THE PLANK JULY 21, 2009
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In light of Harvard professor Henry Louis Gates Jr.'s arrest last Thursday, we have dredged up a TNR cover story from September 1999 by Gates' colleague, Randall Kennedy. Kennedy argues that racial profiling is effective and not necessarily racist, but should be abolished anyway.
Consider the following case study in the complex interaction of race and law enforcement. An officer from the Drug Enforcement Administration stops and questions a young man who has just stepped off a flight to Kansas City from Los Angeles. The officer has focused on this man for several reasons. Intelligence reports indicate that black gangs in Los Angeles are flooding the Kansas City area with illegal drugs, and the man in question was on a flight originating in Los Angeles. Young, toughly dressed, and appearing very nervous, he paid for his ticket in cash, checked no luggage, brought two carry-on bags, and made a beeline for a taxi upon deplaning. Oh, and one other thing: the officer also took into account the fact that the young man was black. When asked to explain himself, the officer declares that he considered the individual's race, along with other factors, because doing so helps him efficiently allocate the limited time and other resources at his disposal.
How should we evaluate the officer's conduct? Should we applaud it? Permit it? Prohibit it? As you think through this example, be aware that it is not a hypothetical one. Encounters like this take place every day, all over the country, as police attempt to battle street crime, drug trafficking, and illegal immigration. And this particular case study happens to be the fact pattern presented in a federal lawsuit of the early '90s, United States v. Weaver, in which the U.S. Court of Appeals for the Eighth Circuit upheld the constitutionality of the officer's action.
"Large groups of our citizens," the court declared, "should not be regarded by law enforcement officers as presumptively criminal based upon their race." The court went on to say, however, that "facts are not to be ignored simply because they may be unpleasant." According to the court, the circumstances were such that it made sense for the officer to regard blackness, when considered in conjunction with the other factors, as a signal that could be legitimately relied upon in the decision to approach and ultimately detain the suspect. "We wish it were otherwise," the court maintained, "but we take the facts as they are presented to us, not as we would like them to be." Other courts have agreed with the Eighth Circuit that the Constitution does not prohibit police from routinely taking race into account when they decide whom to stop and question, as long as they do so for purposes of bona fide law enforcement (not racial harassment) and as long as race is one of several factors that they consider.
4 comments
I am following this with high interest. Why? Because something very similar happened to me right in my hometown here in Northern CA. I live in a quaint, predominately white Northern CA town. About 7 or 8 years ago, I found myself in a similar pickle. A neighbor friend of mine asked me to water his flowers and garden while he and his family went on vacation. This was easy because his home was just across the field from my castle and was on the tail end of my jogging route. No problem, I thought, I will just water the plants on my jogging route and that will be easy. As a backdrop, when I exercise, I do not wear shiny, new stuff. I wear ratty old sweats, an old beat up tee shirt, and I perspire a lot.
So, the first day that I go to water his home, I look a bit bedraggled but full of neighborly intent. I am watering the front, and then I have to go into the backyard, which I do. As I finish up in the back, I come out and right there waiting for me is a city police cruiser with two of the town's finest. "What am I doing?" was the question - like in Gate's situation, someone had seen me, this brown sweaty guy messin' about the house and called the police - and they asked me for ID, which of course, I did not have because I do not carry my wallet when I jog. We went back and forth, and though they did not say they didn't believe me, they made me sit on the curb, while one officer stood sentry over me and the other went to call in. As I sat there, I was pissed but I grew up with a father who told us boys never to directly argue with cops. He had done that in Boyle Heights East LA when he was a kid and he told us all it ever got him in the 1940s was an ass kicking.
The only thing that saved me was that while they had me doing the perp curbside sit down, another friend drove by, a white Jewish guy in fact, and he stopped and came over to ask me what was up. The cops were at first pretty tough but this guy confirmed that I was a neighbor, a friend of the home owner, and despite by obvious watering while brown violation, I was actually a resident too, a solid citizen, and a person of note in the community. The two cops then got very very nervous, apologized profusely, and allowed me to go on my own way.
Of course, I was pissed to the bone but when my wife asked me if I was going to write an article about it - I was doing a lot of free lance at the time - I said no. Why, she asked. Well, I told her that cops hate to be made to look bad and if I embarrassed them in front of the entire community, who knows how they would react? Would they ever come out to our house if we needed them? Would I suddenly find that I am getting ticketed for all kinds of weird, arcane infractions? Naw, though I was pissed and though the experience humiliated and embarrassed me, taking a cue from Hyman Roth, I let it go.
I am not saying that Gates should or should not do anything. I am just telling you that I had a very similar experience and this was how it played out.
- thejauntyboulevardier
July 21, 2009 at 12:07pm
Excellent post, jaunty. I'd like to add a comment about one thing you said: "As I sat there, I was pissed but I grew up with a father who told us boys never to directly argue with cops."
I suspect many fathers, of all colors--brown, black, white, whatever--have taught their sons (and daughters) exactly that. It's simply basic common sense when dealing with the police anywhere, under any circumstances, even in whitebread suburbia where I learned this lesson from my father. (And, his advice has come in handy on more than one occasion over the years.)
Again, is just seems to be common sense, which in no way is intended as a comment on the obvious disparaties in how the police, historically, have dealt with individuals based on race. I understand that that reality is key to the discussion.
Meanwhile, based only on the limited information I've read so far, it seems that Professor Gates may have forgotten or ignored that lesson and, instead, once again, is writing wolf tickets.
- cvillekid
July 21, 2009 at 4:28pm
cvillekid,
I have often wondered how I would have responded if my white savior neighbor hadn't shown up and convinced the two officers that I wasn't a suspect. Of course, it is a bitter pill to swallow to know that I was spared a trip to the station only by the serendipitous power of another neighbor's white credibility.
And I have often wondered how I would have reacted if they did stuff me into the cruiser and hauled my sweaty brown ass in for watering while brown. Even still, I do not think I would have pitched a hissy fit simply because of the advice of my father. If that happened, I do think I would have been more inclined to write about it in the local media. Who knows. It was averted. But I have to tell you, I was very humiliated when I had to sit on that curb in front of the entire neighborhood while that officer was standing guard over me. It is at those times when one really questions if color "doesn't matter anymore". I can certainly understand Gates' visceral reaction to this kind of ignominious experience. I was so glad that my kids didn't witness that humiliation.
- thejauntyboulevardier
July 21, 2009 at 6:43pm
That should be "selling wolf tickets", of course, not "writing them."
- cvillekid
July 22, 2009 at 8:13am