Photo Credit: Boston Globe

If a police officer approaches you and asks to talk even when you’ve done nothing wrong, can you refuse?

While much in the public conscience tells us the answer must be an emphatic yes, a recent Fourth Circuit case demonstrates that the more truthful answer is “it depends.”

Early one morning, George Wingate, a 27-year-old Black man, pulled over after his car’s “check engine” light came on. As he was reading the car’s owner manual, Officer Scott Fulford, a white Deputy Sheriff, pulled up behind Wingate and demanded Wingate identify himself. Wingate refused to provide any identification and instead asked whether he was being detained and if he was free to leave.

After being told he was simultaneously not being detained yet not free to leave, he was arrested for violating a county ordinance which makes it a crime to refuse a request for identification if “public safety requires such identification.” Upon being arrested, Wingate’s car was impounded. He was unable to pay the fees from the impounding and the car was repossessed. This also caused a period of unemployment as he relied on his car for work.

The Fourth Circuit recently held that both Officer Fulford’s command that Wingate was not free to leave and the subsequent arrest violated the Fourth Amendment. But despite ruling for Wingate on both his substantive constitutional arguments, the Court held that Fulford’s decision to arrest Wingate was protected by qualified immunity because the unconstitutionality of the arrest was not established clearly enough at the time of the incident.

Concretely, the application of qualified immunity—a doctrine that shields public officials from monetary liability even when they violate a constitutional right if it was not clearly established at the time the violation occurred—means that Wingate is unlikely to receive compensation for economic damage and personal trauma of being arrested and losing his car.

The circumstances of Wingate’s case and its ultimate disposition demonstrate the daily consequences of legal doctrines that favor the interests of law enforcement over ordinary civilians. The broader lesson of the case is rather simple: Constitutional rights in action tend to be much less noble than the principles underlying them. This reality forces hard questions about the role of the Constitution in opposition to modern day policing and mass incarceration.

As one example, and to return to the question this post opened with, substantial research demonstrates that poor people and racial minorities are less likely to exercise a “right to be left alone.” In many over-policed communities, being stopped by an officer is just a regular part of the walk to school. The infamous “Talk” within many Black communities reflects this insight, as loved ones will warn younger children about the violence that can come from doing anything that may arouse officer suspicion, including telling an officer you’d rather not talk right now. For Wingate, where the officer’s conduct was admittedly unconstitutional, what else could he have done? He was a Black man standing alone on the side of the road with a broken-down car.

When marginalized citizens do turn to courts to enforce their constitutional rights, they are met with substantive and procedural constitutional doctrines that again falter under any concept of democratic accountability.

So, for example, Wingate was stopped because the officer wanted to help him with his car. But to prevent him from leaving, the officer must have had “reasonable suspicion” he was engaging in criminal activity. But reasonable suspicion is a squishy concept and can account “where you live, what you were wearing, and how you behaved.” (Internal citations omitted from quote). Frequently, though, these are merely pretexts for the color of one’s skin and money in one’s bank account.

Once an officer stops you, police have a variety of tools to harass and humiliate. They then can pat you down if they suspect you have weapons. Unsurprisingly, the same race and class biases reappear here. If you are driving a car, the traditional requirement for a warrant does not apply and an officer can search your car with only probable cause. If you’ve committed an ordinary misdemeanor, like not showing identification or not wearing a seatbelt, you can be arrested and taken to jail regardless of the seriousness of the crime. During the arrest, officers can search your entire person without any further suspicion beyond the petty offense you’re being arrested for. In Wingate’s case, the officers searched his car with no warrant or reason to believe the car was being used to commit a crime.

The impact on persons affected by this web of police tactics is astounding. Those subject to the daily terror of stops, learn how to spread their legs and stand against a wall awaiting a pat down. For the millions arrested on petty charges like a failure to identify, spending a single night in jail can result in fines, fees, and social alienation that can follow them for their entire lives. And for those sitting in jail who cannot afford bail, incarceration traps people, regardless of guilt, in cycles of personal trauma, depression, and destitute conditions.

Courts have upheld all of this, from the invasive police tactics to forcing innocent people to spend nights in jail awaiting bail. For all the justified outcry over qualified immunity, it is worth pausing to appreciate just how much police can constitutionally do to invade people’s lives regardless of immunity from liability.

Of course, once someone decides to call upon their rights, whether by refusing a plea or filing civil litigation, they are met with a variety of procedural doctrines that make litigation an incredibly steep uphill battle. So, if you are a prisoner, the Prison Litigation Reform Act, imposes exhaustion requirements, fees, and administrative hurdles before you can even get a day in court. If you are a civil litigant and you just want police policies to change, the Lyons doctrine prevents you from asking a court for policy changes unless there is a high likelihood you’ll be affected by the policy again. In practice, this standard makes changing police practices through litigation nearly impossible.

With this legal background, we must ask what accountability looks like for people like George Wingate. His constitutional rights were violated. He won in court. What dignity he takes in that victory is not for me to say. But he will still be without a car and he will still have suffered through his time in jail. This is not the grand vision of accountability the Constitution promises.

The upshot is that none of this is inevitable. There is no sacred temple of constitutional knowledge that mandates these doctrines or results. They are constructed by courts, lawyers, organizers, politicians, and the public. They are created and sustained through daily practice. Just as they were constructed through history, so too can they be dismantled.

And there are reasons to be optimistic that our daily practices are changing. Illinois, after years of pressure from organizers, became the first state to end cash bail. In Houston, where I will work after graduation, there have been mutual aid organizations, lawyers, and grassroot community groups fighting to get incarcerated people help during a historic winter storm. And in the wake of racial justice protests this summer, many legislators proposed ending qualified immunity for good.

Through organizing, strategic litigation, and grassroots pressure on those in power, we can reclaim the Constitution’s weighty principles to end the draconian hold policing and prisons have over marginalized communities.