Policing Bias Without Intent
In December of 2019, a woman was robbed in Jersey City, and she quickly reported it to a 911-dispatcher. When the dispatcher asked her whether the suspect was “Black, white or Hispanic,” she responded that she did not know. But when relaying the description to a police officer, the dispatcher improperly added to the woman’s account that the suspect was a “Black male.” This error appears to have been inadvertent, a mistake reflecting the pernicious implicit bias linking Blackness with criminality. William L. Scott subsequently challenged the constitutionality of the police stop leading to his arrest, arguing that the improper injection of race into the be-on-the-lookout (BOLO) description violated New Jersey’s constitutional guarantee of equal protection under the law. The appellate court agreed, emphasizing the importance of “deterring discriminatory policing in all of its permutations,” and suppressed all evidence obtained from the unlawful stop.
Though purporting to prohibit racial discrimination in policing, Equal Protection doctrine has not halted the racialized selection process funneling our criminal legal system. Meanwhile, the Fourth Amendment has been interpreted in a way that facilitates racially disproportionate policing. Scholars have hoped that courts could allow selective enforcement claims that include officers’ implicit racial bias. Within this treacherous doctrinal landscape, Sate v. Scott did just that.
Scott is the first court to hold that evidence of implicit racial bias in policing establishes a prima facie case of racial discrimination justifying the exclusion of evidence. But the remedy that it used to deter future police misconduct—suppression of evidence—is unlikely to deter implicit bias. And the court’s praiseworthy desire to halt racist policing rests on unproven assumptions—including that bias training could ameliorate implicit racial bias. Recognizing that present doctrine permits policing decisions that yield systemically racist outcomes, this article argues that courts should adopt an outcome focused approach, where discretionary policing decisions that result in consistently racialized results are scrutinized without requiring proof of discriminatory intent.
University of Illinois Law Review (forthcoming 2025), 50pg