Cafe Take: Constitutional Interpretations Pave Way For Brutality

Police brutality is supported by ​“antiseptic” language in the Constitution and by several Supreme Court decisions, according to criminal law professor Ekow Yankah.

Yankah made that argument during this week’s installment of The International Festival of Arts and Ideas’ ​“Constitution Cafe” series, which aims to foster dialogue around our nation’s Constitution and its impacts on daily life.

Entitled ​“The Constitutional Limits of the Police Use of Force,” the virtual event Wednesday featured panelists Yankah and Kerry Ellington, a New Haven grassroots activist and organizer.

Over 75 participants tuned in to the hour-long conversation, more than double the turnout of last week’s cafe. Though scheduled in advance, the event gained timely relevance given the recent death of George Floyd at the hands of Minneapolis police.

Yankah, a professor at the Cardozo School of Law, explained how legislation has systematically supported police brutality, especially towards black people. ​“The scandal is not what’s illegal. The scandal is what’s legal,” he quipped.

Yankah highlighted the Fourth Amendment, which reads: ​“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The vague and ​“antiseptic” language of the amendment, according to Yankah, leaves up to interpretation what counts as ​“unreasonable.” That can be a slippery slope.

Yankah also mentioned several Supreme Court decisions upholding the use of police force. Notably, Terry v. Ohio in 1968 gave police the right to stop and search someone if the police officer has ​“reasonable suspicion” the suspect is armed, giving birth to the now common practice of ​“stop and frisk.” In Whren v. United States in 1996, the court ruled that police officers’ subjective motivation to pull over a driver does not matter as long as the officer has ​“probable cause” to do so.

There have been attempts to draw the Supreme Court’s attention to the role of race in police brutality as early as the 1985 Tennessee v. Garner case, according to Yankah, but those attempts fell short. The court has been ​“dedicated” to ​“ignoring” the role of race in policing, said Yankah.

Kerry Ellington offered a local perspective. Ellington described unequal policing in her neighborhood, Chapel West. Police cars linger on several corners, shining high beams on buildings they deem suspicious, often belonging to black residents, said Ellington. She mentioned police officers following black shoppers around the Whalley Avenue Stop and Shop as an example of ​“casual violence.”

Ellington called for defunding police departments and reinvesting public dollars in other social services like affordable housing and education. Yakah agreed that it is ​“not radical” to think that we can’t ​“police our way out” of every situation. Standing police forces are a fairly new institution, Yakah said, and for years have been ​“explicitly about controlling minority bodies.” Ellington agreed that policing is ​“used as a tool for racism” and ​“nothing other than that.”

Participants asked questions via Zoom’s chat feature. Many expressed interest in a longer conversation or a virtual book club around issues of police brutality. Organizer Elizabeth Nearing urged participants to attend next week’s cafe about the Constitution and the census, as well as the following week’s cafe about mass incarceration.

Yakah and Ellington both ended the event with calls for change.

“We must tear the system down,” said Ellington.

Beyond fighting the system, Yakah called for a shift in the thinking that ​“white social problems are social problems and black social problems are policing problems.” Instead, said Yakah, we should ask, ​“What can we do to invest in these communities?”