Wednesday, December 30, 2015
Many on-the-street interactions (which in Fourth Amendment jargon are often called “encounters”) are not subject to Fourth Amendment regulation. Encounters outside the Fourth Amendment vary from the non- or minimally intrusive, such as exchanges of pleasantries or mutually useful information, up to the very intrusive, such as asking for identification, following an individual for an extended period of time, or questioning them.
Encounters are one of the most common ways in which the public interact with the police. But the police have no right to insist that the public participate in these encounters. The public need not accede to government officials’ demands that they comply or cooperate with the police willy-nilly. Instead, the individual may challenge a police officer to provide reasons that demonstrate that law enforcement’s request to participate in an encounter is reasonable and grounded in law. The public thus get to participate in policing by contesting its lawful limits. Where those limits are reached, the government official must recognize the right of the citizen to decline to participate. But even where the official has the legal authority to demand compliance with her instructions, she must still treat the individual with respect, as someone with the sort of political standing that entitles her to have reasons that justify government interference with her person or property.
In practice, the police often do not recognize the public’s power to challenge the police enforcement of the law on the street. Worse, even when the police may be inclined to recognize the power to challenge the police, that recognition is often distributed along race, gender, and class lines. There are two predictable consequences. Fearing retaliation, some people (the poor, women, and minorities) will simply not challenge the police, and may even cooperate with them though they would rather not. Others will challenge the police, but the police may not recognize their right to challenge, and may respond with physical or legal sanctions, including force. To the extent the police do not recognize the right to challenge, the police deny these individuals political and legal standing as full members of the community. In this way, the police often deny political and legal standing to distinctive groups within the community based on raced and gendered grounds.