A recent ruling by the U. S. Supreme Court may have furnished the framework for the recent slayings by police officers of two African-American men — here in Minnesota and in Baton Rouge, La.
In late June, shortly before adjourning for the summer, the justices held that police officers may search individuals after illegally stopping them and charge them with crimes resulting from the search if the officers become aware, after the illegal stop, that the individual was subject to an outstanding warrant for a minor offense.
The decision, in a case entitled Utah v. Strieff, reversed a unanimous ruling of the Utah Supreme Court, a body not known for its leniency on law-and-order issues, which had ruled the search and subsequent charge for a drug offense constituted an unconstitutional intrusion.
The high court disagreed in a 5-3 ruling, with Justice Stephen Breyer leaving his customary liberal colleagues and joining the more conservative majority.
The case arose outside of Salt Lake City, where a police officer made an investigatory stop of a suspected drug dealer, which was deemed to be illegal because it was based on an anonymous tip without the necessary probable cause. However, the officer learned, while the suspect was in his custody, that the individual had a warrant out for an unpaid parking ticket. The officer then conducted a search of the suspect, which yielded methamphetamine and led to a felony charge of illegal drug possession.
Overturning the ruling of the Utah Court, which had thrown out the charge, the Supreme Court reasoned, in a decision written by Justice Clarence Thomas, that even though stopping the individual was improper, it was too “attenuated” to the subsequent search, which was legitimized by the officer’s subsequent awareness of the outstanding traffic warrant.
There are some haunting parallels between that case, handed down on June 20, and the slayings of the two black men within days of each other three weeks later: Philando Castile, the 32-year-old St. Paul man killed in Falcon Heights, and Alton Sterling, a 37-year-old man, shot and killed by police in Baton Rouge.
Like the Utah case, Castile’s death grew out of a minor traffic incident; he was subject to a so-called investigatory stop by a St. Anthony officer for driving with a broken taillight and then shot and killed while apparently responding to a request for his identification. In Louisiana, the tragedy arose after an anonymous tip, which may have been inaccurate, that Sterling was brandishing a handgun outside of a convenience store where he was selling merchandise, prompting two police officers to accost him and kill him while he was being restrained.
There are, to be sure, some differences between the high court case from Utah and the two subsequent slayings. In Utah, the officer acted illegally in making the initial stop, but the illegality was deemed by the court to be sanitized by the subsequent knowledge of the outstanding warrant. In contrast, in both the Castile and Sterling shootings, the initial conduct by the police apparently was lawful, but their ensuing actions were, in the words of the Louisiana governor, “disturbing to say the least” and very possibly illegal.
Despite these disparities, the underlying police behavior in both the Falcon Heights and Baton Rouge abominations, may be the product of the laxity manifested by the high court in the Utah case. Its ruling may unwisely unleash law enforcement personnel by giving them license to engage in improper behavior that imperils those they confront and might ultimately lead to these type of tragic results.
These outcomes are not surprising. One of the three dissenting Supreme Court jurists in the Utah case presciently foresaw what has transpired here in Minnesota and Louisiana. Invoking the principle that “two wrongs don’t make a right,” Justice Sonia Sotomayor pointed out, in objecting to the majority’s decision, that unleashing police to engage in questionable tactics in stopping citizens for “investigatory” purposes imprudently provides law enforcement personnel with “an array of instruments to probe and examine” citizens. She went on to lament that allowing police to stop individuals at a whim, for “whatever reason,” has “severe consequences.” Her prediction, unfortunately, was borne out in the pair of reprehensible events here and in Louisiana.
Unlike the majority decision, which nonchalantly regarded the improper police practice in the Utah case as an “isolated” incident, she saw it as an “institutionalized” problem. Noting the “staggering” number of outstanding arrests warrants in this country, some 7.8 million, many for minor, often outdated offenses, Justice Sotomayor bemoaned how wrongful police stops can be “degrading” and cause “humiliations” to the accosted citizens and, while not mentioned by her, fatal tragedies.
She concluded her dissent by pointing to the elephant in the room: the racial issue. While the suspect in the Utah case was a white male, she observed, it “is no secret that people of color are disproportionate victims of this type of scrutiny” by police, a message echoed by Gov. Mark Dayton following the Castile shooting.
Law enforcement personnel have a difficult job, as nearly everyone recognizes, from President Obama on down, and the sniper slayings of five of them in Dallas the other day underscore the dangers they face. They deserve ample resources, training, and support of the public to carry out their crucial mission.
But they also should be subject to reasonable restraints. The Utah ruling is the latest in a series of Supreme Court decisions permitting dubious police practices at the expense of the rights of the citizenry they are sworn to both protect and serve. It didn’t take long for its impact to be felt on the streets of Baton Rouge and here in Falcon Heights.
Marshall H. Tanick is a Twin Cities constitutional law attorney.