Despite claiming that consideration of race violates the guarantee of the 14th Amendment’s equal protection clause, the Supreme Court has repeatedly condoned racial profiling as a law enforcement tool that does not violate the Fourth Amendment (article available here).
The court tolerates pretextual traffic stops and has sanctioned police reliance on an individual’s “apparent Mexican ancestry” at the border and its “functional equivalents” to be a relevant factor justifying a traffic stop based on reasonable suspicion.
The federal landscape for addressing racialized policing is thus deeply baffling. Although racial profiling is permitted, the mechanism for challenging racially discriminatory policing—selective enforcement in violation of the 14th Amendment—requires showing an officer’s discriminatory intent.
Within this incredibly difficult legal context, one New Jersey appellate court earlier this year boldly addressed implicit racial bias in the decisions of ordinary policing. The facts of State v. Scott presented a unique instance in which racial bias could be “proved,” and this New Jersey court provides a road map for other state courts to offer similar protections.