HOSTS
PETER SHAMSHIRI
MICHAEL LIROFF
RHIANNON HAMAM
[ARCHIVE CLIP: We'll hear argument now in number 98-1036. Illinois v. William Wardlow.]
Leon Neyfakh: Hey, everyone. This is Leon from Prologue Projects. On this episode of 5-4, Peter, Rhiannon and Michael are talking about Illinois v. Wardlow. This is a case from 2000 about running from the police.
[NEWS CLIP: In Washington today, the Supreme Court has broadened the powers of police to sometimes stop people and question them because they fled at the sight of an officer.]
Leon: William Wardlow was hanging out in a high-crime area where he encountered a police caravan and ran in the opposite direction. Police eventually caught up with him, frisked him and found an illegal handgun. As a result, Wardlow was arrested and charged. He challenged the charges by arguing that running away from the police was not enough to search him under the Fourth Amendment. The Supreme Court ruled that it was. This is 5-4, a podcast about how much the Supreme Court sucks.
Peter Shamshiri: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have humiliated our nation like me humiliating myself putting up Christmas lights. I'm Peter. I'm here with Rhiannon.
Rhiannon Haman: It's seasonal.
Peter: And Michael.
Michael Liroff: Hey, everybody.
Peter: [laughs] I'm basically the guy in a Hallmark movie that the girl leaves for a small town boy, you know?
Michael: Yes.
Peter: Like, the ongoing saga of Peter in the suburbs is just so humiliating. Just that I'm, like, up on a ladder just trying to put command strips.
Rhiannon: Yeah.
Peter: Above my door.
Rhiannon: I know you're scared of being at the top of the ladder. I just ...
Peter: How could you not be?
Rhiannon: Yeah. [laughs]
Peter: I'm not, like, of the age where I could just gracefully fall off a ladder. If I fall off, my life has changed forever.
Michael: So I looked up the quote. I told you guys I'd gotten, like, a professional quote recently to get it done, because people go all out with decorations here, and I was like, I can't—I can't do that, like, by myself.
Rhiannon: Yeah.
Michael: $5,302.
Peter: That is fucking wild!
Michael: Yeah, I know.
Peter: And I live right outside of New York City where, like, you just get ripped off by every contractor. But even that, like, that is fucking crazy.
Michael: I know. I was, like, very much, like, trying to play it cool. I'm reading my email and I'm like, "Oh, yeah. But I think we're gonna pass."
Rhiannon: Right. Yeah, that's wild.
Peter: I will say, though, like, I put up a couple strings of lights, and we didn't have enough because you always underestimate how many lights you need and whatever. And then I, like, walked out to the street and looked up and I was like, "Damn, that's crazy how bad this looks, man. Like, I'm just gonna go unplug it, you know? This is, like, embarrassing." It's worse than not—like, I was like, my wife's Jewish. What am I doing? I don't have kids. Like, I don't. Who am I doing this for? I don't even know. Everyone's laughing at me.
Rhiannon: [laughs]
Peter: All right. Today's case: Illinois v. Wardlow. This is a case about cops. Specifically, it is about your right to run from the cops. And if you are a dedicated fan of this show, listen up, because my guess is that you're gonna spend some chunk of the next four years at least, running from the cops.
Rhiannon: This is need to know.
Peter: Our buddy Mr. Wardlow was hanging out in an area known to cops for heavy drug trafficking. Caravan of police showed up, and Wardlow decides to haul ass in the other direction. Cops take off after him. They frisk him, and they find an illegal firearm, a gun. He is arrested and charged, and he challenges the charge by saying that they did not have the appropriate cause to search him. They had no reason to be suspicious that he committed a crime other than that he ran away from them. And that should not be enough. But the Supreme Court, in a decision written by noted segregationist William Rehnquist, disagrees.
Rhiannon: Mm-hmm. Yeah, this is one that you learn in law school and criminal procedure, and it really sticks with you. At least it stuck with me. The, like, just lack of truly any evidence of, you know, actual criminality or criminal behavior, but can still justify seizure of your person, the police stopping you.
Rhiannon: So just to break down the details a little bit more, like, let's talk about, like, okay, what did the police actually have to justify stopping Sam Wardlow? So this starts with an officer of the Chicago Police Department, Officer Timothy Nolan. This is September, 1995. Officer Nolan was driving a police cruiser, and was actually the last of a four-car police caravan. So there's four police cars driving in a line, driving in a caravan. Timothy Nolan is driving the last of the four police cruisers. And, you know, this group of officers, eight officers in total, they're investigating narcotics. That's what they're setting out to do that day. They're driving by. They're driving on a street, and Officer Nolan notices Sam Wardlow standing on the street. And according to Officer Nolan, Sam Wardlow was not doing anything illegal nor acting suspiciously. He was literally standing on the street.
Rhiannon: Now Sam Wardlow looked in the officer's direction and then takes off running. Turns around, runs away. Officers followed in the cruiser and saw him run through an alley. And then it ends up, you know, like around the corner, into the woods, yada yada. Sam Wardlow sort of runs actually right towards the cruiser and was detained.
Rhiannon: At this point, he's not arrested. It's an investigatory stop at this point. The officer is allowed to frisk Sam Wardlow for any weapons. And while frisking him, Nolan felt the shape of a revolver in a bag that Sam Wardlow was carrying. He found that it was a gun. He's allowed to open the bag after he senses that the shape of the item inside the bag is a gun. He finds the gun, and Sam Wardlow is of course arrested for possessing an illegal firearm.
Rhiannon: Now Wardlow is charged with multiple weapons violations under Illinois state law. And his defense attorney files a motion to suppress the evidence. We've talked about this before, but in the Fourth Amendment context, if evidence is seized from you in violation of the Fourth Amendment, if you are seized, if you're arrested, if you're searched, et cetera, in violation of the Fourth Amendment, whatever evidence is found by the police cannot be used against you in the criminal case. So the defense attorneys file a motion to suppress that evidence, saying, "Hey, you need justification under the Fourth Amendment for this stop. The Fourth Amendment requires that searches and seizures are reasonable, a lot of the time requires a warrant. And there are specific rules about this. My guy just ran away. That's not a reasonable reason under the fourth Amendment to stop somebody." Now this is an investigatory stop. When he's caught by the officers, he is what is legally called 'detained.' It's like a step before arrest.
Michael: Mm-hmm.
Peter: And the way you know that you're being detained is you repeatedly ask the officers, "Am I being detained?"
Michael: That's right.
Peter: And they have to tell you.
Rhiannon: No, it actually is. It's this, like, legal designation where you're not free to go, but you're not under arrest. An officer doesn't yet have probable cause to arrest you, but you are detained, you're not free to go. The officer is investigating somebody. But there is a legal requirement still. There has to be a legal justification for that kind of stop. An officer has to have specific and articulable facts of criminal behavior that rise to the level of—it's called 'reasonable suspicion.'
Rhiannon: So this is what's being argued about in the hearing on the motion to suppress. Now the trial court judge, in hearing this motion to suppress, agrees. States for the record, the police had nothing. [laughs]
Michael: Yes.
Rhiannon: Sam Wardlow was not doing anything. The police had nothing. And in terms of evidence as to specific, inarticulable facts to have reasonable suspicion in order to stop Sam Wardlow. But the trial court says, you know, it is common knowledge that the area these cops were patrolling, that's a high-crime area. And, you know, in addition, police do have knowledge about general areas where guns and drugs are being carried. So in addition to that—totality of the circumstances, in addition to the fact that it's a high-crime area and Sam Wardlow ran, well, then that's enough. That's reasonable suspicion. And that stop is okay under the Fourth Amendment.
Rhiannon: Now Sam Wardlow goes on in that case to be convicted of those weapons crimes. Really interestingly, the case is appealed by Wardlow, and the appellate court in Illinois reverses the decision. Says there was, quote, "No support in the record that this was even a high-crime area where Sam Wardlow was detained and then arrested. There's no evidence that it was known to be a location where drugs were sold. Like, that wasn't ever even established in the record at trial."
Rhiannon: The appellate court in Illinois said that officers were just driving by. They were headed to another location. They're not even investigating anything in this area, on this street where Sam Wardlow was found. There was, you know, no report of suspicious criminal activity, no call, nothing like that. So this is all for the appellate court. That is too vague. That is not enough evidence to rise to the level of reasonable suspicion. So flight, fleeing from the police officers on its own does not justify an investigatory stop for the appellate court in Illinois.
Rhiannon: The state, the prosecutors appeal that decision. It goes up to the Illinois Supreme Court, and they agree with the appellate court. Now the state supreme court in Illinois did say that actually there is enough evidence to say this was a high-crime area. Whatever. But actually, in the state of Illinois, the Supreme Court says there is precedent that establishes that a person has a right to avoid police contact. So they say someone fleeing from the police, somebody running away from the police, that's an exercise of their right to avoid a police encounter. And again, with a lack of any other facts as to the person, Sam Wardlow, engaging in any suspicious activity, any potentially criminal behavior without outward indication of involvement by Sam Wardlow himself in suspicious activity, the Illinois Supreme Court says Wardlow running away on its own, that doesn't give an officer anything more than a hunch. A hunch is not enough to seize somebody under the Fourth Amendment. And of course, this case gets appealed from there all the way up to the United States Supreme Court so they can fuck it up.
Peter: Yeah. So going into the case, both parties are asking the Supreme Court for opposite things. The government is asking that the court hold that fleeing from an officer is always enough to create reasonable suspicion, and therefore allow a stop and search. Wardlow is asking the court to hold that fleeing from an officer is never enough to create reasonable suspicion. The majority, written again by segregationist William Rehnquist, rejects both of these arguments and says, "No, there's no hard and fast rule. It depends on the circumstances, but fleeing does contribute to suspiciousness. And in this case, they had enough reasonable suspicion to search Wardlow."
Peter: Now they go on to sort of analyze the totality of the circumstances. First, they talk about the location. This was, again, a high-crime area, folks. The court says, quote, "An individual's presence in a high-crime area standing alone is not enough to support a reasonable particularized suspicion of criminal activity. But a location's characteristics are relevant in determining whether these circumstances are sufficiently suspicious to warrant further investigation." This is based, like, very loosely on some precedent that I think dates back to the '70s. But I have to say Jesus Christ, this can't be—this can't be the fucking rule. The idea that your constitutional rights fluctuate based on what neighborhood you're in feels fucking insane to me.
Rhiannon: Yeah.
Peter: And look at how, like, cagey their language is. "A location's characteristics are relevant in determining whether the circumstances are sufficiently suspicious." Okay, I agree with that. Like, your physical presence in a given place and the context of that place might be relevant, but what they're saying is that your presence in an area where there is crime nearby historically ...
Rhiannon: Right.
Peter: That that is enough. That is—I mean, come on!
Michael: Yeah.
Peter: It's almost too obvious to be like, "Well, this is just classist/racist, like, literally in the law, the perpetuation of structural inequity."
Rhiannon: Mm-hmm.
Michael: Yeah. Like, we've talked about in an old case, Terry v. Ohio, which was the stop and frisk case, there was like—these guys were picked up because the cops suspected they were casing a joint. And so that's the case where, like, geography matters. Like, the same behavior in a public park would not be suspicious because there's nothing to case. So pacing back and forth and talking to each other, you just assume they're anxious or something, right? But, like, I don't agree with Terry v. Ohio's reasoning, but it sort of makes sense. But that's very different than just, yeah, this is a shitty neighborhood, and in shitty neighborhoods you have less rights. That's wild. That's really fucking wild.
Rhiannon: Mm-hmm.
Peter: There's another thing here, which is that in the past, the court has held that you have a right to ignore police and basically go about your business. So Wardlow said, "Hey, that's what I was doing." Right? And the court says, "No, fleeing from the police is not going about your business. That's not the same as going about your day. You're doing something specifically in reaction to the police."
Rhiannon: Right.
Peter: Which I actually think the court is sort of right about this in a vacuum. They're right that that's not the same thing as going about your day. But one thing the dissent points out is that the cops didn't actually know that this man was fleeing. Cops showed up, and then shortly after, he ran.
Rhiannon: Yeah.
Peter: Cops had no other info. They don't really know that he was running from them. He could have been running for another reason. He could have been running because he had to go to the bathroom. He could have been running because he saw something else he didn't like.
Rhiannon: Yeah.
Peter: So the assumption that he was running from the police is baked into the court's reasoning here, but it's really just sort of like narrative gloss that they're putting on a set of facts that they don't fully understand, right? It's not something that cops knew with certainty at the time. And I'm also not sure that the conclusion they're drawing makes a ton of practical sense. So, like, if you run from the police, you are drawing suspicion on yourself such that they can search you, but if you just sort of walk away casually, that's fine, because you're just going about your day. You're treating two functionally identical behaviors as legally distinct, and that's just not practical.
Rhiannon: Yeah.
Michael: Would whistling be more or less suspicious, because it shows you're nervous or it shows you're relaxed? Who knows? I guess we'll have to wait and see when that case comes down.
Rhiannon: Yeah.
Peter: And I guess holistically, the court seems to be saying that running away from cops isn't in and of itself enough to trigger reasonable suspicion, but combined with it being a high-crime area, that's enough. So if you reason this out, it really seems like they're saying that fleeing from police in a wealthy neighborhood is totally fine.
Michael: Yes.
Peter: Doing it in a poorer neighborhood can get you stopped and searched for pretty easily. But yeah, if you're in the hills and you see police? Take off. Fuck it, they can't do anything.
Rhiannon: Yeah. There's also something to the point where the court never says that, like, running away from the police is in and of itself enough to establish reasonable suspicion. The court does this a lot in the Fourth Amendment context when it's establishing rules. They'll pay lip service to the Fourth Amendment's protections by saying, "Well, like, the cops can't just do an investigatory stop. They can't just detain you just because you ran away from the cops. There has to be more in terms of reasonable articulable facts that establish reasonable suspicion." But the court does this on so many Fourth Amendment rules, where they also say that 'furtive movements'—whatever the fuck that means, right?—can't on its own establish reasonable suspicion.
Rhiannon: But then you have these two things. What about some furtive movements plus running away from the police? Either one of those, the court pays some lip service, does a weird ring around the rosy vagueness analysis, either one, not enough to establish reasonable suspicion. But now you have two stupid things together, and that can establish reasonable suspicion? It's the same with high-crime area. Being in a high-crime area alone is not enough to establish reasonable suspicion. But you see, they do it here, putting it together with another dumb reason. All of the sudden you are overcoming Fourth Amendment hurdles.
Peter: I mean, the high-crime area thing, I don't want to harp too much, but it's not even your conduct. It's not anything that you're doing.
Rhiannon: Yeah.
Peter: It's literally your Fourth Amendment rights declining as you walk into a poorer neighborhood. It's fucking crazy.
Rhiannon: Yeah.
Peter: This feels like a case from, like, the '70s in how obviously classist it is, and how completely blind it is to the very obvious structural inequities built into our system.
Rhiannon: Yeah.
Peter: But it's actually from the year 2000.
Michael: I was gonna say same year, same justice lineup as Bush v. Gore.
Rhiannon: Amazing. [laughs]
Michael: The high-crime neighborhood thing is wild too, because it's like—I mean, I don't want to make too sweeping a statement here but, like, I'm gonna put it out there that a lot of police activity happens in high-crime neighborhoods.
Peter: Right.
Michael: That's sort of like the locus of a lot of police enforcement actions. Like, that's the way this stuff works. I mean, this case is a perfect example. They're just like, "Oh, we know this is a high-crime area. We're gonna send it a caravan of four cars to just go drive around and patrol."
Peter: Right. Also, their presence is part of what makes it a high-crime area, right?
Michael: Oh, absolutely, absolutely.
Rhiannon: It's a chicken and the egg. Like, you're patrolling there all the time. You're arresting people all the time there, which makes it a higher-crime neighborhood. [laughs]
Michael: Peter and I were both suburban degenerate teenagers, and we know how easy it is to get away with all sorts of nonsense in the suburbs because they're not heavily patrolled, they're not heavily policed areas. So it's like, in one sense, you can read this opinion and you're like, "That makes sense. It's a high crime area, blah, blah, blah." If you don't think too hard about it. But in another sense, it's really what it's saying is like cops just really don't have as high a barrier where they patrol. They can do more with less. That's a major problem. That's a major problem.
Michael: So I think that's a good jumping off point to move to the dissent. It's written by John Paul Stevens. It agrees with the majority that we shouldn't have bright-line rules either way, that flight always generates reasonable suspicion for a stop, nor a bright-line rule that flight never can contribute to reasonable suspicion for a stop. Instead, the dissent sort of focuses on the fact that, like, this rule, in a very real sense, disconnected from the facts of the actual case. And so I'm just gonna read a paragraph here about testimony taken at trial regarding this issue.
Michael: Stephen says, "This terse testimony is most noticeable for what it fails to reveal. Though asked whether he was in a marked or unmarked car, Officer Nolan could not recall the answer. He was not asked whether any of the other three cars in the caravan were marked, or whether any of the other seven officers were in uniform, though he explained that the size of the caravan was because 'Normally in these different areas there's an enormous amount of people, sometimes lookouts, customers.' Officer Nolan did not testify as to whether anyone besides Warlow was nearby where he was first seen, nor is it clear that that address was the intended destination of the caravan. Officer Nolan's testimony does not reveal how fast the officers were driving. It does not indicate whether he saw respondent notice the other patrol cars. And it does not say whether the caravan or any part of it had already passed Wardlow by before he began to run."
Michael: So his point is like, how do we even know this guy was running from the cops, you know? Which I think is a good question. As the facts as Rhiannon recited them ended with him running towards the car. Like, yeah, he ran away and then they apprehended him when he was running towards that same car. A weird behavior if you are running from the cops. I mean, maybe he was. Maybe he got the sense this guy was a cop. Maybe the guy was wearing a hat or something and he noticed it.
Peter: Maybe a caravan of many people pulling up near you, cops or not, makes someone feel like, "I'm gonna run, I'm gonna take off."
Michael: Yeah.
Rhiannon: Yeah.
Peter: Here's one thing that really pisses me off about these cases: Why are the cops allowed all these inferences because this is a high-crime neighborhood, but this guy isn't?
Michael: Right.
Rhiannon: Exactly.
Michael: Like, if it's a high-crime neighborhood, maybe that's like a drive by or something happening, right?
Peter: Maybe eight people or whatever pulling up right nearby makes you think, "I'm just gonna run rather than figure out what this is." If the neighborhood really is so bad that you can draw these inferences, then why can't this guy just run away?
Michael: Right. Or if he did clock them as cops, maybe he's—I'm not involved in anything, but there's about to be some fucking shootout or some shit, and I don't want to be around for it. So I'm gonna get the fuck out of here." I think that's Stephen's strongest sort of doctrinal point, which is like, look, this case is kind of built on bullshit. Like, there's—the rule you're fashioning here makes sense in a vacuum, but this case doesn't even satisfy it.
Rhiannon: Yeah.
Michael: It's a very academic dissent. I think there's sort of something that you, the listener, probably think is hanging over this entire thing, which is that, like, probably young Black and brown men in America have good reason to fear the cops regardless of their involvement in criminal activity and would want to run. Stevens does get to that eventually, but it's in a very academic way where he just sort of builds slowly on the doctrine and on all the different reasons people might run, and sort of breaks it down logically before he gets to that point. And he does sort of nail it. Like, he does, I think, effectively communicate on this point, But I do think it's a very—it's written for law professors and law students. It's an opinion that's written for law professors and law students. I'm not gonna fault Stevens for that because I think that's as much a reflection of the era as anything else. This same dissent if it came down today, I would have a lot more, I think, vitriol for it because I think we know how to write in an emotionally effective way about these issues. I don't think Stevens does that, but I don't think that was really his goal with this opinion.
Rhiannon: Yeah, yeah.
Peter: I have, like, a big picture complaint about the whole thing here, and a lot of the case law about stop and frisk. The cops can constitutionally stop and frisk you when they are reasonably suspicious that you have committed a crime—specific and articulable facts supporting a conclusion that you engaged in criminal activity.
Rhiannon: Mm-hmm.
Peter: But I don't think that something can qualify as 'reasonable suspicion' if there's no specific crime that you're suspicious that they committed.
Rhiannon: Yep.
Peter: Like, if someone runs away from the cops, you might think, "Oh, maybe they did something illegal." But what? How can you say that your suspicion that someone committed a crime is so great that it overcomes their constitutional right not to be searched if you can't even tell me what crime you think they committed?
Rhiannon: Yeah.
Peter: Contrast this with, like, a situation where a cop sees the outline of a weapon, like the butt of a knife sticking out of your pants or whatever. Or you see someone walk up to a known drug dealer and give him money in exchange for something. Or like in Terry v. Ohio itself, like you were saying, Michael, the original case that created this standard, a couple of guys are pretty clearly casing a joint, right?
Michael: Right.
Peter: In these situations, you can at least ballpark the crime you think the person committed. Someone runs from the police. The cops are just speculating about the fact that a crime was committed. They couldn't even tell you what crime was committed. Does he have forged paperwork in his pants? Like, what exactly do you think you know? To me, that's just like a bridge too far. Your constitutional rights should be more important than a cop's speculation.
Rhiannon: Yeah, I totally agree, Peter. And we've talked a few times, I think, in Fourth Amendment cases, especially with regards to the standards that the police supposedly have to meet in order to stop somebody, in order to arrest somebody. And we've talked about how instead of, like, actually meaningfully imposing those standards and meaningfully protecting people's individual liberty rights, that's what we're talking about against law enforcement.
Rhiannon: Actually, what, like, Fourth Amendment jurisprudence does is tell the police how to write their reports so that later on it establishes, you know, whatever the necessary legal standard is—reasonable suspicion or probable cause, what have you. Whatever they need. And this case is a really good example. What you have in effect from this case and others, in totality, I mentioned earlier, there's a case that says furtive movements is something that, you know, can, with some other specific facts, establish reasonable suspicion. You know, being in a high-crime neighborhood, et cetera, et cetera, et cetera.
Rhiannon: What this case does, in effect, is give police super vague, unspecific things that they can refer to, and that actually these circumstances that police can refer to in their reports and in their testimony about why they were justified in stopping somebody, these facts are actually really hard to retroactively investigate, inquire about, establish what is a furtive movement, and can it be proven that somebody did a furtive movement? What counts as fleeing from the police when the police say, "Well, it was suspicious because the guy turned away from me and took 10 steps?" All of this vague language is actually just a green light to police and a signal to police about the correct legal magic words to use in their reports to justify completely seizing people in violation of what the dissent here would say in violation of their Fourth Amendment rights.
Peter: Right. And that's the problem with having all of these sort of, like, subjective standards that start to look more like, "What were the guy's vibes?"
Rhiannon: Exactly.
Peter: Because, like, if the vibes are off, then maybe you can seize him. Oh, is he walking briskly away from police? Is he moving a little too furtively? Well, then you can seize him. Then the Fourth Amendment doesn't protect you.
Rhiannon: Yeah. And what you get is, like, a whole body of law here. And I don't think it's replicated anywhere else in the law. I think this is just like a massive, massive, just body of jurisprudence, right? Where what you have is a whole area of the law, a whole really amendment to the Constitution that's built on a wild level, almost absolute deference to police, to police statements, and to their own subjective perceptions.
Rhiannon: The police say in so many of these cases that have gone to the Supreme Court where maybe the law is a little bit unclear, in this very case, the police are more or less upfront that the only thing that they had, the only thing that they used retroactively to justify stopping and frisking Sam Wardlow is that he ran away from them. So this case makes its way up to the Supreme Court, and just gets added to "Okay. Well, the police said that we defer to what the police say. We completely defer to their perceptions of what potential criminal behavior is, or suspicious behavior," or whatever. And there's a whole entire body of law that is created and now relied on to just say thumbs up to whatever the police say, and to let them do whatever they say they want to do.
Michael: Yeah, it's kind of wild to notice the gap between what actually happened, or at the very least what cops can demonstrate actually happened, and what the rule is. And then what that rule, what sort of conduct that rule allows. What happened was a bunch of cops in potentially four unmarked cars were driving somewhere else and saw a guy running and decided to stop and frisk him. The rule we get from that is that running from the police in a high-crime area is sufficient to give you reasonable suspicion to perform a brief detention in a stop and frisk.
Rhiannon: Yep.
Michael: Very different. And then the conduct that that allows in because you're bending over backwards to facilitate this bad behavior from cops is almost limitless.
Peter: I mean, they can bait people into running now. Like, they can put people in situations where it makes practical sense to run and then—bam!—you can detain them, you can pat them down.
Michael: Yeah, exactly. Like, turn on your sirens and drive towards them and see how they react. If they run, oh great, now we can chase.
Peter: Yeah, pop a shot off into the air. Fuck it.
Michael: And so this is a real problem. This is a real problem in the law, that the baseline assumption is always that cops are truthful and honest and acting in good faith. And what's more, that we always have to be sort of blurring the lines and fudging the rules a little bit in their favor. And meanwhile, they're not doing any of those things.
Peter: Right.
Michael: And pushing the law consistently in a single direction towards more freedom to act for them, fewer consequences for their behaviors to them. And it's like a one-way ratchet. It only goes one way, which is just that the cops become more and more empowered, and your rights shrink smaller and smaller. And now they're overrun with a bunch of right wing freaks, and we have an authoritarian coming into power. It's a real problem that this culture suffuses the law and law enforcement.
Peter: Yeah. I think if we're talking, like, normatively, where do we want the law to be, fundamentally, I think that if you are not suspected of any crime, you should be allowed in a free society to avoid police and take any reasonable steps that you feel might help you avoid police. You should be allowed to go out of your way to avoid police. You should be allowed to if it's because police scare you. You should be allowed to if it's because you just hate cops. It's a free country, baby. That's what I always say. And if that means anything, it means that I don't have to engage with the government just because.
Michael: Mm-hmm.
Peter: And there are all sorts of woke sociological reasons, cultural reasons that someone would want to avoid police. I'm probably not the person to articulate those. I'm not Angela Davis here, but people might want to minimize harm to themselves and their families. But fundamentally, I still think a very compelling argument here is that you should be able to avoid the cops if you want, because fuck 'em.
Rhiannon: [laughs] Absolutely.
Peter: Absolutely fuck 'em.
Rhiannon: Because they suck!
Peter: You might be some bootlicking dork who thinks that we should all salute every cop who walks by, but until you put that in the Constitution, I'm gonna say, "No thanks. Fuck 'em." I should be able to run in the other direction.
Rhiannon: Absolutely. Absolutely. Just to kind of highlight, I think, or make a connection for folks, I think, obviously most of our listeners, the vast majority of our listeners, all but maybe one who thinks we should have, like, you know, the opposite viewpoint or something represented on the podcast believe and, like, know of the problem of mass incarceration. But you see cases like this and you understand police activity day to day to day and police behavior day to day to day, and you see how this is actually the way mass incarceration functions and works.
Rhiannon: So we certainly understand that, like, you know, mass incarceration is fueled by, you know, an increasing number of behaviors being criminalized, you know, an increasing number of arrests for low-level misdemeanor offenses. But, you know, you want to take one step even before that and say, like, "Okay, well, how does the arrest—how does somebody get swept up? How does the arrest happen?" And that's because of police contact. Mass incarceration is fueled in a very fundamental first step, initial sense, foundationally by increased police contact with people and communities. And so cases like this, an entire body, decades of jurisprudence like this, are about increasing and allowing police contact whenever police want that contact.
Peter: There's a thing lurking behind this case which is just like when you contrast the way they talk about the Fourth Amendment with the way they talk about the amendments they like—the Second Amendment or, like, free exercise of religion by Christians, the reverence with which they talk about those rights, it pours through the pages.
Rhiannon: Yeah.
Peter: And if you read these cases, you'd almost think that the police have a constitutional right to investigate, the way that they talk about it.
Rhiannon: Yeah.
Peter: The ability of the police to investigate is, like, first and foremost in their minds. And the constitutional right not to be bothered by police without justification is almost like a secondary thing. And this is something that's sort of hard to pin down because it's almost tonal. It's almost about, like, the way that they do these analyses.
Michael: Yeah.
Peter: But when you read these cases, it's crazy. The difference between the ways in which they discuss certain rights is crazy. And the idea that you can forfeit your Fourth Amendment rights by running away, by maybe running away, right? They don't even know for sure.
Michael: Just by running, and having it be interpreted by a cop in potentially an unmarked car as running away from him.
Rhiannon: Right.
Peter: Right. And then, you know, when it comes to, like, the free exercise of religion, the government can't even tell you, "Hey, there's a global pandemic, so hold off on services for two weeks." The disparity is crazy.
Rhiannon: Yeah. You know, the Fourth Amendment very clearly confers an individual right. It's an individual right grounded in liberty. It's an individual liberty to be free of unreasonable contact, unreasonable infringement, unreasonable search and seizure by the state. It very clearly confers an individual right. The Second Amendment does not clearly confer an individual right. And in fact, the Supreme Court made that up in a case, you know, not what, 15 years ago, not even 20 years ago. They made that up, and they will talk about that individual right as completely untouchable. It is as close to absolute an individual right as the Supreme Court talks about.
Peter: First of all, stand at attention when you're talking about the Second Amendment.
Rhiannon: [laughs] Exactly. Exactly. It's basically that. Like, I'm sure that's the next case going up, you know, is like Clarence Thomas saying you have to actually respect the Second Amendment by saying a little prayer, thanking God for guns or whatever, you know? And the treatment of different individual rights is so starkly clear. It's just so crazy!
Michael: Now I just—I have in my head the drill tweet where he's, like, you know, taking a shit at the ball game when the national anthem comes on and I stand up and salute while shit dribbles down my leg or whatever. [laughs]
Peter: Michael, you can no longer get through an episode without saying something disgusting.
Rhiannon: [laughs]
Michael: [laughs]
Peter: Next week, special episode. As we segue into the holiday season, we are going to be doing a premium episode about some pop culture legal issues.
Rhiannon: Yeah.
Peter: Drake and the lawsuit against Kendrick Lamar's label. Maybe some others. Maybe some others we'll dig into.
Rhiannon: Yeah. Some influencers and a lawsuit over who owns the 'clean girl' aesthetic.
Peter: Yeah. Now I, of course, made a brief TikTok about the Drake-Kendrick Lamar situation. And a lot of people, a lot of commenters told me that I was a big dumb idiot. And I will be going through those comments one by one and explaining why they are incorrect.
Michael: [laughs]
Rhiannon: That's why you have a podcast.
Peter: Absolutely. Follow us on social media @fivefourpod. Subscribe to our Patreon: Patreon.com/fivefourpod—all spelled out—for access to premium episodes, ad-free episodes, special events, our Slack, all sorts of shit. We'll see you next week.
Rhiannon: Bye!
Michael: Bye, everybody.
Leon: 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh and Andrew Parsons provide editorial support. Our website was designed by Peter Murphy, our artwork is by Teddy Blanks at CHIPS.NY, and our theme song is by Spatial Relations.
Leon: If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community and more, join at Patreon.com/fivefourpod.
Peter: Cupcake!
Michael: Yeah, I got some workers over at the house and the dogs are sort of periodically barking at them. Apologies in advance.
Peter: Castle doctrine, baby.
Michael: [laughs] If that ends up interrupting my flow a little bit.
Peter: Cupcake, stand your ground!
[dog barks]