The Death of the Fourth Amendment

In the wake of the Diallo and Louima rulings and the Dorismond shooting, New York Mayor Rudy Guiliani needs to see his supposed success as a failure. His perceived accomplishments in improving the "quality of life" in New York are, in reality, abuses of police discretion and the perpetuation of a racial double standard in law enforcement.

For whites, Guiliani's improved "quality of life" may be manifested in the form of cleaner streets, fewer "broken windows" and a marked decline in subway turnstile jumpers. For blacks and latinos, it means--at best--routine harassment and frisks with decreased Fourth Amendment rights. At worst, it means 41 shots by four heavily armed policemen for the crime of being black and carrying a wallet.

Consistent enforcement of misdemeanor violations of a targeted kind is not in itself a bad idea. Even if a hefty fine for turnstile jumping seems draconian in comparison with other cities' policies, no civil liberties are violated if an existing law is aggressively but uniformly enforced. The "broken windows" theory articulated by James Q. Wilson and George Kelling is not intrinsically problematic: disorder does cause fear, which eliminates social control, inviting illicit activities. And it seems to be working: violent crime is down 49 percent in New York, compared with seven percent in Chicago and six percent in Philadelphia.

But this victory is a pyrrhic if the costs are our constitutional rights and the racially-neutral law enforcement in America. Focusing on disorderly offenses has permitted and indeed invited over-zealous and discriminatory street policing of the kind that led to the Diallo tragedy and daily indignities. According to the state attorney general, blacks are stopped 2.1 times more often than whites in New York.

The new policing in New York was made possible by a string of recent U.S. Supreme Court decisions that have increased police discretion and permitted law enforcement agents to circumvent the spirit of the Fourth Amendment's protections against unreasonable searches and seizures and the Fourteenth Amendment's assurance of equal protection. In only the most upsetting of recent string of decisions, the court ruled in Whren v . U.S. that the police were not out of line when they used a minor crime as a pretext for stopping someone whom they found suspicious without an articulable basis for that suspicion. Writing for the majority, Justice Scalia held that when a police officer actually arrests a driver for a traffic violation and then searches the vehicle, a Fourth Amendment-based motion to suppress evidence of other crimes will not prevail even if--based on an objective standard--police officers do not usually arrest people for that kind of misdemeanor.

Whren lowered the bar for the kind of articulable suspicion police officers needed to have to conduct a search. As long as they are willing to arrest the suspect for any minor violation they can find, the Supreme Court have been given police too much room to use racial profiling. Another case, U.S. v. Weaver, made race an acceptable part of the articulable suspicion required for a Drug Enforcement Agency deputy to stop a nervous-looking suspected drug-courier in an airport when flying from a source city and purchasing his ticket with cash. Utilizing race as an acceptable component of an officer's decision to stop someone for behavior typical of a large number of innocent people has shocking ramifications for law enforcement across the country. If this precedent is expanded, the legislature might as well make "driving while black" a crime on the books, because the equal protection clause will cease to mean anything in American jurisprudence.

In a few cases, the court has upheld Fourth Amendment rights, but only in striking down the most outrageous and vague ordinances. On the whole, the court is not limiting discretion so much as teaching police departments the rules. In Whren and Weaver, the court is sending a strong signal to cities that they will give broad latitude to racial profiling. Tell me a story, they say. Make it borderline believable, and we will deny motions to dismiss on the basis of Fourth and Fourteenth Amendment challenges when minorities claim unreasonable searches and discriminatory treatment.

Most police officers are not racist. A civilized society must place a high priority on law enforcement for reasons of deterrence and justice. But these decisions threaten the protections inherent in the Constitution and leaves all citizens vulnerable to the abuses of an aberrant--but brutal--minority of law enforcement officials. The Constitution only protects us from these abuses if the courts respect its spirit.

Who is to blame for Diallo? The four white police officers, who shot a man holding a wallet; the system of accountability, put in place by former New York Police Commissioner William Bratton, puts intense pressure on officers to bring down crime at any price; wannabe-Senator Rudy Guiliani; and most importantly, the Supreme Court. While some feel there is not much of a policy difference between George W. Bush and Al Gore '69, there is a significant difference on this issue. With as many as three seats on the Supreme Court likely to come open in the next four years, the future of race relations in the U.S. could hang in the balance.

Quentin A. Palfrey '96 is a former Crimson editor and a first-year student at Harvard Law School.