If we want fewer civilians shot by cops—particularly Black and brown people—then we should get armed police out of the business of enforcing most traffic violations and turn it over to unarmed civilians, much like meter maids (or increasingly men) enforce parking violations.
Twenty-seven percent of unarmed civilians killed by police began with a traffic stop. The Stanford Open Policing Project indicates that a significantly higher proportion of minority drivers than white drivers are stopped by police for traffic violations and are disproportionately frisked, searched, questioned, ticketed and arrested following traffic stops.
And why is it that we need heavily armed police trained in military tactics to enforce most traffic violations? After all, civilian inspectors enforce violations and give out citations for things like restaurant hygiene, workplace health and safety, building codes, and, yes, parking tickets. And unlike traffic stops by armed cops, how often do you hear of civilian inspectors shooting people they’re giving citations to?
"The main reason why armed police have assumed responsibility for enforcing traffic laws is to give them a pretext to stop cars in the hopes of conducting a warrantless search, finding evidence of another violation and arresting the driver and possibly the passengers."
The main reason why armed police have assumed responsibility for enforcing traffic laws is to give them a pretext to stop cars in the hopes of conducting a warrantless search, finding evidence of another violation and arresting the driver and possibly the passengers.
Legally, the Supreme Court has all but emasculated the Constitution’s 4th Amendment protection against unreasonable searches and seizures without a search warrant in the context of a traffic stop.
Indeed, in his 1996 majority opinion in Whren v. United States, Justice Scalia ruled that a defendant cannot even raise the argument that the pretext for a traffic stop and warrantless search is based on the driver’s race as a defense under the 4th Amendment.
According to Scalia, it was irrelevant whether the black defendants were racially profiled because the Court had foreclosed “any argument that the constitutional reasonableness depends on the actual motivation of the individual officer.” In other words, the Court can’t even inquire whether the stop was motivated by the cop’s racism. Furthermore, even if the cop admits to being motivated by racism, the stop and search is still constitutionally uncontestable under the 4th Amendment. (Scalia did admit that a defendant might have a claim under the Equal Protection Clause; but the burden of proof that a stop or search was made for racial reasons, if denied by the police, is so high that it’s of little use to minority defendants.)
As Michelle Alexander, author of The New Jim Crow argues, the Supreme Court “closed the courthouse doors to claims of racial bias” in a traffic stop or warrantless search. Or as Clark Nelly of the conservative Cato Institute writes, “Honestly, it’s hard to say which is more dismaying: the continued use of racial profiling by law enforcement…or the judiciary’s persistent indifference to the fact that the ability to fully enjoy Fourth Amendment rights while driving a car in America still turns in significant measure upon the color of one’s skin…”
In short, racial profiling in the context of traffic stops has been endorsed by the Supreme Court. When black or brown motorists are pretextually stopped by police because of their race or ethnicity and the encounter escalates into a fatal police killing, both the police perpetrators and our honorable Supreme Court share responsibility for the needless death.
For example, while there’s a lot that’s not yet known about the Minnesota police killing of Daunte Wright during the George Floyd trial, it appears to be a classic example of a racially motivated pretextual traffic stop leading to the killing of an unarmed 20-year old black father.
Wright was stopped for an extraordinarily minor infraction—if you believe the police, because he had expired license tags or if you believe his mother, because he had an air freshener hanging from his car mirror. Why would police bother to make the stop for something so minor unless it was a pretext to try to pin something else on a young black man? As it turned out, after running a check, police discovered Wright had an outstanding warrant for failing to make a court date. (If you wonder why minorities stopped for minor traffic violations try to flee and risk being shot, it’s often because they may have outstanding warrants for minor offenses that would put them back in jail for a few weeks or months, resulting in losing their job, and not being able to support their family).
Police ordered Wright out of the car and apparently handcuffed him. Wright then struggled to climb back in his car, at which point officer Kim Porter drew what she claimed she thought was a taser but was instead her service revolver and shot Wright in the chest, killing him. (According to the criminal complaint, the Taser used by Potter was bright yellow and holstered on her left hip, while her Glock handgun was worn on her right hip and would have been significantly heavier.) An accidental mix-up?
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This appears to be another case of a pretextual racial traffic stop gone accidentally or intentionally bad. Even if you believe that Officer Porter mistook her taser for her revolver, why was she shooting a taser from a foot away into the chest of a black man who had no evident weapon and wasn’t posing a threat? And why did the police bother stopping Wright for such a minor violation in the first place?
You can blame Daunte Wright’s needless death on the system of pretextual traffic policing by armed cops and the Supreme Court’s permission for the police to engage in pretextual racial profiling.
Given the Supreme Court’s 6-3 majority of right-wing justices, there’s little chance of relief from racially motivated pretextual police shootings from the Court, unless new members are added to the Court, as has been advocated by many, including Demand Justice.
Relief will come only if cities, counties and states take the responsibility for enforcing routine traffic violations away from heavily armed police with military training. Instead the enforcement of traffic violations would be turned over to a separate traffic agency, which would hire unarmed civilian traffic monitors to enforce traffic violations.
"Relief will come only if cities, counties and states take the responsibility for enforcing routine traffic violations away from heavily armed police with military training."
Their authority would be limited to enforcing traffic laws and they would not have police powers like the right to search or arrest. Their job would be to stop vehicles for traffic violations, request required documents, and issue tickets. Their uniforms and vehicles would be clearly distinct from those of the police. They would not be authorized to run criminal background checks or arrest people for outstanding warrants (or anything else). In a limited set of circumstances, such as when a driver initiates physical force against them, they would have the right to call in police back-up. But in most cases, they would just issue a citation and be on their way. As law professor David Harris wrote, “[t]raffic stops again become just that—traffic stops.”
In 2020, the city of Berkeley passed a measure to remove police from making traffic stops and to create a Department of Transportation of civil servants to enforce traffic laws. Several other localities, including Montgomery County, Maryland and Cambridge, Massachusetts are considering similar measures.
Getting police out of traffic enforcement and turning it over to civilians should be a major goal of the racial justice movement. Demand that city, county and state governments take up these proposals. Run candidates who back them and oppose those who don’t. Hold mass demonstrations.
And if one of the numerous New York City mayoral candidates wants to emerge from the pack, s/he could have a significant impact by making a central campaign issue transforming traffic enforcement from a police to a civilian job.
As the Beatles sang,
Where would I be without you?