The need for insightful books like Devon Carbado’s Unreasonable: Black Lives, Police Power, and the Fourth Amendment is seen in Max Felker-Kantor’s recent review of historians’ studies of policing, wherein he laments their failure to interrogate “the relationship between police power and the Fourth Amendment” (Felker-Kantor Reference Felker-Kantor2024: 4). Unreasonable enriches the socio-legal literature by wedding a strong doctrinal analysis to critical race theory and empirical explication in order to deconstruct how “proactive policing” degrades our culture. Recently, though, criminologists have tried to distinguish a new form of proactive policing from the discredited “broken windows” approach. Law professor Donald Braman and colleagues recently determined that broken windows theory “persist[s] as the central theory justifying pretextual stops” in the new “community problem-solving” policing (Braman et al. Reference Braman2024: 98 & nn.40–41). I implore critical scholars of policing to connect our delegitimization of the current Fourth Amendment to the specifics of criminology’s broken windows revivalist movement to rationalize racial targeting.
Carbado answers Felker-Kantor’s call by discussing numerous stages in law enforcement intrusions upon civilians to show how each is enabled by permissive doctrine. Unreasonable’s overall thesis is that the “police-centric nature of Fourth Amendment law … (14)” has promoted white supremacy by effectively “author[izing] (240, n.52)” marginalization of Black people.
Carbado begins the book with a prologue using his prior important personal narrative scholarship on how police racial targeting socially constructs Black people, including himself, as marginalized subjects. Unreasonable’s Introduction proposes a seven-level schema for understanding how police end up committing violence against Black people. At Level I, segregation and the trend toward proactive policing make Blacks vulnerable to racial targeting both within and without Black communities. At Level II, more frequent black exposure to the police leads to more frequent violence against Black people. At Level III, police culture and training encourage violence. At Level IV, the entire criminalization system (prosecutors, juries, judges) works to justify the violence. At Level V, police are immunized and indemnified against the monetary damages that might cause them to feel the effects of their violent acts. At Level VI, the law dissociates individual officer’s violence from departments and the criminalization system as a whole. At Level VII, the prior levels combine to send police officers a message that they may choose to enact violence upon Black people without consequences. Throughout Unreasonable, Carbado demonstrates how those seven phenomena make “the Fourth Amendment [] a system of surveillance, social control, and violence … (32).”
Unreasonable’s substantive chapters support that argument by analyzing types of police intrusions, including pedestrian checks, traffic stops, stop-and-frisk, and stop-and-strip, as well as predatory policing (raising funds through policing). Though Carbado relies on numerous empirical studies (see Eberhardt et al. Reference Eberhardt, Goff and Purdie2004; Epp et al. Reference Epp2014) and narratives, he focuses on the unreasonableness of the Whren v. United States opinion’s upholding of racial profiling. An example of the incisiveness of Carbado’s analysis is Chapter Two’s description of why it is so easy for police to turn a naked race-based suspicion into a justification to traffic stop someone. He first considers the possibility that the Whren opinion is right that there is a difference between an officer’s strictly race-based suspicion, which is officially disallowed, and a traffic stop justified by probable cause, which is supposed to limit law enforcement discretion. But next he illustrates why “to drive a car is to violate some provision of a vehicle code (82)” with examples of vague provisions police may easily apply to most people. Since drivers routinely commit petty traffic violations and Whren allows such to satisfy the probable cause requirement, police can easily convert a race-based suspicion into an enforceable traffic stop. Carbado thus concludes “[t]he weakness of the probable cause/traffic infraction restraint means that police officers are effectively free to stop people on the basis of race whenever they want (83).” While Unreasonable’s critique of and concluding rewrite of Whren are useful, another chapter explaining how this perspective should change Fourth Amendment jurisprudence would have been welcome.
Ultimately, Unreasonable is very useful in setting the stage for the projects of delegitimating the doctrines of the current occupiers of the majority of the Court (who act like the post-Bellum Redeemers of whiteness) and challenging the revival of broken windows theory. I have argued that the U.S. v. Robinson case, not Whren, or even Scott v. U.S., originally infected Fourth Amendment doctrine with the anti-subjectivity principle that would become the pro-pretext doctrine (Cooper Reference Cooper2024). Other scholars have started to show how that grant of discretion has been crucial to the development of pretextual policing practices (Friedman et al. Reference Friedman2023). A recent empirical study of the criminology literature on race demonstrated that it shields police bias (Obasogie & Provenzano Reference Obasogie and Provenzano2023). Unreasonable provides a foundation for a better future by connecting Fourth Amendment doctrinal mischief to police racial oppression. We should use this work to help counter broken windows revivalist criminology’s new police bias movement.
