Dignity or Death: The Black Male Assertion of the Fourth Amendment

Dignity or Death: The Black Male Assertion of the

Fourth Amendment

FAREED NASSOR HAYAT

Much of Fourth Amendment jurisprudence and scholarship places

abstract principles against unreasonable searches of persons and/or

things. But when law enforcement officials inject themselves into the

lives of Black men, those interactions extend beyond abstract concepts,

and fundamental questions of dignity—or alternatively death—emerge.

Every time police officers stop Black men while walking, driving, or, in

their homes, Black men are triggered into a prescribed exercise of

submission or a rebellious exercise of right. Black men must

instantaneously decide between preservation or potential death—

because any perceived affront to police dominance is met with a show

of force, arrest, imprisonment, brutality, and the possibility of death.

This Article challenges the narrative of Fourth Amendment

jurisprudence and scholarship as a constitutional right, steeped in

discussions of reasonable articulable suspicion, probable cause,

pretext, exigency, and consent, and highlights an untapped discussion

about what occurs in the mind of one such Black man, me, when forced

to deal with the police. Legitimate and illegitimate interactions place

Black men on a tightrope where one false move could kill or leave one

without dignity, thus dying a thousand deaths.

In Part II of this Article, I provide a basic overview of scholarly writings

on race and the Fourth Amendment, which will frame the Part to follow.

In Part III, I detail three personal incidents where my Fourth

Amendment rights were violated by law enforcement. Each incident

sketched in my memory, faced with a choice between risking the

consequences of asserting my known rights as a college graduate, then

lawyer, and then law professor, or letting those rights die at the hands

of the police. I discuss the choice Black people living in the United

States face: either insisting upon dignity by risking death at the hands

of police or electing a spiritual death through submission to a contrary

Fareed Nassor Hayat is the Interim Academic Dean and an Associate Professor of

Law at the City University of New York School of Law. He teaches criminal law, criminal

procedure, and trial advocacy. He would like to thank (1) the participants of the John Mercer

Langston Writing Workshop (special thanks to the commenters, Darren Hutchins, Professor

of Law at Emory University School of Law, and Devin Carbado, Professor of Law at

University of California at Los Angeles School of Law); (2) his former research assistants,

Nayeon Kim and Connor Lie-Span, and current research assistants, Audrey Pan and Lucia

Caballero, for their excellence in furthering the objectives of this Article, and (3) the Ohio

State Law Journal. This Article is dedicated to the lives of his two Black sons: Kingston

Amar and Phoenix Amir Hayat, and every Black man subjected to the possibility of death at

the hands of police. Black Lives Matter.

858 OHIO STATE LAW JOURNAL [Vol. 83:5

law enforcement system. In Part IV, I conclude the Article with some

thoughts on prescriptions: submission, resistance, and repatriation.

This Article is written in the tradition of Critical Race Theory and uses

personal narrative to illuminate and explore the lived experience of

racial oppression. This Article centers the Black male experience and

provides insight into being Black in America, a group, to which I am a

member, to whom the Fourth Amendment was never intended to apply.

TABLE OF CONTENTS

I. INTRODUCTION ............................................................................... 858

II. SCHOLARLY WRITINGS ON RACE AND THE FOURTH AMENDMENT .... 867

III. FOURTH AMENDMENT, RACE, AND THREE EXAMPLES OF DIGNITY

TAKINGS IN MY LIFE ....................................................................... 871

A. No, I Cannot Come to You ....................................................... 874

B. No, You Cannot Search My Car .............................................. 882

C. No, You Cannot Come into My Home ...................................... 891

IV. WELL KNOWN DIGNITY TAKINGS AND ONE’S ATTEMPT AT

RESTORING DIGNITY ....................................................................... 900

A. Philando Castile and Submission as Dignity Restoration ....... 900

B. Eric Garner and Resistance as Dignity Restoration ................ 903

C. W.E.B. Du Bois: The Most Radical Act of Dignity

Restoration—Repatriation ....................................................... 905

V. CONCLUSION ................................................................................... 910

I. INTRODUCTION

W.E.B. Du Bois wrote in his classic collection of essays, The Souls of Black

Folk,

a short story entitled “Of the Coming of John,” about a quintessential

W.E.B. DU BOIS, Of the Coming of John, in THE SOULS OF BLACK FOLK 153–66

(Oxford Univ. Press 2007) (1903); see Sandra L. Barnes, A Sociological Examination of

W.E.B. Du Bois’ The Souls of Black Folk, 7 N. STAR 1, 1 (2003) (“The Souls of Black Folk

serves as testament to Du Bois’ position as one of the foremost scholars on race and religion,

in general, and the Black experience, in particular. In just fourteen essays, Du Bois provided

keen insight into the social problems of the day. The text is important due to its broad

applications for understanding the religious, economic, political, social, and cultural

implications of a society precariously structured to garner and measure the success of the

one group at the expense of another. Furthermore, Du Bois’ observations and findings are

timeless; many of his concerns continue to plague society today. . . . The themes of race and

religion were woven through each essay to illustrate life behind ‘the veil’ for the slave, the

freed person, and the Negro. This same theme provides insight about ‘double consciousness’

for Blacks today.”).

2022] DIGNITY OR DEATH 859

Hobson’s choice

that has plagued the Black male existence since the end of

American chattel slavery: live with no dignity or die trying to obtain the elusive

concept.

“Of the Coming of John” features a young Black man, John, the prize of the

Black community,

just a decade or two after the American Civil War and the

ratification of the Thirteenth Amendment.

He was thought of fondly by the

white community and loved by the Black people in his small southern town.

the short story, the Black community supported sending John to college to

receive an education.

The white community members opposed the decision,

believing that the education would ruin their sweet little negro boy.

As the

white community predicted, after graduating from college, John returned to his

small southern town, discontent, disconnected, angry, and no longer the sweet

little negro boy he once was.

John saw the impact of hundreds of years of

slavery and the religious teaching therefrom upon the minds and bodies of Black

people within his community.

He saw the ways in which white people

benefitted from and supported Black oppression.

With his education, he

yearned to challenge and upend racial hierarchy within his town.

He yearned

to be human.

After a fiery exchange with white community members and Black

supporters of oppression, John’s younger sister, in a moment of peace sits next

to him by the riverside.

She says:

“John, . . . does it make every one—unhappy when they study and learn

lots of things?”

He paused and smiled. “I am afraid it does,” he said.

Merriam-Webster defines the Hobson’s choice as “an apparently free choice when

there is no real alternative.” Hobson’s Choice, MERRIAM-WEBSTER DICTIONARY, https://

www.merriam-webster.com/dictionary/Hobson%27s%20choice [https://perma.cc/W6QW-24QN].

DU BOIS, supra note 1, at 154.

See id. at 157–58, 160.

Id. at 154.

Id.

Id. at 157, 160–61.

DU BOIS, supra note 1, at 159, 161. John told his brethren that,

[t]he age . . . demanded new ideas . . . . “[T]he world cares little whether a man be

Baptist or Methodist, or indeed a churchman at all, so long as he is good and true. What

difference does it make whether a man be baptized in river or wash-bowl, or not at all?

Let’s leave all that littleness, and look higher.”

Id. at 161.

See id. at 159.

Id. at 161–62.

Id.

860 OHIO STATE LAW JOURNAL [Vol. 83:5

“And, John, are you glad you studied?”

“Yes,” came the answer, slowly but positively.

She watched the flickering lights upon the sea, and said thoughtfully, “I wish I

was unhappy,—and—and,” putting both arms about his neck, “I think I am, a

little, John.”

In that exchange, John and his sister acknowledged that they would rather

be unhappy and human—unhappy with dignity—rather than submit.

Bernadette Atuahene explains, dignity is “the notion that people have equal

worth, which gives them the right to live as autonomous beings not under the

authority of another. . . . [I]ndividuals and communities are deprived of dignity

when subject to dehumanization, infantilization, or community destruction.”

John’s education made him realize he was an autonomous being but it was his

very autonomy that the white community feared, sought to eviscerate, and

deprive him from holding.

John and his sister knew the risk of attempting to

restore their dignity: “potential . . . social ostracism, denied opportunities,

physical abuse, or even death.”

The short story ends with John’s predictable

demise.

In an age-old incident of the slave system, John’s white childhood playmate

raped his sister.

John saw his humanity, his dignity, dependent upon avenging

his sister’s honor.

He knew that education, and the knowledge that it had

produced and his demand for dignity, would cost him his life.

He sacrificed

his life by killing the white rapist to restore the dignity of both John and his

sister.

A white lynching party on horseback found John walking through the

woods.

John did not run, he did not deny the reality that he faced: his death.

As John showed, “resistance to dignity takings can restore one’s sense of dignity

and moral agency . . . . [H]owever, [it] is a double-edged sword . . . .”

John’s

resistance—his decision not to run and to avenge—restored and asserted his

Id. at 162.

See id.

Bernadette Atuahene, Dignity Takings and Dignity Restoration: Creating a New

Theoretical Framework for Understanding Involuntary Property Loss and the Remedies

Required, 41 L. & SOC. INQUIRY 796, 800–01 (2016).

See DU BOIS, supra note 1, at 162.

Atuahene, supra note 15, at 815.

DU BOIS, supra note 1, at 165.

“Of the Coming of John” centered the patriarchal narrative of protecting womanhood

and extended the narrative to include John’s Black sister. Id. at 165. In accepting the

narrative, John knew what he had to do: he restored the dignity of both him and his sister,

which led to his physical death. Id. at 166.

See id. at 165–66.

Id. at 165–66.

Id. at 166.

Atuahene, supra note 15, at 815.

2022] DIGNITY OR DEATH 861

dignity. However, it was a “double edge sword” because his dignity lived and

transcended, but he physically died. He asserted his dignity and died but once:

Amid the trees in the dim morning twilight he watched their shadows

dancing and heard their horses thundering toward him, until at last they came

sweeping like a storm, and he saw in front that haggard white-haired man,

whose eyes flashed red with fury. Oh, how he pitied him,—pitied him,—and

wondered if he had the coiling twisted rope. Then, as the storm burst round

him, he rose slowly to his feet and turned his closed eyes toward the Sea.

And the world whistled in his ears.

Black men today, like me, are faced with the same Dignity Takings John

faced every time we interact with police. Dignity Takings as a moral and

political concept have been around since the late seventeenth century.

The

concept of dignity remains a common thread in discussions surrounding holistic

freedom in a civilized society.

Dignity remains the heart of the “freedom

struggle” and repeatedly reveals itself within foundational documents such as

constitutions and rights-defining charters.

Western legal systems and belief

systems recognize the concept of dignity as equal to human worth, as “[e]very

man a duke, every woman a queen, everyone entitled to the sort of deference

and consideration, everyone’s person and body sacrosanct . . . .”

narrowly, in America, judges use and apply dignity as its own constitutional

value and through that, the idea of dignity itself survives.

Dignity Takings as discerned in this Article expand upon the constitutional

concept of a “taking.” A “taking” of rights may occur any time “a person, entity,

or state confiscates, destroys, or diminishes rights to property without the

informed consent of the rights holders.”

Usually, “[w]hen a traditional taking

DU BOIS, supra note 1, at 166.

See, e.g., John Felipe Acevedo, Dignity Takings in the Criminal Law of Seventeenth-

Century England and the Massachusetts Bay Colony, 92 CHI.-KENT L. REV. 743, 745 (2017)

[hereinafter Acevedo, Dignity]. Dignity Takings can be defined as “property confiscation

that involves the dehumanization or infantilization of the dispossessed.” Atuahene, supra

note 15, at 796.

Christopher A. Bracey, Getting Back to Basics: Some Thoughts on Dignity,

Materialism, and a Culture of Racial Equality, 26 CHICANA/O-LATINA/O L. REV. 15, 17 (2006).

Id.

John Felipe Acevedo, Reclaiming Black Dignity, 99 TEX. L. REV. ONLINE 1, 3 (2020)

[hereinafter Acevedo, Reclaiming] (quoting JEREMY WALDRON, DIGNITY, RANK, & RIGHTS

34 (Meir Dan-Cohen ed., 2012)).

Bracey, supra note 26, at 17 (“[M]odern American courts have come to rely upon

dignitary discourse when analyzing Fourth Amendment protections against unlawful

searches and seizures, Eighth Amendment protections against cruel and unusual

punishments, Fourteenth and Fifteenth Amendment antidiscrimination claims, and Ninth and

Fourteenth Amendment issues involving women’s reproductive rights.”).

Bernadette Atuahene, Takings as a Sociolegal Concept: An Interdisciplinary

Examination of Involuntary Property Loss, 12 ANN. REV. L. & SOC. SCI. 171, 173 (2016).

862 OHIO STATE LAW JOURNAL [Vol. 83:5

occurs, the state condemns the land, assesses the property, and then pays the

owner fair market value before seizing the land and putting it to public use.”

In her book, We Want What’s Ours: Learning from South Africa’s

Restitution Program, Bernadette Atuahene explored the concept of takings, then

expanded the concept to include what she described as a Dignity Taking in her

examination of South African land restitution. She defined and explored such

takings as instances when “a state directly or indirectly destroys or confiscates

property rights from owners or occupiers whom it deems to be sub persons

without paying just compensation or without a legitimate public purpose.”

Others have applied a similar analysis to identify Dignity Takings in

circumstances in international and American history, such as the Tulsa Race

Riot of 1921.

Such takings have involved real and personal property by state

actors, outside the context of a “constitutional taking” or the taking of physical

property.

Christopher Bracey in Getting Back to Basics: Some Thoughts on Dignity,

Materialism, and a Culture of Racial Equality explained that we can understand

dignity beyond the traditional “taking” context—as personal and communal.

First, personal dignity centers on the individual and can be understood as an

aspect of self-worth.

Second, communal dignity values inclusion—“[t]o treat

another with dignity is to consider another presumptively worthy of full

integration into community membership.”

Bracey believes that the idea of

dignity must be explored in race jurisprudence to broaden opportunities for

racial justice and reconciliation.

Such an approach would place a tangible and

material demand upon the government to make way for racial equality.

John Felipe Acevedo and Jamila Jefferson-Jones explicate both individual

and communal Dignity Takings in their respective scholarship. Acevedo in

Reclaiming Black Dignity argued that discrimination by police against specific

individuals constitutes a Dignity Taking.

The act and attitudes of racial animus

perpetuated by the police dehumanizes people, causing loss to the body and

soul—their own property.

This stolen dignity is then transferred to the police

Acevedo, Reclaiming, supra note 28, at 5.

BERNADETTE ATUAHENE, WE WANT WHAT’S OURS: LEARNING FROM SOUTH

AFRICA’S LAND RESTITUTION PROGRAM 21 (2014).

Jamila Jefferson-Jones, “Community Dignity Takings”: Dehumanization and

Infantilization of Communities Resulting from the War on Drugs, 66 U. KAN. L. REV. 993,

996 (2018).

See id.

See Bracey, supra note 26, at 19–21.

Id. at 19.

Id. at 20 (“Dignity, in this sense, is universal and undifferentiated respect for social

value.”).

Id. at 18.

Id. at 18, 27.

Acevedo, Reclaiming, supra note 28, at 1.

Id. at 4.

2022] DIGNITY OR DEATH 863

through permissible inhumane policies and practices.

Jefferson-Jones, in

Community Dignity Takings: Dehumanization and Infantilization of

Communities Resulting from the War on Drugs, enriches the literature by

exploring the detrimental effects of criminal justice policies on whole

communities as a “Dignity Taking.”

She argued that the accumulated Dignity

Takings of individuals infect and affect entire communities to cause severe

degradation and destruction.

In this Article, I build on these scholars to

analyze the Dignity Takings upon Black men

every time they are confronted

by police and are forced to choose between dignity and submission.

See id. at 5–6.

See Jefferson-Jones, supra note 33, at 995.

Id. at 1004–05.

The Black male experience is not a monolith. There is breadth of diversity in class,

education, gender, language, religion, sexual orientation, geography, ability, nationality,

political beliefs, life experiences, and more. When I refer to the Black male experience in

this Article, I am only referring to my own particular experience as a Black man. To read

more about the diverse Black male experience, I recommend Spectrum: A Journal on Black

Men, published by Indiana University Press. This journal is a “multidisciplinary research

journal whose articles focus on issues related to aspects of Black men’s experiences,

including topics such as gender, masculinities, and race/ethnicity.” IU Press to Publish New

Journal on Black Male Studies, IND. UNIV. PRESS (Aug. 3, 2011), https://iupress.org/connect/

blog/iu-press-to-publish-new-journal-on-black-male-studies/ [https:// perma.cc/MM38-2ZLS]. I

want to also highlight that this Article focuses on the Black male experience, but Black

women experience equal, and at times harsher, harm when dealing with the police. Here I

acknowledge intersectionality. See PAUL BUTLER, CHOKEHOLD: POLICING BLACK MEN 7–8

(2017) (“Intersectionality is about the difference that gender makes for race, and that race

makes for gender. It helps us understand the ways that racism and sexism particularly

confront women of color. . . . Intersectionality explains why males are frequently perceived

as standard bearers for the race in a way that females are not. Things that happen to African

American men are identified as “[B]lack” problems in a way that things that happen to

African American women would not be. Even if some of the same things that happen to

African American men happen to African American women, men are likely to receive the

most attention.”). Groups like the African American Policy Forum (“AAPF”) and Center for

Intersectionality and Social Policy Studies (“CISPS”) have launched campaigns such as the

#SayHerName campaign to highlight what are often invisible names, stories, and

experiences of Black women and girls who have been harmed by racist policing practices.

#SAYHERNAME, AFR. AM. POL’Y F., https://www.aapf.org/sayhername [https://perma.cc/

Q6U8-LFXP]. As AAPF writes,

Black women and girls as young as 7 and as old as 93 have been killed by the police,

though we rarely hear their names. Knowing their names is a necessary but not a

sufficient condition for lifting up their stories which in turn provides a much clearer

view of the wide-ranging circumstances that make Black women’s bodies

disproportionately subject to police violence. To lift up their stories, and illuminate

police violence against Black women, we need to know who they are, how they lived,

and why they suffered at the hands of police.

Id. One of those names that has been a rallying cry and a turning point in the Black Lives

Matter movement is Sandra Bland who was a twenty-eight-year-old Black activist arrested

864 OHIO STATE LAW JOURNAL [Vol. 83:5

The Supreme Court has also recognized the concept of dignity in its

jurisprudence. A review of Supreme Court cases between 1925 and 1982

discovered the use of the term “human dignity” or a similar phrase in 187

opinions, though often in dissenting opinions.

Today, the term “dignity”

appears in more than 900 Supreme Court opinions.

Its meaning and functions

are commonly presupposed but rarely articulated. In one standout case,

Lawrence v. Texas, the Supreme Court constitutionalized the concept of human

dignity in its decision-making.

The Court described human dignity as

“central” to petitioners’ liberty interest stating, “[t]hese matters, involving the

most intimate and personal choices a person may make in a lifetime, choices

central to personal dignity and autonomy, are central to the liberty protected by

the Fourteenth Amendment.”

Notwithstanding the frequent use of the term

dignity, the Court has never talked about dignity lost, or takings upon Black men

in the context of the Fourth Amendment. This Article will highlight that

for “suspicion of assaulting [an] officer” during a traffic stop for a minor signaling violation.

Molly Hennessy-Fiske, A Sign for Sandra Bland: ‘Signal Lane Change or Sheriff May Kill

You,’ L.A. TIMES (July 24, 2015), https://www.latimes.com/nation/la-na-sandra-bland-sign-

20150724-story.html [https://perma.cc/3822-4B7L]. Three days after her arrest, she was

found hanged in a jail cell in Waller County, Texas. David Montgomery, New Details Released

in Sandra Bland’s Death in Texas Jail, N.Y. TIMES (July 21, 2015), https://www.nytimes.com

/2015/07/21/us/new-details-released-in-sandra-blands-death-in-texas-jail.html?smid=pl-share

[https:// perma.cc/26TF-AZM9]. Her death was ruled a suicide. Id. Many protests ensued

disputing the cause of death and alleging racial violence against her. Id. Since 2015, her case

and her name have resonated with so many for years. Because we knew her name, we were

able to create an online petition calling for the Justice Department to investigate, to enact a

law in 2017 called the Sandra Bland Act, and to create a documentary about the case. Adeel

Hassan, The Sandra Bland Video: What We Know, N.Y. TIMES (May 7, 2019),

https://www.nytimes.com/2019/05/07/us/sandra-bland-brian-encinia.html [https://perma.cc/

M6TN-SWMZ]. Sandra Bland’s death intensified outrage over the mistreatment and

harassment of Black people by white officers. Id. To learn and read more about the structural

inequality and violence that Black women and girls face, I recommend looking into the work

AAPF has done for the Say Her Name movement.

Jordan J. Paust, Human Dignity as a Constitutional Right: A Jurisprudentially Based

Inquiry into Criteria and Content, 27 HOW. L.J. 145, 148–62 (1984) (addressing human

dignity as both a “constitutional and international” legal principle, focusing on the use of the

phrase “human dignity” and similar terms by the United States Supreme Court, the frequency

of such usage, and which Justices used “human dignity” as a concept in constitutional law

through 1982); see also Maxine D. Goodman, Human Dignity in Supreme Court

Constitutional Jurisprudence, 84 NEB. L. REV. 740, 756 (2006).

A search of the term “dignity” in Westlaw shows these references.

Lawrence v. Texas, 539 U.S. 558, 578 (2003) (striking down the Texas sodomy law,

preserving liberty interest and human dignity). Justice Kennedy, writing for the Court,

explained: “Still, it remains a criminal offense with all that imports for the dignity of the

person charged. . . . The State cannot demean their existence or control their destiny by

making their private sexual conduct a crime.” Id. at 575, 578. The Court also affirmed that

“adults may choose to enter upon this relationship in the confines of their homes and their

own private lives and still retain their dignity as free persons.” Id. at 567.

Id. at 574.

2022] DIGNITY OR DEATH 865

particular Dignity Taking through examples from my personal experience as a

Black man.

I came of age in inner city South Los Angeles in exclusively Black and

Brown communities where confrontational police interactions were and still are

commonplace. I have had to make the choice of attempting to maintain some

sense of dignity within my forty-five years of living during Fourth Amendment

intrusions by police. A dignity dilemma ensues at every interaction with police:

whether to allow my dignity to die several times in order to physically survive

or to preserve and assert dignity, through the protections of the Fourth

Amendment, which allows my dignity to survive, but at the potential cost of my

life. This Article highlights my experience in asserting the Fourth Amendment

and explores the potential violence

that ensues as Dignity Takings.

In Part II of this Article, I provide a basic overview of scholarly writings on

race and the Fourth Amendment, which will frame the Part to follow. Scholars

have written extensively about the evisceration of Fourth Amendment

protection, specifically where applicable to Black men, the discriminatory

impact of stop and frisk practices, and the unrivaled expansion of the modern

carceral state resulting from a court created doctrine of reasonable articulable

suspicion.

This Article attempts to center a largely underexplored aspect of

the Fourth Amendment—Dignity Takings. Specifically, this Article challenges

the narrative found in jurisprudence and scholarship of the Fourth Amendment

as a constitutional right for all, discusses reasonable articulable suspicion,

probable cause, pretext, exigency, and consent, and highlights an emerging

discussion about what occurs in the mind of one such Black man, me, when

forced to deal with police.

Part III explores my inner-city Black male, first-generation college student,

lawyer, and law professor’s experience with the Fourth Amendment of the

United States Constitution and the forever presence of four hundred years of

chattel slavery. With this Article, I begin a conversation about the Dignity

Takings that occur each time Black men interact with the police and unpack

whether dignity through the law is even possible for Black men in America. I

apply a critical lens to understand the Fourth Amendment and Black male

dignity more accurately. This Article is written in the tradition of Critical Race

Theory and uses personal narrative to illuminate and explore the lived

See Devin W. Carbado, From Stopping Black People to Killing Black People: The

Fourth Amendment Pathways to Police Violence, 105 CALIF. L. REV. 125, 163 (2017)

(“Fourth Amendment law is one of several variables that facilitate contact between African

Americans and the police; and the facilitation of police contact is one of several dynamics

that enables and legitimizes police violence.”).

See infra notes 59–66.

See Carbado, supra note 50, at 129 (“Because every encounter police officers have

with African Americans is a potential killing field, it is crucial that we understand how Fourth

Amendment law effectively ‘pushes’ police officers to target African Americans and ‘pulls’

African Americans into contact with the police. Racial profiling is an important part of the

story.”).

866 OHIO STATE LAW JOURNAL [Vol. 83:5

experience of racial oppression.

In this Article, I highlight three personal

incidents that implicate the Fourth Amendment, a Dignity Taking, and my

attempts at dignity restoration that could have easily cost me my life. Incident

one involves a Terry stop,

when entering my home, I was accosted by the

police. I attempted to assert my right to walk away from what under the law was

a consensual interaction. That attempt was met with physical abuse. The first

incident’s discussion will challenge the Court created doctrine of reasonable

articulable suspicion

and argue that under existing law and racial practice, as

a Black man, I am always subjected to an accosting, pat down, and search.

Incident two involves a Whren pretextual stop of my car based on an

officer’s falsely created basis for probable cause that a traffic infraction had

occurred.

The discussion of the incident will challenge the legitimacy of the

probable cause doctrine based on officer testimony, where only the word of a

Black man—my word—contradicts the officers’ version of the facts. The

Critical Race Theory (“CRT”) is an “academic framework centered on the idea that

racism is systemic.” Marisa Iati, What Is Critical Race Theory, and Why Do Republicans Want

to Ban It in Schools?, WASH. POST (May 29, 2021), https://www.washingtonpost.com/education

/2021/05/29/critical-race-theory-bans-schools/#LRM3F7NVEZBNREQT2IV7RD3BGI [https://

perma.cc/5WAG-5EQY]. It gained traction as an academic theory and social movement

beginning in the 1970s. See id.; see also John O. Calmore, Critical Race Theory, Archie

Shepp, and Fire Music: Securing an Authentic Intellectual Life in a Multicultural World, 65

S. CAL. L. REV. 2129, 2137 (1992) (“[C]ritical race scholarship . . . reflects our distinctive

experiences as people of color.”). CRT scholarship addresses the following themes: “(1)

Critique of liberalism; . . . (2) Storytelling/counterstorytelling and ‘naming one’s own

reality;’ . . . (3) Revisionist interpretations of American civil rights law and progress; . . . (4)

A greater understanding of the underpinnings of race and racism; . . . (5) Structural

determinism; . . . (6) Race, sex, class, and their intersections; . . . (7) Essentialism and anti-

essentialism; . . . (8) Cultural nationalism/separatism; . . . (9) Legal institutions, Critical

pedagogy, and minorities in the bar; [and] . . . (10) Criticism and self-criticism.” Richard

Delgado & Jean Stefancic, Critical Race Theory: An Annotated Bibliography, 79 VA. L.

REV. 461, 462–63 (1993). I have tremendous gratitude to the critical legal scholars that came

before me. See generally, e.g., DERRICK BELL, The Space Traders, in FACES AT THE BOTTOM

OF THE WELL: THE PERMANENCE OF RACISM (1992); ALAN D. FREEMAN, LEGITIMIZING

RACIAL DISCRIMINATION THROUGH ANTIDISCRIMINATION LAW: A CRITICAL REVIEW OF

SUPREME COURT DOCTRINE in CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED

THE MOVEMENT (Kimberlé Crenshaw, Neil Gotanda, Gary Peller & Kendall Thomas eds.,

1995); KIMBERLÉ W. CRENSHAW, RACE, REFORM, AND RETRENCHMENT: TRANSFORMATION

AND LEGITIMATION IN ANTI-DISCRIMINATION LAW in CRITICAL RACE THEORY: THE KEY

WRITINGS THAT FORMED THE MOVEMENT (Kimberlé Crenshaw, Neil Gotanda, Gary Peller

& Kendall Thomas eds., 1995); RICHARD DELGADO & JEAN STEFANCIC, CRITICAL RACE

THEORY (2d ed. 2012); Cheryl Harris, Whiteness as Property, 106 HARV. L. REV. 1709

(1993); MARI MATSUDA, WHERE IS YOUR BODY? AND OTHER ESSAYS ON RACE, GENDER,

AND LAW (1996); PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS: DIARY OF A

LAW PROFESSOR (1991).

See Terry v. Ohio, 392 U.S. 1, 27 (1968).

See id. at 19–20.

See Whren v. United States, 517 U.S. 806, 813–16 (1996).

2022] DIGNITY OR DEATH 867

discussion will demonstrate that the Black man’s word will always be met with

skepticism and disbelief because of his status as a Black man.

Next, this Article will explore the Fourth Amendment’s stated purpose of

security in the home and how as a Black man, the home has never provided

sanctity. This Part will discuss a third incident where I met officers at my front

door, refused them entry into my home, and prompted them to get a warrant to

enter—and how those officers ignored the Fourth Amendment and forcibly

entered my home using the Brigham City v. Stuart exigency and probable cause

for a warrantless search of a home doctrine. This Article discusses the choices

Black people living in the United States constantly face between insisting upon

dignity by risking death at the hands of police or electing a spiritual death

through submission to a racist law enforcement system. Each example

highlights the import of four hundred years of the chattel slave system, the

lingering implications of race upon the Fourth Amendment, and the always

constant challenge to accept submission, demand dignity, and/or be prepared for

death. In Part IV, I conclude the Article with some thoughts on prescriptions:

submission, resistance, and repatriation.

II. SCHOLARLY WRITINGS ON RACE AND THE FOURTH AMENDMENT

Fourth Amendment issues largely fall into two major categories: (1)

substantive issues surrounding what constitutes an illegal search or seizure, with

or without a warrant, and (2) remedial issues regarding whether, assuming there

was a constitutional violation, the prosecution is precluded from using the

illegally seized evidence.

It is well established law that “searches conducted

outside the judicial process, without prior approval by judge or magistrate, are

per se unreasonable under the Fourth Amendment—subject only to a few

specifically established and well-delineated exceptions.”

This Article is only

concerned with the substantive issues—the government’s violation of Fourth

Amendment rights—rather than remedial questions.

Scholars have written extensively about these well-delineated exceptions

and the evisceration of Fourth Amendment protection where applicable to Black

men. They have explored the discriminatory impact of stop and frisk practices

and the unrivaled expansion of the modern carceral state, based in a court

created doctrine of reasonable articulable suspicion.

Scholars have entered and

elevated this doctrinal discussion by providing critical perspective.

They have

begun to look more closely at the implications of race and the Fourth

See, e.g., Brent E. Newton, The Supreme Court’s Fourth Amendment Scorecard, 13

STAN. J. C.R. & C.L. 1, 6 n.22 (2017).

Katz v. United States, 389 U.S. 347, 357 (1967) (citations omitted).

See generally, e.g., David A. Harris, The Stories, the Statistics, and the Law: Why

“Driving While Black” Matters, 84 MINN. L. REV. 265, 290–91 (1999); Adero S. Jernigan,

Note, Driving While Black: Racial Profiling in America, 24 LAW & PSYCH. REV. 127 (2000).

See, e.g., Paul Butler, Stop and Frisk and Torture-Lite: Police Terror of Minority

Communities, 12 OHIO ST. J. CRIM. L. 57, 57–58 (2014).

868 OHIO STATE LAW JOURNAL [Vol. 83:5

Amendment and center the import of policing policies upon Black people.

They have challenged and demonstrated the illegitimacy of Fourth Amendment

jurisprudence and scholarship that focus only on constitutional rights,

reasonable articulable suspicion,

probable cause,

pretext, and exigency

within a vacuum that does not acknowledge the implication of racist police

practices.

These scholars have centered the unique impact of racist police

enforcement on Black males. This Article builds on their work and addresses

the unexplored aspect of Fourth Amendment scholarship: what occurs in the

mind of one Black man, me, when forced to deal with police.

One of the most controversial and criticized Fourth Amendment cases is the

Supreme Court’s decision in Terry v. Ohio.

Terry has been analyzed,

challenged, confirmed, and rejected from the left and right for its furthering of

racist police practices.

Terry pivots from the Warren Court’s emphasis on

heightened protection of individual constitutional rights, specifically those of

Black Americans, from police abuse of power to the empowerment of police

See generally, e.g., Devon W. Carbado, (E)racing the Fourth Amendment, 100 MICH.

L. REV. 946, 967–68 (2002); L. Darnell Weeden, It Is Not Right Under the Constitution to

Stop and Frisk Minority People Because They Don’t Look Right, 21 U. ARK. LITTLE ROCK

L. REV. 829 (1999).

The Fourth Amendment to the Constitution provides the right “to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures” and “no

Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be seized.” U.S.

CONST. amend. IV. The Supreme Court held that the remedy for violating the Fourth

Amendment—exclusion of evidence illegally obtained—applied to the states via the Due

Process Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 659–60 (1961).

The Court laid out a two-pronged test in the landmark decision Terry v. Ohio, which

asks “[1] whether the officer’s action was justified at its inception, and [2] whether it was

reasonably related in scope to the circumstances which justified the interference in the first

place.” Terry v. Ohio, 392 U.S. 1, 19–20 (1968). The Court approved what has now come to

be called a “Terry stop,” or the police practice of “stop-and-frisk,” where if a police officer

has a reasonable articulable suspicion to justify the stop—something more than a gut feeling

that crime is afoot, but less than probable cause—the officer may pat down an arrestee for

weapons in the interest of the officer’s safety. Id. at 27.

See Brinegar v. United States, 338 U.S. 160, 175–76 (1949) (“Probable cause exists

where ‘the facts and circumstances within [the officer’s] knowledge and of which they have

reasonably trustworthy information [are] sufficient in themselves to warrant a man of

reasonable caution in the belief that’ an offense has been or is being committed.” (alterations

in original) (quoting Carroll v. United States, 267 U.S. 132, 162 (1925))).

Payton v. New York, 445 U.S. 573, 579 n.4 (1980) (noting that exceptions to the

warrant requirement for exigency include: (1) hot pursuit, (2) imminent destruction of

evidence, (3) need to prevent escape, and (4) risk of danger).

See, e.g., Tracey Maclin, Race and the Fourth Amendment, 51 VAND. L. REV. 333,

375–76 (1998) [hereinafter Maclin, Race].

See, e.g., Harris, supra note 59, at 290–91; Jernigan, supra note 59, at 136; Butler,

supra note 60, at 57–58; Carbado, supra note 61, at 967–68; Weeden, supra note 61, at 830.

See, e.g., Tracey Maclin, Terry v. Ohio’s Fourth Amendment Legacy: Black Men and

Police Discretion, 72 ST. JOHN’S L. REV. 1271, 1286–87 (1998) [hereinafter Maclin, Terry].

2022] DIGNITY OR DEATH 869

and the expansion of police power in the streets.

The result of Terry was the

stripping of Black and Brown communities of much needed Fourth Amendment

legal protections and leaving these communities to be subject to constant

seizures at the hands of police.

Scholars Tracey Maclin and Thomas B. McAffee have written about the

disastrous impact of Terry on predominantly inner-city, young Black men.

Maclin contends in Terry v. Ohio’s Fourth Amendment Legacy: Black Men and

Police Discretion, that Terry was wrongly decided for three reasons.

One,

before Terry, the standard of proof for a warrantless search was settled law.

series of car search case opinions clearly articulated that before police officers

could search the inside of a vehicle, the Fourth Amendment required probable

cause of criminal conduct.

Two, defining the issue in Terry as tension between

“police safety” and individual freedom inaccurately describes police conduct on

the streets.

Maclin surmised, regardless of the Court’s ruling in Terry, police

officers would continue to frisk people they determined to be a threat to their

safety.

Third, the Terry Court yielded to pressure emanating from the Court’s

prior rulings that extended meaningful constitutional protections to our nation’s

most vulnerable: racial minorities and those perceived suspect of criminal

behavior.

In the end, Terry was a win for the police and a defeat for the people

to be secure against unreasonable searches and seizures.

McAffee, in Setting Us Up for Disaster: The Supreme Court’s Decision in

Terry v. Ohio, expanded on the clear linkage between the Terry decision and

how it’s lent to the powerful use of race-based enforcement of the nation’s

laws.

The police can stop and frisk anyone they consider “suspicious,”

“without any evidence that they are armed or dangerous, just because . . . [of]

the neighborhoods in which they work or live.”

This approach to policing,

reaffirmed in Terry, stems from deep roots in racial stereotyping.

Since Terry, other Supreme Court decisions have continued to water down

the reasonable articulable suspicion standard. Maclin, in Race and the Fourth

Compare generally, e.g., Lewis R. Katz, Terry v. Ohio at Thirty-Five: A Revisionist

View, 74 MISS. L.J. 423 (2004) (challenging the Terry decision), with Stephen A Saltzburg,

Terry v. Ohio: A Practically Perfect Doctrine, 72 ST. JOHN’S L. REV. 911, 952–57 (1998)

(describing Terry as “practically perfect” as Fourth Amendment rules come).

See Maclin, Terry, supra note 68, at 1286–87.

Id.

Id. at 1286.

See id.

Id. at 1287.

Id.

Maclin, Terry, supra note 68, at 1287.

Thomas B. McAffee, Setting Us Up for Disaster: The Supreme Court’s Decision in

Terry v. Ohio, 12 NEV. L.J. 609, 614–16 (2012).

Id. at 615 (alteration in original) (emphasis omitted) (quoting David A. Harris,

Frisking Every Suspect: The Withering of Terry, 28 U.C. DAVIS L. REV. 1, 44 (1994)).

Id. at 614.

870 OHIO STATE LAW JOURNAL [Vol. 83:5

Amendment, wrote about another seminal case, Whren v. United States, which

made clear that the Fourth Amendment does not protect against pretextual

stops.

The Court held that, regardless of any subjective reason motivating a

stop, such as racism, is irrelevant if any objective reason giving probable cause

of a traffic violation permits the stop under the Fourth Amendment.

Maclin

argued that “by requiring only probable cause of a traffic offense to justify

pretextual seizures, the Court [] ignores racial impact when marking the

protective boundaries of the Fourth Amendment.”

These scholars have shown that the evisceration of Fourth Amendment

protections to Black and Brown communities through seminal cases such as

Terry v. Ohio and Whren v. United States disproportionately impacted young

Black men and exacerbated tensions between the police and Black and Brown

communities. Maclin concluded that the Court signaled to police officers

everywhere that it’s perfectly reasonable and rational to stop and frisk anyone

they deem “suspicious,”

a word coded to target Black men.

Though the

Court may have once been sympathetic to this problem, they’ve signaled that

they would rather maintain control over Black persons by “exposing them,

without legal protection to the same police harassment that [B]lack men had

historically faced in their dealings with police dating to the time of slavery.”

Devon Carbado’s article From Stopping Black People to Killing Black

People adopted many of the other scholars’ arguments

but extended the

discussion to address the disproportionate killing of Black people when

interacting with the police.

He provided a theoretical framework for the

Dignity Takings that this Article highlights. Carbado moved beyond proving the

racist nature of police enforcement and practices and demonstrated the life and

death consequences placed upon Black people through interactions with the

police. Specifically, Carbado argued that “[b]ecause every encounter police

officers have with African Americans is a potential killing field, it is crucial that

we understand how Fourth Amendment law effectively ‘pushes’ police officers

to target African Americans and ‘pulls’ African Americans into contact with the

police.”

He continued, the “Fourth Amendment doctrine expressly authorizes

Maclin, Race, supra note 66, at 386–92.

Whren v. United States, 517 U.S. 806, 813 (1996); see also Maclin, Race, supra note

66, at 343.

Maclin, Race, supra note 66, at 331.

Maclin, Terry, supra note 68, at 1320.

See Priscilla Layne, Suspicious: On Being Policed in an Anti-Black World, in ON

BEING ADJACENT TO HISTORICAL VIOLENCE 41, 41 (Irene Kacandes ed., 2022) (defining

“suspicion” as “policing that is directed towards all Black bodies, not to determine whether

they have transgressed some law, but because their very presence is understood to be an act

of transgression”).

Katz, supra note 69, at 457–58.

Carbado, supra note 50, at 130 n.21.

See id. at 125.

Id. at 129.

2022] DIGNITY OR DEATH 871

or facilitates the very social practice it ought to prevent: racial profiling. This

authorization and facilitation exposes African Americans not only to the

violence of frequent police contact but also to the violence of police killings and

physical abuse.”

I accept Carbado’s proposition and build upon his and those of other

scholars to include the Dignity Taking that occurs prior to physical abuse and/or

death of Black men. I assert that Black men exercise dignity when they elect not

to submit to unjustified police searches and seizures of their person, places, or

things. When interacting with police, Black men are conscious of potential

death, yet oftentimes elect dignity by asserting their right, knowing the potential

consequence of their election. The Black man’s assertion of Fourth Amendment

rights is done with an appreciation of the potential consequence. The age-old

approach of resistance, rooted in our enslaved ancestors’ rebellious spirit, is on

full display when Black men object to searches or seizure, especially where not

justified. The same way enslaved Africans refused to submit to the institution

of chattel slavery⎯which never existed in this country without potential

rebellion⎯Black men today insist on their rights under the Fourth Amendment

as an act of rebellion. Like those who came before us, we play Russian

Roulette

with police by preserving our dignity and proving to ourselves and

others that we deserve the protection of the United States Constitution and all

its privileges. It is an exercise of dignity when Black men say, “no,” “you can’t

search my pockets,” “you can’t search my trunk,” “you can’t enter my house,”

“I will not come to you,” and “I do not consent.”

III. FOURTH AMENDMENT, RACE, AND THREE EXAMPLES OF DIGNITY

TAKINGS IN MY LIFE

Like in “Of the Coming of John,” Black men today are faced with potential

Dignity Takings every time a police intrusion occurs within their person, place,

things, or home in violation of the Fourth Amendment. The Fourth Amendment

provides that any warrantless police intrusion is categorically unreasonable but

for a particularized exception to the warrant requirement.

For similarly

situated Black men, like me, a combination of blackness, masculinity, and/or an

attempt at preserving dignity, provides an unwritten but clearly established

exception to the warrant requirement. Historical records clearly establish that

the Fourth Amendment and its warrant requirement were not intended for Black

Id. at 131.

Kennedy v. Washington Nat’l Ins. Co., 401 N.W.2d 842, 845 (Wis. Ct. App. 1987)

(“One engaging in such a bizarre act as Russian Roulette knows that he is courting death or

severe injury, and will be held to have intended such obvious and well known results if he is

killed or injured.”).

See supra text accompanying note 58.

872 OHIO STATE LAW JOURNAL [Vol. 83:5

people.

At its ratification, Black people were but three-fifths a person as

delineated in the Constitution.

This historical truth was recognized,

challenged, and amended by the passage of the Fourteenth Amendment.

Notwithstanding the Radical Republican intention

and their Fourteenth

Amendment Equal Protection Clause,

abolitionist, civil rights advocates, and

anti-racists have long challenged and attempted to extend Fourth Amendment

protection to Black people with little to no avail.

The failure to truly extend in

See, e.g., Thurgood Marshall, Remarks of Thurgood Marshall at the Annual Seminar of

the San Francisco Patent and Trademark Law Association in Maui, Hawaii (May 6, 1987),

https://www.gilderlehrman.org/collection/glc09640247 [https://perma.cc/PS54-UDEG] (“[O]n

the issue whether, in the eyes of the Framers, slaves were ‘constituent members of the

sovereignty,’ and were to be included among ‘We the People’: ‘We think they are not, and

that they are not included, and were not intended to be included . . . . [A]ccordingly, a negro

of the African race was regarded . . . as an article of property, and held, and bought and sold

as such . . . [N]o one seems to have doubted the correctness of the prevailing opinion of the

time.’” (second and third alterations in original) (quoting Scott v. Sandford, 60 U.S. 393,

404, 408 (1857))).

U.S. CONST. art. I, § 2 (“Representatives and direct Taxes shall be apportioned among

the several States which may be included within this Union, according to their respective

Numbers, which shall be determined by adding to the whole Number of free Persons,

including those bound to Service for a Term of Years, and excluding Indians not taxed, three

fifths of all other Persons.”). Upon the ratification of the Constitution, James Madison

proclaimed, “Let the compromising expedient of the Constitution be mutually adopted,

which regards them as inhabitants, but as debased by servitude below the equal level of free

inhabitants, which regards the slave as divested of two fifths of the man.” THE FEDERALIST

NO. 54 (James Madison), reprinted in THE AMERICAN CONSTITUTION 240 (J.R. Pole ed.,

1987).

U.S. CONST. amend. XIV, § 2 (“Representatives shall be apportioned among the

several States according to their respective numbers, counting the whole number of persons

in each State, excluding Indians not taxed.”).

See William M. Carter, Jr., Race, Rights, and the Thirteenth Amendment: Defining

the Badges and Incidents of Slavery, 40 U.C. DAVIS L. REV. 1311, 1339 (2007) (“[T]he

Amendment’s drafters clearly expressed their intent to ‘remov[e] every vestige of African

slavery from the American Republic’ by ‘obliterat[ing] the last lingering vestiges of the slave

system; its chattelizing [sic], degrading and bloody codes; its dark, malignant barbarizing

spirit; all it was and is, everything connected with it or pertaining to it.’” (alterations in

original) (citations omitted)); see also Fareed Nassor Hayat, Abolish Gang Statutes with the

Power of the Thirteenth Amendment: Reparations for the People, 70 UCLA L. REV.

(forthcoming 2023) (“These abolitionists and many who supported their efforts both in

Congress, on the battlefield, at the podiums, and on the underground railroad, sought a new

America that could truly live up to her promise. They conceived their mission as ‘remedying

the permanent disabilities that the institution of slavery inflicted in perpetuity upon an

identifiable and stigmatized group, where those injuries were inflicted in furtherance of

maintaining slavery and subordination.’ They hoped to ‘eliminate the permanent caste

system slavery created and to ensure that such castes would not exist in the future.’”

(citations omitted)).

U.S. CONST. amend. XIV, § 1.

See Carbado, supra note 50, at 129–30 (“The Supreme Court’s legalization of racial

profiling is embedded in the very structure of Fourth Amendment doctrine. . . . This

2022] DIGNITY OR DEATH 873

practice, policy, and spirit the protection of the Fourth Amendment continues to

relegate Black people to the conditions of slavery. As the modern equivalent of

slaves, the idea that Black people are the manifestation of “laziness, ineptness,

intellectual deficiency, non-Christian, not normal, subhuman, hypersexual,

shiftless, and dangerous,” is perpetuated.

The recurrence of police interactions where Black men are placed in cuffs,

sat on the curb, put in the back of a police cruiser, jailed, and killed confirms

racist historical ideology that Black men are lazy, inept, intellectually deficient,

shiftless, and dangerous. Accordingly, Black men are perceived as deserving of

police abuse and must be doing something wrong to continually end up the

target of police contact.

This Part rejects that conclusion and asserts that the

badge

100

of Black dangerousness and criminality, coupled with a social contract

of submission to survive is designed to maintain the social order of slavery and

its incidents. Below, I highlight three incidents of slavery in their modern form

(police suppression of my Black body), in which I was subjected to the abusive

power of police. Each incident demonstrates, like John, my attempt at

preserving my dignity is at odds with the social order of this country. In each

incident, I attempt to assert my dignity through the Fourth Amendment and each

time, I am put back into my place. Though each incident is in violation of the

Fourth Amendment of the United States Constitution, the police consistently

reminded me that the Fourth Amendment was not intended to protect me. In

each incident, I assert my dignity under the Fourth Amendment and police

legalization of racial profiling has left African Americans less secure in their ‘persons,

papers, houses and effects’—and sometimes dead. Put another way, African Americans often

experience the Fourth Amendment as a system of surveillance, social control, and violence,

not as a constitutional boundary that protects them from unreasonable searches and seizures.”

(citation omitted)).

See Hayat, supra note 95.

These inaccurate conclusions often arise in various contexts. See, e.g., Monte

Williams, Danny Glover Says Cabbies Discriminated Against Him, N.Y. TIMES, Nov. 4,

1999, at B8 (reporting that Black actor, Danny Glover, alleged a New York City cab driver

refused to allow him to ride in the front passenger seat and that five other cabs refused to

stop for him, his daughter, and her roommate). See also generally Jody D. Armour, Race

lpsa Loquitur: Of Reasonable Racists, Intelligent Bayesians, and Involuntary Negrophobes,

46 STAN. L. REV. 781 (1994) (analyzing the legal implications of racial bias and the

rationality of the race-based fears argument).

100

The term badge of slavery has long been discussed by scholars. See, e.g., Jennifer

Mason McAward, Defining the Badges and Incidents of Slavery, 14 U. PA. J. CONST. L. 561,

575–82 (2012) (arguing the original badge of American chattel slavery was blackness, while

whiteness functioned as a badge of freedom and masterhood); George A. Rutherglen, The

Badges and Incidents of Slavery and the Power of Congress to Enforce the Thirteenth

Amendment, in THE PROMISES OF LIBERTY: THE HISTORY AND CONTEMPORARY RELEVANCE

OF THE THIRTEENTH AMENDMENT 163, 165 (Alexander Tsesis ed., 2010).

874 OHIO STATE LAW JOURNAL [Vol. 83:5

officers respond with a forcible Dignity Taking that could have resulted in my

death.

101

A. No, I Cannot Come to You

I was a twenty-five-year-old UCLA graduate, former high school teacher,

and a successful real estate investor at the time of the first Dignity Taking

described in this Part.

102

I lived in my almost exclusively Black and Brown

childhood neighborhood in South Los Angeles.

103

My neighborhood was the

101

See Carbado, supra note 50, at 128 (“Informing this focus is my view that if the law

more tightly restricted police officers’ authority to investigate African Americans, this would

both increase the social value of our lives and diminish officers’ opportunities to kill us.”).

102

Fareed Nassor Hayat was born in South Los Angeles, California. Fareed was placed

into the foster care system, where his maternal grandparents (and later, his aunt), through

supervision of the courts, raised him. In his youth, Fareed was involved in minor offenses,

but, in a testament to how individual community members can make a huge difference in a

young person’s life, one by one, mentors helped him stay out of jail, maintain mental

stability, and excel in school. See, e.g., Hanna Love, Want to Reduce Violence? Invest in

Place., BROOKINGS INST. (Nov. 16, 2021), https://www.brookings.edu/research/want-to-

reduce-violence-invest-in-place/ [https://perma.cc/Q93Q-GEYG]. Fareed went to the

University of California at Los Angeles, graduated with a B.A. in History, and became a

teacher of history and drama in the Los Angeles Unified School District. Fareed Nassor Hayat,

Curriculum Vitae, CUNY SCHOOL OF LAW, https://www.law.cuny.edu/wp-content/uploads/page-

assets/faculty/directory/fareed-nassor-hayat/Fareed-Nassor-Hayat-CV.pdf [https://perma.cc/

RQ73-FAMQ]. He began working in nonprofits as a social worker and community organizer,

then went to graduate school at the University of Southern California School of Theater to

study playwriting. Id. While studying theater, Fareed wrote, directed, and professionally

produced full-scale plays throughout Los Angeles. As a social worker and life plan

developer, he worked with youth placed in the foster care system through the Early Start to

Emancipation Preparation program at several community colleges throughout the Los

Angeles area. Simultaneously, Fareed received his real estate license, purchased and

managed over 100 residential units, built low-income housing, and conducted numerous real

estate transactions. Fareed earned his Juris Doctorate from the Howard University School of

Law, and then joined the Maryland Office of the Public Defender in Baltimore City’s

Neighborhood Defenders Division as an Assistant Public Defender. Id. at 1, 3. He litigated

thousands of criminal matters, demanded and won over 90% of criminal trials on behalf of

his clients, and argued that true criminal justice reform only comes through carceral

abolition. Fareed went on to open a private law firm, The People’s Law Firm, where he

continued to focus on holistic criminal defense and expanded his practice to include plaintiff-

side civil rights cases, including police brutality, correctional medical malpractice, and

Eighth Amendment cruel and unusual punishment cases. Id. at 2–3. Fareed served as lead

defense counsel in the largest Maryland gang prosecution and challenged the legitimacy of

gang prosecutions.

103

Mike Sonksen, Inglewood Today: The History of South Central Los Angeles and Its

Struggle with Gentrification, USC LUSK CTR. FOR REAL EST. (June 20, 2018),

https://lusk.usc.edu/news/inglewood-todaythe-history-south-central-los-angeles-and-its-

struggle-gentrification [https://perma.cc/PC5D-RWAK] (discussing the “Black Los

Angeles” and segregationist practices that facilitated the development of Black

2022] DIGNITY OR DEATH 875

epicenter of the 1980s crack cocaine

104

and gang banging

105

epidemics.

Freeway Rick

106

frequented the same blocks on which I lived, and the Crips

107

were established at my high school.

108

Because of my educational and economic

success,

109

I believed myself to be, like John, a pillar of the community and a

catalyst for positive change.

110

I saw myself as an example of the potential of

young Black male possibility in inner-city South Los Angeles. As a product and

neighborhoods in southern Los Angeles and the “Great Migration” in the mid-twentieth

century of Latin American immigrants to Southern Los Angeles).

104

See Mark Osler, Learning from Crack, 10 OHIO ST. J. CRIM. L. 671, 671 (2013) (“The

origin of the crack cocaine trade in this country was led and designed by the CIA and their

paid Nicaraguan agents—who introduced crack cocaine to South-Central Los Angeles.”

(citation omitted)). The name “crack” first appeared in the New York Times in 1985. Sarah

Hyser, Comment, Two Steps Forward, One Step Back: How Federal Courts Took the “Fair”

Out of the Fair Sentencing Act of 2010, 117 PENN ST. L. REV. 503, 508 (2012).

Crack is sometimes referred to as “cocaine base” and is produced through a relatively

simple process of dissolving powder cocaine into a mixture of water and either

ammonia or baking soda. This mixture is then boiled until it forms a solid, which is

dried and broken into pieces called “rocks.” The drug’s name is derived from the

crackling sound it makes when smoked.

Id. at 507. Drug charges involving crack historically resulted in substantially worse sentences

than charges involving cocaine. Id. at 508–11; see Alyssa L. Beaver, Note, Getting a Fix on

Cocaine Sentencing Policy: Reforming the Sentencing Scheme of the Anti-Drug Abuse Act

of 1986, 78 FORDHAM L. REV. 2531, 2545–50 (2010). The Anti-Drug Abuse Act of 1986

“triggered mandatory minimum sentences according to the weight of the drugs involved,

using the 100:1 equation. Thus, a conviction or plea involving five grams . . . of crack

received the same five-year mandatory imprisonment sentence as a conviction or plea

involving five hundred grams . . . of powder.” United States v. Watts, 775 F. Supp. 2d 263,

267–68 (D. Mass. 2011). The rationale for this disparity was rooted in the belief that “crack

cocaine was an inherently more dangerous drug than powder cocaine. It was certainly less

expensive and was thought to be fifty percent more addictive.” Id. at 267.

105

Some of the so-called street gangs that occupied South Los Angeles during this time

were the Underground Crips, Hoover Crips, Bounty Hunter Bloods, Grape Street Crips,

Hacienda Village Bloods, and the PJ Watts Crips. See Elizabeth Hinton, Los Angeles Had a

Chance to Build a Better City After the Rodney King Violence in 1992. Here’s Why It Failed,

TIME (May 18, 2021), https://time.com/6049185/los-angeles-rodney-king-misunderstand-

what-happened/ [https://perma.cc/S8XK-L2QB].

106

Ricky “Freeway Rick” Ross established a drug empire in Los Angeles in the early to

mid-1980s. Freeway Ricky Ross, FREEWAY RICKY ROSS, https://freewayrickyross.com/

[https://perma.cc/VP6X-JRPT].

107

See generally Day to Day, Tookie Williams and the History of the Crips, NPR (Dec. 7,

2005), https://www.npr.org/templates/story/story.php?storyId=5042586 [https://perma.cc/EEQ4

-XEVU] (discussing the Crips origin story with Raymond Washington and Stanley Tookie

Williams).

108

I attended Washington High School at 10860 South Denker, Los Angeles, CA 90047.

Al Valdez, Tracing the Roots of Black Gang Rivalry, POLICE MAG. (Aug. 1, 1996), https://www.

policemag.com/338634/tracing-the-roots-of-black-gang-rivalry [https://perma.cc/D9QS-X6UN].

109

See supra note 102.

110

See supra text accompanying notes 3–5.

876 OHIO STATE LAW JOURNAL [Vol. 83:5

resident of the neighborhood, I embodied many of the physical cultural

expressions by way of dress, hair, and car.

111

I was a hodgepodge of South Los

Angeles inner-city culture and a benefactor of affirmative action educational

opportunities.

112

I adopted Afrocentric

113

elements in my thinking, personality,

and style. Yet, I embodied inner-city South Los Angeles in my car choice, rims,

and flashy dress style. I wore locs and an African headwrap while I drove a new

Land Rover Range Rover with twenty-inch rims.

114

Although many may have

considered me “successful,” this in no way shrouded me from police encounters.

To the police, I stuck out, fit the profile of a drug trafficker,

115

and garnered

their attention for suppression. According to the inner-city dweller social

contract, I was too arrogant, up to no good, and deserving of suspicion.

On the night of my first Dignity Taking,

116

I was approaching the

intersection at 107th Street and Denker Avenue, when I saw the patrol car

coming from the opposite direction. I came to a complete stop at the intersection,

recognizing not doing so would provide a legitimate basis for the police to stop

my truck.

117

I dreaded police interaction, and I knew the locs on my head and

shining twenty-inch rims on my Range Rover would capture the police officer’s

111

See, e.g., Madison Horne, A Visual History of Iconic Black Hairstyles, HIST.,

https://www.history.com/news/black-hairstyles-visual-history-in-photos [https://perma.cc/28VH-

YNSL] (Feb. 1, 2019) (discussing the roots of Black hairstyles and the development of locs as

part of a larger movement to reclaim Black history); Khanya Mtshali, The Radical History of

the Headwrap, TIMELINE (May 10, 2018), https://timeline.com/headwraps-were-born-out-of-

slavery-before-being-reclaimed-207e2c65703b [https://perma.cc/2CK9-SK3V] (highlighting

the history of the African headwrap as a cultural expression and owned what had been a

marker of slavery; “it was ultimately the descendants of slaves who determined [the

headwrap’s] significance and usage for future generations”).

112

See, e.g., What You Need to Know About Affirmative Action at the Supreme Court,

ACLU (Oct. 31, 2022), https://www.aclu.org/news/racial-justice/what-you-need-to-know-

about-affirmative-action-at-the-supreme-court [https://perma.cc/2VE4-Y58C] (discussing

affirmative action and race-conscious policies in higher education).

113

MOLEFI KETE ASANTE, AN AFROCENTRIC MANIFESTO 17 (2007) (“Afrocentricity

seeks to examine every aspect of the subject place of Africans in historical, literary,

architectural, ethical, philosophical, economic, and political life.”).

114

See supra note 111.

115

Young Black men are often stereotyped as threatening and as drug dealers. See

MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF

COLORBLINDNESS 107 (rev. ed. 2012) (“[R]acial bias in the drug war was inevitable, once a

public consensus was constructed by political and media elites that drug crime is black and

brown. Once blackness and crime, especially drug crime, became conflated in the public

consciousness, the ‘criminalblackman’ . . . would inevitably become the primary target of

law enforcement.”). In other words, our society has internalized the criminal stereotype of

Black men, and this has led to the disproportionate targeting of Black men as potential

suspects, in interrogation, and in wrongful convictions.

116

The Dignity Taking described herein Part III.A between the Author and the police

are his own account of the events.

117

See Whren v. United States, 517 U.S. 806, 810 (1996) (“As a general matter, the

decision to stop an automobile is reasonable where the police have probable cause to believe

that a traffic violation has occurred.”).

2022] DIGNITY OR DEATH 877

imagination.

118

So, I drove with extreme care to avoid interacting with the

police. I made eye contact with the officer as we passed each other enroute to

our destinations. I could see suspicion in the officer’s eyes. My skin, my hair,

my car, and my neighborhood, in his eyes, warranted investigation. I could have

turned away, but I knew to avoid eye contact would suggest justifiable

suspicion.

119

To make eye contact would also provide confrontation.

120

returned the stare.

I signaled and then turned right on my block. I felt the officer coming. My

heart raced. I thought to myself: only one more block until home. I checked my

rearview mirror, still clear. The possibility that the officer might make a U-turn

still lurked even though I could not see the officer in my rearview mirror, yet. I

got halfway down the block and there the officer was, turning right onto my

block. The officer moved quickly down the street behind me. He did not activate

his lights or sirens. With clarity of the potential consequences of making any

mistake, I checked my speed, between twenty and twenty-five miles per hour,

perfect. I activated my left signal and turned into my driveway. Gently, but

without delay, I put the car in park, turned off the car’s ignition, and exited my

truck. I placed the keys in my pocket and began walking toward my front door.

The officer pulled up, perpendicular to my driveway. He blocked my parked

truck from moving. Now, as a citizen standing in my front yard, I continued

walking toward my door. No flashing lights or sirens were activated. No stop.

No seizure. Just an accosting occurred.

121

The officer rolled down his window,

looking directly at me, and calmly said, “Come here.” I paused, looked at the

118

See ALEXANDER, supra note 116, at 107 (“[A] fairly consistent finding is that

punitiveness and hostility almost always increase when people are primed—even

subliminally—with images or verbal cues associated with African Americans. In fact, studies

indicate that people become increasingly harsh when an alleged criminal is darker and more

‘stereotypically black’; they are more lenient when the accused is lighter and appears more

stereotypically white.”).

119

See United States v. George, 732 F.3d 296, 300–01 (4th Cir. 2013) (“To be sure,

while the failure of a suspect to make eye contact, standing alone, is an ambiguous indicator,

see United States v. Massenburg, 654 F.3d 480, 489 (4th Cir. 2011), the evidence may still

contribute to a finding of reasonable suspicion.”). In People v. Flores, the police were

patrolling a “high crime area,” and stopped Flores who was crouching behind a car. People

v. Flores, 275 Cal. Rptr. 3d 233, 235–36 (Cal. Ct. App. 2021). Because the officers believed

that Flores looked suspicious and was “attempting to conceal himself from the police,” they

handcuffed him and searched him. Id. at 236. One of the things officers identified as the basis

for having reasonable suspicion was that Flores’ eyes averted the police. Id. at 242.

120

United States v. De la Cruz-Tapia, 162 F.3d 1275, 1278 (10th Cir. 1998) (explaining

how a police officer “undermined his grounds for suspicion when he testified that he believed

both eye contact and lack of eye contact constituted suspicious behavior”).

121

People v. Mickelson, 380 P.2d 658, 660 (Cal. 1963); In re Tony C., 582 P.2d 957,

958 (Cal. 1978), corrected, 697 P.2d 311 (Cal. 1985) (“It is settled that circumstances short

of probable cause to make an arrest may justify a police officer stopping and briefly detaining

a person for questioning or other limited investigation.”). Accordingly, police officers can

approach, talk to, or ask citizens to search or for submission and are not in violation of the

Fourth Amendment.

878 OHIO STATE LAW JOURNAL [Vol. 83:5

officer, and took stock of the situation. It was dark. I was the only person

outside. I did not want this police interaction to escalate. As Black men, we

never do. The officer repeated, “Did you hear me? I said come here.” I paused

again. I looked at the officer, feeling confused and belittled by his request. I felt

like I was being summoned like a dog. I was no dog. I heard the officer again,

this time saying in so many words, “Come here, boy.” I decided that I would

not do what I was told and spoke out in response, “I am not walking to your

car.” The officer responded, “You walk over here now, or I am going to beat

your ass.” I made my decision, prepared for the consequences, and spoke out

clearly, “I am not walking to your car.” As promised, the officer alighted from

the patrol car and pounced on me. He threw me to the ground. He pulled my

arms behind me, his knee in my back, pulled out his pepper spray, and sprayed

my eyes. I screamed out, “You can’t do this to me in my own community,” the

officer leaned in closely and responded, “I can blow your fucking head off if I

want to.” Reality check.

This traumatic incident captures the all-too-common experience of Black

men when officers use the Fourth Amendment reasonable articulable suspicion

standard to create narratives that permit them to accost citizens and infringe on

their freedom of movement and autonomy without any evidence of a crime.

From the moment I stared back at the officer, the officer’s narrative for

reasonable articulable suspicion was created, drafted, and crafted in his mind.

His narrative would control for purposes of a Fourth Amendment analysis. The

reality of what actually occurred on that evening would not make it into any

charging document or rarely be accepted by the court. What was reasonable

would be defined by the officer’s narrative.

As stated previously, reasonable articulable suspicion has its origin in the

seminal case Terry v. Ohio.

122

In Terry, the Supreme Court chipped away at the

Fourth Amendment allowing for yet another exception, commonly referred to

as “stop and frisk,” finding that it was lawful for officers to seize individuals

and frisk them for weapons so long as the officer was “able to point to specific

and articulable facts which, taken together with rational inferences from those

facts, reasonably warrant that intrusion.”

123

Though Terry was only seven years

removed from Mapp v. Ohio, where the Court extended the exclusionary rule to

the states to dissuade police officers from violating the law while enforcing it,

124

Terry was a significant pivot. It limited Fourth Amendment protections by

upholding stop and frisk—forcible detention and search—on less than probable

cause.

125

122

Terry v. Ohio, 392 U.S. 1, 21–22 (1968).

123

Id. at 21.

124

See Mapp v. Ohio, 367 U.S. at 643, 657 (1961).

125

Maclin, Terry, supra note 68, at 364; Dylan Matthews, Here’s What You Need to

Know About Stop and Frisk—and Why the Courts Shut It Down, WASH. POST (Aug. 13,

2013), https://www.washingtonpost.com/news/wonk/wp/2013/08/13/heres-what-you-need-to-

know-about-stop-and-frisk-and-why-the-courts-shut-it-down/ [https://perma.cc/J4JK-RWNZ].

2022] DIGNITY OR DEATH 879

In Terry, the Supreme Court acknowledged “the rule excluding evidence

seized in violation of the Fourth Amendment ha[d] been recognized as a

principal mode of discouraging lawless police conduct” but justified the

officer’s seizure by citing the “governmental interest in investigating crime” and

officer safety citing the “immediate interest of the police officer in taking steps

to assure himself that the person with whom he is dealing is not armed with a

weapon that could unexpectedly and fatally be used against him.”

126

reviewing the officer’s actions, the Court held that so long as the officer’s

actions are “judged against an objective standard: would the facts available to

the officer at the moment of the seizure or the search ‘warrant a man of

reasonable caution in the belief’ that the action taken was appropriate?” and are

found objectively reasonable then the seizure and pat down are lawful.

127

The

Court further found that the officer’s suspicion in Terry was reasonable, even

stating that it would have been “poor police work” for the officer not to stop and

pat down the appellant.

128

In his article Terry v. Ohio at Thirty-Five: A Revisionist View, Lewis R.

Katz demonstrates that Chief Justice Warren, writing for the Court, facilitated

an evolution of the facts from what occurred on the street, to what the officer’s

testimony was at the suppression hearing, to what the Court finally included

within their opinion to justify reasonable articulable suspicion.

129

These

differences facilitated the development of rules pertaining to stop and frisk that

impact Black male Dignity Takings and restoration throughout our nation.

Like in Terry, the officer’s narrative in my Dignity Taking incident

“point[ed] to specific articulable facts” that I, too, met the requirements of

reasonable articulable suspicion and that I, too, was armed and dangerous. To

justify his action, the officer made up a story that I had a silver object in my

hand and upon being ordered to stop, refused to stop. He claimed that I stood in

a combative stance, ready to fight. He claimed that he approached me and upon

reaching out to detain me, I spat and swung my fist toward his face. Although

based on a completely false story, Terry’s justification under the officer safety

doctrine would permit the officer to take me to the ground and pepper spray me

in my face, as he did. The officer safety doctrine purports that “American

criminals have a long tradition of armed violence, and every year in this country

many law enforcement officers are killed in the line of duty, and thousands more

are wounded.”

130

To the officer, my Black maleness was criminal enough. The

narrative suggests that all suspected criminals are armed with “guns and

126

Terry, 392 U.S. at 12, 23.

127

Id. at 21–22.

128

Id. at 23.

129

Katz, supra note 69, at 434–35. The differences included: (1) “McFadden ordered

the men to keep their hands out of their pockets when he intercepted them,” an act that did

not appear in the Supreme Court’s statement of facts; and (2) a discrepancy regarding

whether Officer Madison conducted a pat-down frisk prior to reaching into the pockets of

the individuals who he believed were carrying weapons. Id.

130

Terry, 392 U.S. at 21–23.

880 OHIO STATE LAW JOURNAL [Vol. 83:5

knives,”

131

dangerous, and deserving of harsh punitive physical abuse as a

justifiable means of control.

Based on the manufactured basis for reasonable articulable suspicion, the

officer claims that he took me down to the ground and pepper sprayed me to

bring me back under control. His narrative construed me as violent, unhinged,

and lawless. Under the officer’s narrative, he had observed enough “specific and

articulable facts” to pass constitutional muster under Terry. The truth, my safety,

my life, and my dignity were inferior to the officer’s made-up narrative.

Much like the police version in the incident report and suppression hearing

in Terry, what actually occurred on my block would not justify a constitutional

stop based on reasonable articulable suspicion. I drove with precision and

caution. I had not sped. I parked in my own driveway in front of my home. I had

not violated any traffic laws. I simply exercised my right to refuse to comply

with the officer’s request. I attempted to be human and maintain dignity when I

refused the summons. I did not spit at or attempt to swing at the officer. Nor did

I have any weapon, indeed, none was found. I did nothing to warrant suspicion

under the law. My actions were not analogous to the recitation of the facts in

Justice Warren’s Terry opinion. My actions were not a justifiable basis for

reasonable articulable suspicion to stop—because no crime—other than Black

maleness, was afoot.

Only through a fabricated version of the facts where Terry was engaged in

“casing” for a robbery and was “pausing to stare in the same store window

roughly 24 times,”

132

and feared to be armed, is reasonable articulable suspicion

established.

133

On the other hand, refusing to stop where the police intrusion

was an accosting, standing in a combative stance upon being questioned, and

holding a silver object in one’s hand, although fabricated, was not reasonable

articulable suspicion of a crime and not a basis for police intrusion under the

Fourth Amendment. My incident differed from Terry, where the Court created

a factual version to conclude the appellant was engaged in a crime typically

associated with weapons.

134

This was an accosting of a Black man, me, for

standing in my yard, either combative or not, with something silver or not in my

hand. Under the “objective” standard adopted in Terry, the facts available to the

officer at the moment of my accosting, did not “‘warrant a man of reasonable

caution in the belief’ that the action taken was appropriate”

135

and that crime

was afoot.

The Dignity Taking was unequivocally not supported by the Terry standard

because no crime or reasonably articulated crime occurred to justify any actions

taken by the officer. These facts did not support a Terry stop. The genuine facts

131

Id. at 24.

132

Id. at 6, 23.

133

See id. at 30.

134

Id. at 28 (“[A] daylight robbery—which, it is reasonable to assume, would be likely

to involve the use of weapons . . . .”).

135

Id. at 22.

2022] DIGNITY OR DEATH 881

support a Fourth Amendment violation—the very Fourth Amendment violation

Terry cautioned against: “lawless police conduct” and invasion of “personal

security.”

136

But as stated, the Fourth Amendment was not intended for me, or

Terry for that matter.

137

Rather the police, through the holding in Terry and

fabricated facts are permitted to intrude on my freedom of movement and set

the stage for a Dignity Taking.

So, like in the case of John, the tightrope of dignity maintenance began.

Under the law, I was within my right to resist this “unreasonable” intrusion and

refuse the officer’s request to submit and “come here.” My desire for autonomy

as a human being—my understanding of American chattel slavery, my history

degree from UCLA, and my successful real estate portfolio in that very

neighborhood—propelled me to reject submission and accept a potential age-

old slave whipping.

The officer obliged. The Fourth Amendment to the Constitution guarantees

my right against unreasonable seizure, as was occurring here. The officer saw

me as an inner-city dweller, undeserving of respect or the protections of the

Fourth Amendment. It was when I decided to embrace this right and use this

right to assert my dignity that I was subjected to potential death. Like John, due

to my education, I chose dignity. I chose dignity because I believed I, too, was

American. I chose dignity because I knew I was in my right to resist this

“unreasonable” intrusion. In the end, choosing dignity resulted in a knee in my

back, my arms pulled back behind my back, getting pepper sprayed, and the

threat of death in the driveway of my home.

After being forced back into my prescribed position as a slave, I attempted

to hire counsel to sue the officer for unlawful arrest and assault. One attorney

told me in recognition of the inner-city social contract, “You should have just

walked over to the police officer’s car when he called you.” That attorney’s

advice, at least at the time as a twenty-five-year-old, with no legal education, a

belief in justice, and a secured feeling of right, seemed like the words of a

sellout. They sounded like the words of someone who just didn’t get it. In my

view, the attorney was, too, a slave. But now, my forty-five years of experience

and a more informed understanding of the social contract of Black submission,

the law as written and the law as practiced, and the slave catcher’s history of

police, I see his advice differently. I know his sentiment was of survival above

sacrifice. I know that he believed and wanted me to recognize the harsh reality

of being a Black man in inner-city Los Angeles when interacting with police

and that in exercising choice, choose survival.

Much like the attorney that advised me, I regularly counsel clients to

consider the consequences of not letting officers search their person, cars,

homes, and things before rejecting the request. I suggest to clients that the

consequences of asserting Fourth Amendment rights, just might be too much to

bear. I tell clients to consider arrest, bail, and trial, or alternatively a search that

136

Terry, 392 U.S. at 12, 19.

137

See supra note 92–98 and accompanying text.

882 OHIO STATE LAW JOURNAL [Vol. 83:5

does not produce illegal contraband and the ability to walk away only suffering

a Dignity Taking. I tell clients that the consequences of dignity assertion are not

worth the loss of life. I understand that their ability to stay uncaged, at least on

a particular occasion, is worth more than abstract concepts of justice. At twenty-

five years old, with a degree from UCLA, and a thriving real estate investment

portfolio, I could afford a criminal defense lawyer for $15,000. I could afford

the $5,000 bail and I did not fear losing my job. I had the luxury of asserting

dignity. For many Black men, especially those that live in inner-city

communities, work as wage laborers, and are presumed guilty in all interactions

with police, dignity and its corresponding taking, is not worth the cost.

Nonetheless Black men, me, engage in its exercise at times with dire

consequences.

B. No, You Cannot Search My Car

My second Dignity Taking occurred as a recent law school graduate. I had

become versed in the law, at least enough to complete law school and pass the

bar. Through law school, I had gained an understanding of the rights bestowed

upon Black people with the passage of the Thirteenth, Fourteenth, and Fifteenth

Amendments.

138

In addition, I learned how the Fourth Amendment was

supposed to protect me against unreasonable search and seizure. Like John, I

had become more educated, angrier, and empowered. I wanted to use my legal

education to assert dignity—not only my own dignity, but as a law school

graduate and forthcoming member of the Maryland Bar, assert and defend the

dignity of other Black men. I wanted to provide legal counsel to Black people

when abused by police as I had been abused in my front yard and unable to

secure legal counsel. Before I could be sworn into practice law in Maryland, I

was faced with an unlawful traffic stop that resulted in a Dignity Taking of

myself and passengers.

My brother,

139

my cousin,

140

and I were traveling by car across the country

for the Thanksgiving holiday. We intended to stay with family for at least a

week. We filled our car with large suitcases and plenty of snacks for the trip.

We left the house around 5:00 A.M. that morning in anticipation of the two-day

drive. We were headed from Silver Spring, Maryland, where I moved for law

school, to Los Angeles, California, where I grew up. We used Mapquest to plan

our route. We sought the fastest route, not concerned with sightseeing or

desirable rest stops. The suggested route took us on the I-70 to I-40 through

138

U.S. CONST. amend. XIII (abolishing slavery); U.S. CONST. amend. XIV (granting

citizenship, privileges and immunities, due process, equal protection, and appointment of

representation); U.S. CONST. amend. XV (granting universal male suffrage). The

incorporation doctrine made portions of the Bill of Rights applicable to the states and thus

extended its rights to Black people. Robert Fairchild Cushman, Incorporation: Due Process

and the Bill of Rights, 51 CORNELL L. Q. 467, 467 (1966).

139

My brother’s full name will be withheld for purposes of this Article.

140

My cousin’s full name will be withheld for purposes of this Article.

2022] DIGNITY OR DEATH 883

Allegany County, Maryland crossing back and forth across Maryland and West

Virginia state lines headed west. We feared police harassment while traveling,

so I was relieved to learn that the suggested route had us passing through the tip

of Texas for the shortest time possible. In my mind, Texas was most notorious

for profiling Black motorists. I knew through legal study and personal

experience that “traffic stops [were] gateways to more intrusive [and potentially

violent] searches and seizures.”

141

I hated uninvited police contact, thus I

traveled with my speed set by cruise control. I always believed that I shouldn’t

give the police a reason to harass, knowing that they would likely harass

anyway. Notwithstanding the fear of police on the road, I decided to take the

drive. I needed to get home and I intended to leave the car with my aunt in Los

Angeles. I was driving her 2004 FX Infiniti SUV.

142

While on I-70 approaching Allegany County, I noticed an unmarked police

car parked on the shoulder. We passed the unmarked police vehicle.

143

I checked

my car’s speedometer and noted that I was not speeding.

144

After I passed his

car, the officer, who at the time worked as a police officer in Cumberland, a

town in Allegany County, pulled onto the highway and followed us.

145

The

officer pulled his car alongside ours and looked into the passenger window.

There we were, three Black men, with braids and locs in our hair. I looked

directly into his eyes, and he quickly surveyed me and my car’s occupants. I

knew trouble was afoot. He then fell back behind us and turned on his sirens and

signaled for us to pull over.

146

There was no surprise with the illumination of

lights and siren. Although we were not speeding, had not illegally changed

lanes, had proper registration, and were following all traffic laws, I knew by

looking into his eyes that we were to be seized. I readied myself for what was

to surely ensue. I cautioned my brother and cousin to stay calm and let me do

the talking. I took a deep breath and believed I could handle it.

I attempted to pull over onto the side of the highway. The officer, using his

bullhorn, directed me not to do so, but instead continue driving. He then

instructed me to exit the highway and turn right. I didn’t really understand why

I just couldn’t pull over. There was enough space on the side of the road, and I

had been pulled over at least thirty times in the past and always stopped as soon

as I could. Not this time. I felt uneasy and a little afraid. This officer was up to

something. Every time I attempted to stop once off the highway, over bullhorn,

the officer would instruct me to continue and not to stop the car. Then again,

141

See Carbado, supra note 50, at 151.

142

The Infiniti SUV was relatively new and considered high end by the officer. See

Complaint at 9, Hayat v. Fairley, No. 108CV03029, (D. Md. Aug. 5, 2009), 2008 WL

7254908. My personal perception of the car was not high-end at all. I leased the car a couple

years prior for my aunt to drive. The reality is that the SUV was a common purchase item of

the middle class and could as easily be considered a soccer mom’s car.

143

Id. ¶ 21.

144

Id.

145

Id. ¶¶ 1, 22.

146

Id. ¶ 23.

884 OHIO STATE LAW JOURNAL [Vol. 83:5

over bullhorn, the officer called out and instructed me to pull into a parking lot

approximately four blocks from the highway.

147

Once we pulled into the parking lot, the officer approached our car while

another officer stood near our vehicle with his hand on his gun holster.

148

The

first officer began questioning me about my destination and whether we were

carrying drugs.

149

After I answered his questions and assured him that we did

not have drugs, he accused me of driving five miles over the speed limit and

requested identification from me, my brother, and my cousin.

150

I explained that

I was a recent law school graduate—and in fact had just been notified by the

Court of Appeals that I had passed the Bar—and that current case law did not

require passengers in a car during a traffic stop to produce their identification.

The officer laughed, said to me, “You passed the Bar? Yeah, right,” and again

demanded our identification. Over my objection, my brother and my cousin

produced their identification cards. The officer returned to his vehicle with the

requested identification, while the unidentified officer continued to stand near

my car with his hand on his gun holster.

151

Shortly thereafter, a K-9 unit

152

officer, along with another unidentified

officer arrived.

153

The K-9 officer approached the car and directed the canine

twice around the vehicle. While circling the car, the dog did not bark, growl,

scratch, sniff,

154

or make any other indication of alert.

155

I thought to myself, of

course it didn’t, we have no drugs. Despite the lack of any alert,

156

the K-9

147

Id. ¶¶ 25–28.

148

Complaint, supra note 143, ¶ 29.

149

Id. ¶ 30.

150

Id. ¶¶ 30–33.

151

Id. ¶¶ 32–34.

152

A K-9 unit is a “specialized group of law enforcement officers who use service dogs

to perform the responsibilities of a general police officer.” K-9 Unit, BLUFFTON POLICE

DEP’T, https://sc-bluffton.civicplus.com/452/K-9-Unit [https://perma.cc/3MRP-FED2].

153

Complaint, supra note 143, ¶ 36.

154

Although the use of a K-9 unit is permissible, limitations on the extent of use exist.

See, e.g., Illinois v. Caballes, 543 U.S. at 405, 407–08 (2005) (“A seizure that is justified

solely by the interest in issuing a warning ticket to the driver can become unlawful if it is

prolonged beyond the time reasonably required to complete that mission.”); see also

Rodriguez v. United States, 575 U.S. 348, 350–51 (2015) (holding that the Fourth

Amendment allows unrelated investigations so long as they do not lengthen the roadside

detentions).

155

Complaint, supra note 143, ¶ 37.

156

Alert is defined as any notice of any unusual and potentially dangerous

circumstances. Alert, ENCYCLOPEDIA.COM, https://www.encyclopedia.com/places/united-states-

and-canada/canadian-political-geography/alert [https://perma.cc/GG7G-TVQU] (June 11, 2018).

2022] DIGNITY OR DEATH 885

officer told us that he believed marijuana was in the car, read us our Miranda

rights,

157

and ordered each of us out of the vehicle.

158

Over the next hour, the K-9 officer, the original officer, and the unidentified

officers subjected us to numerous unjustified indignities. First, the officers

ordered my brother out of the car into the freezing temperatures and snow

without allowing him to put on his shoes or coat. After a pat-down of my brother

during which no weapons or illegal drugs were found, the officers placed their

hands inside his pockets and even inside his socks. At no point during the entire

interaction did he give consent to be searched.

159

I wondered if it was my status

as a law school graduate that spared me from the most demeaning aspects of the

investigation. I wondered if it was my brother’s braids, or that fact that he was

well over six feet, or the fact that he had several visible tattoos that made him

the focus of the inquiry. I knew if the officers truly smelled marijuana in the car

as they claimed, they would not have any particularized basis to suspect

marijuana on his person as opposed to me or my cousin—other than his

appearance.

After frisking and searching us, and finding no weapons or drugs, the

officers then turned to searching our luggage that was in the trunk.

160

The

officers opened the luggage, went through every pocket, turned out every sock,

and threw all the contents onto the ground after searching them.

161

Again, the

officers found nothing.

162

Again, we never consented to the search of our

belongings.

163

The officers continued to question us about whether we had any drugs on

us or in the car. When I attempted to remind my brother of my earlier warning

about not talking to the police, and his right to remain silent under the Fifth

Amendment, the officers threatened to charge me with disturbing the peace and

arrest me.

164

Despite these warnings, I continued to remind my brother of his

right to silence, and in response, the officers locked me in the back of a police

vehicle

165

demonstrating an intention to make good on their promise of arrest.

157

Miranda rights are constitutional protections requiring police officers to provide

certain notices to a person taken into police custody. Miranda v. Arizona, 384 U.S. 436, 473

(1966). The warning must advise individuals of their right to silence, ultimately protecting

them from self-incrimination. Id. at 444. However, to “fully to apprise a person interrogated

of the extent of his rights under this system” the individual must be given notice of the right

to consult with an attorney and if the individual cannot afford an attorney, the individual will

receive representation from an appointed attorney. Id. at 473. Without the additional warning

of the indigents’ right to appointed counsel, indigents, who are “most often subjected to

interrogation,” may not know that they are “truly in a position to exercise [that right].” Id.

158

Complaint, supra note 143, ¶ 39.

159

Id. ¶ 50.

160

Id. ¶¶ 47, 48.

161

Id. ¶ 48.

162

Id. ¶¶ 48, 55.

163

Id. ¶ 50.

164

See Complaint, supra note 143, ¶ 51.

165

Id. ¶ 53.

886 OHIO STATE LAW JOURNAL [Vol. 83:5

The K-9 officer told my brother that other officers had found marijuana

shake

166

in the vehicle and that it was okay to admit he sold drugs because the

K-9 officer sold drugs, too.

167

After my brother refused to admit to nonexistent

drugs, the K-9 officer then lied and told him that other officers found drug

paraphernalia in the vehicle.

168

The officers never produced any evidence of

marijuana shake, residue, or drug paraphernalia.

169

As with my brother, when the K-9 officer questioned my cousin, who was

only 16 years old at the time, he told him that it was okay to admit to having

marijuana in the vehicle because one of his fellow K-9 officers sold crack

cocaine.

170

The K-9 officer also falsely told my cousin that the officers had

found marijuana in the vehicle.

171

My cousin, however, continued to maintain

that there was no marijuana in the car and then exercised his right to remain

silent.

172

As a result, the K-9 officer locked my cousin in the back of an

unmarked police vehicle.

173

After the search and seizure continued for almost an hour, the original

officer finally issued a warning ticket for driving ten miles, not five, over the

speed limit and failing to use a proper turn signal when making a right turn.

174

The fact that I made no lane change in the officer’s presence and drove on cruise

control within the speed limit was of no consequence.

I later learned that the two officers had conducted numerous traffic stops,

primarily pulling over African Americans and other drivers of color, claiming

violations of traffic law but eventually searching for drugs.

175

In executing these

stops, the original officer would call for outside K-9 assistance, despite the fact

that the Cumberland Police Department had its own K-9 unit.

176

When the officers pulled our vehicle over because they saw three Black men

driving in Allegany County and suspected them to be drug traffickers, their

narratives became, from its inception, cloaked and protected in the holding of

Whren, and it did not matter whether they stopped our car due to their racist

beliefs of Black male criminality, so long as they were able to formulate a story

about a traffic infraction. In Whren, the Supreme Court held that “[T]he

temporary detention of a motorist upon probable cause to believe that he has

violated the traffic laws does not violate the Fourth Amendment’s prohibition

166

Marijuana shake is “cannabis flower that has naturally broken down through

handling.” Shake, LEAFLY, https://www.leafly.com/learn/cannabis-glossary/shake [https://

perma.cc/3HU8-S5G3].

167

Complaint, supra note 143, ¶ 54.

168

Id.

169

Id. ¶ 55.

170

Id. ¶ 57.

171

Id.

172

See id. ¶¶ 57–58.

173

Complaint, supra note 143, ¶ 58.

174

Id. ¶ 59.

175

Id. ¶ 66.

176

Id. ¶¶ 67–68.

2022] DIGNITY OR DEATH 887

against unreasonable seizures, even if a reasonable officer would not have

stopped the motorist absent some additional law enforcement objective.”

177

In Whren, officers saw a vehicle in a high crime area, with temporary tags,

and with “youthful” Black males.

178

This alone may have not been enough to

stop the car but when the officers headed towards the truck, the truck allegedly

made a sudden turn without signaling and sped off at an “‘unreasonable’”

speed.

179

The officer pulled the vehicle over and alleged that he saw two bags

of crack cocaine in the driver’s hand.

180

Appellants argued that a probable cause

standard was too low, reasoning that “compliance with traffic and safety rules

is nearly impossible.”

181

The Court squarely addressed race, stating that

appellants “who are both [B]lack, further contend that police officers might

decide which motorists to stop based on decidedly impermissible factors, such

as the race of the car’s occupants.”

182

The Court, unmoved, stated:

We of course agree with petitioners that the Constitution prohibits selective

enforcement of the law based on considerations such as race. But the

constitutional basis for objecting to intentionally discriminatory application of

laws is the Equal Protection Clause, not the Fourth Amendment. Subjective

intentions play no role in ordinary, probable-cause Fourth Amendment

analysis.

183

This pivotal case foreclosed the argument that ulterior motives—even race-

based enforcement—can invalidate police conduct justified by probable cause.

Indeed, the Court blatantly said that the case “foreclose[d] any argument that

the constitutional reasonableness of traffic stops depends on the actual

motivations of the individual officers involved.”

184

Under the officer’s narrative, we had gone over the speed limit, and so under

Whren, that was enough to be considered a legally justifiable basis for the

stop.

185

Because Whren “foreclose[d]” any challenge to the subjective intent of

the officers, their narrative was sufficient, regardless of their pattern of targeting

Black drivers.

186

But, the reality of what occurred did not support Whren—I had

not been speeding. In fact, it wasn’t until after I told the officers that we were

not carrying drugs that the attention suddenly turned to an alleged traffic

infraction which had never occurred.

187

Nor was this like the situation in Whren

177

Whren v. United States, 517 U.S. 806, 808 (1996).

178

Id.

179

Id.

180

Id. at 808–09.

181

Id. at 810.

182

Whren, 517 U.S. at 810.

183

Id. at 813.

184

Id.

185

Complaint, supra note 143, ¶ 32; see Whren, 517 U.S. at 819.

186

Whren, 517 U.S. at 813.

187

See Complaint, supra note 143, ¶¶ 30–32.

888 OHIO STATE LAW JOURNAL [Vol. 83:5

where after the officer approached the vehicle, drugs or illegal activity were

exposed.

188

I had not done anything to justify the stop of my car nor did the

officers see any drugs—despite their belief we had drugs—or observe any

illegal activity.

189

Pretextual stops, such as the one that occurred here, are commonplace and

are recognized as a basis for unlawful detention. Tracey Maclin in his article

Race and the Fourth Amendment detailed this all-too-common police practice,

highlighting the common nature of such interactions and the racial implication

of police officer unlawful detention of African Americans who travel by

highway.

190

Similar to my experience, Maclin focuses on the case of “Robert

Wilkins, a Washington, D.C., criminal defense lawyer, who with his family, was

returning to Washington after attending a funeral in Chicago.”

191

The facts of Wilkins v. Maryland State Police begin with a traffic stop by a

state trooper of four Black individuals in Allegany County, Maryland:

The officer requested permission for a consent search, but Wilkins told the

trooper that he was an attorney who had a court appearance later in the

morning, and that the officer had no right to search the car without arresting

the driver. After the request to search was denied, the officer ordered the

occupants out of the car and detained them while a drug-sniffing dog was

brought to the scene. The canine sniff revealed no narcotics. The officer then

permitted Wilkins and his family to leave after more than a half-hour

detention.

192

Wilkins’ case provides an example of how police officers often target Black

drivers through pretextual stops. Because of his experience, Wilkins decided to

file a class action lawsuit alleging racially motivated illegal traffic stops.

193

During litigation, a Maryland state police intelligence report revealed a warning

to troopers to be cognizant of “dealers and couriers (traffickers) [who] are

predominately [B]lack males and [B]lack females . . . utilizing Interstate 68.”

194

Like in Wilkins’ case, the officers stopped me believing that because I was

Black, as were the passengers in my car, we were “dealers and couriers” as

demonstrated by the continuous questioning regarding drugs. Whren makes it

easy for officers to justify their race-based stops using traffic infractions because

“compliance with all traffic and safety rules is nearly impossible,”

195

and thus,

officers could make up a myriad of reasons for stopping me and other similarly

situated Black men on the highway.

188

See Whren, 517 U.S. at 809.

189

Complaint, supra note 143, ¶¶ 19–25.

190

See Maclin, Race, supra note 66, at 386–92.

191

Id. at 349.

192

Id.

193

Id.

194

Id.

195

Whren v. United States, 517 U.S. 806, 810 (1996).

2022] DIGNITY OR DEATH 889

Externally, these pretextual interactions, as Devin Carbado notes, provide

police the opportunity to kill us.

196

In the alternative, if we avoid death and

successfully sacrifice dignity, as Paul Butler notes, they kill our spirit.

197

Officers, based on Whren, have the pretextual weaponry to stop vehicles solely

based on traffic infractions where “compliance with traffic and safety rules is

nearly impossible”

198

and then subsequently be shielded because their

subjective intent is foreclosed from being considered.

199

According to the

Whren Court, the Fourth Amendment “provides only procedural protection for

the individual.”

200

Thus, if the officer’s version is believed—even when

fabricating the facts as in my case and Wilkins—“Fourth Amendment protection

terminates and the police are free to conduct a seizure at their whim.”

201

There are Black men, like me, who want to preserve their dignity by

asserting their rights even at the cost of losing their physical lives, like John. We

don’t want to die, but we also do not want to be reduced to anything less than

human. We are conscious of the consequences of escalated police contact and

we object, nonetheless. Based on the knowledge gained through legal education,

I continued to object to violations of rights and insisted upon informing the

passengers in my car of their rights as well. Like John’s riverside conversation

with his sister, I told my brother to remain silent and not to consent to search

even though I knew it could result in his arrest and the escalation of punishment

imposed by the officers.

202

When I did not relent and did not submit, I was

threatened with criminal charges. When I continued to resist, I was silenced and

thrown in the police car.

Fortunately for us, we were able to walk the tightrope of dignity restoration

without the consequences of death. No matter the intensity of the search or the

firm belief of officers that we fit the drug trafficker profile, we were not. We

simply did not have drugs on our person or in our things. We were just three

Black men headed home for Thanksgiving holiday and just so happened to be

traveling through the same county in Maryland as Wilkins fifteen years prior.

Not much had changed, Black men were still being racially profiled for driving

while Black

203

on that same highway, searched illegally and without cause, and

196

Carbado, supra note 50, at 129.

197

See Butler, supra note 60, at 69.

198

Whren, 517 U.S. at 810.

199

See Maclin, Race, supra note 66, at 343–44.

200

Id. at 375.

201

Id.

202

See DU BOIS, supra note 1, at 161–62; Complaint, supra note 143, ¶ 51.

203

In 2019, as reported by NBC, the Stanford Open Policing Project found that “police

stopped and searched [B]lack and Latino drivers on the basis of less evidence than used in

stopping white drivers, who are searched less often but are more likely to be found with

illegal items.” Erik Ortiz, Inside 100 Million Police Traffic Stops: New Evidence of Racial Bias,

NBC (Mar. 13, 2019), https://www.nbcnews.com/news/us-news/inside-100-million-police-

traffic-stops-new-evidence-racial-bias-n980556 [https://perma.cc/YF4V-YD3C]. The finding

emerged from combing through nearly 100 million traffic stops between 2011 to 2017

890 OHIO STATE LAW JOURNAL [Vol. 83:5

forced to stand up for their dignity on the side of the road. Like Wilkins, we

survived. Similarly, like Wilkins, we filed a federal civil rights case against the

officers

204

and successfully resolved the matter. The labor of filing a lawsuit and

the fact that the negative police contact became public knowledge harmed both

Wilkins and me. As Black men, we are required to explain our police contact

and demonstrate to observers that we are not at fault. Even in fighting back,

filing lawsuits and asserting dignity, the narrative of criminality controls and

onlookers still suspect us—Black men—of malice and/or criminal activity.

Police officers make up reasonable articulable suspicion and probable cause

when conducting stops of cars occupied by Black men.

205

There are limited

opportunities for criminal defendants or Black men to prove otherwise and

provide alternative narratives. Doing so is a costly proposition. Wilkins and I

had the resources, access, and legitimacy to tell an alternative narrative through

civil rights lawsuits. This privilege is uncommon in comparison to the number

of Black men who are stopped and illegally searched daily.

As a lawyer and now law professor, traffic stops rarely require me to

sacrifice dignity in order to survive. In fact, when stopped by police officers, in

my upper middle class suburban neighborhood with Howard University School

of Law alumni license plates on my car, police are usually justified in their stop.

I placed the alumni plates on my car as a protective shield. They appear to be

working. With the status of lawyer attached to my car, the police are reasonable

in their request, and they leave the scope of the stop to the legitimate basis that

they conducted the intrusion in the first place.

206

During police interactions

where stops are conducted legitimately, Dignity Takings are limited. I normally

have no justifiable anger when stopped by police as a lawyer and law professor

because normally, the police limit their interaction to legitimate intrusions.

Unreasonable interactions with the police, when officers stop Black men for

traffic stops without justification and in violation of the Fourth Amendment,

anger ensues, and potential harm emerges. The continuum between asserting

dignity and challenging an unlawful interaction leads to potential death.

207

recorded by twenty-one state patrol agencies and twenty-nine municipal police departments,

including major metropolitan areas such as New Orleans, Philadelphia, San Francisco, and

St. Paul. Id.

204

See Complaint, supra note 143, ¶ 1; Maclin, Race, supra note 66, at 349.

205

See, e.g., Maclin, Race, supra note 66, at 342 (“The procedural right established

under this regime does not stop arbitrary seizures because it fails to consider that police

discretion, police perjury, and the mutual distrust between blacks and the police are issues

intertwined with the enforcement of traffic stops.”).

206

Over the last fifteen years, I have been stopped by police upward six times. Each

time, I had committed a traffic infraction. When the police approached my car, I knew the

reason they had stopped me and remained calm. Because they were justified, I complied with

their request. Interestingly enough, each time, I was simply given a warning to refrain from

whatever traffic violation I had committed. In each case, I was not asked about drugs or

asked if they could search my car.

207

See supra notes 191–92 and accompanying text.

2022] DIGNITY OR DEATH 891

When police act unlawfully in conducting traffic stops, they create a space in

which they make Black men engage in this balancing act of asserting known

rights at the risk of potential death.

The Fourth Amendment doctrine that permeates our discussion of Black

male and police interactions is based on a legal fiction and/or fallacy rooted in

pretending that cops tell the truth and things are as they allege. But this

pretextual interaction with Black men is the starting point of this tightrope that

requires Black men to assert dignity that could lead to a negative interaction,

potentially resulting in death. The Court’s willingness to allow these

interactions, while knowing they are pretextual, facilitates large numbers of

Black men great harm. My incidents of Dignity Takings could have ended in

great harm, but none of them should have occurred in the first place. For the

Black man who refuses to submit, with the Court’s approval, death is always

upon us.

C. No, You Cannot Come into My Home

I was a resident of Montgomery County, Maryland and an adjunct law

professor at Howard University School of Law at the time of the third Dignity

Taking.

208

I practiced criminal law for eleven years as a Public Defender,

Criminal Justice Act Panel attorney, and plaintiff side civil rights attorney.

209

co-directed the Criminal Justice Clinic at Howard University School of Law and

was a member of the appellate panel in the District of Columbia and

Maryland.

210

I had litigated thousands of criminal matters and tried and won

every one of my first thirty jury trials

211

—ranging from drug possession, drug

distribution, attempted murder, assault, rape, robbery, child abuse, handgun

violations, fraud, and carjacking on behalf of my clients. I was well-versed in

my constitutional rights and able to advocate for myself, my clients, and others.

Like John, my legal education and legal practice experience made me unhappy

when dealing with police. Every time I interacted with police, I was confronted

with their slave history,

212

their discriminatory policing practices, and their

208

Amended Complaint at ¶ 4, Hayat v. Diaz, No. 8:20-cv-2994-PWG (D. Md. Feb. 16,

2020); see supra note 102.

209

See supra note 102.

210

Id.

211

Id.

212

DERECKA PURNELL, BECOMING ABOLITIONISTS: POLICE, PROTESTS, AND THE

PURSUIT OF FREEDOM 5, 10 (2021) (“Policing is among the vestiges of slavery, colonialism,

and genocide tailored in America to suppress slave revolts, catch runaways, and repress labor

organizing. . . . The people who chose the police were the same people who drafted the

Constitution, who started the wars, who owned slaves, who possessed property, who had the

most to lose if oppressed people ever decided to revolt: wealthy white men. And rather than

unifying and organizing against the concentrated wealth of this class, the rest of us have been

tricked into demanding that the police protect us, too. They cannot.”); see also NAACP, The

Origins of Modern Day Policing, https://naacp.org/find-resources/history-explained/origins-

892 OHIO STATE LAW JOURNAL [Vol. 83:5

furtherance of the carceral state.

213

My clients, family, and I, personally, have

been abused, lied to and on, and subjected to dehumanizing punishments by

police. My only saving grace was my job as a lawyer and the power to advocate

on behalf of my clients, cross examine officers under oath, and vindicate dignity

on a daily basis.

That dignity was challenged and largely extinguished on October 22, 2017,

when officers from the Montgomery County Police Department violated my

rights under the Fourth Amendment by approaching my home and accusing me

of kidnapping my own children.

214

Specifically, two officers pulled into my

driveway that evening and approached my home.

215

It was Howard

Homecoming weekend. I had just returned home from a law school classmate’s

birthday party at the local IHOP. For multiple years, I would join at least ten of

my Howard Law School classmates to celebrate this friend’s birthday. He was

one of our brightest stars and being in his company brought me great joy. On

this occasion, ten years out of law school, many of us were accompanied by our

young children. My two boys sat in the IHOP with at least ten other Black

lawyers and their children engaging in conversation and experiencing the

normalcy of being surrounded by lawyers. This year, we were especially excited

to celebrate the friend because he was running to become the county executive

of Montgomery County, Maryland. I told everyone that the boys and I would

have to leave the dinner party early because it was getting dark, and we intended

to have a family dinner at our home.

I put the boys in the rear facing seats of my Tesla. I purchased the Tesla at

the beginning of the electric car craze, and it gave me great pleasure to be

approached in the community to discuss the effectiveness of electric

transportation. Every time I talked about the car, undoubtedly amazement

ensued about the rear facing seats that allowed the car to seat seven. I placed the

boys in, strapped on their seatbelts and closed the hatchback. Before we could

leave, the hatch was up. The boys were crying. Apparently one of them had

pushed the emergency button and their exposure to the dark of the night scared

them. I went to them. First scolding them for opening the hatch, then calming

them and ensuring their safety. I got in the car, and we drove the few minutes to

our home.

We found their mother, my wife, in the kitchen, as promised, making dinner.

She stood at the sink finishing up and looking out of our back door window.

Within minutes of our arrival and while sitting at the dinner table, she said,

modern-day-policing [https://perma.cc/C5UQ-42HT] (“The origins of modern-day policing

can be traced back to the ‘Slave Patrol.’ The earliest formal slave patrol was created in the

Carolinas in the early 1700s with one mission: to establish a system of terror and squash

slave uprisings with the capacity to pursue, apprehend, and return runaway slaves to their

owners. Tactics included the use of excessive force to control and produce desired slave

behavior.”).

213

See NAACP, supra note 214.

214

Amended Complaint, supra note 210, ¶ 20.

215

Id. ¶ 18.

2022] DIGNITY OR DEATH 893

“Fareed, do you see the police coming up the driveway?” I looked up and could

see the police officers approaching too. My heart dropped. I did not know what

was going on. Why would so many police officers be approaching our home? I

didn’t want any problems and I certainly didn’t want a negative police

interaction on what had been such a beautiful day. She and I, without an

exchange of words, decided to meet the officers at the doorway of our home.

Our kids followed behind. We opened the door, walked outside, closed the door

behind us and stood on our porch. As confidently as I could, I asked, “Can I help

you, officer?” The officers stated that they were investigating a reported

kidnapping.

216

With pride, while under suspicion, I informed the officers of our ownership

of our home, our employment status as lawyers and law professors, and the

status of our children inside the home.

217

The lead officer asked a series of

questions.

218

To the best of our ability, we attempted to answer his questions in

hopes of reassuring him that no one was in danger, that no kidnapping had

occurred, and that there was no need for the continuation of investigation or an

escalation of police contact.

219

After satisfactorily answering all the officer’s

questions, and the intensity of the interaction calming down, he asked if he could

enter our home and talk to our children.

220

His request was in fact a request and

I knew I could legitimately decline. As a college graduate, law school graduate,

criminal defense lawyer, civil rights lawyer, and law professor, I knew that this

Black man was entitled under the Fourth Amendment of the Constitution and

controlling case law to say, “No, you cannot enter my home and talk to my

children.” I declined the officers’ request to enter our home.

221

We slowly began

to turn to walk into the house, ending our consensual conversation with the

police as the law permits.

222

I said to the officer that if he would like to enter

our home, a warrant would be required. We slowly walked into our home and

attempted to close the door.

223

The officer did not say, “Stop.” The officer did

not say, “You are not free to go.” The officer did not articulate any reasonable

articulable suspicion that I had committed a crime or was about to commit a

crime. So, we walked in the house, and I exercised dignity under the Fourth

Amendment to assert, what I believed to be, my constitutional rights.

Upon entering the house, I began to close the door, a Dignity Taking ensued.

The officers physically prevented me from closing the door and forced their way

in.

224

Multiple additional officers arrived to assist in the forcible entry.

225

The

216

Id. ¶ 20.

217

Id. ¶ 21.

218

See id. ¶¶ 20–21.

219

See id.

220

Amended Complaint, supra note 210, ¶ 22.

221

Id. ¶ 23.

222

Id. ¶ 24.

223

Id.

224

Id. ¶¶ 24–29.

225

Id. ¶ 29.

894 OHIO STATE LAW JOURNAL [Vol. 83:5

officers overpowered me and forced their way into my home without

consent. The officers tackled and handcuffed me and smashed their knees into

my spine; I laid on the floor inside my home.

226

I screamed out to the officers

that “I am a lawyer,” “This is my home,” “I am a law professor,” and “You can’t

do this to me.” In a screeching voice, my wife pled with the officers to stop.

227

I heard the officers screaming commands, I heard my family screaming for

peace, and I recalled telling another officer, nearly twenty years prior, that he

too, could not do this to me. I harkened back to his response, “I can blow your

fucking brains out.” I went limp.

I thought of my children who witnessed this indignity. Their tears. I watched

officers move through my home in awe of its architectural beauty. Never did

they question my children or conduct any investigation into their health, safety,

and well-being.

228

After a heated exchange on what my constitutional rights

were and whether it was permissible to enter my home without a warrant,

officers ultimately unhandcuffed me and eventually left my residence.

229

The

Howard Law School alumni who I had just celebrated with a short time before

were summoned and came to my aid. They transformed into lawyer mode and

began preserving evidence for future litigation. They began protecting me, their

friend, their colleague, their client, this Black man, and intervened in the officer

investigation.

Notwithstanding the calm, sadness filled my home. My sister who had been

in the basement cried hysterically. Family and friends gathered around the

dining room table traumatized, replaying what had just occurred and trying to

figure out how to proceed. Most memorable was that the children sobbed

uncontrollably, and I wondered if asserting my constitutional right caused more

harm than good. I wondered: what if this particular Dignity Taking had resulted

in my death? I walked into the kitchen where I had previously laid flat on my

stomach with my face smashed against the floor and feared seeing my dead body

riddled with bullet holes. It was not there. I was still alive.

Exigency did not exist at my front door and the officers’ unlawful entry was

in violation of my Fourth Amendment rights, but had I sacrificed too much to

maintain some sense of dignity? Was dignity maintenance or restoration even

possible if as a Black male law professor, I still could not assert the Fourth

Amendment without the result of potential death?

My attempt at asserting dignity by denying officers entry into my home was

met with predictable force and punishment, but like John, I asserted dignity

anyway. Officers did not believe they were required to extend the protection of

the Fourth Amendment to me, my family, and my home. Their belief had

historical roots and I understood, maybe for the first time, that the harsh truth

must be reconciled with how I interact with police.

226

Amended Complaint, supra note 210, ¶ 31.

227

Id. ¶ 38.

228

Id. ¶ 39.

229

Id. ¶ 42.

2022] DIGNITY OR DEATH 895

As outlined above, the Fourth Amendment protects against unreasonable

search and seizure by the government.

230

Personal property is perhaps the most

protected aspect of American individualism and is the concept that laid the

groundwork for Fourth Amendment protections. Those who drafted the

Constitution treated private property as “the cornerstone of a free society.”

231

However, the concept of private property was always intended to be a way for

white people to protect their most valuable asset—whiteness—by excluding

Black people from owning and defending their own property.

232

The entangled

relationship between property and race stems from the legal system’s original

design: domination and subordination.

233

Despite its evolution, the systemic

structure of white supremacy maintains economic hegemony over Black

people.

234

The deprivation of Black peoples’ property rights and personal security has

partly manifested in the way protections against search and seizure have been

enforced over history. In the pre-Reconstruction South, states instituted policies

subjecting Black people to unwarranted searches and seizures.

235

For example,

South Carolina required slave patrols to conduct weekly searches of the homes

of the enslaved for concealed weapons.

236

The state later authorized forcible

entry in the homes of Black people to search for concealed weapons and to

detain any “suspicious” Black person therein.

237

Slave patrols in Virginia also

conducted mandatory searches of the homes of all Black people and had the

power to arrest any Black person “whose presence excited suspicion.”

238

Although white colonists also experienced arbitrary intrusions into their

homes and businesses, these indignities did not reach the level or extent of

invasion that Black people experienced.

239

The privacy and personal security

granted to white colonists as a birthright did not extend to Black people.

240

Black people, whether slave or free, were subject to constant search and seizure

based only on their race.

241

The history and import of slave patrols is ever

present in police practices and policies across this nation.

242

Police target Black

people today in much of the same way as their historical predecessor⎯slave

230

See supra Part II.

231

See James W. Ely Jr., Property Rights in American History, HILLSDALE FREE MKT. F.,

https://www.hillsdale.edu/wp-content/uploads/2016/02/FMF-2008-Property-Rights-in-American-

History.pdf [https://perma.cc/S69F-CRAW].

232

Harris, supra note 53, at 1736.

233

Id. at 1714.

234

Id. at 1737–44.

235

Maclin, Race, supra note 66, at 334.

236

Id. at 334–35.

237

Id. at 335.

238

Id.

239

Id. at 335–36.

240

Id.

241

Maclin, Race, supra note 66, at 336.

242

Id.; see supra notes 214–15 and accompanying text.

896 OHIO STATE LAW JOURNAL [Vol. 83:5

patrols of colonial America⎯in excluding Black people from the protections of

the Fourth Amendment.

243

This behavior is upheld by the legal mechanisms that

are supposed to protect against these kinds of intrusions.

In contrast to the eighteenth-century indignities perpetrated against the

enslaved, such intrusions are found to be in violation of the Fourth Amendment

when imposed upon white people. I share the story of a former client to

illuminate the point. MB, a forty-year-old white male, hired my firm to represent

him in a felony drug case for possession with the intent to distribute cocaine.

MB was on probation facing nearly seventeen years in prison if found in

violation of probation. MB was a casual drug user and dealer who oftentimes

used his own supply to get high. On the day of his arrest, he and a lady friend

had been consuming his cocaine product for personal use. After several hours,

MB told the friend that they would have to save the rest to sell. Upset, she called

the police to report that MB was in possession of cocaine. MB immediately put

her out of his home. When police arrived at his door, MB met them outside. He

told them they could not enter, and that the woman was not a resident. The police

pushed their way inside. When they attempted to go into his room to locate the

drugs, he objected and told them that it was his room and that they could not

enter. They entered the room anyway. Finally, when they went to open his

dresser, again he objected and explained that they could not go through his stuff.

After a four-hour suppression hearing in which we argued that the entry into

MB’s home, the entry into his bedroom, the search of his dresser, and the seizure

of his drugs were in violation of his Fourth Amendment rights, the Court granted

the motion and suppressed all of the drugs. MB’s case and probation violation

were dismissed. In celebration, I told MB that I was amazed that he understood

the Fourth Amendment so well. I was amazed that he knew at each threshold to

object to entry and assert his Fourth Amendment rights at exactly the right time.

With a confused look on his face, he responded, “I wasn’t talking about no

Fourth Amendment, they just couldn’t go through my shit.”

In that moment, MB’s plain words stopped me in my tracks and revealed to

me something I had always known but did not want to accept. MB would always

be protected. MB was born an American, as a white male, with the protection

of the Fourth Amendment. Whiteness, as Professor Cheryl Harris articulated in

Whiteness as Property, was:

[I]nitially constructed as a form of racial identity, evolved into a form of

property, historically and presently acknowledged and protected in American

law. . . . Following the period of slavery and conquest, whiteness became the

basis of racialized privilege—a type of status in which white racial identity

provided the basis for allocating societal benefits both private and public in

243

Maclin, Race, supra note 66, at 336.

2022] DIGNITY OR DEATH 897

character. These arrangements were ratified and legitimated in law as a type of

status property.

244

The idea, value, and property of whiteness continued even after the abolition

of legal segregation.

245

Thus, the law has established that whiteness is both

protected property and a protected right in which there’s a vested interest in

upholding.

246

Black people have never and will never possess whiteness as

property, for:

[T]he “presumption of freedom [arose] from color [white]” and the “black

color of the race [raised] the presumption of slavery,” whiteness became a

shield from slavery, a highly volatile and unstable form of

property. . . . [S]lavery made human beings market-alienable and in so doing,

subjected human life and personhood—that which is most valuable—to the

ultimate devaluation.

247

In other words, I will never be white because I am Black. MB understood

that he was entitled to the protection of his “shit.” He did not need to know the

actual words of the Fourth Amendment, study the law, have a law degree,

practice law, or be a law professor to know that his whiteness gave him the exact

rights that the Fourth Amendment promised. His dignity was bestowed upon

him at birth and his dignity would be protected by the law of the land. The

Fourth Amendment for MB is alive and well. Only through a warrant⎯issued

by a neutral magistrate⎯would MB’s Fourth Amendment rights be

compromised.

As a standard, “warrants are generally required to search a person’s home

or his person unless ‘the exigencies of the situation’ make the needs of law

enforcement so compelling that [a] warrantless search is objectively reasonable

under the Fourth Amendment.”

248

In the 1960s and 1970s, the Supreme Court

provided limited exceptions to the warrant requirement for exigency.

249

These

circumstances include: (1) hot pursuit; (2) imminent destruction of evidence; (3)

need to prevent escape; and (4) risk of danger.

250

The four circumstances that

create exigency⎯and the exception therefrom⎯were not present at MB’s or my

front door.

244

Harris, supra note 53, at 1709.

245

Id.

246

Id. at 1724–25.

247

Id. at 1720 (alteration in original) (quoting 1 THOMAS R.R. COBB, AN INQUIRY INTO

THE LAW OF NEGRO SLAVERY IN THE UNITED STATES §§ 68–69, at 66–67 (1858)).

248

Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (quoting Mincey v. Arizona, 437

U.S. 385, 393–94 (1978)).

249

Welsh v. Wisconsin, 466 U.S. 740, 749–50 (1984).

250

Id. at 750, 759.

898 OHIO STATE LAW JOURNAL [Vol. 83:5

In Payton v. New York, the Court held that the police may enter a home

without a warrant when there are “exigent circumstances.”

251

Absent exigent

circumstances, “a warrantless entry to search for weapons or contraband is

unconstitutional even when a felony has been committed and there is probable

cause to believe that incriminating evidence will be found within.”

252

In Welsh

v. Wisconsin, the Court held that “[b]efore agents of the government may

invade . . . [a] home, the burden is on the government to demonstrate exigent

circumstances that overcome the presumption of unreasonableness that attaches

to all warrantless home entries.”

253

But a relatively minor offense proves

difficult to overcome the presumption of unreasonableness.

254

The exigent circumstance rule allows police officers to violate the Fourth

Amendment when the threat of imminent danger, destruction of evidence, or the

escape of a suspect arises.

255

The rule does not apply though if the police

themselves create the exigent conduct.

256

Thus, under the “police-created

exigency” doctrine, exigent circumstance do not justify a warrantless search

when the exigency was “created” or “manufactured” by the conduct of police,

257

as was at MB’s and my front door. A warrantless entry based on exigent

circumstances is therefore only reasonable when the police did not create the

exigency by engaging or threatening to engage in conduct violating the Fourth

Amendment.

258

In Brigham City, Utah v. Stuart, the Supreme Court squarely addressed the

exigency exception to the warrant requirement.

259

In Brigham, officers

responded to a call about a loud party.

260

Once the officers arrived, they alleged

they witnessed, through a window, adults and juveniles in a physical

altercation.

261

During part of the altercation, officers observed the juvenile

punch one of the adults, causing the adult to spit blood.

262

The officers entered

the home without a warrant citing exigency because of the observed physical

altercation.

263

The Supreme Court, as in Whren, again addressed the issue of

whether the officer’s subjective motivation mattered when entering the home

and once again unequivocally stated that the officer’s subjective beliefs—even

if pretextual—did not matter.

264

The Court stated: “Our cases have repeatedly

251

Payton v. New York, 445 U.S. 573, 590 (1980).

252

Id. at 587–88.

253

Welsh, 466 U.S. at 750.

254

Id.

255

Kentucky v. King, 563 U.S. 452, 460 (2011).

256

Id. at 461.

257

Id. (citing United States v. Chambers, 395 F.3d 563, 566 (6th Cir. 2005)).

258

See id. at 460–61.

259

Brigham City v. Stuart, 547 U.S. 398, 402 (2006).

260

Id. at 400–01.

261

Id. at 401.

262

Id.

263

Id. at 401–02.

264

Whren v. United States, 517 U.S. 806, 813 (1996); Brigham City, 547 U.S. at 404.

2022] DIGNITY OR DEATH 899

rejected this approach. An action is ‘reasonable’ under the Fourth Amendment,

regardless of the individual officer’s state of mind, ‘as long as the

circumstances, viewed objectively, justify [the] action.’”

265

The Court

determined that police officers were justified in entering a home without a

warrant under the exigent circumstances exception to the warrant requirement,

as long as they had an “objectively reasonable basis for believing that an

occupant is seriously injured or imminently threatened with such injury.”

266

Attempting to use the holding in Brigham and the prevailing case law,

officers justified their misapplication of exigency in forcibly entering my home

and subsequently forcing me to the ground in front of my distressed children

and wife. The officers’ narrative may have been cloaked in exigency, but the

reality was completely void of exigent circumstances. The 911 call itself did not

describe anything illegal—children crying and being placed in rear-facing seats

is not a crime. Unlike Brigham where an assault, causing an individual to spit

blood, took place before the officers’ view, there was no observed kidnapping

or illegal actions.

Upon seeing the officers in my driveway, I knew a Dignity Taking was upon

me. I began processing several potential scenarios simultaneously: I could stay

in the house and ignore their presence, I could submit to their request to talk to

my children, or I could assert my dignity like MB. Unlike MB, I had to balance

this decision with the many intersections of my being: Black, male, cisgender,

lawyer, law professor, father, and husband. I knew the perils that could unfold

to not just me but my family. So like MB, I engaged in asserting my dignity in

a measured way⎯I said, “No, you cannot come into my home.” I acted with

precision, calculated in hopes of not dying in front of my children. I knew every

step towards asserting dignity could lead to death but in that instance, I thought

to live without dignity was to die a thousand deaths.

I thought of the Black men that had been killed by police and the trauma

they, their families, and their community endured.

267

I thought about MB. I

thought about the holdings in Payton, Brigham, and the repertoire of Fourth

Amendment cases that I spent hours reading, teaching, and studying.

268

thought about the trauma and death that occurs between Black children and

police who kill them. I, like John, thought about my duty to protect my family.

So, when the officers asked to speak with my children, I knew I had to protect

my boys like John protected his sister and MB protected his “shit.” I told the

officers, “No.” No, they could not speak with my children. No, they could not

enter my home. No, they could not continue to ask me questions.

265

Brigham City, 547 U.S. at 404 (first and second emphasis added) (alteration in

original) (quoting Scott v. United States, 436 U.S. 128, 138 (1978)).

266

Id. at 400.

267

See infra Part IV.

268

See cases cited supra notes 251–66 and accompanying text.

900 OHIO STATE LAW JOURNAL [Vol. 83:5

I knew the Fourth Amendment allowed me to resist any further attempt to

investigate me, my family, and/or my home.

269

I was not a fleeing felon, no one

was in danger in my home, no evidence was going to be destroyed, and officers

had no basis to believe these things existed.

270

They were in violation of the law.

Like John did for his sister, I knowingly risked my life at that moment for

autonomy and dignity maintenance by asserting the Fourth Amendment

protected my home from unreasonable searches and seizures. I was met, like

John, with the force and threat of death. The officers’ response was a

quintessential Dignity Taking. Unlike John, I had not accepted death as my act

of dignity restoration. I, like MB, believed I had the right to live.

IV. WELL-KNOWN DIGNITY TAKINGS AND ONE’S ATTEMPT AT

RESTORING DIGNITY

This Part highlights three nationally significant examples of submission,

resistance, and repatriation as attempts to avoid Dignity Takings. The killing of

Philando Castile illuminates an unsuccessful attempt by a Black man at

submission in order to maintain dignity that ended in death. The killing of Eric

Garner illuminates an unsuccessful attempt at resistance as dignity maintenance

that ended in death. Finally, I conclude by suggesting that the greatest and most

radical act of dignity restoration is to leave America, as Du Bois, the author “Of

the Coming of John,” did instead of dying a dignified death as his character

John.

A. Philando Castile and Submission as Dignity Restoration

On the evening of July 6, 2016, Philando Dival Castile, a thirty-two-year-

old Black male, drove down Larpentuer Avenue in Lauderdale, Minnesota (near

Minneapolis/St. Paul) with his girlfriend, Diamond Reynolds, and her four-year-

old daughter.

271

Officer Jeronimo Yanez, on patrol that evening, noticed Castile

driving, and radioed in “that he had reason to pull the vehicle over and that the

occupants ‘just look like the people that were involved in a robbery.’”

272

Yanez

believed that Castile looked similar to one of the robbery suspects “because of

[his] wide set nose.”

273

After running Castile’s license plate, Yanez found that

269

See id.

270

See supra note 252 and accompanying text. The Court held that law enforcement

officers may enter private property without a warrant when certain exigent circumstances

exist, including the need to “render emergency assistance to an injured occupant or to protect

an occupant from imminent injury.” Kentucky v. King, 563 U.S. 452, 460, 470 (2011)

(quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)).

271

Felony Criminal Complaint at 3, State v. Yanez, No. 62-CR-16-8110 (Minn. Dist.

Ct. Nov. 15, 2016), 2016 WL 6800872.

272

Id.

273

Id.

2022] DIGNITY OR DEATH 901

the vehicle was registered to Castile and that he had no arrest warrants.

274

Even

still, Yanez chose to pull over Castile, claiming the vehicle’s broken brake light

as his justification.

275

When Yanez alerted Castile to pull his car over, Castile

immediately complied.

276

As Yanez approached the vehicle, he kept his hand close to his gun.

277

While Castile remained seated with his seatbelt secured, Yanez asked him for

his license and proof of insurance.

278

Then, the following occurred:

Castile calmly informed Yanez: “Sir, I have to tell you that I do have a firearm

on me.” Before Castile completed the sentence, Yanez interrupted and calmly

replied “Okay” and placed his right hand on the holster of his own holstered

gun.

. . . Yanez said “Okay, don’t reach for it, then.” Castile responded:

“I’m . . . I’m . . . [inaudible] reaching . . . ,” before being again interrupted by

Yanez, who said “Don’t pull it out.” Castile responded “I’m not pulling it out”,

and Reynolds also said “He’s not pulling it out.” Yanez screamed “Don’t pull

it out” and quickly pulled his own gun with his right hand while he reached

inside the driver’s side window with his left hand. Yanez removed his left arm

from the car, then fired seven shots in the direction of Castile in rapid

succession. . . .

. . . Reynolds yelled “You just killed my boyfriend!”

. . . Castile moaned and said, “I wasn’t reaching for it.”

. . . Reynolds loudly said, “He wasn’t reaching for it.” Before she

completed her sentence, Yanez again screamed “Don’t pull it out!” Reynolds

responded, “He wasn’t.” Yanez yelled “Don’t move! Fuck!”

279

The immediate exchange after the shooting was livestreamed on Facebook

by Reynolds.

280

Audio recordings reveal the following exchange between

Yanez and Reynolds:

Yanez: “I told him not to reach for it, I told him to get his hand off of it.”

. . . Reynolds: “He had, you told him to get his ID sir and his driver’s

license. Oh my God please don’t tell me he’s dead.”

281

274

Id.

275

Id.

276

Felony Criminal Complaint, supra note 274, at 3.

277

Id.

278

Id.

279

Id. at 3–4.

280

Id. at 4.

281

Id.

902 OHIO STATE LAW JOURNAL [Vol. 83:5

As clearly illuminated in the recitation of the documented facts in the killing

of Philando Castile, Mr. Castile was pulled over, then killed for “driving while

Black.”

282

Yanez pulled over Mr. Castile because he saw a Black man driving

that “look[ed] like” a suspect who allegedly committed robbery.

283

Instead of

asking more questions or getting a more accurate set of descriptions, Yanez’s

narrative became cloaked and protected in the holding of Whren.

284

It did not

matter whether he stopped the car due to his subjective, racist beliefs of Black

male criminality so long as he was able to have probable cause for any stop.

285

In this case, a non-working brake light sufficiently justified a traffic stop under

the law.

286

The holding of Whren did exactly what it was intended to do. It

provided legal justification to do what officers have done since the time of slave

patrols: target, capture, and punish Black bodies.

287

The criminal legal system

patently supports and furthers racist police mentalities and consequently, kills

Black men.

288

It is this fertile ground, largely driven by racial disparities and the

cultural regime of dehumanization, that Whren took advantage of and made into

law. Mr. Castile became the 123rd Black person to be killed by U.S. law

enforcement that year even though he wholeheartedly attempted to comply with

all of the officers’ requests.

289

Notwithstanding his effort to submit, his actions

resulted in death.

290

Although all police killings are fundamentally egregious

notwithstanding racial motivation or bad faith, when Black men are killed by

police in less egregious examples, the question is asked or the statement is made:

if only he had complied. Philando Castile complied and died anyway.

291

282

See generally Katheryn K. Russell, “Driving While Black”: Corollary Phenomena

and Collateral Consequences, 40 B.C. L. REV. 717 (1999) (describing “Driving While

Black” as “a wide range of race-based suspicion of Black and Brown motorists”).

283

See supra note 274–75 and accompanying text.

284

See supra text accompanying notes 179–86.

285

Id.

286

Id.

287

See PURNELL, supra note 214, at 56–59 (arguing that the creation of police began

during the transatlantic slave trade and that the first police were for the purpose of targeting,

capturing, and punishing Black bodies). The word “cop” derives from the word “capture.”

Id. at 57 (“[T]he etymology of ‘cop’ likely comes from Middle French caper, meaning to

capture, or Latin, capere, ‘to seize, to grasp.’”).

288

See Ralph Ellis & Bill Kirkos, Officer Who Shot Philando Castile Found Not Guilty

on All Counts, CNN, https://www.cnn.com/2017/06/16/us/philando-castile-trial-verdict

[https://perma.cc/D4KT-P9SC] (June 16, 2017). Jeronimo Yanez was tried in a jury trial,

facing multiple counts including manslaughter, and was found not guilty of all counts. Id.

289

Ryan Grenoble, Kim Bellware & Matt Ferner, Outrage Sweeps Nation Day After Philando

Castile Killed by Police ‘For No Reason,’ HUFFPOST (July 7, 2016), https://www.huffpost.com/

entry/philando-castile-shooting_n_577e6d3ee4b0344d514e1d3c [https://perma.cc/Q3RH-C2PB].

290

Felony Criminal Complaint, supra note 273, at 3–4, 6.

291

Id.

2022] DIGNITY OR DEATH 903

B. Eric Garner and Resistance as Dignity Restoration

On July 17, 2014, Officers Pantaleo and D’Amico suspected Eric Garner,

who stood in front of a beauty supply store talking with a man, of conducting

an illegal transaction.

292

After accusing Mr. Garner of selling untaxed cigarettes,

Officer D’Amico threatened to place him under arrest.

293

Denying this

allegation, Mr. Garner explained to Officer D’Amico that he had just broken up

a fight.

294

Witnesses corroborated his statement—that indeed, all Mr. Garner

was doing was breaking up a fight.

295

Nonetheless, Officer D’Amico insisted

that Mr. Garner submit to arrest. Mr. Garner refused to comply, believing that

these officers, who had arrested him before, were harassing him.

296

In response

to Mr. Garner’s refusal to comply, Officers D’Amico and Pantaleo wrestled him

to the ground while Officer Pantaleo placed him into a chokehold.

297

Mr. Garner

began wheezing and repeatedly stated “I can’t breathe.”

298

Mr. Garner’s speech became more and more labored until he eventually fell

silent.

299

Officers believed Mr. Garner was “playing possum”—avoiding arrest

by pretending to be unconscious.

300

As Mr. Garner continued to lay unresponsive on the ground, officers

declined to administer any medical care despite observing his shallow

breathing.

301

Approximately five minutes after Mr. Garner was brought to the

ground, Emergency Medical Technicians arrived on the scene.

302

Once Mr.

Garner was transported to the Richmond University Medical Center, doctors

attempted to save him through intubation and cardiopulmonary resuscitation

(CPR) but to no avail.

303

Mr. Garner was pronounced dead.

304

After leaving the hospital to return to the precinct, officers informed their

commanding officer that “it doesn’t look good,”

305

which led to the following:

The commanding officer instructed [Sergeant] Saminath to notify the IAB,

which he did. He also texted [Lieutenant] Bannon to inform him that Mr.

Garner had ‘resisted’ and ‘might be DOA.’ Lieutenant Bannon responded, ‘For

the smokes?’ Sergeant Saminath confirmed, ‘Yea’ and explained that

292

Matter of Carr v. de Blasio, 152 N.Y.S.3d 1, 1–2 (N.Y. App. Div. 2021).

293

Id. at 2.

294

Id.

295

Id.

296

Id.

297

Id.

298

Carr, 152 N.Y.S.3d at 2.

299

Id.

300

Id.

301

Id.

302

Id.

303

Id.

304

Carr, 152 N.Y.S.3d at 2–3.

305

Carr v. de Blasio, 133 N.Y.S.3d 737, 745 (N.Y. Sup. Ct. 2020), aff’d, 152 N.Y.S.3d

1 (N.Y. App. Div. 2021).

904 OHIO STATE LAW JOURNAL [Vol. 83:5

Respondent ‘grabbed him [and] they both fell down.’ Lieutenant Bannon

answered, ‘Ok, keep me posted, I’m still here . . . Not a big deal, we were

effecting a lawful arrest.’

306

Eric Garner refused to submit to this “lawful arrest” because, put simply, he

did nothing wrong. He died resisting and attempting to maintain some sense of

dignity. In Mr. Garner’s death, we see the consequences of the Court’s choice

in Terry which diverged from the strict probable cause standard and instead

adopted a lesser reasonableness standard as the measure for stop and frisks.

307

For the officers, it was enough that Mr. Garner had been arrested in the past and

that he was near the beauty supply shop where they assumed he was selling

“untaxed cigarettes.”

308

The moment they laid eyes on Mr. Garner, he was

transformed into the racist trope of a disruptive, uncivilized, noncooperative,

superhuman, Black criminal who disobeyed police orders and deserved

punishment.

309

Officers D’Amico and Pantaleo obliged in this instance by

placing Mr. Garner in a chokehold, causing his death. Like Mr. Castile, the

Fourth Amendment did not and was never going to protect him.

310

It was his

word as a Black man against the words of the officers who “tend to be given the

benefit of the doubt,” often deemed the experts, only ever acting on the basis of

illegitimate indicia of criminal activity.

311

And it’s sad to say that even if Mr.

306

Id. (third alteration in original) (citation omitted). “IAB” refers to the Internal

Affairs Bureau of the Police Department. Id. at 754. DOA stands for “dead on arrival.”

DOA, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/DOA [https://

perma.cc/S6UM-GE2R].

307

See supra notes 122–25 and accompanying text.

308

Carr, 133 N.Y.S.3d at 743.

309

Similarly, during grand jury testimony regarding the murder of Michael Brown in

Ferguson, Missouri, Officer Darren Wilson testified that, “[W]hen I grabbed him, the

only way I can describe it is I felt like a 5-year-old holding onto Hulk Hogan.” Jessie

Singal, Why Did Darren Wilson Think Michael Brown Had Superpowers?, CUT (Nov. 25,

2014), https://www.thecut.com/2014/11/why-did-wilson-call-michael-brown-a-demon. html

[https://perma.cc/ZYF9-V6LE]. Arguably, Garner’s killers similarly believed Garner to have

superhuman strength. See Adam Waytz, Kelly Marie Hoffman & Sophie Trawalter, A

Superhumanization Bias in Whites’ Perception of Blacks, 6 J. SOC. PSYCH. & PERSONALITY

SCI. 352, 358 (2015) (“Superhumanization of Blacks might . . . explain why people consider

Black juveniles to be more ‘adult’ than White juveniles when judging culpability; perhaps

people attribute enhanced agency to Blacks thereby judging them more culpable than Whites

for their actions. Relatedly, superhumanization of Blacks may contribute to Whites’

tolerance for police brutality against Blacks; perhaps people assume that Blacks possess extra

(i.e., superhuman) strength enabl[ing] them to endure violence more easily than other

humans. For now, the present research provides evidence of a superhumanization bias that,

despite its ostensible distinction from other forms of prejudice, may be just as dehumanizing

and consequential.” (citations omitted)).

310

See supra text accompanying note 92 and Part IV.A.

311

Kimberly Kindy, Ferguson Decision Reflects Juries’ Tendency to Give Police Benefit of

Doubt, Experts Say, WASH. POST (Nov. 24, 2014), https://www.washingtonpost.com/ politics/

2022] DIGNITY OR DEATH 905

Garner had submitted, like Castile, he could have just as easily died at the hands

of the police.

312

His resistance was principled and courageous, but like John and

Castile, he lost his life.

C. W.E.B. Du Bois: The Most Radical Act of Dignity Restoration—

Repatriation

W.E.B. Du Bois recognized that dying in an effort to maintain dignity was

not the Black man’s pathway forward.

313

Du Bois, who had been vocal about

issues Black Americans faced, received criticism and faced consequences for

his work.

314

Efforts were made to silence him including revoking his passport

after being accused of being a Communist.

315

After a life of civil rights

advocacy, labor organizing, and scholarly exploits on behalf of Black people, in

1961, Du Bois decided to move to Ghana and become a citizen.

316

He moved to

Ghana largely because there was not much left for him in the United States.

317

Du Bois leaving the United States suggests the realization that self-sacrifice for

the advancement of Black people might not be the only way to provide the Black

man salvation.

318

He left, like that of Josephine Baker, James Baldwin, Richard

ferguson-decision-reflects-juries-tendency-to-give-police-benefit-of-doubt-experts-say/2014/11/24

/268c7b62-7311-11e4-a589-1b102c2f81d0_story.html [https://perma.cc/F9ZD-7P4V].

312

See, e.g., Mike Males, Opinion: Police Shooting Statistics of Unarmed Suspects

Show the Young More Likely to Be Killed, JUV. JUST. INFO. EXCH. (Feb. 11, 2021),

https://jjie.org/2021/02/11/police-shooting-statistics-of-unarmed-suspects-show-the-young-

more-likely-to-be-killed/ [https://perma.cc/SZE6-UQVQ]; Nicholas Quah & Laura E. Davis,

Here’s a Timeline of Unarmed Black People Killed by Police Over Past Year, BUZZFEED

NEWS (May 1, 2015), https://www.buzzfeednews.com/article/nicholasquah/heres-a-timeline-of-

unarmed-black-men-killed-by-police-over [https://perma.cc/5WFY-JQQV].

313

See Theodore M. Shaw, The Race Convention and Civil Rights in the United States,

3 N.Y. CITY L. REV. 19, 23–24 (1998) (“The great W.B. Dubois’ [sic] ideological sojourn

took him from integrationist to socialist to pan-Africanist to expatriate.”).

314

See e.g., Joyce A. Hughes, Muhammad Ali: The Passport Issue, 42 N.C. CENT. L.

REV. 167, 183–84 (2020).

315

Id. In 1961, the Department of State returned his passport. Id. at 184.

316

Id.; see also DU BOIS, supra note 1, at xxxvi; W.E.B. Du Bois—The Father of Modern

Pan-Africanism?, NEW AFRICAN (Mar. 12, 2013), https://newafricanmagazine.com/4091/#

[https://perma.cc/3MZA-BZMP].

317

Hughes, supra note 316, at 181–85.

318

See Stanley Brodwin, The Veil Transcended: Form and Meaning in W. E. B. DuBois’

“The Souls of Black Folk,” 2 J. BLACK STUD. 303, 303 (1972) (“Black intellectuals had to

accept the sacrifice of personal ambition, recognizing that there were issues and causes that

transcended individual goals.”). However, in time, Du Bois’ “sight took flight” and he “lifted

up [th]ine eyes to Ghana.” See W.E.B. Du Bois, Ghana Calls, 2 FREEDOMWAYS 71 (1962),

reprinted in CREATIVE WRITINGS BY W.E.B. DU BOIS: A PAGEANT, POEMS, SHORT STORIES

AND PLAYLETS 53 (Kraus-Thomson Organization Ltd. 1985). Ultimately, Du Bois accepted

an invitation from President Kwame Nkrumah to come to Ghana to work on the

Encyclopedia Africana project and was offered substantial government resources for his

work. Ghana’s Role in Honouring US Civil Rights Hero WEB Du Bois, BBC (Oct. 13, 2021),

906 OHIO STATE LAW JOURNAL [Vol. 83:5

Wright, Maya Angelou, and Nina Simone, to “feel mentally and spiritually free

from White America’s psychic violence.”

319

America could not be fixed, and

Black men would always be subjected to harm when exercising dignity under

the Fourth Amendment or otherwise.

In Du Bois’ poem “Ghana Calls,” which is dedicated to Kwame Nkrumah,

Ghana’s first president, Du Bois wrote:

I went to Moscow: Ignorance grown wise taught me Wisdom;

I went to Peking: Poverty grown rich

Showed me the wealth of Work

I came to Accra.

Here at last, I looked back on my Dream;

I heard the Voice that loosed

The Long-looked dungeons of my soul

I sensed that Africa had come

Not up from Hell, but from the sum of Heaven’s glory.

320

Du Bois, like so many Black men, spent most of his life living what he

described as double consciousness:

[T]wo souls, two thoughts, two unreconciled strivings; two warring ideals in

one dark body, whose dogged strength alone keeps it from being torn asunder.

The history of the American Negro is the history of this strife,—this longing to

attain self-conscious manhood, to merge his double self into a better and truer

self. . . . He simply wishes to make it possible for a man to be both a Negro and

an American, without being cursed and spit upon by his fellows, without

having the door of Opportunity closed roughly in his face.

321

That idea that there could be a merger of the double self, of both Negro and

American, he realized would not be found in America for the Black man

322

⎯for

America does not want him⎯America has made him no promise. And just like

John, in the end, Du Bois chose what for him was a dignified death; he chose to

not lay his Black body in these American soils. He chose repatriation.

https://www.bbc.com/news/world-africa-58884584 [https://perma.cc/S7GA-MLFE]; Keisha N.

Blain, “I Lifted Up Mine Eyes to Ghana,” JACOBIN (Aug. 27, 2018), https://jacobin.com/

2018/08/w-e-b-du-bois-colonialism-pan-african-congress [https://perma.cc/BMN4-NWL3].

319

Karen Attiah, Opinion, For African Americans Tired of U.S. Hostility, Ghana Is Still

Calling, WASH. POST (May 18, 2022), http://www.washingtonpost.com/opinions/2022/05/19/

black-americans-emigrate-tops-shooting-ghana [https://perma.cc/U2RQ-TJX5].

320

Du Bois, supra note 320, at 52–53.

321

DU BOIS, supra note 1, at 8–9.

322

See id. at 8–14.

2022] DIGNITY OR DEATH 907

Repatriation has its roots in fifteenth century America with the beginnings

of the American slave trade.

323

It serves as one of the oldest manifestations of

Black American nationalist sentiments.

324

Most Africans who were forcibly

removed from their homeland longed to return to “their cultural and spiritual

way of life.”

325

This burning desire to reconnect with Africa has only grown

over the past four centuries.

326

Unsurprisingly, it’s also been an effort supported by white supremacists

327

and racists alike who dream of a white-only America.

328

In fact, Abraham

Lincoln was a proponent of this effort:

On Aug. 14, 1862, a mere five years after the nation’s highest courts

declared that no [B]lack person could be an American citizen, President

Abraham Lincoln called a group of five esteemed free [B]lack men to the

White House for a meeting. It was one of the few times that [B]lack people had

ever been invited to the White House as guests. The Civil War had been raging

for more than a year, . . . [and it] was not going well for Lincoln. Britain was

contemplating whether to intervene on the Confederacy’s behalf, and Lincoln,

unable to draw enough new white volunteers for the war, was forced to

reconsider his opposition to allowing [B]lack Americans to fight for their own

liberation. The president was weighing a proclamation that threatened to

emancipate all enslaved people in the states that had seceded from the Union

if the states did not end the rebellion. The proclamation would also allow the

formerly enslaved to join the Union army and fight against their former

“masters.” . . .

. . . .

. . . “Although many men engaged on either side do not care for you one

way or the other . . . without the institution of slavery and the colored race as a

323

Robert Johnson, Jr., Repatriation as Reparations for Slavery and Jim-Crowism, in

WHEN SORRY ISN’T ENOUGH: THE CONTROVERSY OVER APOLOGIES AND REPARATIONS FOR

HUMAN INJUSTICE 427, 427 (Roy L. Brooks ed., 1999).

324

Id. at 427.

325

Id.

326

Id.

327

See Sarah L. Trembanis, Strange Bedfellows: Eugenicists, White Supremacists, and

Marcus Garvey in Virginia, 1922–1927 (Aug. 2001), https://scholarworks.wm.edu/cgi/

viewcontent.cgi?article=3835&context=etd [https://perma.cc/76NS-DXSU] (M.A. thesis,

College of William and Mary) (“Three men led the charge for racial purity in Virginia . . . .

[Major Earnest] Cox founded the White America Society and published various books and

pamphlets on the importance of the purity of the white race. . . . Cox held the most extremist

ideas, fervently insisting that repatriation of blacks back to Africa was the only solution to

what he saw as a precarious situation for the white race in the United States.”).

328

Kwame Anthony Appiah, What Was Africa to Them?, N.Y. REV. (Sept. 27, 2007),

https://www.nybooks.com/articles/2007/09/27/what-was-africa-to-them/ [https://perma.cc/QLY9-

E74E].

908 OHIO STATE LAW JOURNAL [Vol. 83:5

basis, the war could not have an existence,” the president told them. “It is better

for us both, therefore, to be separated.”

329

As history tells us, many Black men had not taken Lincoln’s proposition to

abandon these lands, for they fervently believed, “This is our home, and this our

country. Beneath its sod lie the bones of our fathers. . . . Here we were born, and

here we will die.”

330

They believed in this nation’s founding ideals of freedom

and of equality.

331

But if they had been given a crystal ball and were able to look

at the state of our nation now, what would they have thought? Would they have

said yes? I wonder.

During Reconstruction, the Thirteenth, Fourteenth, and Fifteenth

Amendments were passed.

332

At the time, Congress seemed open to the idea of

a multiracial democracy that Black people had fought for.

333

However, due to

the anti-Black racism running through “the very DNA of this country,” progress

from Reconstruction faced heavy white resistance.

334

The unthinkable violence against the descendants of those formerly

enslaved has not ended.

335

In fact, the systemic white suppression of Black life

has continued to become more entrenched as any legal protections, hard won,

have become more and more watered down.

336

This is why a growing number

of Black activists, scholars, and thinkers have called for repatriation, for Black

Americans will never be seen and treated as equals in America, whose lands are

gripped firmly in the hands of the white man.

337

Going back to Africa may

provide the only viable option for Black male dignity.

The “Back to Africa” Movement has a rich history, but the most significant

contributions come from the creation of Garveyism and Pan Africanism.

338

Henry Sylvester Williams, commonly viewed as the father of Pan

329

Nikole Hannah-Jones, Our Democracy’s Founding Ideals Were False When They

Were Written. Black Americans Have Fought to Make Them True., N.Y. TIMES (Aug. 14,

2019), https://www.nytimes.com/interactive/2019/08/14/magazine/black-history-american-

democracy.html [https://perma.cc/3DSV-VZBE].

330

Id.

331

See id.

332

Id.

333

Id.

334

Id.

335

See generally Racial Discrimination in the United States, HUMAN RTS. WATCH (Aug.

8, 2022), https://www.hrw.org/report/2022/08/08/racial-discrimination-united-states/human

-rights-watch/aclu-joint-submission [https://perma.cc/E659-KM72].

336

See supra text accompanying notes 77–82.

337

See, e.g., Johnson, supra note 325, at 427–33; see also Favour Nunoo, The African

American Who Moved to Ghana ‘to Escape US Racism,’ BBC NEWS (Aug. 24, 2019),

https://www.bbc.com/news/world-africa-49394354 [https://perma.cc/YQU8-6PWX];

cf. ROBIN D.G. KELLEY, FREEDOM DREAMS: THE BLACK RADICAL IMAGINATION 126 (2002).

338

See generally Ben F. Rogers, William E. B. DuBois, Marcus Garvey, and Pan-Africa,

40 J. NEGRO HIST. 154 (1955) (discussing the efforts made by Du Bois and Garvey to

advance Black people in the United States).

2022] DIGNITY OR DEATH 909

Africanism.

339

Williams organized the Pan-African Conference in the 1900 at

the Westminster Town Hall in London.

340

Marcus Garvey believed that the race

will not “be given the fullest opportunity to develop itself. . . in countries where

we form but a minority in a majority government of other races.”

341

Marcus

Garvey, born in Jamaica on August 17, 1887,

342

“found that Black people were

‘kicked about’ in all the communities where he found them around the world,

always situated at the bottom of the social hierarchy.”

343

He eventually moved

to the United States and started the Universal Negro Improvement Association

(“UNIA”).

344

He fervently believed that the future of the Black race rested in a

land where they were the majority.

345

Since Garvey, several countries like Ghana have opened their doors for

Black Americans who want to get away from the United States.

346

In 2020, the

government brokered a deal with local leaders to protect 500 acres of land,

enough for 1,500 families, near Ghana’s center for newcomers.

347

In part, the

motivation for such an initiative was the public campaign, “Year of Return,”

attracting a record number of tourists to Ghana in 2019.

348

The campaign aims

to transform the tourist experience so that a temporary visitor will become a

resident, by creating special land deals, expatriate guides, and more accessible

paths to citizenship.

349

Chief executive of the Ghana Tourism Authority Akwasi

339

See John Henrik Clarke, Pan-Africanism: A Brief History of an Idea in the African

World, 145 PRÉSENCE AFRICAINE 26, 30 (1988), https://www.jstor.org/stable/pdf/

24351577.pdf?refreqid=excelsior%3Ab708b0b3fc7ecb14a4e46465d69d29fc&ab_segment

s=&origin=&acceptTC=1 [https://perma.cc/4SDA-BEAY].

340

See COLIN LEGUM, PAN-AFRICANISM: A SHORT POLITICAL GUIDE (1962; rev. ed.

1965).

341

Marcus Garvey, Letter to Guy M. Walker, in MARCUS GARVEY AND THE VISION OF

AFRICA 152, 152 (John Henrik Clarke & Amy Jaques Garvey eds., 1974) [hereinafter Letter

to Guy M. Walker]; Marcus Garvey, NAT’L ARCHIVES, https://www.archives.gov/research

/african-americans/individuals/marcus-garvey [https://perma.cc/BED3-CTJM] (Sept. 15, 2020).

342

Marcus Garvey, HIST., https://www.history.com/topics/black-history/marcus-garvey

[https://perma.cc/64JT-4CWX] (Nov. 2, 2022).

343

Justin Hansford, Jailing a Rainbow: The Marcus Garvey Case, 1 GEO. J.L. & MOD.

CRITICAL RACE PERSP. 325, 327 (2009).

344

Marcus Garvey, supra note 342.

345

See Letter to Guy M. Walker, supra note 341, at 152–53.

346

See Benjamin Tetteh, Beyond the Year of Return: Africa and the Diaspora Must

Forge Closer Ties, AFR. RENEWAL (Sept. 20, 2020), https://www.un.org/africarenewal

/magazine/september-2020/beyond-year-return-africa-and-diaspora-must-forge-closer-ties

[https://perma.cc/JKC5-YU4J].

347

Danielle Paquette, Ghana to Black Americans: Come Home. We’ll Help You Build a Life

Here, WASH. POST (July 4, 2020), https://www.washingtonpost.com/world/africa/ghana-to-

black-americans-come-home-well-help-you-build-a-life-here/2020/07/03/1b11a914-b4e3-11ea-

9a1d-d3db1cbe07ce_story.html [https://perma.cc/5D34-EMM8].

348

Id.

349

Id.

910 OHIO STATE LAW JOURNAL [Vol. 83:5

Agyeman stated, “We want to remind our kin over there that there is a place you

can escape to. That is Africa.”

350

V. CONCLUSION

Can the elusive concept of dignity be restored, maintained, and enjoyed for

Black men in the homeland or some other majority Black country? Honestly, I

don’t know. I do know that the Fourth Amendment offers little solace. I’ve

argued that Black men in the United States are faced with potential Dignity

Takings every time police intrusion occurs in violation of the Fourth

Amendment. I’ve argued that Black men in the United States are forced to walk

a dignity tightrope every time they assert their rights under the Fourth

Amendment. I’ve argued that Black men must choose to either submit to a

spiritual death or to resist and risk physical death when interacting with police

in this country. Both choices are untenable, and Black men cannot depend upon

the Fourth Amendment to bestow humanity or freedom upon their person.

Dignity will not be realized through the Fourth Amendment because “[t]he

systems responsible for our oppression cannot be the same systems responsible

for our liberation.”

351

As long as the police, in violation of this country’s founding documents,

specifically the Fourth Amendment, continue to target, capture, punish, and kill

Black people or alternatively reduce them back to the condition of slave,

abandoning this country must remain a potential option. Neither submission nor

resistance can truly prevent the Dignity Takings imposed by the police that are

fundamental to the preservation of this country.

352

Dignity requires freedom,

and all we may truly have is the freedom to leave—and abandon this failed

experiment. It has been said that “[s]ometimes, leaving is the most powerful

form of resistance.”

353

The Fourth Amendment’s promise to protect, through the Fourteenth

Amendment’s Due Process Clause, Black people—the descendants of the

formerly enslaved—their person, places, or things, will unfortunately continue

to go unfulfilled. Small procedural victories or individual vindication is not

enough. Supreme Court jurisprudence, Terry, Whren, Brigham, and their

progenies, furthers white supremacy and constitutionalizes Black oppression—

the oppression of me and my Black body. Leaving these United States of

America can restore my sense of dignity, moral agency, and autonomy. If I leave

the United States, I can avoid the double-edged sword of death. I don’t have to

die, like John, in order to have dignity. The narrative of the Fourth Amendment

as a constitutional right that provides security in person, places, or things,

reduced to reasonable articulable suspicion, probable cause, and exigency when

350

Id.

351

See PURNELL, supra note 214, at 36.

352

See supra Parts IV.A, IV.B.

353

Attiah, supra note 321.

2022] DIGNITY OR DEATH 911

applied to Black people, does not provide salvation. No longer will this Black

man, me, be willing to walk the tightrope of death by engaging in potential

Dignity Takings in the attempt to maintain some semblance of a right that was

never mine or intended for me. What I do know, if and when necessary, I will

leave.