Document Type
Article
Publication
Oklahoma Law Review
Year
2024
Citation Information
Ilan Friedmann-Grunstein, Curing Terry's Colorblindness, 76 Okla. L. Rev. 1025 (2024), available at https://scholar.law.colorado.edu/faculty-articles/2092.
Abstract
Scholars, policymakers, and advocates have long bemoaned the Supreme Court's colorblind Fourth Amendment jurisprudence. The Court has alternatively ignored or condoned racially discriminatory searches and seizures, allowing government agents to engage in widespread racial profiling. Proposed reforms have typically focused on doctrinal solutions that would limit police discretion or called for the reversal of Terry v. Ohio.
This Article provides a comprehensive doctrinal, regulatory, and legislative solution to racial discrimination in police investigations. It proposes a novel solution: adopting recent jury selection reforms aimed at preventing racism injury selection to combat racial profiling in searches and seizures. Several states, including most prominently Washington and California, have adopted new procedures to combat the analogous problem of racial discrimination injury selection. These states mandate the rejection of a peremptory strike where a reasonable observer, guided by lists of presumptively invalid justifications, could find that the strike was motivated by racial bias.
This Article proposes that criminal legal system actors, regulators, and legislators should incorporate these principles to combat racial discrimination in searches and seizures. Central to this Article is a doctrinal solution whereby trial courts, guided by lists of presumptively pretextual justifications, should suppress evidence if a reasonable observer could conclude that the search or seizure was the product of racial profiling. Although not a panacea, this proposal is a tangible, viable prophylactic to racism in stop and frisk.
Copyright Statement
Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required.