How Racial Profiling in America Became the 'Law of the Land': United States v. Brignoni-Ponce and Whren v. United States and the Need for Rebellious Lawyering

It may seem surprising to most readers but racial profiling in law enforcement has long been permitted, if not expressly authorized, by U.S. constitutional law. This is true despite the civil rights revolution of the 1950s and 1960s and the generally positive trajectory of racial progress in the United States over the last century. Indeed, in two major post-civil rights movement decisions that are the subject of this Essay, the U.S. Supreme Court has affirmatively contributed to the predominance of racial profiling in law enforcement in modern America.Persistent accusations of race-based ordinary criminal law enforcement, and specifically in traffic stops, have long plagued the United States. The Supreme Court declined to address the problem head on when given the opportunity in the 1996 case of Whren v. United States, which effectively rendered the Fourth Amendment impotent in combating pretextual stops of automobiles based on race. Indeed, as we shall see, the Court's decision in that case made legal challenges to profiling more, not less, difficult, thereby implicitly encouraging police officers to rely on racial profiles in law enforcement.Although racial profiling in ordinary criminal law enforcement receives the bulk of public scrutiny and scholarly commentary, the practice has had a much broader and deeper reach into modern law enforcement. Border enforcement officers have long employed crude racial profiles, which almost invariably include undefined "Mexican appearance," in making immigration (as well as drug) stops. Such profiles are used not just at the U.S./Mexico border but miles away from any port of entry. As is the case for traffic stops, the Supreme Court has sanctioned racial profiling in immigration enforcement. Indeed, more than two decades before Whren, the Court in 1975 in United States v. Brignoni-Ponce expressly sanctioned precisely this sort of profiling, so long as "Mexican appearance" was only one of many factors relied upon by authorities in making an immigration stop. Evidence unfortunately suggests that the Border Patrol today persistently relies unduly on race in targeting particular groups for stops. Although decided over two decades apart, United States v. Brignoni-Ponce (1975) and Whren v. United States (1996) are cut from the same cloth. With little apparent concern for the consequences on minority communities, both decisions in effect allow racial profiling by law enforcement officers to go largely unchecked. As a result, both in effect tacitly encouraged - and encourage to this day - racial profiling in law enforcement. To shed light on the emergence of the dominance of role in modern law enforcement, this Essay carefully situates Brignoni-Ponce and Whren in their proper historical contexts and dissects the litigation in those cases to show how and why the defense strategy failed to root out race-conscious law enforcement. It further analyzes how both Supreme Court decisions together operate in practice to effectively contribute to the problem of racial profiling in modern American social life. When carefully considered, we see that Brignoni-Ponce and Whren aptly illustrate the difficult challenges facing lawyers seeking to bring about social change and racial justice. Gerald Lopez popularized the concept of "rebellious lawyering," as a way of empowering poor clients through grassroots advocacy facilitated by lawyers. Others have sought to import those teachings to immigration and related fields. The idea is for lawyers to bring about social change while at the same time empowering the subordinated who can be their own advocates in future struggles. The important scholarship of Anthony Alfieri has offered much to this analysis, especially in considering the role of client identity in the strategies of poverty lawyers seeking to promote social change. The work of the attorneys in the trenches in Brignoni-Ponce and Whren demonstrate the importance of litigation in seeking to confront racial subordination while also showing the importance of avoiding exclusive reliance on litigation but combining it with political strategies to bring about social change. Attorneys aggressively battled the state's reliance on race in both cases, only to be rebuffed in different - but both perfectly legal - ways. Stories of real lives of real people got lost in the shuffle of legalities. The potential solution, while possible through the courts, was more likely through the political process, by using political action to focus attention on the real life impacts of race-based law enforcement measures. Part I of this Essay carefully studies Brignoni-Ponce v. United States, which perhaps inadvertently has encouraged the excessive and undue reliance on race in immigration enforcement by bestowing great discretion on the Border Patrol to make stops and specifically permitting them to consider a vague, and quite crude, identifier - "Mexican appearance" - in making an immigration stop. Part II considers Whren v. United States, which effectively immunized racial profiling by police on the streets and highways of America from sanction under the Fourth Amendment and offered a toothless Equal Protection remedy in return. The Essay concludes, by contending that, to truly root out racial profiling from law enforcement, the law must impose limits on the consideration of race in law enforcement, restrict law enforcement discretion in making stops, and afford a meaningful remedy for impermissible stops. To maximize the potential of doing this, lawyers need to advocate for racial justice in the political arena as well as in the courts.