Cops could be forced into race-based guessing game after Supreme Court move, Thomas joins dissent

Justices Samuel Alito and Clarence Thomas on Monday dissented from the Supreme Court’s refusal to take up a case that they said forces police officers to create a separate set of rules for racial minorities.

“It is dangerous to allow an individual to be treated differently based on statistics, studies, or expert testimony that purports to show that members of the racial or ethnic group to which he belongs are more likely to act in a certain way than are members of other groups,” Alito wrote on behalf of himself and Thomas. “Here, the special treatment helped the individual; in other situations it will not.”

The case, U.S. v. Donte J. Carter, involved a Black man whose firearm and theft convictions were vacated after the D.C. Court of Appeals held that police seized him before they had reasonable suspicion. Officers later recovered a .40-caliber pistol from Carter’s pants and the government said the gun had been stolen from an FBI agent’s vehicle.

According to the D.C. court, “black Americans like [Carter] are ‘especially distrustful of law enforcement’” and therefore “‘less likely’ than other people ‘to terminate a police encounter’ due to skepticism that any attempt to exercise their constitutional rights will be respected.” 

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The D.C. court reasoned that Carter’s race was relevant to whether a reasonable person in his position would have felt free to end the police encounter. It ruled that the encounter effectively became a seizure, and that such an action was unlawful because police officers hadn’t established reasonable suspicion before subjecting him to it.

Alito and Thomas argued that the D.C. ruling effectively forces law enforcement to treat people differently based on their race, something precedent established by the Supreme Court prohibits.

“Under the test, officers will need to quickly assess a person’s race, and if officers and courts must craft special rules for black persons, what about dark-skinned Latinos, other Latinos, and members of other minority groups?” Alito continued. “We have said that our ’Constitution is color-blind.’ It ‘almost never’ allows government actors to treat persons differently based on their race.”

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To support his claims, Alito cited Students for Fair Admissions v. Harvard and Louisiana v. Callais and Shaw v. Reno. 

“And we have rejected the proposition that the Constitution permits an individual to be treated differently based on a ‘perception that members of the same racial group — regardless of their age, education, economic status, or the community in which they live — think alike,'” Alito wrote, citing Shaw v. Reno.

This appears to be a direct challenge to the D.C. Court of Appeals, which lawyers representing the United States argued forced police officers to assume that all black people have the same attitudes toward police officers and would therefore feel uncomfortable exercising constitutional rights in their presence.

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Carter, the individual Alito noted was helped by the case, initially lied to officers by answering in the negative when approached and asked if he was carrying a weapon.

The police then asked Carter to pull his pants up, at which point they noticed an L-shaped bulge which was later identified as a .40-caliber pistol that had been stolen from a federal agent’s vehicle.