California Racial Justice Act and Racially Themed Language in Undercover Questioning

"Ramsey contends that conducting an undercover operation targeting an African American inmate by using racial slurs ... and introducing and admitting into evidence a recording from the undercover operation violates [the Act]."

From Tuesday's decision in People v. Ramsey, by Justice Frances Rothschild, joined by Justices Helen Bendix and Gregory Weingart (expurgations in original, as are the unexpurgated slurs):

Rashaud Ramsey appeals the judgment of conviction for murder….

Police arrested Hassan [Ramsey's alleged coconspirator] on November 10, 2022, more than a year after the Ramsey interrogation and almost two years after the shooting. Detectives placed him in a cell with an undercover law enforcement officer and audio-recorded their conversation. The recording was played at trial.

The officer asked Hassan, "Wassup with you? Why you got your head down [B]lack man?" Hassan responded that he was "messed up" and did not know what to do. The officer told Hassan, "Got to keep your head up. Wassup N***a? I've been through some shit. But what the fuck they talking to you about?"

Hassan told the officer that his cousin and his cousin's friend killed a "boy, and shot his brother and his sister." He admitted he was at the scene of the murder but denied participating in it.

The officer said, "So, so you said your peoples was up in the house? So what happened with their shit n***a?" Hassan responded that "[b]asically, what was supposed to go down was a robbery, and a robbery didn't take place." Hassan explained that his cousin and the friend had asked him to participate in a robbery, and Hassan agreed. While in the car Hassan's cousin and the friend talked "some nonsense" about killing someone. Hassan told them it was not worth it, and they did not need to kill anybody. They appeared to agree, but once they got to the crime scene, Hassan's cousin and the friend "bust[ed] in shootin[g]."

The officer asked what Hassan did with the guns. Hassan responded that his cousin and the friend got rid of them. He admitted he had touched one of the guns, and when shots were fired he ran out of the house. Hassan's cousin accidentally shot his friend as they ran away.

The officer asked if "these n***as is like, like, y'all just talking and they said man, let's go hit these n***as [the victims], or what?" Hassan responded they were just talking about what they could do to get money, and believed the victims had jewelry or some money. The officer asked how they got into the house. Hassan responded that they arrived in his cousin's friend's car, entered through an open window on the side of the house into a dark, unoccupied room. His fingerprints might be in the car but would not be in the house because he wore gloves and a mask, which he later discarded….

Ramsey contends for the first time on appeal that admission of Hassan's jailhouse statements violated the California Racial Justice Act of 2020 because the undercover law enforcement officer posing as a cellmate used the word "nigga" a few times in referring to Hassan, his accomplices, including Ramsey, and the victims.

The Racial Justice Act provides that "[t]he state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin." A violation of the statute occurs where, inter alia, "a law enforcement officer involved in the case … exhibit[s] bias or animus towards the defendant because of the defendant's race, ethnicity, or national origin."

A violation also occurs if, during trial, "the judge, an attorney in the case, a law enforcement officer involved in the case … use[s] racially discriminatory language about the defendant's race … or otherwise exhibit[s] bias or animus towards the defendant because of the defendant's race …. This paragraph does not apply if the person speaking is relating language used by another that is relevant to the case." …

Ramsey contends that conducting an undercover operation targeting an African American inmate by using racial slurs … and introducing and admitting into evidence a recording from the undercover operation violates [the Act].

Here, the context of the undercover officer's use of the word "nigga" shows it was intended to create rapport with Hassan rather than to "explicitly or implicitly appeal[ ] to racial bias." "Nigga is not an unambiguous racial epithet in today's world, especially when used intraracially." (Daniel v. Wayans (Cal. App. 2017).) The term "can be an affectionate greeting, a compliment, or a term of respect." The undercover officer used the word "nigga" with Hassan in a neutral if not friendly sense. {Ramsey assumes the officer was Black, but the record does not reflect his race.} Nothing in the record shows Hassan interpreted the word as a racial insult or statement of racial bias or animus.

Ramsey thus could not have established at trial, and no factfinder reasonably could have found, that the officer used racially discriminatory language within the meaning of the Racial Justice Act or exhibited racial bias or animus toward even Hassan, much less Ramsey.

Noah P. Hill and Thomas C. Hsieh represent the state.