The appeal of a 2016 murder conviction in Contra Costa County Superior Court, California has brought front and center a new problem facing trial courts: the constitutionality of peremptorily striking jurors who indicate their support of the Black Lives Matter movement.
In the seminal case of Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court ruled that a prosecutor’s use of a peremptory challenge to strike a juror solely on the basis of race violates the Equal Protection Clause. Following Batson, a defendant could make a prima facie showing of improper racial discrimination by demonstrating that he or she is a member of a “cognizable racial group” and that the prosecutor exercised peremptory challenges to “remove from the venire members of the defendant’s race” on account of such juror’s race. Once the defendant makes this prima facie showing, the burden shifts to the government to demonstrate a racially neutral explanation for the strike.
In People v. Silas, three defendants were convicted of murdering a Northern California couple and subsequently sentenced to life in prison. During voir dire, an African-American juror was questioned extensively about her support of the Black Lives Matter movement after mentioning the movement in response to a question inquiring about membership in any “justice-focused special-interest” groups. When the juror was seated as an alternate, the prosecution peremptorily struck her. The defense raised a Batson objection, to which the prosecution cited several, perhaps ostensible, race neutral justifications, including that the juror showed up late and was “openly hostile” when being questioned about her support of Black Lives Matter.
Ultimately, the court overruled the defense’s Batson objection and the juror was dismissed. In overruling the objection, however, the court went as far as to mention that it almost struck the juror for cause during voir dire. The court proclaimed that the juror’s support of Black Lives Matter “[gave] cause to question” her fitness to serve on the jury due to the movement’s penchant for “disobeying the law.” The judge’s example of such was a single incident in which Black Lives Matter protestors apparently locked arms and stopped traffic on a highway in Oakland, California.
The defendants’ appeal argues primarily that support for Black Lives Matter is “inextricably bound up” with race such that support for the movement is not a race neutral justification for striking a juror. In addition to race itself, courts have determined that it is impermissible to strike jurors on pretextual grounds that are mere surrogates for race. See United States v. Bishop, 959 F.2d 820 (9th Cir. 1992) (black juror’s residence in Compton was not a race neutral justification for peremptory challenge). Still, courts are divided on other juror characteristics that may well be considered obvious proxies for racial identity. For instance, whereas South Carolina courts have determined that it is racially discriminatory to strike a juror for wearing dreadlocks, McCrea v. Gheraibeh, 669 S.E.2d 333 (S.C. 2008), a California court allowed such strike where the prosecution justified its action by insisting that “dreadlocks are  associated with a Reggae culture [which] promotes drug use . . . in general.” People v. Duncan, 2006 WL 3480375, at *3 (Cal. Ct. App. Dec. 4, 2006). In short, the law is malleable and largely undefined in this context.
The issue of Black Lives Matter support as a predominant factor in exercising a peremptory challenge is currently being faced in courts across the country. See State v. Campbell, 838 S.E.2d 660 (N.C. Ct. App. 2020); Cooper v. State, 432 P.3d 202 (Nev. 2018); State v. Gresham, 2016 WL 7338718 (Minn. Ct. App., Dec. 19, 2016).
Ultimately, a higher court’s decision on the constitutionality of such strikes is likely to be informed by its characterization of the movement itself. Many view the movement as a concerted effort to reinforce the humanity of people of color, which has increasingly come under assault by the systemic racism in contemporary society. To such, asserting that “black lives matter” is nothing more than re-affirming what should be an obvious truth. With such an understanding, a court would surely determine that support of the movement is inextricably intertwined with racial identity and that to strike a juror for believing in the worth of black lives is a quintessential violation of the rule in Batson. To others, the movement is inherently political. Despite its name, some believe the movement advocates primarily for specific policy initiatives traditionally associated with far left ideologies. With such a characterization, a court may well determine it as permissible to peremptorily strike a juror indicating his or her support of the Black Lives Matter movement as it would be to strike a juror supporting any other political ideology deemed “too radical.”
Regardless of the outcome, any higher court’s decision on the issue is certain to be politically polarizing. As such, the zeitgeist surrounding the movement, and persisting throughout the country, will play a vital role in swaying a court’s judgment on the issue.