Sonia Sotomayor's lacerating dissent in Utah v. Strieff is rightly being applauded for its forthright defense of suspects' rights.
The case — in which a Utah man under no suspicion was illegally stopped by a police officer, was found to have an outstanding traffic warrant, and was subjected to a search that turned up a small quantity of methamphetamine — was decided by a 5-3 majority in favor of the state.
Writing for herself — citing W.E.B. Du Bois and Ta-Nehisi Coates among others — Justice Sotomayor argues that the Court's ruling, which opens the door for courts to admit evidence that was obtained after an illegal stop, is likely to particularly burden black and brown communities.
"It is no secret that people of color are disproportionate victims of this type of scrutiny," Sotomayor wrote.
"For generations, black and brown parents have given their children 'the talk'— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them."
The key passage in the dissent is one in which Justice Sotomayor viscerally explains what it's like to be stopped by the police.
In exposing the gap between those on the bench or in the gallery who have never been arrested and those, particularly poor and nonwhite Americans, for whom it's an everyday fact of life, Sotomayor cuts right to the heart of the problem.
It's a long section, but well worth your time (emphasis mine):
"The indignity of the stop is not limited to an officer telling you that you look like a criminal. The officer may next ask for your 'consent' to inspect your bag or purse without telling you that you can decline. Regardless of your answer, he may order you to stand 'helpless, perhaps facing a wall with [your] hands raised.' If the officer thinks you might be dangerous, he may then 'frisk' you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may 'feel with sensitive fingers every portionof [your] body. A thorough search [may] be made of [your]arms and armpits, waistline and back, the groin and areaabout the testicles, and entire surface of the legs down tothe feet.'"
"The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or 'driving [your] pickup truck ... with [your] 3-year-old son and 5-year-old daughter ... without [your] seatbelt fastened.' At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to 'shower with a delousing agent' while you 'lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.' Even if you are innocent, you will now join the 65 millionAmericans with an arrest record and experience the 'civil death' of discrimination by employers, landlords, and whoever else conducts a background check. And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you 'arrestable on sight' in the future."
Being arrested is not a small matter, and in her dissent, it's clear Sotomayor wants her colleagues to truly understand what it is like.
Far from a minor inconvenience, an arrest is a dehumanizing experience that stays with people — both the trauma of it and the concrete permanent record of it — long after the initial detention.
Being arrested involves submitting to the complete control of police officers, even if you're innocent.
Being arrested can involve being touched, all over your body, in a public place.
Being arrested can involve having your tongue prodded, your body showered in chemicals, and your genitals examined.
To remove protections given to citizens against these illegal arrests is to subject more Americans to an experience that will follow them for years, if not the rest of their life.
Furthermore, Sotomayor correctly noted that the Supreme Court's decision presents police officers with a perverse incentive.
Armed with the knowledge that any evidence they obtain is likely to be admitted regardless of how legal the initial stop was, officers are freer to simply stop people who "look suspicious," a drastic curtailing of the Fourth Amendment, which protects against "unlawful search and seizure."
And even though the defendant in this particular case was white, in America...
"Looking suspicious" can often mean "being black."
"Looking suspicious" can often mean "being brown."
"Looking suspicious" can often mean "being poor."
Despite the disparities, the justice's stinging dissent is a warning not to treat unlawful arrests as an abstract matter — a thing that only happens to "other people."
It's easy to dismiss the eroding of suspect rights' as a problem for those who are black or brown or poor. And disproportionately, it is.
That's enough reason on its own to object to the ruling.
But Sotomayor's plea for empathy underscores a crucial point:
Constitutional protections against police overreach exist to safeguard the rights of every single American.
And what can happen to one of us can happen to all of us.