Starbucks will close 8,000 stores in late May for several hours to conduct racial-bias training for workers after the company issued an apology for the arrest of two black men at a store in Philadelphia. (John G. Mabanglo/EPA-EFE/Shutterstock)
Sarah A. Seo is an associate professor of law at the University of Iowa College of Law, whose essay on Jerome Hall's theory of democratic policing is forthcoming in The Yale Law Journal.

A little over a week ago, two black men were arrested for refusing to leave a Starbucks while waiting for a potential business partner to arrive. This is yet another example of the persistence of racism, particularly when police are involved. After all, for most white Americans, getting arrested for being in a coffee shop seems unfathomable.

But in 1980, something similar did occur to a white man — who happened to be one of the nation’s leading criminal law scholars.

Jerome Hall’s story reveals another facet of the problem that should not be lost in the need to highlight the burdens of race: the vast power and discretion that our laws grant the police. Hall’s story makes clear that addressing bias cannot be the only solution. We also need to reconsider our dependence on policing.

On Sept. 13, 1980, the 80-year-old professor entered a San Francisco hotel lobby for a brief rest. Hall was conservatively dressed in a custom-tailored Savile Row suit and a Borsalino hat bought in Milan. Nonetheless, security asked Hall to leave because he was not a guest of the hotel.

When Hall remained seated, security summoned a police officer, who informed Hall that he was trespassing. The officer then grabbed Hall, shoved him out of the lobby, demanded identification and threatened arrest. Hall handed the officer his business card, which identified him as a law professor. Disregarding this identification and Hall’s claims that he had a right to be there, the officer asked for a driver’s license and called a patrol car. Embarrassed by the large crowd gathering around the commotion and stunned by the officers’ repeated threats to arrest him, Hall left as instructed.

The experience traumatized Hall. Weeks after the incident, he sent a letter — written on his Hastings Law School stationery — to the San Francisco chief of police and then mayor (now senator) Dianne Feinstein. Mayor Feinstein wrote back that she had directed the police chief to conduct a full investigation.

In the meantime, Hall researched the legal issues. He already knew that well-settled case law allowed the police to detain individuals temporarily even if no crime had been committed, so long as it was “reasonable” to do so. This was the Supreme Court’s 1968 holding in Terry v. Ohio, which legalized stop-and-frisks. In fact, for decades leading up to Terry, Hall had been one of the most vocal advocates for changing centuries-old laws to permit the police practice.

Hall was unsure, however, whether the police had the authority to forcibly eject him from the hotel lobby and demand identification. Notwithstanding his claims to the officers, and despite having been a scholar of criminal law for more than 50 years, he did not know the answer.

What Hall discovered, recorded in handwritten notes archived at the Hastings Law Library, must have stunned him just as much as the police’s conduct.

He found a leading California case that established the right of businesses to “promulgate reasonable deportment regulations that are rationally related to the services performed and the facilities provided.” Perhaps the most conclusive support for the police’s authority to remove Hall from the hotel lobby was the San Francisco code that made it “unlawful for any person to linger, loiter, sit or stand in any public room in any hotel in violation of the expressed wish of the owner or manager of such hotel.”

These laws gave the police the authority to deal with public-order maintenance in any way deemed “reasonable,” including a short detention, a demand to see identification and, ultimately, an arrest. They did not require police officers to act proportionally to the situation at hand or in ways that respect the dignity of the individual. The scholar who had spent his career writing about the limits the rule of law placed on arbitrary policing learned by experience that in real life, a legal standard that commanded the police to act reasonably actually allowed them to act unreasonably.

Recurring injustices against people of color show that the police tend to use their discretionary power in discriminatory ways. So why does Hall’s story matter?

It is important to acknowledge that racism, overt and implicit, influences police action. But the focus on race may have the unintended consequence of limiting our thinking about the powers we grant the police and, as a result, about possible solutions. Put bluntly, the problem with policing in America is not only about race and bias. It is also about what Hall came to understand, perhaps too late in his academic career: The police have too much power.

Soon after the story of the Starbucks arrests went public, CEO Kevin Johnson announced racial-bias training for its employees. This is a necessary step forward.

Meanwhile, Police Commissioner Richard Ross stated that the arresting officers “did absolutely nothing wrong. They followed policy; they did what they were supposed to do.” (Ross has since apologized for those statements.) As a matter of law, but certainly not as a matter of fairness, the commissioner is arguably right.

Philadelphia not only has an anti-loitering law that applies to “private property used to accommodate the public,” but the Starbucks manager also accused the men of trespassing. Even if the men had not violated any laws, officers could make an arrest if they believed that a crime, including trespass and violations of anti-loitering laws, had probably taken place.

As in 1980, the laws today still extend enormous leeway to police in exercising their judgment as to how to best maintain public order. But do we want to live in a society where the police can arrest individuals simply for being in a cafe without buying coffee?  If not, then we have to do more than fight racism. We also have to reconsider the laws giving police such immense discretionary power.

Hall’s story raises a thought experiment that might suggest some possible legal changes: How would our policies and laws be different if the police routinely treated white people the way that they do minorities? We would surely not be satisfied with sensitivity training. We would find ways to curb the police’s power while still ensuring public safety. This could also be a more straightforward way to address racialized policing than the elusive effort to eliminate implicit biases.