The Senate has left for its August recess, meaning that two of the primary negotiators for policing legislation — Republican Sen. Tim Scott of South Carolina and Democratic Sen. Cory Booker of New Jersey — can add another blown deadline to the tally.
More than a year after the police killings of Breonna Taylor, George Floyd, Rayshard Brooks and other Black Americans catalyzed a summer of uprisings, the atmosphere remains thick with calls for social transformation. Mostly, civil rights activists have laid the responsibility for curbing police abuse at the feet of national lawmakers, whose efforts have so far yielded nothing.
For all the ferocious debate about the US’s racist policing regime, there’s been very little discussion about an actor that deserves a lot of the blame for the wretched state of present-day policing: the US Supreme Court.
Consider the kind of chokehold that claimed Floyd’s life. It’s an abiding menace, particularly to Black Americans, because of 1983’s City of Los Angeles v. Lyons. The case involved Adolph Lyons, a 24-year-old Black man. In 1976, four White police officers pulled him over for having a busted taillight. At some point, they thought that Lyons had “mouthed off.” So, they put him in a chokehold. He blacked out, and also suffered an injured larynx.
Years later when Lyons sought an injunction to limit the use of the chokehold, the Supreme Court held, 5-4, that he lacked standing to challenge the practice that had nearly cost him his life. Why? He couldn’t demonstrate that he, personally, was likely to be choked again by an LAPD officer. What utter speculation, the Supreme Court seemed to say, even when confronted with evidence establishing that of the 16 people who had died as a result of LAPD officers’ use of chokeholds since 1975, 12 were Black men.
The dangerous obtuseness of the Supreme Court’s decision wasn’t lost on Thurgood Marshall, the first Black justice on the high court.
“Since no one can show that he will be choked in the future, no one — not even a person who, like Lyons, has almost been choked to death — has standing to challenge the continuation of the policy. The city is free to continue the policy indefinitely, as long as it is willing to pay damages for the injuries and deaths that result,” Marshall wrote in his withering dissent.
It’s impossible to overstate how deeply that 1983 case has influenced policing in the US.
“The chokehold that killed George Floyd in Minneapolis continues to be used because the Supreme Court refused to allow lawsuits to enjoin it in City of Los Angeles v. Lyons,” Erwin Chemerinsky, the dean of the School of Law at the University of California, Berkeley, writes in his new book, “Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.” “Americans were taking to the streets to protest out of frustration and anger because constitutional limits have not been placed on the police, and as a consequence racism manifests in policing every day.”
To parse the under-told role that the Supreme Court has long played in entrenching the power of the police, I spoke with Chemerinsky. The following conversation has been lightly edited for length and clarity.
Why do we need to pay attention to the Supreme Court in order to understand the strained relationship between the police and communities of color?
The Constitution is meant to impose many limits on policing. Often, the political process fails to control the police. So, we really need the Constitution and the courts to do that. But the Supreme Court has rarely used the Constitution to control the police, and either by silence or explicitly, it’s empowered the police — it’s empowered the police to engage in racialized policing.
To give one example: George Floyd died in Minneapolis from police use of the chokehold. Eric Garner died in New York City from police use of the chokehold. Many others, especially Black men, have died from police use of the chokehold. One would wonder: Why hasn’t the Supreme Court said that the chokehold violates the Constitution, that there have been lawsuits trying to enjoin police use of the chokehold?
In 1983, in a case called City of Los Angeles v. Lyons, the Supreme Court ruled that the courts cannot hear requests for injunctions to stop the chokehold.
To give another example: In the 1996 case Whren v. United States, the Supreme Court said that it’s fine for police to stop anybody, so long as they’ve got reasonable suspicion that they violated a traffic law, even if it’s a pretext to search for drugs or other things. Well, if the police follow anyone long enough, they’re going to find them changing lanes without a turn signal, not stopping long enough at a stop sign — it just justifies the police doing what the statistics demonstrate: stopping Black and Latino people much more often than White people.
Another way that the Supreme Court has empowered law enforcement is through what it hasn’t said about Constitutional limits on policing. Tell me a bit about that.
For the first century of US history, the Supreme Court didn’t decide cases about limits on the police with regard to searches and arrests or questioning suspects or conducting eyewitness identification. And to not limit the police means implicitly approving whatever practices develop. And many were abhorrent.
Even in the 20th century, the Supreme Court was often silent. Let me give an easy example. We know from many studies that false eyewitness identifications have led to the convictions of innocent people. And yet, since 1986, there’s been only one Supreme Court case dealing with the problem of eyewitness identification. And that case came down on the side of the police.
Why doesn’t the Supreme Court figure more prominently into public discourse about policing?
I don’t think that most people realize the direct connection between what the Supreme Court upholds and how policing is done.
Also, I think that most people don’t focus on the Supreme Court because the Supreme Court doesn’t set police budgets. Nor does it directly manage police departments in the way that police commissions do. And so, when we look at why the chokehold is still used, we look at all of the explanations, except we don’t focus on the Supreme Court.
What might achievable change actually look like? Given that the Supreme Court has become more and more conservative since the Warren Court (1959-1969), it seems like advocates looking to transform the police will have to go around the Supreme Court.
The reality is that the Supreme Court is very conservative, and is going to be that way for a long time to come. This conservatism means that it’s very pro-law enforcement and quite unlikely to put limits on policing. But I’m hopeful that the limits on policing can come from elsewhere.
For example, Congress, state legislatures, local governments and police commissions can put limits on policing. Many cities have already banned police from using the chokehold. There are many ways that the legislatures at the state and local levels can control policing. Also, state courts under state constitutions can impose limits on policing. State constitutions always can provide more in the way of rights than the US Constitution.
Also, there’s a federal statute: 42 US Code § 14141 allows the Justice Department to file lawsuits against police departments when there’s a pattern or practice of civil rights violations. These have been quite successful. We’ll see if the Biden administration and Attorney General Merrick Garland make more use of this authority.
