Thin blue lies: how pretextual stops undermine police legitimacy.

• Author: Blanks, Jonathan
• Position: Whren at Twenty: Systemic Racial Bias and the Criminal Justice System

CONTENTS INTRODUCTION I. THE ROLE OF POLICE LEGITIMACY II. THE SOCIAL IMPACTS OF PRETEXTUAL STOPS III. PRETEXTUAL STOPS REST ON LEGAL FICTIONS IV. PROCEDURAL JUSTICE AS LEGITIMACY TOOL V. THE PRETEXTUAL STOP IS A DISHONEST PRACTICE INCOMPATIBLE WITH PROCEDURAL JUSTICE VI. CHANGING INSTITUTIONAL INCENTIVES VII. LEGAL REFORM AND "LEGITIMACY-BASED LAW ENFORCEMENT POLICY" CONCLUSION INTRODUCTION

Henry Hart wrote that the criminal law serves as "the foundation of a free society's effort to build up each individual's sense of responsebility as a guide and stimulus to the constructive development of his capacity for effectual and fruitful decision." (1) Police officers are the most emblematic and visible representatives of the criminal law that the average, law-abiding citizen encounters. If Hart's assertion is correct, then the police force must serve a prominent role in the quality of that foundation for individuals in a community. And if the legitimacy of that force is compromised by unequal enforcement of law, unwarranted criminal suspicion, and erosion of constitutional rights, the community suffers both from the inequity of law and an attack on the moral underpinnings of the community.

Recent Black Lives Matter and similar protests in Baltimore, Maryland; Ferguson, Missouri; New York City, New York and many other municipalities demonstrate that many police departments are lacking legitimacy in the eyes of many people they are sworn to protect and serve. This is particularly true for African Americans. Some of the underlying conflict is no doubt historical, as police and communities of color have been in tension as long as they have coexisted. To this day, African Americans continue to have lower trust in law enforcement (2) and report more negative traffic stop experiences with police (relative to population) than white Americans. (3) It would be simpler to attribute these phenomena to individual racism--whether they are due to overt discrimination or implicit race bias--than to deal with them as systemic problems because, in theory anyway, getting rid of a few officers is easier than revamping the way a police organization operates.

Whren v. United States (4) clarified the Supreme Court's support of the practice of pretextual stops--using minor traffic violations as a reason to stop a person in order to investigate suspicious activity. However, a tactic's legality does not make it inherently ethical, just, or effective. The following essay considers the role of pretextual stops in relation to police departments' relationship with minority communities, particularly black communities. I argue that pretextual stops are one part of a larger and deeply troubling melange of legal fictions, intentional deception of the innocent, and perverse incentives that undermine the perceptions of legitimacy of law enforcement, particularly for black Americans. As a partial remedy to the larger problem of police legitimacy in black communities, I contend the use of pretextual stops ought to be severely curtailed or eliminated outright in order to improve police relationships with African Americans.

1. THE ROLE OF POLICE LEGITIMACY

   Compliance with the law is a voluntary exercise in a free society, and governments have limited capability to increase that compliance. That said, in a functional and lawful society, most people follow most of the laws most of the time. The two dominant methods the government can use to encourage compliance with the law are deterrence through fear and cooperation through legitimacy. Very basically summarized, the former assumes individuals fear punishment for violating the law; the latter relies on an individual's acceptance of the legitimacy of the government or its agents that create and enforce those laws. (5)

   Deterrence plays a role in policing, but that role may currently be too large relative to its effectiveness (6) in many cities. For the purposes of this essay, assume that aggressive enforcement of the law through traffic and pedestrian stops is, in part, a stratagem for deterring crime and the carrying of contraband and that there is a positive effect on crime reduction. But heavy enforcement in areas that have been and continue to suffer high crime strongly suggests that such deterrence-through-enforcement has its limits. (7) This deterrence may also have unintended costs by sowing or reifying mistrust--thereby undercutting the legitimacy--of the police in black communities. Taking the findings further then, if the presence of legitimacy increases compliance with the law, the absence or diminishment of legitimacy may decrease compliance with the law. Aggressive policing that undermines police legitimacy may have negative effects on public safety and crime rates. Thus, improving police legitimacy may be just as important to the communities as it is to the relationship between those communities and the police.

2. THE SOCIAL IMPACTS OF PRETEXTUAL STOPS

   Research by Professor Charles Epp and others from the University of Kansas suggests that traffic stops have no effect on drivers' trust in police from drivers who get caught speeding when they believe they were treated fairly, regardless of race. (8) Epp's research suggests that despite generally higher levels of distrust that blacks feel toward police, being stopped for unambiguously running afoul of the law has no effect on trust (and, consequently, legitimacy) of law enforcement. Although black drivers were more likely to receive tickets than white drivers, that difference was not found to be statistically significant. (9) And while blacks were more likely than whites to be placed in handcuffs or be arrested as a result of a traffic safety stop at a statistically significant difference, (10) the traffic safety stops did not produce racially disparate impact in the trust of police. (11) Moreover, researchers found that whites were more likely to be stopped for excessive speeding and other traffic safety reasons, but blacks were far more likely to be stopped for investigatory stops or given no reason at all for being pulled over. (12)

   The Kansas researchers also found that pretextual investigatory stops--such as those condoned by Whren--contributed heavily to police mistrust and ill-will by African Americans. (13) Their data, taken from a sample of traffic stops in Kansas City and published in their book Pulled Over, showed that white and black drivers generally felt the traffic safety stops were legitimate because they knew they were pulled over for speeding and were most often treated in a way they viewed was fair. (14) However, when the stop was for a minor infraction and led to the officer asking prying questions and requesting to search the vehicle, the stops engendered hostility and resentment among all races, but particularly among African Americans and Latinos--who were stopped much more often for investigatory purposes--whether or not the officer was polite and respectful. (15)

   In those encounters, the drivers were kept for up to an hour--sometimes in handcuffs or standing in front of their car as the police searched and as traffic drove by. (16) Given that the people most often subjected to these denigrating investigative searches--both in pedestrian stops (17) and traffic stops (18)--are black, if African Americans trust police less, it should surprise no one.

3. PRETEXTUAL STOPS REST ON LEGAL FICTIONS

   A still larger percentage of black drivers Epp surveyed knew someone or had their own personal negative experiences dealing with police officers relative to white populations, which is consistent with other studies. (19) Many of those invasive and unpleasant stops are legal under existing case law, (20) thereby leaving the subjects of those stops with no recourse in court. Many black people who are stopped understand or believe that the potential cost of saying no to an officer could result in officer agitation--resulting in the previously mentioned hour in handcuffs or worse--and a belief the officer may end up searching the car anyway. (21) Under these circumstances, while consent is "voluntarily given" in the eyes of the law, it does not feel that way to those people giving it.

   Although this symposium's focus is on Whren, a case about stopping motorists on pretextual grounds, it is important to remember that it is one case in a larger criminal justice and Fourth Amendment milieu that creates an illusion of consent and antagonizes innocent people in the process. Terry v. Ohio (22) is another case that has led to police practices that render consent illusory. (23) The Supreme Court decided Terry to provide a rarely used officer-safety exception to the Fourth Amendment, while explicitly warning against the use of police stops as an interrogation tactic, particularly in minority communities. (24) Nevertheless, Terry morphed into a virtual carte blanche for stopping and searching pedestrians in some cities. (25)

   In a recent concurrence in the U.S. Court of Appeals for the D.C. Circuit, Judge Janice Rogers Brown wrote about this "fiction of voluntary consent" in Fourth Amendment jurisprudence. (26) The case, United States v. Gross, (27) involved patrols of officers called "Gun Recovery Units" in predominantly black and high-crime neighborhoods in the District of Columbia. (28) Officers regularly stop and, with "consent," search people for firearms. (29) Comparing the usual locales of these patrols with the posh, predominantly white D.C. neighborhood of Georgetown, she wrote:

   As a thought experiment, try to imagine...