HR 118 Continued...
...by Mark Drake
Our Spring '97 issue mentioned Cong. John Conyers's "Traffic Stops Statistics Act," which will be reintroduced this year under a different number. Working with a generous grant from the Greenville Foundation specifically earmarked for research and public education on Highway Patrol matters, CLMP has been making contacts which help to put our local experience in the national context. The following is an abridged version of testimony by Prof. David A. Harris before a conference of the Congressional Black Caucus on September 12, 1997. Although a bit long for the newsletter, and originally written with a specific emphasis on the effect on minority communities of the destruction of the Fourth Amendment, it's too important and lucid not to share with our readers.|
"I am a member of the faculty of the University of Toledo College of Law, where I teach Criminal Law, Criminal Procedure, Constitutional Law, and Legal Ethics. My area of expertise is the law of searches and seizures under the Fourth Amendment to the United States Constitution, particularly how the law in this area effects African Americans. The impact of police search and seizure practices on the relationship between police and African American communities deserves our careful attention, and this forum will allow us to discuss some of the issues involved in constructive ways.
For many years, the bottom line rule in search and seizure law was simple. In order to be able to stop a person driving a car or walking down the street for purposes of conducting an investigation, the police needed a reason to suspect that person of involvement in criminal activity. In some situations that reason was measured by the probable cause standard; in others, involving only a temporary detention, the police needed only reasonable suspicion, an amount of evidence less than probable cause. Whichever standard was used, however, the principle was the same: There had to be some reason to suspect involvement in a crime. An officer's hunch or a gut instinct was not a sufficient legal basis for a stop.
This was the law (and in fact the Supreme Court says it still is), but the reality on the street was often quite different. Police have long used traffic stops -- pulling a driver over for a traffic offense -- as a way of stopping people about whom they have no solid reason to suspect any criminal involvement. As this practice was tested in courts around the country, courts split over the proper response. On the one hand, many courts indicated that stopping drivers for traffic violations, when police are interested not in traffic enforcement but in investigating crimes of which there is no evidence, violated the Fourth Amendment to the Constitution. Other courts took a different view, saying that any time there was a traffic violation there was probable cause for a stop; the officer's real motivation for making the stop was immaterial.
In 1996, the issue reached the U.S. Supreme Court. In Whren v. U.S., 116 S. Ct. 1769 (1996), the Justices declared that any traffic offense committed by a driver was a legitimate legal basis for a stop. In other words, any time a police officer sees a traffic offense, the officer may stop the driver, even if the officer has absolutely no interest in traffic enforcement and in fact is interested in the driver for other reasons which themselves would not be legally adequate for a stop.
On the surface, this may sound acceptable. After all, how are courts to differentiate between cases in which officers make stops for genuine traffic enforcement, and stops made for harassment or simply to fish for evidence? The Supreme Court felt that this would be too difficult a task to impose on lower courts. It also said that its prior cases dictated that the subjective intent of the officer should play no role; if a traffic offense had occurred that could serve as the legal basis for the stop, the officer's real reasons made no difference.
But what the Supreme Court refused to recognize in Whren is at least as important as what it did. In fact, pushing beneath the bland rhetoric of the opinion in Whren, one finds two disturbing realities. The first applied to every American; the second affects African Americans, Hispanics, and other members of minority groups.
The first comes from traffic and vehicle laws themselves. Every state has a vehicle code. We seldom think about it, except in the context of well-known "moving violations" -- speeding, failing to stop for a stop sign, and the like. It turns out that these codes are filled with a dizzyingly detailed level of driving regulation.
The upshot is simple: Virtually all drivers violate some provisions of the vehicle code at some time during any short drive. No driver is perfect; a violation, even if only a technical one, cannot be avoided. This means that all drivers are subject to being pulled over almost any time, as long as police are willing to follow them for a short distance. In other words, it's open season on drivers everywhere, and -- thanks to Whren -- the real reasons for the stop don't matter. This is obviously a reversal of the time-honored principle I mentioned earlier. Now, instead of police needing some reason to think a person is involved in criminal activity in order to treat him as a suspect, the ever-present traffic offense provides all the justification that is ever needed.
As citizens of a constitutional democracy in which police and government power are supposed to be limited, it should disturb all of us that law enforcement basically has the discretion to stop any of us at any time, for even the most trivial reason. But the worst aspect of the decision in Whren is actually something else. Police will not use this power to stop just anyone."
[This is followed by details of several cases from different areas around the country demonstrating a single-minded concentration on minority group members by state and local police employing pretext stops to set up what amount to "fishing expeditions."]
"Doing this to citizens of a democracy, year in and year out, is not healthy for our nation or our politics. It will sour our citizens on law enforcement, and further polarize the relationship between people and government. This is the unacknowledged cost our country suffers under current law enforcement policies, and it is a cost that we should not impose on ourselves if we are to continue as a free people. But police stops of the innocent are only one part of the problem. If these stops are imposed disproportionately on Americans with dark skin, this is not only an unwise policy but a grossly unfair one that violates the constitutional principle of equal justice under law in the most basic way.
I wish I could say that the Supreme Court heard these arguments and seemed prepared to respond positively to them, to take action that would right these wrongs. On the contrary, the Court seems determined to ignore them. When presented with these arguments in the briefs of counsel in Whren, the Court brushed the racial question aside in a few tepid lines, saying it had no place in Fourth Amendment law. And in two new cases this past term, the Court further extended police power over cars and drivers. In Ohio v. Robinette, 117 S. Ct. 417 (1996), the Court rejected the argument that officers seeking consent to search a car must tell the driver he is free to refuse permission and leave. And in Maryland v. Wilson, 117 S. Ct. 882 (1997), the Court gave police the power to order passengers out of stopped cars, whether there is any basis to suspect they are dangerous or not. In short, the Court has taken all courts out of the business of supervising this type of police conduct, and in fact continues to enlarge the discretion of law enforcement in virtually any situation involving cars.
With the Supreme Court abdicating any role for the judiciary in regulating these police practices, leadership must come from other institutions. Our chair here today, the Honorable John Conyers of Michigan, has taken the first step in introducing H.R. 118, the Traffic Stops Statistics Act of 1997. This bill would require police departments to keep and report to the Attorney General several kinds of data on traffic stops. This will allow the first statistically rigorous study of these practices. If the study confirms what people of color have experienced for years, it will put to rest once and for all the idea that African Americans who have been stopped for "driving while black" are just imagining that this is a common practice. We can then begin to take concrete steps to channel police discretion more appropriately.
Everyone wants criminals caught. Few feel this with more urgency than African Americans, who are so often the victims of crime. But we must choose our methods carefully. As a country, we must strive to avoid police practices that impose high costs on law abiding citizens, and that skew those costs heavily on the basis of race. We must eliminate this vestige of American apartheid. A failure to come to grips with this issue will not only hurt African Americans. It will hurt all of us."
Our thanks to Prof. Harris for providing this testimony. For anyone interested in more detail, the CLMP office has a copy of Prof. Harris' 38-page law journal article, "'Driving While Black' and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops" from which the testimony above was derived.
And if anyone out there -- especially with research or statistical skills -- would like to help us follow through on this, please get in touch.