Narrative Excerpt from Devon Carbado, (E)racing the Fourth Amendment, 100 Michigan L. Rev. 946 (2002). For a full version of the article from which this is drawn, visit this site.

It’s been almost two years since I pledged allegiance to the United States of America—that is to say, became an American citizen. Before that, I was a permanent resident of America and a citizen of the United Kingdom.

Yet, I became a black American long before I acquired American citizenship. Unlike citizenship, black racial naturalization was always available to me, even as I tried to make myself unavailable for that particular Americanization process. Given the negative images of black Americans on 1970s British television and the intra-racial tensions between blacks in the U.K. and blacks in America, I was not eager, upon my arrival to the United States, to assert a black American identity. My parents had taught me “better” than that. But I became a black American anyway. Before I freely embraced that identity it was ascribed to me. This ascription is part of a broader social practice wherein all of us are made intelligible via racial categorization. My intelligibility was skin deep. More particularly, it was linked to the social construction of blackness, a social construction whose phenotypic reach I could not escape. Whether I liked it or not, my everyday social encounters were going to reflect standard racial scripts about black American life.

And in fact they did. I was closely followed or completely ignored when I visited department stores. Women clutched their purses upon encountering me in elevators. People crossed the street to avoid me. The seat beside me on the bus was almost always racially available for another black person. Already I wanted to be a black American no more.

But that racial desire was at odds with my racial destiny. There was nothing I could do to prevent myself from increasingly becoming a black American—and more particularly, a black American male. Resistance was futile. The politics of distinction or self-presentation strategies with the intra-racial signification, “I am not really like other black people, I am the new Negro,” was not going to help. Out of racial necessity, my black identity developed one racial interpellation after another. My collective dis-eminence was inevitable.

Nor could I count on colorblindness to protect me. That veil of ignorance became only too transparent. Colorblindness, I would come to learn, is precisely what prevents African Americans from becoming black no more. Its racial ideology casts all of us in the ongoing national drama, “An American Dilemma.”

Like many black Americans, I developed the ability to cope with, manage, and sometimes even normalize certain micro-aggressive racial encounters. I have come to view them as incidents in the life of a black person, part of the racial mystique of life—the thing that has a name: the colorline. Indeed, today I consider it an aberration every time I manage to escape the normality of interpersonal, everyday racism.

I have not, however, been able to normalize my experiences with the police. They continue to jar me. The very sight of the police in my rear view mirror is unnerving. Far from comforting, this sight of justice (the paradigmatic site for injustice) engenders feelings of vulnerability: How will I be over-policed this time? Do I have my driver’s license, insurance, etc.? How am I dressed? Is my UCLA parking sticker visible? Will any of this even matter? Should it? And what precisely will be my racial exit strategy this time? How will I make the officers comfortable? Should I? Will I have time—the racial opportunity—to demonstrate my respectability? Should I have to? Will they perceive me to be a good or a bad black?

These questions are part of black people’s collective consciousness. They are symptomatic of a particular colorline anxiety: a police state of mind. This racial disease is inflicted on black people ostensibly to cure the problem of crime. Its social effect, however, is to make white people feel good about, and comfortable with, their own racial identity and to make black people feel bad about, and uncomfortable with, being black.

My first racial episode with over-policing occurred only two weeks after I purchased my first car: a $1500 yellow, convertible Triumph Spit Fire. I had been living in America for a year; my brother had been in the States for under a month. It was about nine p.m., and we were on our way to a friend’s house.

Our trip was interrupted by the blare of a siren. We were in Inglewood, a predominantly black neighborhood south of Los Angeles; a police car had signaled us to pull over. One officer approached my window; the other stationed himself beside the passenger door. He directed his flashlight into the interior of the car, locating its beam, alternatively, on our faces. The characters: two black boys. The racial stage was set.

“Anything wrong, officers?” I asked, attempting to discern the face behind the flashlight. Neither officer responded. Against my racial script, I inquired again as to whether we had done anything wrong.

Again, no response. Instead, one of the officers instructed, “Step outside the car with your hands on your heads.” Effectively rehearsing our blackness, we did as he asked. He then told us to sit on the side of the curb. Grudgingly, we complied. Though we were both learning our parts, the racial theater was well underway.

As we sat on the pavement, “racially exposed,” our backs to the officers, our feet in the road, I asked a third time whether we had done anything wrong. One officer responded, rather curtly, that I should “shut up and not make any trouble.” Perhaps foolishly, I insisted on knowing why we were being stopped. “We have a right to know, don’t we? We’re not criminals, after all.”

Today I might have acted differently, less defiantly. But my strange career with race, at least in America, had only just begun. In other words, I had not yet lived in America long enough to learn the ways of the police, the racial conventions of black and white police encounters, the so-called rules of the game: “Don’t move. Don’t tum around. Don’t give some rookie an excuse to shoot you.” No one had explained to me that if you get pulled over by the police “[n]ever get into a verbal confrontation ... Never! Comply with the officer. If it means getting down on the ground, then get down on the ground. Comply with whatever the officer is asking you to do.” It had not occurred to me that my encounter with these officers was potentially life threatening. This was one of my many racial blind spots. Eventually, I would develop my second sight.

The officer discerned that I was not American. Presumably, my accent provided the clue, although my lack of racial etiquette—mouthing off to white police officers in a “high-crime” area in the middle of the night—might have suggested that I was an outsider to the racial dynamics of police encounters. My assertion of my rights, my attempts to maintain my dignity, my confronting authority (each a function of my pre-invisibility blackness) might have signaled that I was not from here and, more importantly, that I had not been racially socialized into, or internalized the racial survival strategy of, performing obedience for the police. From the officer’s perspective, we were, in that moment, defiant ones.

The officer looked at my brother and me, seemingly puzzled. He needed more information racially to process us, to make sense of what he might have experienced as a moment of racial incongruity. While there was no disjuncture between how we looked and the phenotypic cues for black identity, our performance of blackness could have created a racial indeterminacy problem that had to be fixed. That is, to the extent that the officers harbored an a priori investment in our blackness (that we were criminals or thugs), our English accents might have challenged it. At best, this challenge was partial, however; racial inscription was inevitable. The officer could see—with his “inner eyes”—that we had the souls of black folk. He simply needed to confirm our racial stock so that he could freely trade on our blackness.

“Where are you guys from?”

“The U.K.,” my brother responded.

“The what?”

“England.”

“England?”

“Yes, England.”

“You were born in England?”

“Yes.”

“What part?”

“Birmingham.”

“Uhmm ....” We were strange fruit. Our racial identity had to be grounded.

“Where are your parents from?”

“The West Indies.”

We were at last racially intelligible. Our English identity had been dislocated, falsified—or at least buried among our diasporic roots.

“How long has he been in America?” the officer wanted to know, pointing at me.

“About a year,” my brother responded.

“Well, tell him that if he doesn’t want to find himself in jail, he should shut the fuck up.” The history of racial violence in his words existentially moved us. We were now squarely within a sub-region of the borders of American Blackness. Our rite of passage was almost complete.

My brother nudged me several times with his elbows. “Cool it,” he muttered under his breath. The intense look in his eyes inflected his words. “Don’t provoke them.”

By this time, my brother needn’t have said anything. I was beginning to see the white over black racial picture. We had the right to do whatever they wanted us to do, a reasonable expectation of uncertainty. With that awareness, I simply sat there. Quietly. My brother did the same. We were in a racial state of rightlessness, effectively outside the reach of the Fourth Amendment. The experience, in other words, was disciplinary. Although I didn’t know it at the time, we were one step closer to becoming black Americans. Unwillingly, we were participating in a naturalization ceremony within which our submission to authority reflected and reproduced black racial subjectivity. We were being “pushed” and “pulled” through the racial body of America to be born again. A new motherland awaited us. Eventually we would belong to her. Her racial burden was to make us Naturalized Sons.

Without our consent, one of the officers rummaged through the entire car—no doubt in search of ex post probable cause; the other watched over us. The search yielded nothing. (No drugs.) (No stolen property.) (No weapons.) Ostensibly, we were free to leave.

But what if the search had resulted in the production of incriminating evidence? That is, what if the officers’ racial suspicions were confirmed? Would that have rendered their conduct legitimate? Would they thereby become “good” cops? Would that have made us “bad” blacks—blacks who confirm negative stereotypes, blacks who are undeserving of public sympathy, blacks who discredit the race?

One of the officers asked for my driver’s license, which I provided. My brother was then asked for his. He explained that he didn’t have one because he had been in the country only a few weeks.

“Do you have any identification?”

“No. My passport is at home.” We both knew that this was the wrong response.

The officers requested that we stand up, which we did. Pursuant to black letter law, or the law on the street for black people, they forced us against the side of the patrol car. Spread-eagled, they frisked and searched us. (Still no guns.) (Still no drugs.) (Still no stolen property.)

The entire incident lasted approximately twenty minutes. Neither officer provided us with an explanation as to why we were stopped. Nor did either officer apologize. By this time, I understood that we were not in a position to demand the latter, even as I did not understand that, in some sense, the entire event was racially predetermined. The encounter ended when one of the officers muttered through the back of his head, “You’re free to go.”

“Pardon?”

“I said you can go now.”

And that was that. The racial bonding was over (for now). I wanted to say something like, “Are you absolutely certain, Officer? We really don’t mind the intrusion, Officer. Do carry on with the search. Honest.” But the burden of blackness in that moment rendered those thoughts unspeakable. Thus, I simply watched in silence as they left.

The encounter left us more racially aware and less racially intact. In other words, we were growing into our American profile. Still, the officers did not physically abuse us, we did not “kiss concrete,” and we managed to escape jail. Relative to some black and Blue encounters, and considering my initial racial faux pas—questioning authority/asserting rights—we got off easy.

A Note on How This Changes Minds

There is a long tradition of Critical Race Theory scholars deploying narrative, including personal narrative, to tell different stories. To offer counter-accounts. To critique and “assess law’s master narratives.” And to open up the possibilities of legal scholarship. For me, one of the most powerful examples of this is Devon Carbado’s article. Although the article’s focus is how the Supreme Court’s Fourth Amendment jurisprudence is anything but race neutral and in fact constructs and reifies race and racial subordination, it is the personal narrative he opens with that lingers, at least for me. In a way that mere statistics never could, in a way some hypothetical “objective voice” never could, the narrative makes real the race effects of the Court’s decisions about the balance of power between the police and the policed, especially the policed who are Black or Brown. In other words, the policed who look like me, where too often “young + black + male = probable cause.”

There is something else to say about this article, which I’ve assigned many times in the Race, Gender, and Crime seminar I teach, and which informs how I teach Criminal Procedure. The final thing is this: This article, with its use of narrative, continues to teach me what legal scholarship can be. For that, I will forever be grateful. (Bennett Capers, 6/15/23)