The emergence of Donald Trump as the self-proclaimed “law and order” candidate on November's presidential ballot should be cause for serious concern for all of us.
If not for the reasons related to the Republican presidential nominee's positions on Black Lives Matter and other groups of peaceful protesters exercising their constitutional rights to freedom of assembly and freedom of speech, “law and order” Trump should be of concern because of the likelihood that whoever is elected will likely have the responsibility of appointing as many as three new Supreme Court justices. This could very well swing the court in either the direction of liberal and progressive or extreme conservatism.
Of particular relevance are cases that impact police powers. Historically, members of law enforcement have been given wide latitude with respect to how they execute their jobs because society has largely afforded them the benefit of the doubt, given the inherent danger associated with their jobs. But recent events have eroded that argument and raised the question of whether we should continue to give cops such unabridged discretion.
We have borne witness to myriad examples of abuse of power by police against communities of color, and the courts have only been but so helpful in protecting our rights amid a broken criminal-justice system. For every case like Kingsley v. Hendrickson (which held that intent wasn’t necessary when proving police force was excessive), there seems to be two rulings on the opposite end of the spectrum, like Luna v. Mullinex (which expands immunity for killer cops) and City of San Francisco v. Sheehan (in which the court ruled that police officers who killed a mentally ill woman could not be sued).
The following are four cases, decided by the Supreme Court, that police regularly rely on to cross the line when it comes to an individual's rights:
1. Terry v. Ohio (1968)
This case is widely considered the original standard for “stop and frisk.” In it, the court essentially decided that police could lawfully stop and search a person without violating his Fourth Amendment rights against unlawful search and seizure, so long as the police were able to articulate a reasonable suspicion that a crime had occurred or was about to take place.
At the time, Terry was a decision that, while it broadened police authority, did not seem to give cops carte blanche. However, with time, we now know differently. As we learned in Floyd et al. v. City of New York, police (to no surprise to anyone black) have for decades made “black and Latino” synonymous with “reasonable suspicion,” effectively making the threat of blackness a real thing that can be used to make unreasonable stops and searches routine.
2. Frazier v. Cupp (1969)
You know all of those episodes of Law & Order where there is literally 3:14 left before the credits roll, and they have the prime suspect in for questioning and lie to him about a confession from an accomplice the police never really had? And then the person snaps and confesses in a fit of rage after thinking he was betrayed? Yeah, that all comes from the Frazier case. Every time.
When police have a basic amount of information that allows them to make certain deductions, they are allowed to, within certain limits, extrapolate, or lie, to a suspect about having other confessions or eyewitnesses. If this results in a confession, the confession can be used against the defendant.
The lesson here? As always, leave the conversations with police to your attorney.
3. Oregon v. Mathiason (1977)
In this case, a defendant voluntarily went into a police station “for questioning” and was told that he was not under arrest. While he was talking with police, the cops lied to the defendant and told him they had recovered his fingerprints from the scene of the crime (they hadn't). The defendant confessed to having taken property and was subsequently arrested.
The Supreme Court decided that defendant Mathiason had not been unreasonably coerced and that police had not abused their power. That's right. The cops lied, got a confession and then used that confession to make an arrest when they otherwise would not have had probable cause to do so or enough evidence to get a conviction.
4. Maryland v. King (2013)
While the other cases mentioned above are at least 35 years old, this one holds particular relevance to the technology of the present day. Essentially, police can lawfully, unwittingly and unintentionally, get you to provide them with a sample of your DNA.
For example, if a cop offers you a beverage and you accept, they can use any DNA sample they recover to determine whether there is a positive match to other DNA found at a crime scene and, ultimately, use it to convict you. Police can also lawfully secure DNA by searching through your garbage without permission.
It's obvious that most of these cases are old. It wouldn't be unreasonable to suggest that when they were originally decided, the way mainstream America looked at race and policing was significantly different from now. Well, maybe not significantly different, but there certainly weren't body cams or cellphone cams or any of the other technologies that have been used to help support legitimate accounts of repeated abuses of authority by police against people of color.
There are a number of solutions to these rulings. New cases can be brought that might have a chance to overturn them, little by little. The long-term takeaway from Floyd, for example, was that where a systemic pattern of racism has been found (see the Justice Department reports on Baltimore, Cleveland and Ferguson, Mo.), there is stronger justification for not allowing police to use certain tactics like stop and frisk.
The other possible solution to addressing some of this antiquated case law is to elect officials who are committed to enacting legislation that severely penalizes law-enforcement officers who wantonly disregard their responsibilities and violate the public trust through their actions. But overall, in an era where police abuses of civil liberties seem to run rampant, and the Supreme Court is likely to have multiple vacancies in the foreseeable future, it's critical to understand exactly how much is truly at stake in the upcoming presidential election.
Charles F. Coleman Jr. is a civil rights trial attorney, legal analyst and former Brooklyn, N.Y., prosecutor. He is also a professor of criminal justice at Berkeley College in New York. Follow him on Twitter.