You're Being Detained, Sir, For Babysitting Someone of a Different Race

One of the criminal justice blogs I read relates a story of a grandfather, who is Race A, taking care of his granddaughter, who is Race B. The “races” in question are white and black, and the blog identifies which is which, but I thought there might be some value in keeping that information out of this discussion. So in simple terms, we’re talking about a white grandfather babysitting his black granddaughter, OR a black grandfather babysitting his white granddaughter.

The grandfather relates:

Now, of course the police are free to initiate a consensual encounter with any citizen at any time. The touchstone of a consensual encounter is, of course, that the citizen is free to disregard the police and proceed about his business. The moment that’s no longer true, the Fourth Amendment is implicated and the police must able to justify their suspicions.

(The police, in my view, will very often walk down both sides of this street; they will project a commanding presence that makes the ordinary citizen feel as though he has no choice but to remain, and then, should evidence of a crime be revealed, claim piously in court that the citizen was free to leave at any time.)

So – is there any reason to hear either “white man walking down the street holding black toddler’s hand” or “black man walking down the street holding white toddler’s hand” and believe there’s probable cause that a crime is being committed, or even reasonable, articulable suspicion of a crime?

My view is: no. But perhaps an argument can be made for erring on the side of caution and protecting the child by investigating. If anyone thinks there is, I’d like to hear it.

I suspect there’s sexism mixed in here too. If it had been a grandmother with her grandson, or both had been the same gender, I don’t think the scenario is so likely to have happened. Part of the problem is worrying about men molesting little girls, and the race difference just makes that a bit worse.

While I abhor profiling and think the police were overreacting X 10, this entire episode could have been ended in about 10 seconds by the grandfather saying “I’m her grandfather” and to demonstrate, asking the toddler “Who am I”, and the toddler saying “Grandpa!”, instead of getting his back up at the police, who had already told him they were summoned by a complaint, which is profiling by a citizen, not the police.

This was not a reasonable stop by the police, and of course as it dragged out it gets to be more and more like harrassment.

Well, in this case (I read the same blog), the police were responding to a 911 call. A stupid one, but I can understand how the call could have been phrased in a way (say, “old man walking around suspiciously with a young child”) that would lead to the decision to check the situation out; I understand the fear of a police chief who gets the decision not to follow up wrong once-you can all imagine the headlines.(on the other hand, if the call was just “white guy with a non-white child walking around” or vice versa I have zero sympathy for the police).

That being said, in this case, their actions were indefensible. Even if the call merited checking out, it should have taken approximately 15 seconds to figure out this wasn’t a problem-no need for three cars, scaring a young child, or leaving a bad taste in everyone’s mouth. And as you note, it’s a cornerstone of the right we have under the constitution not to be interfered with in our lawful business, and the right to ignore police if we so choose (absent a lawful order not to leave, i.e. an arrest).

There was a fantastic segment on This American Life handling exactly this, where 3 officers pull over a black man walking his white son home. The story ends with the kid screaming at the police officers and calling them a bunch of dicks, and that she’s tired of them fucking up her walk home (more or less).

The situation ends calmly, the cops get in the car, look at each other and say “I dunno. Still looks fishy to me.”

Yeah. Mind you, I’m all for citizens sticking up for their rights, and I think that this guy should complain to police headquarters and write a letter to the papers about this.

But this guy was deliberately prolonging a situation that was upsetting to the child he was taking care of. I’m not too impressed with his standing there polishing his “Fearless Resister of Jackbooted Thuggery” self-image while his hostile exchanges with three belligerent cops scared his two-year-old granddaughter to the point of crying.

I think it’s pretty clear that the police were in the wrong, especially since the gentleman gave his name, address, and birth date (which they presumably had the means to verify) and was apparently polite and cooperative apart from his refusal to answer their intrusive questions. He wasn’t doing anything suspicious, and in fact his behavior was quite unlike someone trying to get away with something. No one should be detained simply for asserting his legal rights.

I’m curious what the legality of the situation is. Obviously, he was within his rights to refuse to answer their questions. I understand that the police have powers of detention in the course of investigating a complaint even without probable cause, but I don’t know how broad they are. (I think they are allowed to make “reasonable” detentions.) Since you read about this on a legal web site, Bricker, I’m curious if any mention was made of pursuing legal recourse against the Austin police, or whether the police have responded to the story publicly.

FTR, I’m not sure whether being coy about the races makes any difference other than being a distraction.

Yes, it’s profiling by a citizen. But if I call 911 to report that my neighbor has “Obama/Biden” signs in his front yard, the police don’t respond; the dispatchedr tells me that having political signs in your yard is not a crime.

Or to pick a slightly less obvious example: in Virginia, it’s legal to carry a handgun about your person, as long as it’s not concealed. Because this is rarely done, especially in the citified Northern Virginia area, often an alarmed citizen will call 911 when he sees someone obviously not a police officer with a gun on his hip. But the correct response for the dispatcher is not to send police out, because the caller hasn’t reported anything that’s a crime. And certainly the police, if they were summoned for such an event, should not escalate it beyond a consensual encounter, because, again, they would lack even reasonable suspicion of a crime.

I don’t see any indication that the girl was crying or even was particularly rattled. If she was handling it ok, I think the value of standing up for our rights and teaching children to do the same outweighs a little annoyance and fear, even for a two-year old.

This.

Totally on Grampa’s side in this one. The cops over-reacted, especially when there a actual crime scene investigation going on. He did the right things, and taught the right lesson to his grand-daughter.

Since the races were (or should be) utterly irrelevant, I wanted to redact them. I wanted to avoid a distraction, in other words, not create one.

Is there a consensus from readers here that they either make a difference, or that they should be revealed to end a distraction of some kind? Anyone? Anyone? Bueller?

I didn’t see any clear evidence that race was the reason the police questioned the person recounting the anecdote. The recounter himself, of course, says it was because of race, but the events he actually reported do not give me any idea at all what the reason was that the pair looked “suspicious” to someone.

-FrL-

BTW for future reference, how do I know the difference between a consensual encounter with the police and some other kind of encounter?

Do I have to ask “Am I free to go?” Or is there some other way to know I can just turn and walk away whenever I’d like?

-FrL-

It would be a more difficult question if there were a problem with old black men abducting young white children. Or vice versa.

A more interesting situation is when a group of black teenagers is sauntering after dark through a town which is 90% white and 10% asian. Should the police shut their eyes to the facts that (1) the kids almost certainly do not reside in that town; and (2) black teenagers comit a lot of crime? (not to mention the fact that teenagers of any race have a tendency to make trouble). Or if that situation is too stereotypical, how about a group of white boys sauntering through a black neighborhood after dark. Is it a fair assumption that there is a good chance they are there looking for trouble?

Well…

So you’re suggesting that the caller mentioned the race of the man and the toddler only in passing, and failed to articulate the real, non-racially-based reason he or she found the pair suspicious?

Well, asking is really the best idea. As I’ve said, in my experience the police take full advantage of the ambiguity of the situation to claim whatever is to their advantage. Two identical detentions will be described differently: if you walk away without a word, even though they’re “asked” you to stay, then you might be charged with resisting arrest - in other words, you weren’t free to go. And if you stay, and evidence of a crime emerges, and you seek to suppress that evidence as the fruit of an unlawful detention, then, magically, it was a consensual encounter before that point and a reasonable person would, according to them, have felt free to leave at any time.

So asking them, clearly, unambiguously, politely, and repeatedly until you get an answer is really the best approach; it forces them to commit to a decision at the time rather than retroactively choosing that which benefits them the most.

Fair only in the sense that the police may initiate a consensual encounter for those reasons. But if the teens choose not to answer… then, yes, the police should be constrained from any further action, because the race of the teens, standing alone, does not serve as proper basis for detention.

I won’t hide my race - I’m white. My son is Korean. Several years ago we were questioned by airport security who did not want to believe that my son was part of our family. Fortunately, he was old enough to speak up himself.

On adoption forums, it isn’t uncommon for people to report having issues “proving” their children are theirs - this seems particularly common when the parents are white and the child is Hispanic - and its warned that crossing the Mexican boarder should only be done with adoption paperwork and passports (this was prior to needing passports) for everyone to prove you are this child’s parent. (Adoptive parents in interracial adoption are overwhelmingly white).

In some ways, as a parent, its refreshing to know that busybodies are out watching to “matching sets” to make sure my kid is not being abducted by a friendly pedophile. But race is a bad reason to match sets in our society. I suspect with adoptive parents, age is also often factoring in - as adoptive parents are often older. So you have someone “too old” and “the wrong race.”
(It isn’t racist in the sense of - this would only happen to a Black person - it happens to White people too).

That was a report in summary of what someone else had said. I couldn’t tell if it was a direct quote or a description pieced together out of disparate comments from the caller or what. Maybe the races were mentioned in response to questions from the dispatcher. Who knows? We’ve got one sentence that doesn’t clearly purport to be a quote from the caller, and that’s all we’ve got.

-FrL-