Last week, the Supreme Court ruled that evidence of a crime can still be used in some cases even if police obtained it illegally. While the 5-3 ruling deals a blow to civil rights in favor of police powers, it is likely to be remembered largely for the powerful dissent penned by Justice Sonia Sotomayor, the first Latina justice on the court. In a ruling that cited Michelle Alexander, James Baldwin and Ta-Nehisi Coates, Sotomayor wrote, “it is no secret that people of color are disproportionate victims” of police searches. We get reaction from lawyer Douglas Colbert of the University of Maryland Law School. He’s also the director of the Access to Justice pretrial clinic and founder of the Lawyers at Bail Project, which represents more than 4,000 indigent defendants at bail hearings. In 2013, Colbert helped win a seven-year class action suit that guaranteed indigent defendants their constitutional right to counsel when first appearing before a judicial officer.
AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Juan González.
JUAN GONZÁLEZ: Last week, the Supreme Court ruled that evidence of a crime can still be used in some cases even if police obtained it illegally. While the 5-3 ruling deals a blow to civil rights in favor of police powers, it is likely to be remembered largely for the powerful dissent penned by Justice Sonia Sotomayor, the first Latina justice on the court.
AMY GOODMAN: In a ruling that cited Michelle Alexander, James Baldwin and Ta-Nehisi Coates, Judge Sotomayor wrote, quote, “it is no secret that people of color are disproportionate victims” of police searches. She concluded her argument saying, quote, “By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.” Supreme Court Justice Sonia Sotomayor went on to write, quote, “We must not pretend that the countless people who are routinely targeted by police are 'isolated.' They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but. I dissent.” Those are the words of Justice Sonia Sotomayor.
Our guest is Doug Colbert, a professor of law at the University of Maryland School of Law. In this Part 2 of our conversation, following up on the Freddie Gray case, the acquittal of the second police officer, let’s talk about this Supreme Court decision this week. Explain what the decision is based on, what the case was, and what it is Sonia Sotomayor was saying.
DOUGLAS COLBERT: Well, what we’re looking at is a Utah case, Amy, and we’re talking about a white male who left someone’s home and was walking to his car in a parking lot when he was stopped by a detective, told to remain there. The detective wanted to know what was going on inside the house. Now, to have a stop of a person, you usually, up until this case, had to give a reason, a good reason, for stopping the person. To detain someone, you had to have reasonable suspicion that a crime was being committed or was about to be committed. That all fell aside with this decision, because what the Supreme Court said, through Justice Thomas, was, when the police officer then investigated to see whether this individual had a pending warrant and they found a warrant for his not paying a fine on a traffic violation, then they could arrest the individual and then conduct a full-blown search of the person.
And so, the likely impact of this decision will once again fall upon people of color, people from lower-income neighborhoods. Police can now—and this is what Sotomayor said. It’s a powerful dissent, probably belongs in the top 10 of all-time dissents, because she calls it just like it is. And she says, to everyone, you can now be stopped for doing nothing wrong, but if you can be stopped and detained and investigated, and a warrant’s there—and there are about 8 million warrants that Sotomayor referred to in her opinion, and I think there’s many more than that; here in Baltimore, there are 40,000 people who live every day in fear of arrest—then you can lose your Fourth Amendment protection. You will be subject to a full search. And in the Utah man’s situation, they found some amphetamine pills, and so they charged him with a misdemeanor.
JUAN GONZÁLEZ: Now, this was a 5-3 decision in a court that supposedly is split 4-4, liberal and conservative, so obviously one of the liberal justices joined this majority opinion, right? Who was that justice?
DOUGLAS COLBERT: Justice Breyer, surprisingly, joined the other four more conservative members of our court. And I can’t explain Justice Breyer’s action, except it once again points out the importance of a person like Justice Sotomayor, as well as the other two women judges, Justice Kagan and Justice Ginsburg, in really appreciating the impact of this decision. I mean, you literally are changing Fourth Amendment jurisprudence. And it’s going to be felt by the Freddie Grays who live in the inner city. It’s going to be felt by other people who are now going to become easy targets for police conducting an investigation without any basis for it whatsoever.
AMY GOODMAN: So, Clarence Thomas, rebutting the dissenters, said he doubted, quote, “police will engage in dragnet searches if the exclusionary rule is not applied. We think this outcome is unlikely,” he said. Explain what he is saying.
DOUGLAS COLBERT: Well, he is painting a very bland, inconsequential view of what’s taking place. And Sotomayor—Justice Sotomayor refers to that in the second sentence of her opinion, when she says, “Do not be fooled by this technical language that’s being used from Justice Thomas’s point of view.” And it either shows a lack of understanding of what’s taking place on the street, or it’s something more horrific than that. But he’s saying, “Well, this is just isolated situations. There’s no pattern here of police stopping people, of police profiling people. And so, what the police did was good law enforcement.” They didn’t have—he agrees that the officer was conducting an unconstitutional stop in the first instance, but then he goes on to say, “Well, this is now a separate situation. It’s attenuated when the officer checks out to see if you have an open warrant.” And so, from Justice Thomas’s point of view, this was good policing, but it was done out of context, with no understanding of what’s taking place in communities and how this can be applied by police across the country.
AMY GOODMAN: So you have the three women justices dissenting, and you have Judge Sotomayor quoting, oh, W. E. B. Du Bois, Ta-Nehisi Coates, Michelle Alexander, James Baldwin. How often does that happen, Professor Colbert?
DOUGLAS COLBERT: Well, it’s rare. And what’s even more rare, Amy, is Justice Sotomayor includes the talk that every parent of a child of color must give that child to make sure that he or she does not wind up either injured or dies as a result of moving too quickly, not showing your hands, showing disrespect to an officer. And so, she is really telling it like it is. I don’t see many opinions not only that uses those historical references, but, from the very beginning, she is speaking to the public. She is saying, “You—you are the ones that face action by police that, up until now, would never have been allowed.” And it’s an extraordinary dissent, powerful as one can write.
AMY GOODMAN: We want to thank you very much, Doug Colbert, for joining us. Doug Colbert, professor of law at the University of Maryland School of Law. This is Democracy Now!, democracynow.org, The War and Peace Report. To see Part 1 of our conversation with Professor Colbert, as well as Joshua Harris, the Green Party candidate for mayor in Baltimore, about the most recent decision in the Freddie Gray case, the second police officer acquitted, go to democracynow.org. I’m Amy Goodman, with Juan González. Thanks for joining us.