Abstract

Excerpted From: Fareed Nassor Hayat, Dignity or Death: The Black Male Assertion of the Fourth Amendment, 83 Ohio State Law Journal 857 (2022) (352 Footnotes) (Full Document)

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 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. In 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.

“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. As 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 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 ....” More 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 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 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.

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 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 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 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.

[. . .]

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.”

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. 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.”

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 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.

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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.