Racismo e práticas racistas na concretização normativa da abordagem policial por “fundada suspeita”: o caso do HC 208.240/SP

Abstract

The issue of police stops based on an individual's race is a recurring subject of legal, political, and sociological discussion in Brazil. The importance of the matter is demonstrated by frequent reports of police arbitrariness. Stop-and-frisk based on reasonable suspicion is a possible mechanism for such arbitrariness. The last occasion on which the Brazilian Supreme Federal Court debated the issue was during the trial of Habeas Corpus No. 208.240/SP, which prohibited racial profiling in police activities, meaning, personal searches based on race, color, ethnicity, language, ancestry, religion, nationality, place of birth, or any combination of these factors are prohibited. This paper aimed to perform a qualitative analysis of this decision, based on a reading of the full text available on the Supreme Court's portal. It included an analysis of the reasoning of the ministers, with the interpretation of the Court’s definitions of racism and reasonable suspicion. In addition, it examined whether the Court established guidelines for the judicial system and police institutions regarding the proper procedure for verifying racist behavior by police officers. Before analyzing the decision, the judicial definition in Brazil of the criminal procedural institution of personal searches was presented. Secondary data were also provided showing the high volume of police stops in the state of São Paulo and the higher incidence of black individuals being treated as suspects in these stops. The paper sought to demonstrate the various concepts of racism, based on the concept of structural racism presented by Almeida (2019), and to build a relationship between racism, colonialism, and police activity in constructing the figure of the black person as a suspect. Emphasis was placed on the analysis conducted by Silva (2009) of the training of the Military Police of the Federal District. The research methodology used comprised bibliographic and documentary research on the subject in Brazil, as well as a quantitative analysis of secondary data.