dramatically in American culture by making public certain basic
ideological conflicts about race and civic life. They are legal
dramas of citizenship, civic rituals through which we have come
to know ourselves as a people.259
But Weiner’s coinage does not go far enough. Allow me to take
Weiner’s term a step further and say that seminal criminal procedure
cases—think Terry v. Ohio, another case in which race was both absent
and present260—also function as “black trials,”261 or even “master texts
that contribute to an ideology of race and racial hierarchy.”262 These
cases, for the most part involving black and brown defendants on one
side and the state on the other, are also “legal dramas of citizenship, civic
rituals through which we have come to know ourselves as people.”263
253. Brown v. Mississippi, 297 U.S. 278, 287 (1936).
254. Miranda v. Arizona, 384 U.S. 436, 467–72 (1966).
255. Duncan v. Louisiana, 391 U.S. 145, 160–62 (1968).
256. Dan M. Kahan & Tracey L. Meares, Foreword: The Coming Crisis of Criminal
Procedure, 86 Geo. L.J. 1153, 1155–59 (1998) (arguing that the extent to which the
“modern regime of criminal procedure” eliminates local discretion, though created to
protect minorities, now restricts helpful community-policing tactics).
257. Capers, Rethinking the Fourth Amendment, supra note 16, at 4–12.
258. Mark S. Weiner, Black Trials: Citizenship from the Beginnings of Slavery to the
End of Caste, at xi–xii (2004).
259. Id. at xi.
260. See Anthony C. Thompson, Stopping the Usual Suspects: Race and the Fourth
Amendment, 74 N.Y.U. L. Rev. 956, 962 (1999) (contending “Terry . . . contributed to the
Court’s conception of a raceless world of Fourth Amendment jurisprudence: a constructed
reality in which most police officers do not act on the basis of considerations of race”).
Even in Miranda v. Arizona, the Court downplayed race. See Seidman, supra note 55, at
751 n.254 (describing Chief Justice Warren’s omission from Miranda of a passage that
“expressly acknowledged the connection between police interrogation techniques and
racial subjugation” (citing Bernard Schwartz, Superchief: Earl Warren and His Supreme
Court—A Judicial Biography 591 (1983))).
261. Weiner, supra note 258, at xi–xii.
262. Capers, Reading Back, Reading Black, supra note 93, at 11.
263. Weiner, supra note 258, at xi (characterizing more explicitly racial civil rights
cases).
42 COLUMBIA LAW REVIEW [Vol. 118:1
Recognizing criminal procedure cases as “black trials” adds another
layer to how we should think about the Court’s decision, time and time
again, to use criminal procedure cases to mark out what constitutes good
citizenship vis-à-vis the police. Good citizens should willingly surrender
their right to require a warrant for a search. Good citizens should
willingly waive their right to silence, or its opposite, their right to speak.
Good citizens should voluntarily obey police orders, even patently
unlawful ones. Good citizens should willingly and happily aid the police,
even a police system that exacerbates inequality and incarceration. I
argued before that these are messages about good citizenship, and by
implication, bad citizenship as well. I have now added that these cases
are, on a certain level, also “black trials.”264 What I did not say is this:
Those messages are anything but race-neutral. Even if racialized
messages are not intended, that is how they are heard.
We know from the literary theorist and legal scholar Stanley Fish
that how texts are understood depends on the interpretive communities
to which readers belong.265 Other literary scholars, such as Professor
Michael Awkward, have made similar observations with respect to race.
Professor Awkward asks, “[H]ow does blackness direct, influence, or
dictate the process of interpretation? Is there a politics of interpretation
that is determined or controlled by race in ways that can be compared to
the ideologically informed readings of, for example, feminist critics?”266
For my part, I have posited that there is something called “reading
black.”267
All of this has implications for how citizenship talk—even if
unintended, even assuming a game of telephone268—is understood along
lines of race. Allow me to offer myself as an exhibit. Again, I am a black
man living in a country where “young plus black plus male” too often
“equals probable cause.”269 When I read United States v. Drayton, am I the
suspect on the bus being asked if I would mind consenting to a search, or
am I one of the “good citizens” around him—“traveling on a Greyhound
264. As noted earlier, the bulk of the citizenship cases involves black and brown defen-
dants. This is true of Miranda, Miranda v. Arizona, 384 U.S. 436 (1966), Schneckloth,
Schneckloth v. Bustamonte, 412 U.S. 218 (1973), Hodari D., California v. Hodari D., 499
U.S. 621 (1991), Drayton, United States v. Drayton, 536 U.S. 194 (2002), Wardlow, Illinois
v. Wardlow, 528 U.S. 119 (2000), Delgado, INS v. Delgado, 466 U.S. 210 (1984), and a host
of others.
265. Stanley Fish, Is There a Text in This Class?: The Authority of Interpretive
Communities 14 (1980) (exploring how the communities to which one belongs and with
which one interacts can affect how one interprets a text).
266. Michael Awkward, Race, Gender, and the Politics of Reading, 22 Black Am.
Literature F. 5, 5–6 (1988).
267. Capers, Reading Back, Reading Black, supra note 93, at 10–11.
268. That is, assuming things are added or lost as the messages pass indirectly from the
Court to citizens.
269. Gaynes, supra note 11, at 621.
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 43
bus en route from Ft. Lauderdale, Florida to Detroit, Michigan”270—who
were disciplined into opening their bags by example and who deployed
the Court-endorsed psychology of group pressure, 271 “encouraging
consent”?272 In Illinois v. Wardlow, am I the youth running when I see the
police because I know, from my race-based “pools of knowledge,”273 all
about police violence? Or am I part of the “good citizens” who are told
that running from the police in their community is reasonable suspicion,
and that if anything, they should help the police grab the youth. And why
do I have the impression that the citizens that the Court has in mind in
these and other cases—the citizens who should have an interest in
“encouraging consent,”274 the citizens who are told that “compliance
with police orders to stop” should be “encouraged,”275 no matter how
invalid the orders—are the poor, the black and brown, the disenfran-
chised? Is it because this is who I imagine, in United States v. Drayton,
traveling the thirty-two-hour trip by Greyhound from Florida to
Michigan?276 Is it because the community the Court mentions in Illinois v.
Wardlow is so “known for heavy narcotics trafficking” that the Court says
it twice in the first six sentences of the opinion?277
D. Citizenship Work
Conceptualizing these criminal procedure cases as “black trials” and
“master texts” helps explain and contextualize the extra work racial
minorities in particular must do in order to enjoy a simulacrum of full
citizenship status in their interactions with the police. The extra work
stems from the long association of American-ness with whiteness278
picture in your mind the All-American girl, or the All-American boy—
270. 536 U.S. 194, 197 (2002).
271. For a discussion about how social influence can play a role in affecting an
individual’s behavior, and the role law can play in shaping that social influence, see
generally Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 Va. L. Rev.
349, 350–52 (1997).
272. Schneckloth v. Bustamonte, 412 U.S. 218, 243 (1973) (“[T]he community has a
real interest in encouraging consent.”).
273. Robinson, supra note 114, at 1120; see also Maines, supra note 114, at 318–19
(1999) (noting that information is often race-based, with blacks being privy to certain
information that is largely unknown by whites, and vice versa).
274. Schneckloth, 412 U.S. at 243.
275. California v. Hodari D., 499 U.S. 621, 627 (1991).
276. For the Greyhound travel time between Ft. Lauderdale and Detroit, see Bus Trips
from Ft. Lauderdale, FL, to Detroit, MI, Greyhound, http://www.greyhound.com/en/
ecommerce/schedule [http://perma.cc/B4ZP-GE95] (lasted visited Oct. 16, 2017) (displaying
search starting point field for “Ft. Lauderdale, FL” and search destination field for “Detroit,
MI”).
277. 528 U.S. 119, 121 (2000).
278. Whiteness, in turn, is often associated with innocence. See, e.g., Thomas Ross,
The Rhetorical Tapestry of Race: White Innocence and Black Abstraction, 32 Wm. & Mary
L. Rev. 1, 3–6 (1990).
44 COLUMBIA LAW REVIEW [Vol. 118:1
and an interconnected problem: the association of black and brown
minorities with criminality.279
Building on sociologist Erving Goffman’s work on identity perfor-
mance,280 Professors Devon Carbado and Mitu Gulati have noted that
members of minority groups, in response to negative stereotypes, often
“do significant amounts of ‘extra’ identity work to counter those
stereotypes.”281 Though Carbado and Gulati’s initial observations were in
the context of employment discrimination, the same is true in the
context of police–citizen interactions.282 Partially as a result of the Court’s
jurisprudence, racial minorities in particular find themselves facing a
double-bind: To be regarded as “good citizens” deserving of the treat-
ment routinely accorded to privileged whites, these minority citizens
have to first abjure or at least downplay their actual citizenship rights.
And if they do this, they never get to fully enjoy them.
They must perform what I will term “citizenship work”—being extra
deferential, acquiescing to demands, relinquishing citizenship rights.283
Perhaps nothing better illustrates this extra “citizenship work” than “the
talk” that so many black and brown parents find themselves having to
give their children, a talk so well-known that Justice Sotomayor refer-
279. See Adam Benforado, Unfair: The New Science of Criminal Injustice 197–99
(2015) (explaining the historical relationship between racial bias and the overcrim-
inalization of minority communities in the United States); Jennifer L. Eberhardt et al.,
Seeing Black: Race, Crime, and Visual Processing, 87 J. Personality & Soc. Psychol. 876,
876 (2004) (“The stereotype of Black Americans as violent and criminal has been
documented by social psychologists for almost 60 years.”); Jerry Kang, Trojan Horses of
Race, 118 Harv. L. Rev. 1489, 1491–528 (2005) (discussing several studies examining
implicit racial bias); L. Song Richardson, Arrest Efficiency and the Fourth Amendment, 95
Minn. L. Rev. 2035, 2039–40 (2011) (describing stereotyping of young black men “as
violent, hostile, aggressive, and dangerous” and exploring the effects of those stereotypes
on policing).
280. See generally Erving Goffman, The Presentation of Self in Everyday Life 15
(1959) (setting out the book’s methodology of studying identity performance with the
ultimate goal of discerning “some of the common techniques that persons employ to
sustain [their] impressions” in social situations).
281. Devon W. Carbado & Mitu Gulati, Working Identity, 85 Cornell L. Rev. 1259,
1262 (2000).
282. Professor Carbado later extended this analysis to police encounters. See Devon
W. Carbado, (E)Racing the Fourth Amendment, 100 Mich. L. Rev. 946, 966–67 (2002).
Indeed, Carbado argued that it is through these encounters that black Americans learn
they are black Americans, and hence second-class citizens. Id. at 952–64; see also David
Alan Sklansky, Democracy and the Police 136–37 (2008) (noting that racialized policing
results in some minorities feeling “the need to adopt roles of exaggerated deference and
subservience”).
283. Other scholars have also begun discussing the racial distributional costs
associated with the Court’s cultivation of compliance. Particularly noteworthy are
Professors Alice Ristroph, The Constitution of Police Violence, 64 UCLA L. Rev. 1182,
1188 (2017) and Eric J. Miller, Encountering Resistance: Contesting Policing and
Procedural Justice, 2016 U. Chi. Legal F. 295, 296.
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 45
enced it in her dissent in Utah v. Strieff.284 What my own parents told me
is not atypical. When you see the police:
Don’t run. Say, “yes, sir,” or “no, sir.” Don’t talk back. Keep your
head down, don’t look them in the eye. That’s disrespectful.
Say, “yes, sir,” or “no, sir.” “Yes, ma’am,” or “no, ma’am” if it’s a
lady cop. Don’t act smart. Don’t get smart. Just keep your head
down and be deferential. Don’t ask how come or why. Don’t
run. If they let you go, say “thank you.” Don’t show your color.
Don’t act black. A cop will kick your ass in a second, you hear?
Don’t talk back. Do whatever they say, you hear? Unless he asks
you something, shut your mouth and keep it shut. Don’t start
talking about rights. Definitely don’t start talking about black
power. What were you doing wearing baggy pants and a hoodie
in the first place? What were you doing walking/driving on that
side of town any old way? What were you doing looking at his
badge number and name? You don’t have rights, you hear?
Don’t run. And you best say, “yes, sir,” or “no, sir.”285
Black and brown Americans in particular are told that we must
stoically endure state-sanctioned microaggressions.286 We must de-race
ourselves and “appear racially non-threatening.”287 We are told we must
answer question after question unrelated to the stated grounds for the
stop, especially in the case of investigatory traffic stops.288 Where are you
going? What brings you to this neighborhood? Do you mind if I look in your car?
Just routineyou understand? We must, quite literally, “assume the
position,” except the position is that of an at-will citizen, or a second-class
citizen. Even in the face of official politeness, we must suffer what
284. 136 S. Ct. 2056, 2070 (2016) (Sotomayor, J., dissenting) (“For generations, black
and brown parents have given their children ‘the talk’—instructing them never to run
down the street; . . . keep your hands where they can be seen; do not even think of talking
back . . . all out of fear of how an officer with a gun will react . . . .”).
285. This is essentially what my parents told me. For other examples of “the talk,” see
Coates, supra note 157, at 9; Miller, supra note 283, at 342; Geeta Gandbhir & Blair
Foster, Opinion, A Conversation with My Black Son, N.Y. Times (Mar. 17, 2015),
http://www.nytimes.com/2015/03/17/opinion/a-conversation-with-my-black-son.html?_r=0
(on file with the Columbia Law Review); Touré, How to Talk to Young Black Boys
About Trayvon Martin, Time (Mar. 21, 2012), http://ideas.time.com/2012/03/21/
how-to-talk-to-young-black-boys-about-trayvon-martin/ [http://perma.cc/XH8A-2A55].
286. See Peggy C. Davis, Law as Microaggression, 98 Yale L.J. 1559, 1565–68 (1989)
(describing the “[v]igilance and psychic energy” required to withstand these recurring
“assaults”).
287. Randolph Hohle, Black Citizenship and Authenticity in the Civil Rights
Movement 3 (2013).
288. See Wayne L. LaFave, The “Routine Traffic Stop” from Start to Finish: Too Much
“Routine,” Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843, 1885–91 (2004)
(discussing investigatory stops case law); see also Epp et al., supra note 117, at 74–92 (“To
show how investigatory stops are the source of these racial disparities, we need to take into
account a key alternative explanation: the possibility that they grow instead from
unintended tit-for-tat interactions between officers and black drivers.”).
46 COLUMBIA LAW REVIEW [Vol. 118:1
Professor Sherry Colb terms “targeting harm.”289 Professor Frank Rudy
Cooper adds that black men in particular must emasculate themselves.290
Male or female, we certainly should not ask, as Sandra Bland famously
did, “Why?”291 Through all of this, we are expected to cede any Fourth
Amendment right we may have to walk away (in the case of a so-called
“casual encounter”), as well as any Fourth Amendment right that the
length of detention be no longer than necessary (in the case of a stop).292
We are expected to forego our Fourth Amendment right to decline
requests to have our persons and belongings searched. We are expected
to waive any common law and Fifth Amendment right to decline to
answer questions that have nothing to do with the stated basis for the
stop. 293 The double-bind is not just that to warrant the treatment
normally accorded white citizens, we must “work” our citizenship. The
double-bind is that the citizenship we must perform is that of the
obedient citizen. The docile citizen. The nonproblem citizen. And yes,
the second-class citizen.
So, allow me to return to the question that motivated this section.
What performance is expected of Eric Garner, Sandra Bland, and the
rest of us?
289. Colb, supra note 110, at 1486 (noting that stopped individuals are “left
wondering, ‘Why me? Why have the police singled me out . . . . What gave them the gut
feeling that I am a criminal?’” (footnote omitted)).
290. Frank Rudy Cooper, “Who’s the Man?”: Masculinities Studies, Terry Stops, and
Police Training, 18 Colum. J. Gender & L. 671, 700, 725 (2009) (observing that officers
“often use stops and frisks as a means of staging, and winning, masculinity contests”); cf.
Paul Butler, Stop and Frisk: Sex, Torture, Control, in Law as Punishment/Law as
Regulation 155, 166 (Austin Sarat et al. eds., 2011) (“African American men . . . have . . .
observed the sexual nature of frisks.”).
291. Specifically, after Trooper Encinia pulled over Sandra Bland for failing to use a
turn signal, he “asked” her to put out her cigarette. Sandra Bland responded, “I’m in my
car, why do I have to put out my cigarette?” prompting the trooper to forcibly remove her
from the car. Ohlheiser & Phillip, supra note 243. Certainly, there is evidence to suggest
that a similarly situated white woman would have been treated differently. See M.K.B.
Darmer, Teaching Whren to White Kids, 15 Mich. J. Race & L. 109, 113 (2009) (noting that
her interactions with the police during a traffic stop were informed by her status as a white
woman); see also Epp et al., supra note 117, at 47–48 (observing that whites “begin their
encounters with police assuming that they have full citizenship rights and leave these
experiences with their status undiminished”). In this sense, Bland refused to do the
“extra” work for performing citizenship.
292. Rodriguez v. United States, 135 S. Ct. 1609, 1614–16 (2015) (citing Illinois v.
Caballes, 543 U.S. 405, 407 (2005)(explaining that, like Terry stops, traffic stops must be of
limited duration, and a stop that exceeds the time necessary to address the reason for the
stop violates the Fourth Amendment) ; United States v. Sharpe, 470 U.S. 675, 685 (1985)).
293. As Justice White noted in his concurrence in Terry v. Ohio, normally a stopped
person “is not obliged to answer, answers may not be compelled, and refusal to answer
furnishes no basis for an arrest, although it may alert the officer to the need for continued
observation.” 392 U.S. 1, 34 (1968) (White, J., concurring).
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 47
IV. TALKING BACK
“[H]ere is the bottom line: if you don’t want to get shot, tased, pepper-
sprayed, struck with a baton or thrown to the ground, just do what I tell you.
Don’t argue with me, don’t call me names, don’t tell me that I can’t stop
you . . . .”
A seventeen-year police veteran294
“[T]he most important office in a democracy is the office of the citizen.
Change happens because of you. Don’t forget that.”
President Barack Obama295
Thus far, I have argued that embedded in the Court’s criminal
procedure jurisprudence—at times hidden in plain sight, at other times
hidden below the surface—are asides about what it means to be a good
citizen vis-à-vis policing power. This citizenship talk insists that good
citizens should welcome the presence of police officers and consider it
their duty to assist them, even if it means informing on neighbors, family,
and friends. Equally troubling, this talk calls on citizens to consent to
searches and seizures and waive their right to silence, or to speak.
Throughout, this citizenship talk functions as a type of normalizing judg-
ment, an integral part of state discipline in the Foucauldian sense.
Moreover, this citizenship talk is almost always racially inflected.296
294. Sunil Dutta, I’m a Cop. If You Don’t Want to Get Hurt, Don’t Challenge Me.,
Wash. Post (Aug. 19, 2014), http://www.washingtonpost.com/posteverything/wp/2014/08/19/
im-a-cop-if-you-dont-want-to-get-hurt-dont-challenge-me/?utm_term=.2419d1cbdf9b [http://
perma.cc/5V5K-CRRS].
295. President Barack Obama, Remarks at the 20th Annual Lake Tahoe Summit (Aug.
31, 2016), http://obamawhitehouse.archives.gov/the-press-office/2016/08/31/remarks-
president-20th-annual-lake-tahoe-summit [http://perma.cc/U6DD-7JZK]. President Obama
made similar remarks in his farewell address from Chicago. See George Packer, President
Obama’s Memorable Words, New Yorker (Jan. 23, 2017), http://www.newyorker.com/
magazine/2017/01/23/president-obamas-memorable-parting-words [http://perma.cc/
22QK-39DH] (“Obama called [‘citizen’] ‘the most important office in a democracy,’ one
that he’ll embrace in his post-Presidency.”).
296. Given our history of associating crime with race, of giving crime a dark face, it
should not surprise that even in cases in which race is ostensibly absent, race is still
present. This is true of cases like Terry, which gave its imprimatur to stop-and-frisks based
on reasonable suspicion, and which never mentioned the race of the defendants, both
black. But as I have argued previously, it is also true of cases involving white defendants
when it is clear that the impact of the Court’s decision will have a disproportionate effect
on racial minorities. A prime example is Gideon v. Wainwright, 372 U.S. 335 (1963),
establishing the state’s obligation to appoint counsel for defendants who cannot afford
counsel. See Capers, Rethinking the Fourth Amendment, supra note 16, at 8–9 (discussing
Gideon as a race case); Burt Neuborne, The Gravitational Pull of Race on the Warren
Court, 2010 Sup. Ct. Rev. 59, 86 (“[T]he right to counsel cases from Gideon to Argersinger
were driven, in part, by concern over a criminal justice system where white judges and
prosecutors processed poor, unrepresented blacks and Hispanics.”); Charles J. Ogletree,
Jr., An Essay on the New Public Defender for the 21st Century, Law & Contemp. Probs.,
48 COLUMBIA LAW REVIEW [Vol. 118:1
Whether intentional or not, this citizenship talk results in the chilling of
democratic dissent and the frustration of rights. The result too is further
inequality.
Still, one can imagine the hesitation and resistance to this argument.
For some readers the response is a straightforward one: So what if the
Court encourages good citizenship? My reply is similarly straightforward.
My concern is not the promulgation of good citizenship per se, or even
its inculcation. That said, there is something deeply problematic about a
model of good citizenship that relies on citizens foregoing their citizen-
ship rights. Just as there is something problematic with a model of good
citizenship that, in effect if not by design, chills democratic dissent.
Professor Eric Miller makes a related point: “The public should not face
the cruel dilemma of forgoing their rights or facing harsh treatment
from the police.”297 Going a step further: There is something deeply
problematic, even ironic, that in the very cases defining constitutional
protections, the Court’s citizenship talk encourages the surrendering of
such protections. This is the first problem. But there is also a second
problem that has to do with the unequal distribution of citizenship talk.
We should be troubled by citizenship talk that implicitly requires minor-
ities to prove or “work” their citizenship, and to perform as passive,
nonquestioning, and, indeed, as second-class citizens. While citizenship
talk may not seem like a problem, it is.
However, citizenship talk, as promulgated by the Court and as
experienced every day by thousands of individuals during citizen–police
interactions, does not have to be a problem. This final part of the Essay
gestures towards a jurisprudential intervention that would reduce both
problems, that is, the problem of suppressing rights and chilling dissent,
and the problem of racial distribution. Specifically, this Part imagines an
interstitial space in which it would be a mark of a healthy democracy that
all citizens have the ability, without repercussions or recrimination, to
talk back to the police, to ask why and how come, to assert their rights, to
Winter 1995, at 81, 83 (“When discussing the inadequacies of the current system of
providing counsel for the accused poor, one cannot ignore the correlation between race
and poverty.”). Another example is Coker v. Georgia, 433 U.S. 584 (1977), which
abolished the death penalty as punishment for rape. Though involving a white defendant,
the Court was well aware of the impact the case would have given racial disparities in the
imposition of the death penalty. There is Atwater v. City of Lago Vista, 532 U.S. 318
(2001), a case involving the constitutionality of arresting someone for a traffic violation;
although Atwater was a white “soccer mom,” the implication for minorities was evident. A
more recent example is Utah v. Strieff, 136 S. Ct. 2056 (2016), in which the Court held
that in certain circumstances evidence discovered during a stop can be used against a
suspect at trial, even though the stop itself was unconstitutional. As Justice Sotomayor
observed, although the case involved a white defendant, “it is no secret that people of
color are disproportionate victims of this type of scrutiny.” Id. at 2070 (Sotomayor, J.,
dissenting). For a more general discussion of how race is revealed and concealed in
decisions, see generally Justin Driver, Recognizing Race, 112 Colum. L. Rev. 404 (2012).
297. Miller, supra note 283, at 296.
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 49
question and test the boundaries of the law, and to say “no.” In this
space, dissenting voices, or what political theorist Chantal Mouffe might
call agonistic voices,298 would be heard rather than silenced, and democ-
racy would be fostered rather than frustrated.
Allow me to return and expand upon just one incident that became
a flashpoint in the national conversation about policing in this country.
In July 2015, in Waller County, Texas, State Trooper Brian Encinia
pulled over Sandra Bland for failing to use a turn signal.299 Prior to this
event, the most well-known case of a woman being pulled over was
probably that of Gail Atwater, a white woman who was arrested and
hauled to jail for essentially failing to secure her children in seatbelts,300
an arrest that the Supreme Court gave its blessing to in Atwater v. City of
Lago Vista.301 Like Atwater, Sandra Bland was pulled over for a routine
traffic violation, a traffic stop that could have disappeared into the
thousands of stops that happen each day. Instead, her traffic stop
spawned a growing “SayHerName” movement.302 As captured on the
state trooper’s dashboard video camera, Trooper Encina quickly says to
Bland, “You mind putting out your cigarette, please? If you don’t mind?”
Sandra Bland, a Black Lives Matter activist, responds with a question of
298. Chantal Mouffe, Agonistics: Thinking the World Politically (2013). Mouffe writes:
Conflict in liberal democratic societies cannot and should not be
eradicated, since the specificity of pluralistic democracy is precisely the
recognition and legitimation of conflict. What liberal democratic politics
requires is that the others are not seen as enemies to be destroyed, but
as adversaries whose ideas might be fought, even fiercely, but whose
right to defend those ideas is not to be questioned. To put it another
way, what is important is that conflict does not take the form of an
‘antagonism’ (struggle between enemies) but the form of ‘agonism’
(struggle between adversaries).
Id. at 7. Mouffe adds, “This confrontation between adversaries is what constitutes the
‘agonistic struggle’ that is the very condition of a vibrant democracy.” Id.
299. Queally, supra note 215; see also Tex. Dep’t of Pub. Safety, Police Video Shows
Sandra Bland’s Arrest, N.Y. Times (July 22, 2015), http://www.nytimes.com/video/us/
100000003813646/police-video-shows-sandra-blands-arrest.html (on file with the Columbia
Law Review).
300. Ross E. Milloy, PUBLIC LIVES; For Seat-Belt Violator, a Jam, a Jail and Unmoved
Justices, N.Y. Times (Apr. 28, 2001), http://www.nytimes.com/2001/04/28/us/public-
lives-for-seat-belt-violator-a-jam-a-jail-and-unmoved-justices.html?mcubz=3 (on file with the
Columbia Law Review).
301. 532 U.S. 318, 326 (2001) (allowing warrantless arrests for “minor criminal
offenses” and misdemeanors, such as failing to secure one’s child in a seat belt). I raise
Atwater here in part to remind the reader that the current citizenship talk that emerges
from the Court harms everyone regardless of race. The intensity of those harms, however,
is experienced by those who are black and brown.
302. For a discussion of the movement and how police violence has been gendered
against black women, see generally Kimberlé Williams Crenshaw & Andrea J. Ritchie,
African Am. Policy Forum, Columbia Law Sch. Ctr. for Intersectionality & Soc. Policy
Studies, Say Her Name: Resisting Police Violence Against Black Women (2015), http://
static1.squarespace.com/static/53f20d90e4b0b80451158d8c/t/560c068ee4b0af26f72741d
f/1443628686535/AAPF_SMN_Brief_Full_singles-min.pdf [http://perma.cc/F5YY-8B65].
50 COLUMBIA LAW REVIEW [Vol. 118:1
her own: “I’m in my car, why do I have to put out my cigarette?” Rather
than answering, Trooper Encinia orders Bland out of her car, and when
she refuses, Trooper Encinia uses force to drag her from her car. The
trooper’s dashboard camera captured this exchange, as well as Trooper
Encina dragging Bland along the ground.303
Professor Rachel Harmon, in her examination of the legal authority
of police commands, suggests that Bland responded the way she did in
order to question the trooper’s authority.304 Professor Harmon’s reading
of the incident is certainly right. But to my mind, Professor Harmon’s
reading captures only part of what Bland was likely thinking.305 Bland, in
asking why she had to put out her cigarette, was not only questioning the
officer’s authority. She was also contesting that authority, and positing a
counterfactual; she was interrogating the trooper, asking whether he
would have pulled her over had she been white, and whether he would
have asked her to put out her cigarette if she had been white. More than
this, one senses that Bland was calling into question the law itself.
Without ever mentioning the names of cases—think Pennsylvania v.
Mimms,306 Maryland v. Wilson,307 Whren v. United States,308 United States v.
Armstrong,309 and yes, Atwater v. City of Lago Vista310—she was asking how it
can possibly be legitimate in a country that espouses equality before
the law and equal justice—at both “the gatehouse[s] and the
mansion[s]”311—that the law gives an officer almost unfettered discretion
to decide which citizen he will stop; which citizen he will order to step
out of her vehicle; which citizen he will order to place her hands “where
303. Tex. Dep’t of Pub. Safety, supra note 299.
304. Rachel Harmon, Lawful Orders and Police Uses of Force 1 (unpublished
manuscript) (on file with the Columbia Law Review).
305. Even here, in interpreting Bland’s encounter with Trooper Encinia, I am relying
on my own “information pools.” See Maines, supra note 114, at 317–18 (noting that
information pools “might contribute to the understanding of . . . racial gulfs”). I am also
reading back, reading black. See Capers, Reading Back, Reading Black, supra note 93, at
9–10 (suggesting “a way of reading [the law] . . . that attends to the way judicial opinions
function as cultural productions that create and recreate race” (footnote omitted)).
306. 434 U.S. 106, 111 (1977) (granting officers unfettered discretion, under the
Fourth Amendment, to order drivers out of the vehicle following a legitimate traffic stop).
307. 519 U.S. 408, 414–15 (1997) (extending this discretion to permit police to order
passengers out of the vehicle).
308. 517 U.S. 806, 809–13 (1996) (holding that pretextual stops are permissible under
the Fourth Amendment so long as the stop itself is based on an actual traffic violation).
309. 517 U.S. 456, 465 (1996) (requiring plaintiffs alleging discriminatory
enforcement to meet the exacting burden of establishing that similarly situated individuals
of a different race were treated differently, and that such different treatment was
motivated by a discriminatory purpose).
310. 532 U.S. 318, 354–55 (2001) (upholding the constitutionality of a discretionary
arrest for a traffic violation).
311. Yale Kamisar, Equal Justice in the Gatehouses and Mansions of American
Criminal Procedure: From Powell to Gideon, from Escobedo to . . . , in Criminal Justice in
Our Time 1, 19–20 (A.E. Dick Howard ed., 1965).
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 51
I can see them”; which citizen he will let go with a warning, or punish
with a summons, an arrest, or worse still, physical violence; which citizen
he will treat as an equal, as “presumed innocent”; and which he will not.
One senses that in asking, “I’m in my car, why do I have to put out my
cigarette?” Bland was essentially asking whether this is a country of equal
citizenship,312 a country without ceremonies of degradation directed
toward racial minorities.313 She was asking, when we say “law and order,”
why does it seem that we have a particular “order,” a particular hierarchy
of bodies, in mind. She was asking, when we say, “serve and protect,” who
exactly are the police serving and what are they protecting? Recalling the
words of civil rights activist Fannie Lou Hamer in describing the effects
of the inequality she saw, Bland was saying “I’m sick and tired of being
sick and tired.”314 Bland was asking, “Is there a reason I have to prove my
good citizenship, and others don’t?” She was both talking back, and talk-
ing black.315
As a society, many of us have been taught to categorize the actions of
Bland as disobedient. As insufficiently deferential. As insubordinate.
Indeed, a frequent occurrence after similar highly publicized police–
citizen encounters, especially those involving racial minorities as victims,
is to blame said victim with comments like “people need to obey
orders.”316 We have been taught to think of Bland and other black and
brown people like her as unruly, as confrontational, as “uppity,” and
ultimately as bad citizens. After all, per the Court, Bland should have
cooperated with the police. Bland should have obeyed all police orders
without question.
But what happens if we bracket what we have been taught and look
at Bland’s actions—her talking back—as part of a continuum of citizens
312. Charles Epp et al., in the recent book Pulled Over, make a similar point:
Knowing that they and their group have long been viewed as second-
class citizens (or worse), members of traditionally stigmatized groups are
attentive to whether this official in this instance is treating them with the
respect due a full and equal member of the community.
Epp et al., supra note 117, at 15.
313. See generally Kaaryn Gustafson, Degradation Ceremonies and the Criminalization
of Low-Income Women, 3 U.C. Irvine L. Rev. 297 (2013) (borrowing the term from
sociologist Harold Garfinkel and offering examples of ceremonial degradation of low-
income women of color); see also Harold Garfinkel, Conditions of Successful Degradation
Ceremonies, 61 Am. J. Soc. 420, 420 (1956) (“Any communicative work between persons,
whereby the public identity of an actor is transformed into something looked on as lower
in the local scheme of social types, will be called a ‘status degradation ceremony.’”).
314. Jerry DeMuth, Fannie Lou Hamer: Tired of Being Sick and Tired, Nation (Apr. 2,
2009), http://www.thenation.com/article/fannie-lou-hamer-tired-being-sick-and-tired/
[http://perma.cc/HHH5-3JAB] (“All my life I’ve been sick and tired . . . . Now I’m sick
and tired of being sick and tired.”).
315. See Capers, Reading Back, Reading Black, supra note 93, at 10–11.
316. See, e.g., Ibram X. Kendi, Opinion, Sacrificing Black Lives for the American Lie,
N.Y. Times (June 24, 2017), http://www.nytimes.com/2017/06/24/opinion/sunday/
philando-castile-police-shootings.html (on file with the Columbia Law Review).
52 COLUMBIA LAW REVIEW [Vol. 118:1
engaged in resistance, in voicing dissent and dissatisfaction, in engaging
in agonistic democracy? Viewed through this lens, Bland responded to
the trooper’s microaggression by engaging in microresistance, knowing
that such microresistance has the possibility of igniting more micro-
resistance, and ultimately change. So, what happens when we place
Bland—and the hundreds of citizens like Bland—in the same sentence as
the dozens of women who, in the late nineteenth century, were arrested
when they went to polling places to vote, knowing that women were
barred from voting? What happens when we place Bland in the same
sentence as Homer Plessy, who deliberately sat in a white car during a
time of racial segregation; or Rosa Parks, arrested for refusing to give up
her seat to a white person in the segregated South; or Fred Korematsu,
who deliberately violated an exclusion order; or to the hundreds of drag
queens and gay men and women, who refused police orders to disperse
at the Stonewall Inn; or to the DREAMers, who en masse came out as
“undocumented and unafraid”317 to challenge immigration policies?
What happens when we acknowledge that, as a society, we celebrate
certain individuals—those privileged by whiteness and class and
gender—precisely because they assert their rights, because they engage
in agonistic citizenship? We even call them exemplars of rugged
individualism, of that American fighting spirit. Take that job and shove it.
Don’t touch my junk. I’ll give you my gun when you pry it from my cold, dead
hands. What happens when we acknowledge that we deny these
approbations to those who, by virtue of race and class, are often deemed
contingent citizens?
For that matter, what happens when we assume that Bland, by
talking back and refusing to voluntarily exit her car until the officer
provided her a valid reason, was calling into question the government’s
“eternal temptation . . . to arrest the speaker rather than to correct the
conditions about which he complains?”318 Do we recall that the birth of
this republic began with dissent? After all, dissent is a “crucial institution
for challenging unjust hierarchies and for promoting progressive
change.”319 Do we recall Henry David Thoreau’s insistence that the law is
not necessarily just and that sometimes disobedience is more just?320 Or
Martin Luther King, Jr.’s “Letter from Birmingham Jail,” in which he
argued that having too much respect for majoritarian law is counter to
317. See Leti Volpp, Civility and the Undocumented Alien, in Civility, Legality, and
Justice in America 69, 93 (Austin Sarat ed., 2014) (“Coming out constructs oneself as a
political agent . . . .”).
318. Younger v. Harris, 401 U.S. 37, 65 (1971) (Douglas, J., dissenting).
319. Steven H. Shiffrin, Dissent, Injustice, and the Meanings of America, at xii (1999).
320. See Henry David Thoreau, On the Duty of Civil Disobedience, in The Civil
Disobedience Handbook: A Brief History and Practical Advice for the Politically
Disenfranchised 12, 13 (James Tracy ed., 2001) (1849) (“The only obligation which I have
a right to assume is to do at any time what I think right.”).
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 53
good citizenship?321 Not so many years ago, Harvard Professor Henry
Louis Gates talked back to an officer who suspected Gates, who had just
entered his own home, of being a burglar.322Why, because I’m a black man
in America? ” Gates asked.323 Gates demanded the officer’s name and
badge number, and the officer arrested Gates for being “disorderly.”324 I
mention this incident not only as further evidence of a citizen talking
back and refusing to be “good”—at least refusing to be “good” in the
way the Court seems to insist—but also because of Gate’s poignant words
from years before his arrest. Although Gates uses the term “critique,”
one could easily substitute “talking back.” Years earlier, Gates wrote,
“[C]ritique can also be a form of commitment, a means of laying a claim.
It’s the ultimate gesture of citizenship. A way of saying: ‘I’m not just
passing through, I live here.’”325
All of this reminds me of the dissenting citizens who have posted
videos of their police interactions on YouTube.326 The student who
refuses to roll down her car window for the police.327 The man who tells
the police who are insisting on searching his apartment to get a warrant.328
The airline passenger telling the TSA authorities, “If you touch my junk I
am going to have you arrested.”329 The man, stopped for walking
through a residential neighborhood with a firearm, demanding to know
why officers are stopping him if carrying a firearm is not a crime and if
321. See Martin Luther King, Jr., Letter from Birmingham Jail (Aug. 1963),
http://web.cn.edu/kwheeler/documents/Letter_Birmingham_Jail.pdf [http://perma.cc/
9EKL-5PU7].
322. See, e.g., Abby Goodnough, Harvard Professor Jailed; Officer Is Accused of Bias,
N.Y. Times (July 20, 2009), http://www.nytimes.com/2009/07/21/us/21gates.html (on
file with the Columbia Law Review).
323. Id.
324. Id.
325. Henry Louis Gates, Jr., Editorial, What Is Patriotism?, 253 Nation 75, 91 (1991).
326. See, e.g., B tha King of Games McKean, Police State Why Are Your Hands in Your
Pockets, YouTube (Nov. 27, 2014), http://www.youtube.com/watch?v=9_wLTmnKP5I (on
file with the Columbia Law Review) (documenting police questioning after being labeled
suspicious for “walking in the cold”); End the Fed, Police Encounter, YouTube (Jan. 12,
2014), http://www.youtube.com/watch?v=zyZrlF6ah8k&t= (on file with the Columbia Law
Review) (documenting an encounter with police following a complaint); John Smith,
Lakewood, Colorado P.D. Police Officer Lies About Terry Stop, YouTube (May 11, 2014),
http://www.youtube.com/watch?v=lh9VzrAfw4g (on file with the Columbia Law Review)
(documenting questioning by Colorado police officers).
327. justD4R, Police Officer Smashes Student’s Car Window After Girl Refuses to Roll
It Down!, YouTube (Sept. 21, 2013), http://www.youtube.com/watch?v=MvQJKfJOako
(on file with the Columbia Law Review).
328. VIDEO: Man Refuses to Let Cops Search House Without Warrant, Films Police
Despite Protests, LiveLeak (Sept. 11, 2014), http://www.liveleak.com/view?i=21e_1410480562
(on file with the Columbia Law Review).
329. CNN, CNN: John Tyner to TSA Security ‘Don’t ‘Touch My Junk,’ YouTube (Nov.
17, 2010), http://www.youtube.com/watch?v=Laxmx4cE3aE (on file with the Columbia
Law Review).
54 COLUMBIA LAW REVIEW [Vol. 118:1
the Second Amendment means anything.330 There are hundreds of
videos like these, citizens engaged in “sousveillance,” the term Steve
Mann coined to describe the act of “[observing] or recording by an
entity not in a position of power or authority over the subject of the
veillance.”331 The citizens are black and white, Hispanic and Asian, men
and women, conservatives and liberals. Of course, there are the videos
too of the individuals who were not thinking of cameras or of their
interactions being documented. Instead they may have thought only that
something was not right, and that they had been passive, docile, obedient
subjects for too long, and that it was time to ask why and how come.
Videos like the one of Sandra Bland. Or Eric Garner. Or still more
recently, the video of a black man, Larnie Thomas, being arrested in
Minnesota for walking on the shoulder of the road, even though there
was no place else to walk because the sidewalk was officially closed due to
construction.332 In the video, Thomas can be seen and heard arguing
with the police officer.333 And even though, following public uproar, the
police dismissed the charges, the city still blames Thomas for being
“belligerent” and not obeying orders. 334 I think too of the Black
Panthers, who in the 1960s armed themselves with firearms (asserting
their rights under the Second Amendment) and with law books and
watched the police, all to say that rights mattered.335 All of these citizens
insisted on dialogue rather than monologue. And all were engaged in
dissent. Political scientist Austin Sarat might even add that they were
engaged in a type of dissent traceable to Socrates, agitating not so much
for destruction but for something better.336 Sarat’s observation bears
330. MLive, Grand Rapids Open Carry, YouTube (Mar. 5, 2015),
http://www.youtube.com/watch?v=Znco5BrWOLo [http://perma.cc/CB6V-272U]; see
also, LibertyIsForEveryone, Open Carry—Arguing with Police in Madison Heights, MI,
YouTube (Oct. 7, 2013), http://www.youtube.com/watch?v=p1WIeV68Eeo (on file with the
Columbia Law Review).
331. Steve Mann, Veillance and Reciprocal Transparency: Surveillance Versus
Sousveillance, AR Glass, Lifeglogging, and Wearable Computing, 2013 IEEE Int’l Symp.
on Tech. & Soc. 1, 3.
332. See Nina Golgowski, Citation Dropped Against Black Man Accused of Walking in
Middle of the Street, Huffington Post (Oct. 18, 2016), http://www.huffingtonpost.com/entry/
citation-dropped-against-man-in-street_us_58062403e4b0b994d4c152f9?section=&section=us_
black-voices [http://perma.cc/NY6V-M38U].
333. Citizen 7101, Edina Police Incident 10/12/16, YouTube (Oct. 12, 2016),
http://www.youtube.com/watch?v=djyysjn6vCg (on file with the Columbia Law Review).
334. Golgowski, supra note 332.
335. See Robert L. Allen, Black Awakening in Capitalist America: An Analytic History
82 (1969) (“Whenever police harassed ghetto residents, Panthers would arrive on the
scene bearing rifles and shotguns. The Panthers also habitually carried with them law
books from which they could quote the appropriate section of the legal code being
violated by the police.”); Bridgette Baldwin, In the Shadow of the Gun: The Black Panther
Party, the Ninth Amendment, and Discourses of Self-Defense, in In Search of the Black
Panther Party 67, 69 (Jama Lazerow & Yohuru Williams eds., 2006).
336. See Austin Sarat, Terrorism, Dissent and Repression, in Dissent in Dangerous
Times 1, 8–9 (Austin Sarat ed., 2005) (characterizing Socrates’s ideal of an Athenian
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 55
repeating: “The patriot loves an idealized version of the nation, while the
dissenter is moved by an idealized version of a world of yet-to-bes.”337
Finally, what happens when we put Bland in the same sentence as
Dollree Mapp of Mapp v. Ohio,338 who famously said “no” when officers
barged into the house she owned and demanded to search her house?339
When Mapp insisted, “I want to see the search warrant,” the officers
responded by flashing a sheet of paper, which Mapp snatched and placed
in her bosom.340 The officers snatched it back, arrested her for being
“belligerent,”341 and proceeded to conduct a warrantless search of her
house.342 But in saying “no,” in being “belligerent,” Mapp set off a chain
of events that resulted in the “most important search-and-seizure deci-
sion in history,”343 one that made the exclusionary rule binding on the
states.344 All of this, after all, falls under what Professors Lani Guinier and
Gerald Torres call “demosprudence,” or action instigated by “ordinary
people,” to change “the people who make the law and the landscape in
which that law is made.”345 All of this is what Martin Luther King, Jr.,
called “present[ing] our very bodies as a means of laying our case before
the local and national community.”346 My hope is that what happens
citizen as “the critic whose dissent helped prevent an all-too-easy slide from thoughtlessness
to injustice”).
337. Id. at 8.
338. 367 U.S. 643 (1961).
339. See Yale Kamisar, Mapp v. Ohio: The First Shot Fired in the Warren Court’s
Criminal Procedure “Revolution,” in Criminal Procedure Stories 45, 47 (Carol S. Steiker
ed., 2006). Mapp was eventually arrested for being “belligerent.” Id. at 48. For more on
the Mapp case, see generally I. Bennett Capers, Unsexing the Fourth Amendment, 48 U.C.
Davis L. Rev. 855, 861–65 (2015) (describing the Mapp decision in the context of gender-
related aspects of the Fourth Amendment).
340. Carolyn N. Long, Mapp v. Ohio: Guarding Against Unreasonable Searches and
Seizures 8 (2006).
341. Mapp, 367 U.S. at 644–45.
342. See Long, supra note 340, at 13, 17 (“The report summarized the police action
and search of the home, including Mapp’s reluctance to admit police into the house
without a search warrant . . . .”). No warrant was produced at trial, nor did the prosecutor
attempt to explain the absence of a warrant. Id. at 18–19. More than twenty years later, the
sergeant admitted that in fact the police did not have a warrant. Id. at 13.
343. Potter Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development
and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum. L. Rev. 1365,
1368 (1983).
344. Though even here race matters. As Shawn Ossei-Owusu has observed, there is a
reason why there have been several books and a well-known film, Gideon’s Trumpet, about
Clarence Earl Gideon, the white defendant who insisted on his right to an attorney in
Gideon v. Wainwright. Suffice to say, barring any unforeseen commercial intervention,
there will probably be no award winning books or movies about Dollree Mapp, Ernesto
Miranda, or John Terry. Shaun Ossei-Owusu, The Sixth Amendment Façade: On the
Historical (In)Significance of the Right to Counsel 37 (unpublished manuscript) (on file
with the Columbia Law Review).
345. Lani Guinier & Gerald Torres, Changing the Wind: Notes Towards a Demosprudence
of Law and Social Movements, 123 Yale L.J. 2740, 2748–50 (2014).
346. King, supra note 321, at 1.
56 COLUMBIA LAW REVIEW [Vol. 118:1
when we place Bland in a continuum of dissenters is this: We begin to
question citizenship talk that chills democratic dissent, and we long for
an interstitial space in which all citizens can call into question the
supposed moral legitimacy of state power.
Imagine a citizenship talk that celebrates rights, equality, and
dissent.347 First, with respect to rights, consider the benefits that would
accrue if criminal procedure opinions—rather than treating the Fourth,
Fifth, and Sixth Amendments solely as regulatory limitations on
government behavior vis-à-vis individuals—also treated them—in practice
and in the language in the opinions—as positive rights to be
independently valued and enjoyed by citizens. Consider the benefits that
would accrue if the Court—again in practice and in its language—
stressed the importance of individuals knowing and benefiting from their
rights. Rather than a decision like Schneckloth, in which the Court held
that officers need not advise individuals that they have a right to refuse
consent,348 the decision would have reached the opposite conclusion and
stressed the importance of citizens being made aware of and feeling free
to exercise their rights. Rather than a decision like United States v.
Mendenhall, in which the Court found no Fourth Amendment violation
when police waylaid Sylvia Mendenhall at the Detroit Airport, asked her a
series of questions, “asked” her to come with them to a private room, and
then strip-searched her for drugs,349 the Court would have recognized
that, at a minimum, the police should have advised Mendenhall that she
was not under arrest and that she was indeed free to disregard their ques-
tions and leave. Rather than a decision like Devenpeck v. Alford, in which
the Court stated that informing an arrestee of the basis for his arrest is
not constitutionally required,350 the Court would have recognized that a
seizure is unreasonable under the Fourth Amendment without it. Or
consider a case like Davis v. United States, in which the Court found no
Sixth Amendment violation even though officers continued to question
Robert Davis after he stated, “Maybe I should talk to a lawyer,” because
his statement was not assertive enough.351 A decision that stressed the
importance of individual rights would have, at a minimum, required that
officers ask Davis clarifying questions and readvise him of his right to
347. I do not mean to suggest that the Court is the only possible locus of change.
However, given that my focus has been on citizenship talk originating with the Court, my
analysis here begins with what the Court can do to change.
348. Schneckloth v. Bustamonte, 412 U.S. 218, 231 (1973).
349. 446 U.S. 554, 557–58 (1980) (disregarding Fourth Amendment claims in which
the DEA officers interviewing the plaintiff never told her she was not under arrest and the
plaintiff complied with their requests).
350. 543 U.S. 146, 155 (2004) (“While it is assuredly good police practice to inform a
person of the reason for his arrest at the time he is taken into custody, we have never held
that to be constitutionally required.”).
351. 512 U.S. 452, 462 (1994) (“The courts below found that petitioner’s remark to
the NIS agents—“Maybe I should talk to a lawyer”—as not a request for counsel, and we
see no reason to disturb that conclusion.”).
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 57
remain silent and right to counsel. Instead, the decision reached the op-
posite conclusion, stating, “[W]e decline to adopt a rule requiring
officers to ask clarifying questions. If the suspect’s statement is not an
unambiguous or unequivocal request for counsel, the officers have no
obligation to stop questioning him.”352
Now add to this language that valorizes equality. For too long, the
Court has read equality as outside the purview of the criminal procedure
amendments. As the Court put it in Whren, the case that gave its
imprimatur to pretextual traffic stops, equal protection is a matter for
“the Equal Protection Clause, not the Fourth Amendment.”353 In doing
so, the Court adopted a worldview in which rights are “hermetically
sealed units whose principles must not contaminate one another.”354 The
effect is something “akin to constitutional rights segregation.”355 But
none of this is inevitable or preordained. As Professor Akhil Amar,
Professor Andrew Taslitz, and I have separately argued elsewhere, it
makes textual sense to read the criminal procedure amendments as
incorporating the equality concern that animates the Fourteenth
Amendment’s Equal Protection Clause.356 Indeed, one of the concerns of
the Fourteenth Amendment was to render a dead letter various ante-
bellum laws that gave officials free license to target blacks for searches
and seizures. Certainly, the Warren Court read the Fourth, Fifth, and
Sixth Amendments against the backdrop of the Fourteenth Amendment’s
Equal Protection Clause.357 Imagine how such an emphasis on equality
under the law could change the outcomes, not only in cases like Whren,
352. Id. at 461–62. Nor would rights-focused opinions need to end here. Imagine
opinions that read the Bill of Rights as imposing reciprocal obligations on the police. We
have all heard the stories, or experienced ourselves, police–citizen interactions in which
officers refuse to answer the simplest of questions. Does it really make sense that officers
should have the power to stop an individual for commission of a traffic infraction and yet
not have the obligation to answer the driver’s question, “What infraction?” Or that an
officer should have the authority to forcibly stop someone based on reasonable suspicion
that that person is engaged in criminal activity, and yet ignore that person’s question,
“What criminal activity?” This is what I mean by rights enhancing.
353. Whren v. United States, 517 U.S. 806, 813 (1995). For a cogent critique of Whren,
see Tracey Maclin, Race and the Fourth Amendment, 51 Vand. L. Rev. 333, 340 (1998)
(“In Whren the Court repeats its earlier mistakes . . . by neglecting racial concerns when
constructing Fourth Amendment rules that govern police-citizen interactions.”).
354. Albert W. Alschuler, Racial Profiling and the Constitution, 2002 U. Chi. Legal F.
163, 193.
355. Capers, Rethinking the Fourth Amendment, supra note 16, at 35.
356. Taslitz, supra note 248, at 12; Akhil Reed Amar, The Bill of Rights and the
Fourteenth Amendment, 101 Yale L.J. 1193, 1266 (1992); Akhil Reed Amar, Fourth
Amendment First Principles, 107 Harv. L. Rev. 757, 805–10 (1994); Capers, Rethinking the
Fourth Amendment, supra note 16, at 36–37.
357. Capers, Rethinking the Fourth Amendment, supra note 16, at 6–12.
58 COLUMBIA LAW REVIEW [Vol. 118:1
but also cases like Pennsylvania v. Mimms,358 or Maryland v. Wilson,359 or
Atwater v. Lago Vista,360 each of which vested the police with almost
unfettered discretion to engage in unequal treatment. I should add one
more thing in suggesting that the Court’s criminal procedure citizenship
talk embrace notions of equality. This language should emphasize
something more radical than equality between citizens (whatever their race,
income, or status), but equally true: that the citizen and the police—in
terms of citizenship rights—are equals.
Finally, and perhaps most importantly, imagine if citizenship talk in
criminal procedure opinions recognized the value of dissent. Right now,
the message from Court opinions is that citizens should want to assist the
police, should want to cooperate, should want to come forward with any
information they know about themselves or others. These messages do
not stand alone. Implicit in these messages about good citizenship are
messages about bad citizenship—messages that, as we have seen, chill not
only the exercise of rights but also democratic dissent. Imagine opinions
that allow room for citizens, including black and brown citizens, to talk
back. That allow room for individuals to be oppositional, to question
authority, and to challenge the law itself, without fear of repercussion. To
be clear, I am not suggesting language that would give individuals the
right to physically resist arrest or to disobey a lawful order. But I am
suggesting that individuals should, in general, have the right to speak, or
not speak, as they choose. To be “uppity” and “belligerent” and
oppositional. To “take a knee,” as NFL players and others have recently
done to protest racialized policing.361 To even say, in the immortal words
358. 434 U.S. 106, 111 & n.6 (1977) (granting officers unfettered discretion, under
the Fourth Amendment, to order drivers out of the vehicle following a legitimate traffic
stop).
359. 519 U.S. 408, 414–15 (1997) (extending this discretion to permit police to order
passengers out of the vehicle).
360. 532 U.S. 318, 350 (2001) (giving the Court’s imprimatur to officer’s discretion as
to whether to issue a summons or make an arrest, when both are permitted by the offense).
361. For an interesting discussion of the phenomenon of NFL players kneeling during
the national anthem, and the backlash, see generally Jelani Cobb, From Louis Armstrong
to the N.F.L.: Ungrateful as the New Uppity, New Yorker (Sept. 24, 2017), http://
www.newyorker.com/news/news-desk/from-louis-armstrong-to-the-nfl-ungrateful-as-the-
new-uppity [http://perma.cc/D7WE-ZZ66]. It has not been lost among people of color
and others that when white Americans protest peacefully, even if they are Nazis and anti-
Fascists or walking alongside them, the President of the United States deems those white
Americans “very fine people,” Full Text: Trump’s Comments on White Supremacists, ‘Alt-
Left’ in Charlottesville, Politico (Aug. 15, 2017), http://www.politico.com/story/2017/08/
15/full-text-trump-comments-white-supremacists-alt-left-transcript-241662 [http://perma.cc/
7SDX-DN3W], and yet when a black American football player protests peacefully by
kneeling during an anthem, the President deems him a “son of a bitch.” Aric Jenkins,
Read President Trump’s NFL Speech on National Anthem Protests, Time (Sept. 23, 2017),
http://time.com/4954684/donald-trump-nfl-speech-anthem-protests/ [http://perma.cc/
VLT8-46E4].
2018] CRIMINAL PROCEDURE AND THE GOOD CITIZEN 59
of Jay-Z, “you gon’ need a warrant for that.”362 To say, in the immor-
talized words of Eric Garner, “Every time you see me, you want to mess
with me. I’m tired of it. It stops today.”363 And to not have to worry about
having to say, moments afterwards, “I can’t breathe.”364
CONCLUSION
For too long the Court’s citizenship talk in criminal procedure cases
has gone unnoticed and unremarked upon. The goal of this Essay has
been to surface this talk—especially the talk about what it means to be a
good citizen vis-à-vis the police, and to demand an account. The goal,
too, has been to make an argument: Quite simply, there is something
troubling about citizenship talk that encourages citizens to cede their
rights of citizenship, those constitutional protections we have under the
Fourth, Fifth, and Sixth Amendments. There is also something discon-
certing about citizenship talk that chills dissent. There is certainly
something problematic about citizenship talk that furthers racial inequality
in its burdens.
The solution I have proposed—imagining a more pluralistic model
of good citizenship to be embraced by the Court, imagining a space that
at least tolerates if not welcomes dissent and opposition, and that
valorizes rights and equality—may not be a surefire cure-all to the
problems I have identified. But at least it begins a conversation about a
problem that has until now gone unnoticed.
362. Jay-Z, 99 Problems, on The Black Album (Def Jam Records 2003).
363. Susanna Capelouto, Eric Garner: The Haunting Last Words of a Dying Man, CNN
(Dec. 8, 2014), http://www.cnn.com/2014/12/04/us/garner-last-words/ [http://perma.cc/
7924-4HBY].
364. Id.
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My Dear Fellow Clergymen: While confined here in the Birmingham city jail, I came across your recent statement calling my present activities "unwise and untimely." Seldom do I pause to answer criticism of my work and ideas. If I sought to answer all the criticisms that cross my desk, my secretaries would have little time for anything other than such correspondence in the course of the day, and I would have no time for constructive work. But since I feel that you are men of genuine good will and that your criticisms are sincerely set forth, I want to try to answer your statement in what I hope will be patient and reasonable terms. I think I should indicate why I am here in Birmingham, since you have been influenced by the view which argues against "outsiders coming in." I have the honor of serving as president of the Southern Christian Leadership Conference, an organization operating in every southern state, with headquarters in Atlanta, Georgia. We have some eighty five affiliated organizations across the South, and one of them is the Alabama Christian Movement for Human Rights. Frequently we share staff, educational and financial resources with our affiliates. Several months ago the affiliate here in Birmingham asked us to be on call to engage in a nonviolent direct action program if such were deemed necessary. We readily consented, and when the hour came we lived up to our promise. So I, along with several members of my staff, am here because I was invited here. I am here because I have organizational ties here. But more basically, I am in Birmingham because injustice is here. Just as the prophets of the eighth century B.C. left their villages and carried their "thus saith the Lord" far beyond the boundaries of their home towns, and just as the Apostle Paul left his village of Tarsus and carried the gospel of Jesus Christ to the far corners of the Greco Roman world, so am I compelled to carry the gospel of freedom beyond my own home town. Like Paul, I must constantly respond to the Macedonian call for aid.