In 2015, more than 700 Americans were killed by the police, according to several watchdog sources. A disproportionate number of those people have been black, with black victims more than twice as likely as whites to be unarmed, according to a recent analysis by The Guardian. In general, black people are vastly more likely to be harassed, pulled over, and arrested than white people.
Do you ever wonder why you never hear of lawsuits challenging this kind of systemic racism by law enforcement? The reason is that the United States Supreme Court has made it all but impossible.
In her seminal 2010 book, “The New Jim Crow,” Michelle Alexander lays out a slew of high court decisions that have helped protect the entire criminal justice system—including cops, prosecutors, judges, and juries—from suits over racial bias. Here is a look at four cases that have immunized the police from racial discrimination lawsuits.
The case: In the spring of 1973, near the California-Mexico border, two border patrol officers stopped a car driven by Felix Humberto Brignoni-Ponce, a Puerto-Rican American. The officers arrested his two undocumented passengers for entering the country illegally, and arrested and later charged Brignoni-Ponce for transporting them. The border patrol agents later admitted that the only reason they stopped the car was that the occupants appeared to be Mexican. In his suit, Brignoni-Ponce argued that the stop was a violation of the Fourth Amendment’s protection against unreasonable search and seizure.
The ruling: The Court ruled in 1975 that while it was a violation of the Fourth Amendment for law enforcement to stop someone based exclusively on their appearance, it was nonetheless constitutional to use race as one relevant factor in determining whether to stop a motorist. “Courts today routinely rely on United States v. Brignoni-Ponce to justify immigration stops in cases in which immigration enforcement officers have considered the ‘Mexican’ and ‘Hispanic appearance’ of the occupants of a motor vehicle, combined with other seemingly race-neutral factors,” Kevin Johnson, a professor of public interest law at the University of California, Davis noted in a recent article.
The case: In 1976, a 24-year-old black man named Adolph Lyons was pulled over by the Los Angeles Police Department for driving with a burned-out tail light. The officers ordered him out of the car forced him into a chokehold. Lyons eventually passed out and sustained permanent damage to his larynx. He later sued the city seeking an injunction against the use of chokeholds by law enforcement.
The ruling: The high court dismissed the case, on the grounds that Lyons lacked legal standing. The justices ruled 5-4 that in order to be able to bring a legitimate claim, Lyons would have had to prove that all LAPD officers always choke any person they encounter, or that the city specifically ordered or approved the police’s use of the chokehold. This procedural hurdle that the Supreme Court set up in Lyons means that it is now nearly impossible to use the courts to reform police department practices—including racially discriminatory practices. “If [Lyons] didn’t have standing to get injunction,” Johnson told Fusion, “then who would?”
1996: Whren v. United States
The case: In 1993, District of Columbia police pulled over Michael Whren and James Brown because the driver had failed to use a turn signal and accelerated too quickly from a stop sign. The real reason for the stop, the police later admitted, was that they had a “hunch” that the two men—both of whom were African-American—were drug criminals. Though the police ended up being right, they didn’t have probable cause as required by the Fourth Amendment to search the men for drugs. Whren and Brown challenged their convictions arguing that this kind of “pretext stop” constituted an unreasonable search and seizure, and that it allows racial bias to influence who the police pull over.
The ruling: In 1996, the Court decided unanimously against the plaintiffs, ruling that police officers only need probable cause to believe a traffic infraction has been committed in order to conduct a drug search—even if the officers admit that they actually pulled the car over because of the occupants’ race. “[T]he decision in effect encourages nothing less than racial profiling in run-of-the-mill traffic stops,” Johnson wrote in the same article. “By many accounts, racial profiling today is a common practice among state and local police in cities across the country and is an integral tool employed in the ‘war on drugs.’”
2001: Alexander v. Sandoval
The case: The Alabama Department of Public Safety had a policy of administering driver’s license tests in English only. In a 1998 class action, the plaintiffs alleged that the practice violated Title VI of the Civil Rights Act of 1964—which forbids discrimination by government agencies that receive federal funding—by discriminating based on national origin.
The ruling: The high court ruled that individual citizens and civil rights groups have no right to sue under Title VI. The decision put an end to private lawsuits alleging discrimination by all sorts of governmental agencies, including police departments. The federal government can still sue under Title VI, but it has limited resources and motivation to do so. As Alexander wrote, “The Sandoval decision virtually wiped out racial profiling litigation nationwide.”
This content was made possible in part by a grant from the Ford Foundation and produced independently by Fusion’s editorial staff. To find out more, explore our interactive map and read more of our coverage of America’s dysfunctional system of policing.
Erika Eichelberger is an independent journalist and a former staff reporter at Mother Jones. She is based in New York.