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 irrelevant.
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 to do.
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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