68 Am. U. L. Rev. F. 55 (2019).

* Distinguished Visitor from Practice and Co-Director, Program on Innovative Policing, Georgetown Law.  I am grateful to Alexandra Skinnion for her excellent research assistance.

In her article, The Reasonable Black Child:  Race, Adolescence, and the Fourth Amendment, Professor Kristin Henning makes a compelling argument for reconceptualizing that Amendment’s “reasonable person” standard to better protect black youth.  Professor Henning shows how the reasonable person standard has long been artificially narrow and selectively objective.  She then explains how this approach to the standard has stunted the body of law rooted in the reasonable person doctrine, by failing to take into account both advances in science and the experiences of black people. Professor Henning describes how these doctrinal dynamics play out in police interactions with black youth, including how they cause unnecessary harm and disproportionate involvement with the criminal justice system.  Professor Henning urges us to build on the Supreme Court’s holding in J.D.B. v. North Carolina by expanding the “reasonable juvenile” concept to include the race of the child as well.  Professor Henning anticipates and effectively counters objections to her proposal, including the argument that her proposal will lead to the “slippery slope” of an unlimited and presumably unmanageable number of standards courts must apply when determining Fourth Amendment reasonableness. Professor Henning ends by offering concrete steps that courts and police agencies can take to reconceptualize the reasonable person standard.

Professor Henning is correct that we need to reconceptualize the reasonable person standard by requiring courts to more explicitly and meaningfully consider race.  This Response argues that, as we do so, we can and should urge police and courts to explicitly consider Latinx ethnicity as well.  This Response begins by arguing that considering all relevant demographic characteristics is in keeping with proper application of the Fourth Amendment reasonable person standard (at least in those contexts discussed in Professor Henning’s Article), as is clear when the import of the “totality of the circumstances” test is fully considered. Thus, considering Latinx ethnicity as well as race is not an expansion of Professor Henning’s proposal, notwithstanding the “slippery slope” objectors.

This Response then argues that we should specifically consider Latinx interactions with and treatment by the police, rather than subsuming ethnicity into race, as is often done when considering Latinx in the United States, particularly in the criminal justice context.  The Response explains how this tendency has both reflected and contributed to a lack of data and analysis about the involvement of Latinx in the criminal justice system, including the impact of policing on Latinx.

Finally, this Response argues that greater understanding and explicit consideration of Latinx treatment by the police is long overdue and urgently needed.  Latinx are a large segment of the United States population—nearly one in five people in the United States is Latinx, making Latinx, behind whites, the largest racial or ethnic group in American—and there is reason to believe they are disproportionately policed.  In addition, erasing Latinx ethnicity masks disparities between black and white people in the criminal justice system.  Moreover, while in some respects the experience of Latinx vis a vis the police overlaps with or is similar to the experience of African Americans and the police, the Latinx experience is unique. Addressing police-related concerns of African Americans thus is unlikely to fully address the police-related concerns of Latinx.  Finally, the long history of mistreatment of Latinx by United States law enforcement, alongside the current anti-Latinx climate, underscores both the chronic and acute need for a more complete understanding of treatment of Latinx by the police.