7 Race-Neutral Solutions to Racially Skewed Law Enforcement
These reforms would protect all Americans while reducing racial disparities in policing.
The other day, my 14-year-old daughter, who was born in Ethiopia, asked me why some people object to the slogan "Black Lives Matter." I said many well-intentioned Americans, including people who recognize police abuse as a serious problem, view the phrase as divisive. Some of them prefer to say "All Lives Matter," meaning that we should aspire to fair treatment of all citizens, regardless of their complexions or ethnicity. Yet that formulation glosses over stark, persistent, and widely documented racial disparities in law enforcement, which contradict the principle of equal treatment under the law and cannot be explained by racial differences in the propensity to commit crimes.
Many conservatives and Republicans are reluctant to acknowledge that reality, fearing that doing so would endorse the proposition that American society is irredeemably racist. But that does not necessarily follow, since many of these disparities are caused by race-neutral policies that impose disproportionate burdens on black people or give too much power and discretion to police officers, some of whom may be influenced, consciously or not, by racial prejudice. By the same token, racial disparities can be reduced by race-neutral reforms that would benefit everyone. Here are some examples.
1. Eliminate Unconstitutional Pedestrian Stops
In principle, stop-and-frisk programs, whether or not they are actually effective at reducing crime, can be constitutional. But according to the Supreme Court's decision in the 1968 case Terry v. Ohio, that means every stop has to be based on reasonable suspicion of criminal activity, and every frisk has to be based on reasonable suspicion that the subject is armed. Stop-and-frisk data from New York City suggest that police officers commonly flouted those requirements, which is one reason a federal judge deemed the program unconstitutional.
Enforcing the constitutional requirements for pedestrian stops would not eliminate racial disparities, which are unavoidable when police focus their resources on high-crime, low-income neighborhoods—a decision that makes sense for reasons that have nothing to do with race. But requiring police to respect the Fourth Amendment as it applies to pedestrian stops would address the understandable grievances of innocent black people who are hassled by cops for no good reason and who recognize that white people are much less likely to go through that degrading experience.
2. Curtail Pretextual Traffic Stops
In the 1996 case Whren v. United States, the Supreme Court said the Fourth Amendment allows police to stop a driver whenever they have probable cause to believe he has violated the law, no matter how trivial the offense, even when that violation is merely a pretext for investigating other matters. If an officer stops a car for a traffic violation in the hope of finding illegal drugs or seizable cash, according to the Court, that is perfectly constitutional, even without any evidence of criminal conduct.
State vehicle codes include hundreds of rules governing the maintenance and operation of automobiles, many of which are picayune or open to interpretation. It is difficult, if not impossible, to drive for any length of time without violating one of them. Whren therefore gives police vast discretion to stop drivers they deem suspicious, which opens the door to decisions affected by racial bias.
One study after another has found that black drivers are much more likely than white drivers to be searched during routine traffic stops, and that those searches are less likely to discover contraband. A study by Charles Epp and two other researchers at the University of Kansas is particularly revealing.
After surveying drivers in the Kansas City area in 2003 and 2004, Epp and his colleagues classified police encounters based on the legal justification (or lack thereof) and the amount of discretion involved. They found that black drivers were no more likely than white drivers to report clear-cut "traffic safety stops" (e.g., for running a red light or stop sign, driving at night with headlights off, or exceeding the speed limit by seven or more miles an hour) but were nearly three times as likely to report seemingly pretextual "investigatory stops" (e.g., for an unilluminated license plate, driving too slowly, or no reason mentioned by the officer).
During investigatory stops, Epp and his colleagues reported, black drivers were five times as likely as white drivers to be searched. They were also more likely to be handcuffed and threatened with arrest, and more likely to describe the officer's demeanor as rude, hostile, or insulting. Blacks perceived investigatory stops as less legitimate than traffic safety stops, while whites made no such distinction. The more stops black drivers had experienced, the less they trusted the police, an effect that was not apparent among white drivers.
Even if the Supreme Court never reconsiders Whren, that does not have to be the end of the matter. State courts can curtail pretextual stops by applying the search-and-seizure limits imposed by state constitutions, which in many cases have been interpreted as providing broader protection than the Fourth Amendment.
Last year, for instance, the Oregon Supreme Court said that state's constitution bars police from routinely fishing for evidence of a crime when they stop drivers for minor traffic offenses. "All investigative activities, including investigative inquiries, conducted during a traffic stop are part of an ongoing seizure and are subject to both subject-matter and durational limitations," it said. "Accordingly, an officer is limited to investigatory inquiries that are reasonably related to the purpose of the traffic stop or that have an independent constitutional justification."
Legislators also have a role to play. The Fourth Amendment, as interpreted by the U.S. Supreme Court, creates a floor that can be raised by legislation. Regardless of what state courts say, legislators could impose a rule similar to the one that now applies in Oregon.
3. Abolish Civil Asset Forfeiture
Civil asset forfeiture allows police to seize cash they come across during routine traffic stops based on a bare allegation that it is somehow connected to criminal activity, typically drug trafficking. Once the cash is seized, the owner bears the burden of challenging the forfeiture, a process that often costs more money than the cops took. This financial motive is a major driver of pretextual traffic stops, as illustrated by the 2013 case in which Iowa state troopers stole $100,000 in poker winnings from two men they had pulled over for failing to properly signal a lane change.
While the victims in that case were white, there are many examples of outrageous seizures involving black or Hispanic travelers whose only crime was carrying an amount of cash that police deemed suspicious. A 1992 investigation by The Orlando Sentinel found that nine out 10 drivers whose cash was seized in Volusia County, Florida, were black or Hispanic; three-quarters of them were never charged with a crime. Under Philadelphia's asset forfeiture program, according to a 2015 report from the American Civil Liberties Union, African Americans, who represent 44 percent of the city's population, accounted for 71 percent of cash seizures that did not involve a criminal conviction. Abolishing civil asset forfeiture, as several states have effectively done, would address disparities like these while simultaneously protecting everyone's due process and property rights.
4. Narrow the Authority to Arrest People
In the 2001 case Atwater v. City of Lago Vista, the Supreme Court approved arrests for minor traffic violations like failing to buckle your seat belt, meaning you can go to jail for offenses that are not punishable by jail. States such as Texas and Georgia authorize arrests for a wide range of traffic offenses.
The reform group Just Liberty estimates that more than 45,000 Texas drivers were arrested during traffic stops in 2016 for Class C misdemeanors—traffic and city ordinance violations that are typically handled with citations. That happens less than 1 percent of the time, which raises the question of how police decide that an arrest is warranted. Broad arrest authority gives police dangerous discretion that can be used to punish drivers they consider insufficiently respectful or do not like for arbitrary reasons.
As last week's shooting of Rayshard Brooks during an arrest for driving under the influence in Atlanta illustrates, taking a driver into custody not only involves additional anxiety, humiliation, and inconvenience; it creates the potential for violence that otherwise could be avoided. A breath test put Brooks' blood alcohol concentration at 0.1 percent, slightly above the current legal limit of 0.08 percent and right on the line under the standard that most states used before the 1990s. The offense he was charged with is a low-level misdemeanor that is theoretically punishable by up to 10 days in jail but is typically handled by sanctions such as probation, fines, community service, and license restrictions.
Instead of routinely arresting drivers in such cases, police could issue citations, accompanied by precautions, such as taking away the car keys or towing or booting the car, aimed at preventing them from getting back behind the wheel while they are intoxicated. But that approach is forbidden by the Atlanta Police Department's current policy, which requires arrests of drivers with a blood alcohol concentration of 0.08 percent or more.
5. Stop Trusting Police Dogs
The Supreme Court has approved the use of drug-sniffing dogs during routine traffic stops, provided it does not "unreasonably" prolong the driver's detention. And the Court has said an alert by a properly trained dog is enough to provide probable cause for a search, notwithstanding substantial evidence that such alerts are often erroneous, imagined, invented, or triggered by the handler's subconscious cues. In practice, these rulings mean that when a driver declines to allow a search, an officer can still get permission from a dog.
Even if police properly use a well-trained dog, false positives can far outnumber true positives when the animal is used during routine traffic stops, because a small percentage of cars are actually carrying illegal drugs. In a 2006 George Mason Law Review article, University of North Carolina at Chapel Hill law professor Richard E. Myers calculated that a dog who performs well in controlled conditions could still erroneously alert to cars 84 percent of the time in the real world. Is a 16 percent chance of finding drugs enough for probable cause? It's not exactly clear based on the case law, but Myers persuasively argues that the probability should be substantially higher.
Dog-authorized searches mean that many innocent drivers will be detained for far longer than was necessary to address the original reason for the stop as the cops go through their personal possessions. Even if police do not find evidence to support a drug arrest or cash they have a license to steal, that experience is embarrassing and time-consuming. Americans should not have to live in fear of canine narcs simply because judges have an unjustified faith in dogs' ability to reliably identify drug offenders. And given the racial disparities in car searches, African Americans have special grounds for concern on that score.
6. End the War on Drugs
As long as the government insists on trying to forcibly prevent people from consuming arbitrarily proscribed intoxicants, Americans will continue to encounter police for no good reason, and those encounters will be invasive, humiliating, destructive, injurious, and sometimes deadly. As the shooting of Breonna Taylor during a drug raid in Louisville, Kentucky, last March shows, people can end up dead even when they are not drug dealers, simply because they exercise their basic rights by defending their homes against armed invaders.
"No-knock warrants have proven to be lethal to citizens and police officers, for an obvious reason," Rep. Tom McClintock (R–Calif.) observed last week. "The invasion of a person's home is one of the most terrifying powers government possesses. Every person in a free society has the right to take arms against an intruder in their homes, and the authority of the police to make such an intrusion has to be announced before it takes place. To do otherwise places every one of us in mortal peril."
Although restricting no-knock raids is a good idea, it is not an adequate response to this danger. Even when police knock and announce themselves while serving a search warrant, that notification can easily be missed by slumbering residents during middle-of-the-night raids, especially when the cops breach the door immediately after knocking, which is common. The basic problem is not the techniques that police use when they break down our doors but the lack of a moral justification for such assaults. Drug prohibition is based on the premise that violence is an appropriate response to peaceful conduct that violates no one's rights. It isn't.
The drug war's origins were explicitly racist, and it continues to have a disproportionate impact on racial minorities, no matter the intent of the people who wage it. Three-quarters of drug offenders in federal prison and two-fifths of drug offenders in state prison are black or Hispanic. Black people are nearly four times as likely as white people to be arrested for marijuana possession, even though they are only slightly more likely to be cannabis consumers. When African Americans are caught with cocaine, they are apt to receive especially severe penalties under federal law, even now that the sentencing gap between the smoked and snorted forms of the drug has been narrowed.
Those disparities should trouble anyone who cares about equality under the law, and they help explain the anger expressed in recent protests against police brutality. But drug prohibition would be unjust, ineffective, costly, counterproductive, and morally bankrupt even if it victimized everyone equally. It is the main driver of pretextual traffic stops, car and home searches, asset forfeiture, no-knock raids, and the court-blessed erosion of our Fourth Amendment rights. It fuels violence, corruption, and theft; makes drug use more dangerous by creating a black market in which quality and potency are unpredictable; and diverts police resources from predatory crimes. Ending the war on drugs would be a victory for all Americans, whatever their skin color or pharmacological tastes.
7. Abolish Qualified Immunity
Despite hopes that the Supreme Court would reconsider this doctrine, which protects police officers from liability when they violate rights that were not "clearly established" at the time, the justices seem to be passing up that opportunity for now. Meanwhile, Republicans in Congress seem to consider legislative efforts to abolish the doctrine beyond the pale. That attitude is puzzling, since critics across the political spectrum have been pointing out for years that qualified immunity amounts to a license for outrageous police conduct whenever the victims cannot identify a sufficiently specific precedent.
Derek Chauvin, the now-former Minneapolis police officer who killed George Floyd by kneeling on his neck for nearly nine minutes, has been charged with murder. But would he be liable under 42 USC 1983, the federal law that allows people to sue government officials for violating their constitutional rights? Although decisions by various federal appeals courts suggest he would be, the issue is surprisingly unclear in the 8th Circuit, which includes Minnesota.
In a 2020 case with similar facts—a handcuffed arrestee named Nicholas Gilbert who suffocated while restrained by St. Louis police officers in a prone position for 15 minutes—the 8th Circuit granted qualified immunity to the cops. "We find that the Officers' actions did not amount to constitutionally excessive force," the appeals court said. "The undisputed facts…show that the Officers held Gilbert in the prone position only until he stopped actively fighting against his restraints."
In Floyd's case, he was not resisting, except by repeatedly complaining that he could not breathe. Presumably those facts would make a difference in the court's analysis. But I am not completely sure about that, and the fact that I felt a need to look it up speaks volumes about the extent to which qualified immunity prevents victims of police abuse from holding cops accountable for it.
If stealing cash and property worth more than $225,000 while executing a search warrant, siccing a police dog on a suspect who had already surrendered, shooting a 10-year-old while trying to kill his dog after chasing a suspect into their yard, and wrecking a woman's home by bombarding it with tear gas grenades after she agreed to let cops enter to arrest her ex-boyfriend do not qualify as violations of "clearly established" rights, maybe Chauvin's appalling behavior doesn't either. Something has gone terribly wrong when we have to ask that question.