Police Abuse Of Power Essay, Research Paper
I. INTRODUCTION
“Let me make this very clear. The Maryland State police has not, does not, nor will it ever condone the use of race-based profiling” in determining which cars to stop on the highway.1 Chief State Trooper Colonel David Mitchell issued this statement in response to a lawsuit filed against the Maryland State Troopers. The suit was filed on behalf of African-American motorists who alleged that these officers had engaged in a practice of targeting black motorists for traffic stops along the Interstate 95. To support their claim, the plaintiffs presented statistics that strongly rebutted Mitchell’s statement relating to the use of race profiling in traffic stops. Using the state trooper’s own records, a stark pattern of discriminatory law enforcement was presented to the court. From 1995 to 1997, 75% of drivers who traveled through Maryland along the I-95 were white, but over 70% of those who were stopped and searched along this highway were black.2
This undeniable pattern of race-based stops by the Maryland police is a dilemma that millions of African-American and Latino-American motorists regularly encounter on this country’s highways. This phenomenon has been sardonically dubbed as “being pulled over for “DWB” (Driving While Black or Brown). This play on words of DWI (Driving While Intoxicated) refers to the commonly employed police practice of using an alleged traffic violation as a pretext to stop any black or Hispanic motorist they suspect of being involved in criminal activity unrelated to driving. These officers have no legal cause for carrying out the stop besides enforcing traffic regulations. Being subjected to a DWB stop is, according to House Representative John Conyers Jr., “an experience that virtually every African-American male has been subjected to.”3 Even African-American actors, athletes, business professionals, and Congressmen, are not immune.4 In Christopher Darden’s book In Contempt, the former Simpson prosecuting attorney accounted his own personal experiences with the Los Angeles Police Department.5 While driving his Mercedes in Southern California, he estimates that the police stop him five times a year for an assortment of traffic violations.6 But he rarely receives any tickets, presumably because the officer eventually realizes that the black man in the Mercedes is an Assistant District Attorney for the city of Los Angeles. Darden’s explanation is simple. The police are naturally “suspicious of a black man driving a Mercedes.”7
The repeated stops of Darden by the Los Angeles Police Department are an illustration of this pervasive police procedure of using traffic stops to investigate motorists for criminal activity. These officers use an alleged traffic violation as a “pretext” to stop the minority motorist when there is no evidence of any criminal conduct.8 The true purpose of these stops is not to enforce the local traffic code, but rather to investigate the motorists for potential criminal activity, typically associated with drug activity.9 The real problem behind this practice is that African-American and other minority motorists are being stopped for these traffic violations solely because of their race.10
This paper will argue that African-Americans and Latino-American communities need to adopt a Racial Realist view towards solving the problem of police misconduct of race based traffic stops. Racial Realism is a new movement that Professor Derrick Bell advocates as an alternative to the traditional “idea that the courts and the judiciary [are] the vehicle to better the social position of blacks.”11 The Supreme Court’s decision in Whren v. United States demonstrates that the courts in this country will not assist minority motorists in their struggle for equal treatment from law enforcement. In this decision, the police officers used probable cause for a traffic violation as a pretext to investigate possible drug offenses by two young black males driving through a “high crime” area. Although the stop could be based on racial profiling by the police, an unanimous Supreme Court held that such action was completely constitutional under the Fourth Amendment. The court created the “bright-line” rule that an officer may stop any driver, regardless of his subjective motivations, as long as probable cause for a traffic violation exists. The reason that such legal rules that harm people of color are created is because of the court’s adherence to the objective standards of the Fourth Amendment.
Secondly, the court in Whren does not provide an adequate solution to discriminated motorists under the Equal Protection Clause of the 14th Amendment. In dicta, the Supreme Court articulates that an officer who stops a motorist because of his race may be unconstitutional under the Equal Protection Clause. However, those who attempt to bring this type of challenge against race based traffic stops will be confronted with the insurmountable requirement of demonstrating “discriminatory intent.” Because this court created standard is so difficult to satisfy, the plaintiffs will typically fail in any attempt to bring an Equal Protection Challenge against the police. This failure results largely from the court’s reluctance to infer discriminatory intent of the police with statistics. Since an Equal Protection Challenge most likely will be unsuccessful, the legal system cannot resolve the issue of improper police race profiling.
Because of this harmful nature of the court system and its inability to rectify racial equality, Racial Realism has called for a new strategy for combating racism. Although this theory argues that racial equality cannot be achieved, it still wants African-American and Latino-American motorists to continue the struggle against the discriminatory enforcement of traffic stops by police. Under these ideas, Bell promotes the policy of “harassing whites.” This policy of harassment against the police can be effectively carried out through private lawsuits and greater regulation of local police procedures. These strategies can lead to triumph in overcoming the harm that African-American and Latino-American communities suffer from DWB.
II. RACIAL REALISM
Professor Derrick Bell’s theory of Racial Realism theory embraces a bold belief that “many will wish to deny, but none can refute. Black people will never gain full equality in this country.”12 This subordinate status to whites has not resulted from a lack of effort. Bell has recognized how leaders of the black community have “urged their people to strive for racial equality . . .[with the] idea that the courts and the judiciary were the vehicle to better the social position of blacks.”13 This goal shared by many prominent civil rights leaders, is not realistic.14 Upon examining, the current state of African-Americans in this country it is apparent that greater equality has not been gained as a result of the civil rights movement. Those who shared Martin Luther King’s “Dream” of equality in the 60’s still find themselves in a “racial ordeal of so many blacks suffering in the 1990s.15 Bell concludes that African-Americans cannot escape the reality of living in a permanent state of racial domination and subjugation by whites.16
Accepting this reality, Racial Realism calls for a new and fresh approach to deal with racism in this country. The premise for adopting these revolutionary strategies is based largely on the failure of those ideas exposed during the 60’s, namely using the courts and the judiciaries to effect meaningful change. Within the decision making process of the courts, Bell believes that the judges adhere to abstract legal principles that ultimately lead to “rules of law” that harm blacks and perpetuate their inferior status.17 These legal decisions result in the protection of white race-based privilege in this country.18 Bell illustrates this effect of the courts undermining racial equality in the Supreme Court’s case, Regents of the University of California v. Bakke 438 U.S. 265 (1978). In the decision’s reasoning, the court relied heavily on defining “equality” within the context of the formalistic language of the 14th Amendment.19 The majority opinion in Bakke utterly ignored social questions about the inherent advantages that white applicants historically have had, compared to the long history of denial of minority applicants. Because these issues were ignored in defining equality with the Equal Protection Clause, the court held that it was impermissible for an affirmative action policy to unseat white candidates on the basis of their race.20 By defining “equality” within the context of traditional 14th Amendment jurisprudence and ignoring the historical patterns and contemporary statistics of the gross inequality between white and non-white applicants, the court has in effect protected white race based privilege.21
Besides being a source of harm, the hope that the law, through racial equality, can lift them out of this trap” has been unfulfilled.22 Instead the “law and by extension the courts – are instruments for preserving the status quo of inequality” for minorities.23 Legal precedents such as Brown vs. Board, once believed to be permanent solution to racism have been overturned, distinguished, or simply ignored.24 Substituted are increasingly conservative decisions from the Supreme Court which undermine racial equality through the maintenance of white race-based privilege.25 While the civil rights movements of the 1960’s have been effective at using the legal system to strip away the hated “Jim Crow” signs, contemporary color barriers still exist.26 While they be less visible than signs that designated public facilities as “Colored” or “White, ” these barriers are no less real nor less oppressive.”27
II. RACIAL REALISM AND WHREN V. UNITED STATES
Bell’s premise for adopting a Racial Realist strategy is based on the belief that the courts and the legislatures are ineffective in eliminating racial inequality. In Whren v. United States, the Supreme Court was directly confronted with the issue of whether a race-based traffic stop based purely on probable cause of a traffic violation was constitutional under the Fourth Amendment.28 The Fourth Amendment prohibits the violation of “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” The purpose of the amendment is to “safeguard the privacy and security of individuals against arbitrary invasions.”29. The reasoning of the court in Whren, based largely on objective standards of the Fourth Amendment, led to court’s decision that legally sanctioned race-based seizures of minority motorists. This legitimized law enforcement’s past and future conduct of targeting African-American and Latino-American citizens along our nation’s highways.
Whren v. United States
The Whren case involved two plainclothes officers in an unmarked car, patrolling for drug activity in a “high crime-area” in Southeast Washington D.C.30 During this patrol, the officers noticed two young black men in a Nissan Pathfinder waiting at a stop sign. The officers observed that the two were looking down at their laps and the driver was not “paying full time and attention” to his driving.31 The Pathfinder, which had temporary plates, was motionless at a stop sign for approximately twenty seconds. Their suspicions aroused, the officers began to follow the car. The Pathfinder then made a right turn with signaling at speeds the officers believed to be “unreasonable.”32 Based on this traffic code violation, the officers proceeded to stop the Pathfinder. One of the officers, Ephraim Soto, professing an intention to warn the youths about the dangers of disregarding traffic laws, stepped from the unmarked police car and identified himself as police officer.33 As Officer Soto approached the driver’s window, he immediately observed two large plastic bags of what appeared to be crack cocaine in the driver’s hands.34 Both men were then arrested and quantities of several types of illegal drugs were retrieved from the vehicle.
The two passengers in the Pathfinder, Michael Whren and James Brown, were charged with a four-count indictment with violating various federal drug laws. The petitioners attempted to suppress the evidentiary use of the drugs, arguing that the stop was an unreasonable seizure and thus a violation of their Fourth Amendment rights. The petitioners in this case conceded that probable cause that various provisions of the District of Colombia’s traffic code had been violated. They argued that “in the unique context of civil traffic regulations,” probable cause of a traffic violation is not enough to fully justify a stop.35 Since society relies on cars so heavily and complete compliance with a minutely regulated traffic codes is a near impossibility, a police officer has the ability to catch any motorist for a technical violation.36 This will create the temptation to use traffic stops as a means of investigating other crimes unrelated to the stop. Secondly, the petitioners argued that, in this situation, the police may choose to decide which motorists to stop based on factors such as the race.37 To avoid these dangers, the court should hold this conduct unreasonable under the Fourth Amendment.
A. The objective standards of the Fourth Amendment in Whren
In a unanimous decision, the court in Whren rejected the petitioner’s arguments and concluded that their Fourth Amendment rights were not violated by the Washington D.C. police. The result was the creation of a “bright-line” rule that permitted a police officer complete discretion in stopping any motorist he wishes, as long as probable cause for any traffic violation exists.38 Even if the detainment of the motorist is completely racially motivated, the subjective intentions of the police officer are irrelevant in determining the reasonableness of the conduct under the Fourth Amendment.39 This holding resulted from the court’s adherence to the overly objective and formalistic rules of law the Fourth Amendment.
The petitioner’s first contention, that allowing the stop of a car based on only probable cause would be tantamount to giving the state limitless discretion in subjecting any motorist to an invasive police stop, was firmly rejected. The Supreme Court reasoned that the “foremost method of enforcing traffic and vehicle safety regulations . . . is acting upon observed violations.” These actual police observations would afford the “quantum of individualized suspicion” necessary to ensure that police discretion is sufficiently constrained.40 A “balancing” test to determine the constitutionality was not required because the officers had probable cause.41 Since the police officers in Whren had actual first hand knowledge of observing the “unreasonable” right turn that the petitioner had made; this was sufficient restraint from allowing indiscriminate seizure of any motorist.
Petitioner’s second contention, that a racially motivated stop by police is unconstitutional under the Fourth Amendment, was also rejected. In very much the same way that Bell described the reasoning in Bakke, the court in Whren relied on a formalistic interpretation of “reasonableness” of police conduct under the Fourth Amendment. The conclusion reached was based on following the prior established laws evaluating police conduct on purely objective standards. The court cited prior case law that supports the idea that an officer’s state of mind, even assuming racial animus, will not invalidate objective justifiable behavior.42 In United States v. Robinson, an officer arrested a motorist for operating a car after his permit was revoked.43 As a part of search incident to the defendant’s arrest, he patted the defendant Robinson down, and found 14 gelatin capsules of white powder, which proved to be heroin. The court concluded that regardless of the fact that the arresting officer did not have fear that the arrestee was armed or he feared for his life, he had the legal right to search anyone after an arrest. “It is the fact of custodial arrest which gives rise to the authority to search” regardless of the officer’s actual intention.44
The Court has constructed the Fourth Amendment that ignores the real world that police officers and black men interact in. By adhering to the already established prior law regarding search and seizure, the court, as in Bakke, ignored how “unreasonable” race based traffic stops are. By ignoring the potential subjective racial motivations of the officer, the court following already established legal principles; the law created a rule that will allow the discriminatory application of the law.
i) The harm that results from Whren
The effect of the court’s holding in Whren is that probable cause of any legitimate traffic violation is enough justification for the police to stop a travelling motorist. Because every state has regulated every minute aspect of driving, it is impossible for a motorist to be in complete compliance with every vehicle-related ordinance. In some jurisdictions, police officers had a rule of thumb; the average driver cannot go three blocks without violating some traffic regulation.45 Each time one of these violations occur, Whren allows the officer to stop a motorist.
The extensive and highly detailed traffic regulations that exist in every state allow law enforcement an almost limitless opportunity to indiscriminately stop any motorist. There is no detail too small, no piece of equipment too insignificant, nor item of automobile regulation too arcane to not be made subject to a traffic offense.46 Besides the traditional moving violations such as exceeding the speed limit and crossing dividing lines, the police can also enforce a wide variety of “equipment violation.”47 These could include driving with a malfunctioning taillight, a rear-tag illumination bulb that does not work properly, or tires without sufficient tread.48 Vehicle codes even have regulations that seemingly have little to do with actual driving. Some states require drivers to display yearly validation stickers, pollution control stickers, and even safety inspection stickers.49 Besides being overly regulated, vehicle codes provide ample discretion for the officer to determine if the motorist’s driving is “imprudent” and “unreasonable.” He may decide what is “too fast” or to “slow” under certain circumstances. The use of traffic regulations becomes an even more powerful tool for law enforcement if, as in Whren, the officers “tail a driver for a while.”50 Because of the difficulty to be in complete compliance with the vehicle code, if the officer follows a motorist, a violation that is sufficient to satisfy “probable cause will materialize like magic. Whren is the official blessing of this practice.”51 In the words of Justice Kennedy, “the practical effect of the Court’s holding in Whren . . . is to allow police to stop vehicles in almost countless circumstances.”52