Erwin Chemerinsky. Credit: Berkeley Law

If you’ve ever turned on a television crime drama, you’ve heard the warning that begins, “You have the right to remain silent.”

But as Erwin Chemerinsky, dean of UC Berkeley School of Law, argues, the rights mentioned in the Miranda warning aren’t always applied appropriately. Police can engage in dubious practices to coerce confessions and suspects, disproportionately people of color, too often wind up wrongfully arrested, convicted or even killed.

In his new book, Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights, Chemerinsky casts a cold eye upon the U.S. Supreme Court for the enabling of racist policing.

Pick any page in the book at random, and you’re likely to strike an example of the Supreme Court chipping away at the rights of poor criminal defendants of color or a chilling anecdote demonstrating racial bias in policing.

Chemerinsky opens his book with the killing of George Floyd and quickly moves on to the 1980s Supreme Court decision that makes it is nearly impossible to stop police officers from using chokeholds. City of Los Angeles v. Lyons involves an African American man stopped for a broken taillight and put in a chokehold by police officers for “mouthing off” when he complained of tremendous pain as the officers shoved him against the vehicle.

Lyons was gravely injured and sued to limit the LAPD’s use of chokeholds to life-threatening circumstances. While the 9th Circuit Court of Appeals agreed with Lyons, the Supreme Court “accepted the City’s argument that Lyons lacked standing to sue in federal court because he could not show that he personally was likely to be put in chokehold by an LAPD officer in the future.”

In a telephone interview, Chemerinsky explained that the Lyons decision effectively undermined rights to challenge the constitutionality of police practices in federal courts.

“Suits that have challenged strip searches or racial profiling by police have been dismissed because a person can’t show it is likely to happen to him or her again,” he said. “You can’t challenge police behavior even if you know it’s going to hurt somebody unless you can show it will hurt you” in the future, a nearly impossible burden.

Presumed Guilty documents racial bias in the history of policing before explaining some of the more rights-protective Supreme Court decisions of the 1960s, such as Miranda v. Arizona. Commenting on the Warren Court, Chemerinsky said, “Between 1961 and 1969 was the only time in American history there’s been a liberal majority on the Supreme Court. It’s not surprising that it was then that the Court [said] evidence gained as a result of an illegal police search has to be excluded, that criminal defendants have the right to a lawyer in state court if they can’t afford one, that police have to give warnings before they question somebody in custody.”

However, the Supreme Court went on to limit the applicability of earlier Warren Court decisions, further opening the door to racist policing. A notable example described in Presumed Guilty, Terry v. Ohio, allowed police to “stop and frisk” a person if an officer has a “reasonable suspicion” that a crime has been or will be committed.

Chemerinsky pointed out the Terry v. Ohio standard is “a much more lenient, much vaguer standard,” than the Fourth Amendment’s “probable cause” standard, which has led to more racist policing. “The result is that it gives police tremendous discretion to be able to stop people, and I know that this [has been] used in a racialized way. Statistics show that Blacks are much more likely to be stopped than whites, holding everything else constant.”

Chemerinsky lays out his argument clearly, carefully and passionately in Presumed Guilty. The book is accessible enough to hold the attention of readers without law degrees, powered by the author’s justifiable sense of righteous indignation. In case after case, Black men are unlawfully incarcerated, killed and executed, and the police and prosecutors are almost never held responsible, criminally or civilly.

The author of 14 books, including The Conservative Assault on the Constitution, Closing the Courthouse Door and We the People: A Progressive Reading of the Constitution for the Twenty-first Century, Chemerinsky argues the Supreme Court has too often failed in its obligation to uphold the civil rights of Americans, especially racial minorities.

A ‘blessed career’

A resident of Oakland’s Upper Rockridge neighborhood, Chemerinsky works alongside his spouse, labor and employment law expert Catherine Fisk, who is herself a 1986 Berkeley Law alum. Currently in his fifth year as dean of Berkeley Law, Chemerinsky has said he’s enjoyed “the most wonderful, blessed career.”

Just before taking the helm at Berkeley Law, he spent nine years as the founding dean of the UC Irvine Law School. “How many people ever have the opportunity to found a law school?” he wondered.

He has also taught at DePaul Law, at Duke Law and (for over 20 years) at USC Law, and has had the opportunity to argue seven times in front of the Supreme Court and around 100 times in lower courts. He spent two years in an elected position in Los Angeles, where he chaired a commission to rewrite the City Charter. And he also finds time to dabble in the performing arts: When Berkeley Law brought the live performance of “The Shylock Appeal” to Freight & Salvage in 2020, he assayed the role of the prosecutor in that twist on “The Merchant of Venice.”

Perhaps because he’s been such a prolific commentator for print and broadcast media in addition to teaching, research and theatrical responsibilities, friends reportedly joke that he sleeps only in leap years.

In 2000, Chemerinsky was tapped to lead an investigation of the Los Angeles Rampart scandal, in which officers planted evidence on suspects and committed perjury. Surprisingly, he was selected by the police union.

“I was impressed by most of the officers I met,” he said. “I think they want to do the right thing. They’re remarkably sophisticated about the law. But I also saw very deep problems with the Los Angeles Police Department, especially in its culture.”

Serving as dean

Since arriving at Berkeley Law, Chemerinsky has dealt with difficult budget years and a controversy about the name of the institution.

By coincidence, the day after it was announced that Chemerinsky was going to be the dean, there was an op-ed in the San Francisco Chronicle about the racist past of the school’s namesake John Boalt. “He had said very many ugly things,” said Chemerinsky, “especially about Chinese Americans, but also about Blacks and about Native Americans.”

Chemerinsky created a five-person committee, chaired by a senior administrator, and including a faculty member, a staff member, a student and an alumnus. “I said, ‘Research this. I want to know all the details about the Boalt gift,'” he said.

Almost a year later, the committee “couldn’t come up with anything positive that justified honoring him.” After asking for comments from the wider Berkeley Law community, Chemerinsky decided to recommend that the Boalt name no longer be used. Chancellor Carol Crist and Janet Napolitano, then the president of the University of California, agreed.

Chemerinsky said that “tremendous progress with regard to diversity” has been made at Berkeley Law in recent years, noting that when he arrived there were only 12 African American students in the first-year class. “This year there are about 40, and the school saw a 50% increase in the number of Latinx students, compared to last year,” he said. “We don’t engage in affirmative action. We don’t use race in any way to give preferences in admissions or in hiring. We look for other ways to increase diversity consistent with Prop 209.”

New approaches

Chemerinsky is not hopeful the Supreme Court will act to curb abuse by cops against Black and brown citizens anytime soon, given its current configuration.

“Amy Coney Barrett was 48 years old when she was sworn in last Oct. 26,” he said. “If she remains on the court until she is 87, the age that Justice Ginsberg died, Barrett will be a Supreme Court Justice until the year 2059. I think we have to look elsewhere besides the Supreme Court for reform.”

In the final chapter of Presumed Guilty, Chemerinsky discusses possible remedies through Congress, the federal justice department, state supreme courts, state legislatures, city councils, or local police commissions putting checks and greater controls on the police.

He said he’s been following the work that some communities, including the City of Berkeley, are taking in “reimagining public safety.” Noting that he opposes abolishing the police, he said he believes some tasks, such as mental health and traffic enforcement, can be shifted to other agencies. He cited Columbia professor Sarah A. Seo’s book Policing the Open Road, a history of how discretionary traffic enforcement has exacerbated discriminatory policing.

“It is certainly something we should think about,” he said.

A New Hampshire native, freelancer Michael Berry has been a resident of Berkeley since the early 1980s. A long-time reviewer of science fiction and fantasy for the San Francisco Chronicle, he has written...