Police Discretion in Traffic Stops in Unavoidable
There's no silver bullet substitute for getting and keeping bad cops off the force
The fundamental problem in American policing that gives rise to the Black Lives Matter movement is as simple to state as it is hard to solve- there are a lot of violent, sometimes racist hotheads on police departments. This shouldn’t surprise anyone- there is a natural selection effect in career choices. For instance, it would not surprise me at all if lawyers were on average more argumentative than the population as a whole- one group of people who are attracted to law practice (and especially litigation) are people who like to argue. Similarly, it wouldn’t surprise anyone people who graduate from business schools are more materialistic than the general population, or if sports announcers are more talkative than the general population. If you enjoy doing something, you are likely to be drawn to careers that allow you to do whatever it is you enjoy professionally.
There are also far less harmless versions of this. The best, scariest example would be pedophiles seeking out positions, whether it be scoutmaster or priest or gymnastics coach, where they will have access to children.
And so it is with cops. Police departments attract bullies. Obviously plenty of people get into policing for other reasons (just like plenty of non-pedophiles become gymnastics coaches), but if you grow up a bully, you are likely to be attracted to a job that gives you the authority to boss people around under the threat of force. It’s your kind of thing.
The best run police departments are aware of this and try to screen bullies out; however, many departments do not, and the bullies of America find plenty of employment opportunities in law enforcement.
Racism comes into the equation in a couple of ways. Obviously, die hard racists might want to join the police force to straight up oppress Blacks. (F. Lee Bailey claims that he had a witness who was going to testify in the OJ Simpson case that the infamous detective Mark Fuhrman looked into working in Apartheid era South Africa so he would have an opportunity to kill Black people.) But it also may just be the case that racism correlates with bullying- obviously not all bullies are racist, but many are, and certainly many of the type of bullies who are attracted to policing (i.e., in contrast to, for instance, online bullies) may have conscious or unconscious racist views.
And this suggests the solution to the problem of violent, racist police departments- get the bullies off the force. Unfortunately, that’s really expensive, and runs into union / civil service protections. This leaves many people looking for a quicker fix.
Hence, the proposal, which became an object of media discussion this week, that police not have the power to stop people for “minor” offenses like expired tags and broken taillights. This proposal makes a certain amount of sense- the myriad of traffic laws creates a situation where almost everyone commits minor traffic offenses every now and then (stopping over the limit line?), and this means the police have unbridled discretion to pull over Black people. And you know what happens next….
A law professor named Jordan Blair Woods did what a good legal scholar does and tried to flesh the proposal into potential legislation in a soon to be published paper in the Stanford Law Review. But Prof. Woods’ paper actually unwittingly confirms the reverse of his hypothesis- that in fact it’s impossible to curb the subjective power of police to make traffic stops (which is, of course, what leads to people being pulled over for “Driving While Black”).
Prof. Woods propose we curtail police powers to pull people over for all but major offenses. Again, there’s a certain common sense here- stolen vehicles and fleeing felons are one thing, but failing to signal a turn is quite another. Prof. Woods proposes committing the power to stop people for minor stuff to unarmed transportation department officers, who would be something like meter maids but with traffic stop powers.
One reaction I had to this is that it runs headlong into the Second Amendment and our society being awash in guns. Criminals and other dangerous sorts who were pulled over by someone they know is unarmed might be tempted to shoot the officer and get away. They have unarmed cops in London, but that’s because there are very few people with guns in the city. While the danger to police is overstated, the reason the danger is so low may have something to do with the deterrence value of armed police. Could a criminal about to go away on his third strike for life in prison conceivably kill an unarmed traffic officer and drive off? I wouldn’t want to find out. In any event, once one such incident did occur, there would be calls to arm the transportation officers.
But that’s rather obvious. What I found fascinating is something less obvious. Which is Prof. Woods, to make his argument, has to define drunk driving as minor. It’s perfectly obvious why he has to do this- drunk driving stops are classically subjective. Few things leave more wiggle room than “she was driving erratically”. Cops- and I actually mean the good ones here, not the racist bullies- use their powers of inference and their experience to look for signs of possible drunk driving and to pull people over. They learn to tell the difference between the guy who was just changing the radio and was a little slow reacting to the green light, and the driver who is zonked out his skull and had very little sense that the light had changed.
And this is, of course, catnip to the racist bully police officer. Because if he says that he was pulling over someone who was “weaving”, or who “responded slowly to the light”, or whatever, how are you going to disprove that? The cop saw what he saw.
So it’s obvious that no “abolish traffic stop subjectivity” proposal will work that doesn’t restrict DUI stops. (I might add there are other potentially dangerous offenses that would also have to be subject to a restriction if one were to eliminate officer subjectivity in making traffic stops- reckless driving, unsafe lane changes, etc. But drunk driving is by far the most obvious one.)
Prof. Woods tries gamely to argue his point. It turns out he isn’t the first to confront this problem, so he cites some other scholars who have argued that DUI laws aren’t effective, as well as a proposal that instead of going through the courts, DUI be enforced roadside with an ignition interlock installation and an automatic driver’s license restriction. (Query, who is going to pull people over for removing interlocks and violating license restrictions? I kid, I kid.)
But at this point, I felt I had taken leave of the reality-based community. First of all, I know people personally who have been deterred by DUI laws. Here in California, a first time DUI costs you about $10,000 in fines and court costs, and can even result in a short jail stay. It also results in an automatic suspension of your license, restrictions, and sometimes installation of an ignition interlock. A second DUI results in higher fines and longer suspensions and restrictions, and increases the likelihood of jail time. People I know who got the first DUI, did not want to risk the second one. They changed their ways. Indeed, this is just about the only personal knowledge I have about the specific deterrence of criminal laws.
But beyond my anecdotes, just given the popularity of taxi and rideshare services when the clubs close, and the success of designated driver programs, someone out there must be deterred by DUI laws. Of course they work.
And I don’t see how eliminating the remaining aspects of due process will help things. At least right now, a DUI defendant has a defense if the breathalyzer was miscalibrated, or something in her bloodstream caused a false positive, or whatever. Meting out justice at the side of the road will result in at least some punishment of innocent people. And it will make these unarmed traffic safety personnel even more powerful than cops- they will be judge, jury and executioner for DUI offenses!
And, by the way, about those unarmed traffic safety personnel. Do we really want unarmed traffic safety personnel to be handling DRUNKS? Or how about people under the influence of dangerous drugs? I imagine one of these folks pulling someone over who is high on speed and in a blind rage. This could pose a problem.
And that doesn’t even get to the politics of the situation. DUI laws are very popular, because of the success of organizations like Mothers Against Drunk Driving in calling attention to drunk driving deaths (over 10,000 Americans a year!). They managed to get the drinking age raised to 21 (in a country that loves to drink and mythologizes the evils of Prohibition) and the DUI limit lowered to 0.08 percent BAC (turning even moderate drinkers into potential DUI’s). Indeed, just about everyone who makes it a point to drive sober, or walks or cycles on the public roads, wants drunk drivers pulled over and arrested. The notion that we are going to curtail DUI enforcement and eliminate fines and jail time is a political nonstarter, and should be.
And that brings us back to the point. There isn’t a cute, wonky solution to police violence. We actually need good, observant, and yes, in our violent society awash in guns, armed officers out there stopping people. Maybe not for the mildest things (if I never hear about another traffic stop for tinted windows it will be too soon), but definitely for offenses that can actually hurt people. The job of being a police officer is inherently subjective. Which means we have to just bite the bullet and get the bullies off the force, replaced by people who do the job right.