Nancy Gertner a retired federal judge in Boston and a law professor at Harvard and Dean Strang a criminal defense lawyer in Madison, Wis., and a law professor at Loyola University Chicago, write in The Boston Globe:
Caron Nazario had a newly purchased SUV with a temporary
plate taped to the back of the vehicle, properly and lawfully, until his new
plates arrived. Daunte Wright had an expired license plate and an air freshener
hanging from his rear view mirror. Police officers in both situations said
that’s why they were stopped. Nazario was held at gun point and pepper sprayed,
but survived. Wright, who had an open arrest warrant for missing a court
appearance on a misdemeanor charge, was fatally shot by police.
Although Nazario’s stop happened last December, in rural
Virginia, and Wright’s last Sunday, in suburban Minnesota, the patterns are
clear. Both are Black men. Both were stopped for minor traffic offenses, or for
no offense at all.
Of course, we don’t know the actual intentions of the police
officers who stopped both men. We don’t know what racial attitudes or
suspicions or anger they harbored, if any.
But that is the point: According to the Supreme Court, the
real reason for the stop — even if it was blatant racism — doesn’t matter. The
court’s 1996 decision in Whren
v. United States held that a traffic stop is lawful if police can come
up with some traffic infraction to justify it, however trivial. The subjective
intentions of the police — which could be the real reasons for the stop — are
Whren v. United States marked one of those moments in this
nation’s history when law reinforced structural racism, when the highest
federal court cemented racism more firmly into place. The court knew what it
was doing. The briefs included arguments about the probable impact of upholding
pretextual stops, backed by statistics and the undeniable, lived experience of
Black citizens. Allowing such stops would be to reinforce and insulate racial
biases in policing. The court upheld the lower court’s decision anyway.
Wait, you say. There still has to be a traffic violation or
at least reasonable suspicion of one. True. But state and local traffic codes
are filled with minor, noncriminal infractions — many of them having no serious
relation to safety — that a police officer plausibly can stop almost anyone.
Fail to make a complete stop at a stop sign? We all do it, but police can stop
you if they wish. Have your car window open and the radio on too loud for an
officer’s taste? You can be stopped. A decal on your back window? That might
obstruct your vision; you can be stopped. Indeed, stopping a car for things
like an air freshener (obstructing the driver’s vision) makes Black and brown
drivers and their passengers vulnerable to the needless indignity of traffic stops that are more
about snooping — and to search a car and its occupants — or worse, harassing.
Moreover, the police don’t even have to be correct when they
say that you were violating a traffic or vehicle code rule. They just have to
prove to a judge that they were honest in their initial suspicion. Thanks to
another Supreme Court case, a police officer who purports to enforce traffic
laws can be wrong about those laws, if the mistake was in “good faith,” a
“whoops” defense available to no other citizen. That’s cold comfort to Caron
Nazario, who was driving lawfully but wound up handcuffed on his stomach on the
pavement. Moments earlier, the officer told Nazario that “you’re fixin’ to ride
the lightning, son!” — a reference to the electric chair — and that he “should
be afraid” to get out of the car, which was what the police had ordered Nazario
Even when wrong, if police can clear the low hurdle of
reasonable suspicion of some traffic infraction — something the least creative
or experienced of them can do — they can pursue their hunches to investigate
anyone. The Supreme Court has also relaxed the
standards for constitutional searches under the Fourth Amendment when
traffic stops are involved.
So says the nation’s highest court. But of course, police
departments don’t have to take every opportunity for abuse or high-handedness
that the Supreme Court offers. By internal policy, they could reject Whren and
limit traffic stops to actual violations that threaten public safety. Likewise,
unless and until the Supreme Court reverses its decision in Whren, state courts
could decline to follow it under their state constitutions. While Whren remains
the law of the land, it need not remain the practice.
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