Tuesday, May 14, 2013
Ekow N. Yankah (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Policing Ourselves: A Republican Theory of Citizenship, Dignity and Policing - A Comment on Fagan (Fordham Urban Law Journal, Forthcoming) on SSRN. Here is the abstract:
Legal scholars tend to have a binary view of police intervention; they naturally focus on whether a police officer was legally justified in engaging in any particular interaction. This view misses what may be the most important feature in most citizens’ interaction with the police, in particular the experience of the Black, Brown and poor. Policing is not only a question of whether a police stop is conducted but how a police stop is conducted. Our Fourth Amendment jurisprudence is both legally impoverished and practically limited because our Constitutional jurisprudence does not take note of how the police treat persons – whether one is subjected to racist language and purposeful humiliation – as part of the calculation of a reasonable search.
Jeffrey Fagan’s contribution to this Fordham Urban Law Journal Symposium fills an important need by recognizing that how one is treated by the police is at least as important is if one is approached by the police. Fagan argues that recognizing the importance of dignity within our Fourth Amendment jurisprudence provides a legal response to commonplace acts of racist and humiliating policing. While Fagan is convincing in highlighting the need to import a commitment to reasonable dignity in police behavior, I argue in this comment that conceptions of human dignity are notoriously too broad and undefined to serve as a legal guide and additionally miss an important element in being wronged by the police. Rather, understanding that both the law and the police are especially tied to our place as citizens highlights the need for a republican view of the dignity of citizenship to guide our policing.