May 11, 2020

The Enduring Problem of the Race-Blind Reasonable Person

Scott Astrada Adjunct Professor of Law at the Georgetown University Law Center
Marvin L. Astrada Professor in the Politics & History Department at New York University – Washington D.C.

It is not without a sense of irony that one of the most pressing internal challenges facing the administration of justice today is its capacity to effectuate equal application and protection of the law based on one its most fundamental historical pillars–i.e., reasonableness as manifested in the reasonable person. In the context of constitutional law, and especially the Fourth Amendment, the conceptualization of reasonableness is  a lynch pin for the functioning of law as a process, yet it also has the potential to be the most insidious form of injustice for people of color and other marginalized communities. A recent Fourth Amendment case in South Carolina, State v. Spears, reflects the contentious relationship between reasonableness, the reasonable person, the criminal law, and race.[1]  South Carolina Supreme Court Chief Justice Donald Beatty’s dissent in Spears identifies the highly problematic nature of the foregoing vis-à-vis the legal process. The Chief Justice’s observations resonate with an overarching problem that reasonableness and the reasonable person pose in the criminal law, the legal process, and the equal administration of justice.

Pitfalls of a “Reasonable Person” Analysis

In Spears, Eric Terrell Spears was indicted for trafficking crack cocaine. The trial court denied Spears’ motion to suppress the evidence of the drugs seized by police on Fourth Amendment grounds and he was subsequently convicted.[2] On review, the Supreme Court of South Carolina held that there was sufficient evidence to support the trial court's finding that Spears engaged in a consensual encounter with law enforcement, and that Spears' subsequent actions created a reasonable suspicion that he may have been armed and dangerous—justifying law enforcement's Terry frisk that led to the discovery of the offending crack cocaine on Spears' person.

Chief Justice Beatty dissented, arguing that Spears was seized in violation of the Fourth Amendment at the beginning of his interaction with the police officers, because a reasonable person would not have felt free to terminate the encounter with law enforcement. Furthermore, law enforcement did not have reasonable suspicion to justify the seizure.

The threshold question of  “whether Spears was seized . . . . hinge[d] on how a reasonable person would perceive the encounter with law enforcement.”[3] While Chief Justice Beatty acknowledged  that Fourth Amendment jurisprudence does not take into account explicitly “personal” characteristics such as race, sex, age, disability, and so forth, when making this determination, he nonetheless states that “a true consideration of the totality of the circumstances cannot ignore how an individual's personal characteristics—and accompanying experiences—impact whether he or she would feel free to terminate an encounter with law enforcement.”[4] The Chief Justice points out that, “Scholars have examined ad nauseam the dynamics between marginalized groups—particularly African-Americans—and law enforcement (Spears is an African-American male).”[5] This context is indispensable to having a complete understanding to the “totality of circumstances” for Fourth Amendment consideration. The Chief Justice goes further to explain that, “‘For many members of minority communities . . . the sight of an officer in uniform evokes a sense of fear and trepidation, rather than security.’ Moreover, ‘[g]iven the mistrust by certain racial, ethnic, and socioeconomic groups, an individual who has observed or experienced police brutality and disrespect will react differently to inquiries from law enforcement officers . . . .’ Unfortunately, under our existing framework, this can result in the evisceration of Fourth Amendment protections for many people of color.”[6]

The Chief Justice also references a similar discussion by United States Supreme Court Justice Sonia Sotomayor: “But it is no secret that people of color are disproportionate victims of this type of scrutiny. 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.”[7] Chief Justice Beatty also considers the current Fourth Amendment jurisprudence in light of these concerns, stating that “In spite of these academic findings and judicial observations, our current framework fails to meaningfully consider the ways in which a person's race can influence their experience with law enforcement. As a result, I fear minority groups are not always afforded the full protections of the Fourth Amendment. Given the interests at stake, one would expect our criminal justice system to forcefully resist marginalizing the experiences of people of color by insisting on a ‘color-blind’ reasonable person standard.”[8]

Revisiting Reasonableness & the Reasonable Person

In the singular context of this case, the Chief Justice’s dissent highlights the potential of legal reasonableness and the reasonable person analysis to exacerbate the administration of injustice. His analysis reveals how the historical conception of a “reasonable person” employed by the law becomes a means of perpetuating a politics of racial/ethnic exclusion of the “Other,” i.e., a non-white racial/ethnic subject. The Other is required to comport themselves as a reasonable person that bears very little resemblance to their lived reality. This results in the “Other” being constrained within a concept that excludes them by imposing the worldview, norms, values, etc., of a rendition of the reasonable person that is not reflective of their world. Spears demonstrates that this is not merely an esoteric observation with scant applicability in the empirical world. Historically, police signify a very different state of affairs for the “minority” subject than other racial/ethnic subjects, which has a direct and indelible impact on what constitutes a reasonable person in those communities.

Most concerning is the way in which cultural clashes fuel excessive verdicts and sentencing by the very fact that the current rehabilitative justice model cannot readily incorporate non-Anglo and non-Western European cultural, political, economic, and social norms and values, which correlate, in large part, with the present day application of a non-representative reasonable person. This is observed by Chief Justice Beatty when he states: “[s]pecifically, [Spears] contended a seizure occurred because a reasonable person would not have felt free to walk away from the initial encounter. Spears also contended the agents did not have a reasonable suspicion to stop him. The State argued the encounter . . . was consensual and the agents therefore did not need a reasonable suspicion to initiate the stop.”[9] Reason, reasonableness, and the reasonable person are thus fraught with subjectivity and internal fragmentation.

In light of the changes that have transpired vis-à-vis the “People,” the question becomes whether the concept of the reasonable person retains truth-value in the present time.[10] Emerging segments of the population that were previously silenced and marginalized—silence informed and defined, for example, by race, ethnicity, economic status, immigrant status, and gender—have prompted a need to comprehensively reconsider the reasonable person and, by extension, reasonableness within the law.[11] The “repressive” nature of the traditional reasonable person ablates the subjective—the cultural traditions and histories that are not comprehended by the reasonable person’s notion of reasonableness either drop out or are appropriated and redefined by the dominant standard of reasonableness. Is the reasonable person simply “Everyman, an individual without race, class, gender, or any other non-universal characteristics? Or is the reasonable person someone who resembles the defendant herself, possessing some or all of the defendant's characteristics?”[12]

The reasonable person requires reevaluation because of its significant disconnect from the human communities that are emplaced into the legal process. Examples of identity and experience that muddy notions of reasonableness include: the relationship between police and certain racial groups; the relationship and dynamic between male and female perspectives; the relationship between transgender or gender nonconforming and cisgender identities; and the interplay between religious and secular perceptions on values and norms.

If law’s purpose is to serve the People, the reasonable person in its present manifestation, becomes less reflective of the population (particularly as demographic trends suggest Latinos will become the numerical majority) and less legitimate.[13] The cultural superstructure upon which the necessary illusion of reasonableness and the reasonable person rest is being divested of the “universal” and “objective” (selective) scaffolding supporting a supposedly objective interpretation of reasonableness. For example, as a society we are now more cognizant that an undocumented community’s relationship with law enforcement creates a completely distinct sense of reasonableness when analyzing Fourth Amendment searches and seizures than the reasonableness of the same searches and seizures in an affluent, predominantly white suburban community.[14]

Jurisprudence, however, has been slow to keep up. In United States v. Smith, the defendant argued, in asserting a Fourth Amendment claim, that "no reasonable person in his 'position'—as a young black male confronted in a high-crime, high-poverty, minority-dominated urban area where police-citizen relations are strained—would have felt free to walk away from the encounter" with law enforcement officers. 794 F.3d 681, 687-88 (7th Cir. 2015). The Seventh Circuit Court of Appeals acknowledged the relevance of race, “racial profiling, police brutality, and other racial disparity in the criminal justice system . . . to the question of whether a seizure happened” but concluded that such considerations were not dispositive.  Id. at 688. The Tenth Circuit Court of Appeals has concluded, contrarily, that race is an inappropriate consideration in the reasonable person analysis, stating “there is no uniform way to apply a reasonable person test that adequately accounts for racial differences consistent with an objective standard for Fourth Amendment seizures” and therefore refusing to engage the entire enterprise. See United States v. Easley, 911 F.3d 1074, 1081-82 (10th Cir. 2018), cert. denied, 2019 WL 1886117 (U.S. Apr. 29, 2019).

It is thus the case that the reasonable person, in its present manifestation, simulates and disseminates an antiquated legal and sociocultural construct that acts to suppress the sociocultural dynamics that stem from the configuration of the People as they are presently constituted. The reasonableness of judgment and legality are divested of relevance in the present. The continued use of the traditional reasonable person and its notion of reasonableness are part of an ever-present past. The consequences are significant for the majority of legal subjects that do not fit into the sociocultural basis of the traditional reasonable person.

[1] State v. Spears, 839 S.E.2d 450 (S.C. 2020) 454.

[2] 454.

[3] Id. at 463.

[4] Id.

[5] Id. (citations omitted).

[6] Id. 463-64 (citations omitted).

[7] Id. at 464 (citing Utah v. Strieff, 136 S. Ct. 2056, 2070 (2016) (Sotomayor, J., dissenting) (internal citations omitted); see also Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013) (finding the City of New York liable for the New York Police Department's stop-and-frisk policy, which violated plaintiffs' constitutional rights, and noting the racial disparities in the policy's implementation)).

[8] See Robert V. Ward, Consenting to a Search and Seizure in Poor and Minority Neighborhoods: No Place for a “Reasonable Person,” 36 How. L.J. 239, 241 (1993) ("Because the reasonable person test assumes that a person's interactions with the police is a generic experience, the test is biased.").

[9] Spears, 839 S.E.2d at 453.

[10] Symposium, The Reasonable Person: A Conceptual Biography in Comparative Perspective, 14 Lewis & Clark L. Rev. 1233, 1234 (2010).

[11] See e.g., Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stanford L. Rev. 1241 (1991).

[12] See Kevin Jon Heller, Beyond the Reasonable Man? A Sympathetic but Critical Assessment of the Use of Subjective Standards of Reasonableness in Self-Defense and Provocation Cases, 26 Am. J. Crim. L. 4 (1998-1999).

[13] Symposium, supra note 17, at 1259-61. Similar concerns have arisen in the context of race. For example, the New Jersey Supreme Court noted in Taylor v. Metzger: “Some courts have found that a particularly offensive remark, if not repeated, will not be sufficient to establish a hostile work environment.” 706 A.2d 685 (N.J. 1998); see e.g., Bivins v. Jeffers Vet Supply, 873 F. Supp. 1500, 1508 (M.D. Ala. 1994) (holding a co-worker’s one time use of a racial epithet insufficiently severe to establish a hostile work environment), aff’d, 58 F.3d 640 (11th Cir. 1995); Reese v. Goodyear Tire & Rubber Co., 859 F. Supp. 1381, 1385, 1387 (D. Kan. 1994) (holding a manager insinuating that all black people abused drugs insufficiently severe to establish a hostile work environment); Bennett v. N.Y.C. Dep’t of Corrs., 705 F. Supp. 979, 983 (S.D.N.Y. 1989) (concluding that corrections officer’s remark, “hey black [expletive], open the . . . gate,” to another officer did not amount “to more than a mere episodic event of racial antipathy” and was thus insufficient to sustain a claim of a racially hostile work environment); McCray v. DPC Indus., 942 F. Supp. 288, 293 (E.D. Tex. 1996) (holding sporadic racial slurs by co-workers insufficiently severe to establish a hostile work environment). Nevertheless, a single utterance of an epithet can, under particular circumstances, create a hostile work environment. See e.g., Taylor, 706 A.2d 685. (RP 211-212)

[14] See Ward, supra note 10, at 240-41.