NOVEMBER 20, 2021
IN HIS LATEST book, Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights, Berkeley Law Dean Erwin Chemerinsky does not pull his punches. He opens our eyes to a critical reason that we continue to have problems of police violence and racism in law enforcement. Although justices claim to be calling “balls and strikes,” they have long been rooting for one side — the police — and have not taken the necessary steps to protect our citizenry’s civil rights. While some might see Chemerinsky’s claim as blasphemous, others will praise the cleansing light he shines on the Supreme Court’s role in perpetuating the problems of our criminal justice system. Racism is not new; excessive force by police is not new; flagrant disregard for constitutional rights is not new. What is new, however, is that someone as distinguished and respected as Chemerinsky is willing to lay out in black and white the Supreme Court’s complicity in the problems that plague our justice system.
Chemerinsky masterfully presents his arguments by tying together current events with major Supreme Court decisions that laid the foundation for those conflicts. What better case to start with than that of George Floyd? The trauma is still with us — watching Floyd die over the course of nine minutes while Derek Chauvin, a white Minneapolis police officer, put a knee on his neck is an event with which every reader will be familiar. How could this happen?
Chemerinsky quickly pivots from the facts of Floyd’s case to the troubling history of police practices, especially chokeholds, in American. And it does not take long for him to identify the Supreme Court’s role in allowing these practices to continue. In 1983, in City of Los Angeles v. Lyons, the Supreme Court faced the issue in our own backyard: the Los Angeles Police Department routinely used chokehold against black suspects. Adolph Lyons, a 24-year-old African American man, was stopped for driving with a burned-out taillight. (Sound familiar?) Officers approached him with drawn revolvers. They forced him to “assume the position” with his face to his car, his legs spread, and his hands clasped behind him. After they patted him down, Lyons dropped his hands, but the officers slammed his hands on the roof and he complained about pain from a ring of keys he was holding that was digging into the skin of his palm. Perceiving Lyons as “mouthing off,” the officers then applied a chokehold. Lyons blacked out. When he awoke, he was face down on the ground, choking, gasping for air, spitting up blood, and had urinated and defecated on himself. The officers then issued him a traffic ticket and allowed him to go.
Lyons sued the City of Los Angeles to stop these practices. They were widespread throughout the department and the country. United States District Judge Robert Takasugi ruled for Lyons and ordered then-LAPD Chief Daryl Gates to stop the practice. The evidence supporting the judge’s order was overwhelming. Lyons was not looking to get rich off the incident. Instead, he and his lawyers wanted the practice to stop. The Supreme Court had the power to help make that happen, but the justices did not use it. Instead, in a 5-4 decision, the Court held that Lyons did not have legal standing to come to court because he could not show that he personally would be subject to the same police action in the future. Using this procedural gambit, the Court shut the courthouse doors to individuals seeking to stop the police from using this violent form of restraint. The Court did not stand up for the little guy; the Court did not stand up against police violence or racism. It created a procedural escape hatch in cases that could have led to significant changes in policing practices.
Since the Warren Court in the 1960s, the Supreme Court has continuously failed to recognize how race has infected policing in the United States. From the use of slave patrols to the current incarceration of blacks at 5.1 times the rate of white people, racial discrimination has been the reality. However, the Supreme Court seems to have tunnel vision when it decides many of the cases that have come before it since the Warren era.
My criminal procedure students know this to be true. They read another book written by Chemerinsky and his co-author that goes through the cases. In the future, they may be assigned this one as well. Because Presumed Guilty is a clear-eyed examination of some of the most notable Supreme Court cases, it puts these holdings in critical context. Terry v. Ohio, which authorized the police practice of “stop and frisk,” was a near permission slip for police to use their instincts — even though those may certainly be influenced by racial biases — to stop millions of Americans on the streets. The statistics do not lie. People of color are most likely to be stopped — by the millions. In framing its standard for reasonable suspicion, the Court made it so low that it will be a rare case that an officer cannot justify such a stop and frisk. Subjective intent does not matter. The Court gave them the authority to do exactly what has happened — using pretexts to stop people of color.
Chemerinsky presents both the historical and practical reasons used to explain why the Supreme Court has not been more engaged in protecting civil rights. The debate over how much federal authorities, including the Supreme Court, should dictate state practices rages to this day. It has been more than 150 years since the Civil War, but the Supreme Court is still reticent to dictate to states how their police departments should operate. In fact, over the years, it has given them cover from actions that are brought under the Constitution and statutes. “Qualified immunity” is still in the news. It is a concept created by the Court. Under this doctrine, police have immunity from civil liability unless their actions are so egregious that the Supreme Court has previously found they violated defendants’ rights and the officers did not act in good faith. Even beyond that, judicial officers and prosecutors have absolute immunity, no matter how egregious their actions. In other words, the Supreme Court created a doctrine that makes it clear — and there is no doubt that officers know — that they have limited if any accountability for their unconstitutional actions.
Presumed Guilty is a comprehensive review of the Supreme Court decisions affecting nearly every person in our criminal justice system. Just when it appears that the Court may seek to safeguard suspects’ rights, the next generation of justices pulls back on those rights. That is exactly what happened with the protection of the Fifth Amendment privilege against self-incrimination. Yes, the Warren Court in 1966 decided Miranda v. Arizona, which requires officers to advise suspects of their constitutional rights before subjecting them to custodial interrogation. However, since then, there has been a continuing stream of decisions to limit Miranda. Chemerinsky addresses head-on the arguments that advising defendants of their constitutional rights — something that is not required when asking suspects for permission to search — might impede the ability of police to do their job. As one Salt Lake City study demonstrated, suspects waive their Miranda right in 83.7 percent of interrogations. If anything, we have a problem with suspects providing false confessions, not the hypothetical claim that cases will go unsolved without allowing police to pressure suspects into confessing.
Chemerinsky is hard on the Court, but he should be. I founded the Innocence Project at Loyola Law School. Our clients spend decades behind bars for crimes they have not committed because the Supreme Court has not set more exacting standards for the police. The safeguards against inaccurate eyewitness identifications are woefully inadequate; the pressures on police to cut corners and stop people on a hunch has increased; and the lack of enforcement of basic constitutional rights, like the due process Brady right to exculpatory evidence, persists.
Ultimately, the goal of this book seems to be more than just to hold the Court accountable. After all, that is difficult to do with justices who have life tenure and who may not really care how they are perceived by the public. Although they have resisted being labeled political hacks, the connection between their ideologies and the presidents who appointed them is evident. Chemerinsky is holding the Court accountable, but he is not giving up on change. Instead, he asks reformers to pivot by working for reforms on the state and local levels. We could eliminate the pernicious practice of stopping and frisking individuals of color for very little suspicion, we could require consent for searches, we could have defense counsel involved in identification procedures, and we could automatically provide counsel when someone is interrogated by the police. All of that is possible. It just requires the will.
Rather than abolishing or defunding the police, install democratic controls. Authorize suits against officers who violate the Constitution and collect data about bad policing. Insist on civilian oversight if the Supreme Court is not going to play that role.
Years from now, Americans may ask, “Did anyone stand up to the Supreme Court and pull back the curtain?” The answer will be “Yes.” Chemerinsky did just that. Now, it is time for all of us to take a good look.