Driving While Black

Compiled by Charlie Brown and Amanda Jantzi

Profiling

Law enforcement officials often confront situations where they know that illegal activity is almost certainly taking place but lack sufficient resources to investigate every possible perpetrator. In order to increase the number of actual offenders they apprehend, law enforcement officials sometimes use characterizations, or profiles, of typical offenders to narrow the pool of possible perpetrators to those most likely to be violating the law. Historically, police departments and other enforcement agencies have used profiles to identify potential skyjackers, carjackers, illegal aliens, and drug couriers.

Litigants have challenged the use of profiles in all of these areas, but the use of race to select suspects for traffic stops and drug searches has come under particular scrutiny. The invention of the fictitious offense "Driving While Black" captures the popular perception that police officers target African-Americans for traffic stops and are more likely to search an African-American’s vehicle. This perception, however, is more than mere speculation; empirical research has tended to show that African-American drivers are more likely to be stopped and searched than drivers of other races. Moreover, this research suggests that targeting African-Americans yields no more drug courier arrests than random searches would.

Case Study: Driving While Black

Classic Cases

New Jersey v. Soto. State v. Soto, 324 N.J. Super. 66 (Law Div. 1996).

The Superior Court of New Jersey considered the consolidated motions of seventeen African-American defendants to suppress evidence of drug possession obtained during traffic stops. The defendants alleged that their arrests violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment because the New Jersey State Police selectively enforced the traffic laws by targeting African-American violators. Relying on an empirical study conducted by Dr. Lamberth showing that 42% of the traffic violators stopped by the police were African-American, even though African-Americans only account for 15% of violators, the Superior Court concluded that police operated a de facto policy of selective enforcement and granted the motions of the defendants.

Whren v. United States.  Whren v. United States, 517 U.S. 806 (1996).

Police officers patrolling a "high drug area" in the District of Columbia stopped petitioners’ vehicle after observing the vehicle turn suddenly without signaling. During the traffic stop, the officers discovered crack cocaine in the vehicle, and the petitioners were arrested and convicted for narcotics possession. The petitioners challenged their convictions on the grounds that the stop and subsequent drug seizure was unconstitutional. Specifically, petitioners alleged that the traffic stop was not based on the reasonable suspicion or probable cause that they were dealing drugs and that the officers’ proffered reason for detaining them—to give them warning for traffic violations—was pretextual. On appeal, the Supreme Court of the United States held that temporary detentions of motorists are consistent with the Fourth Amendment provided that the detaining officer acts upon probable cause that the motorist has violated the traffic code. Moreover, the Court held that such detentions are constitutional even if the traffic stop is pretextual, and the officer has stopped the motorist on the suspicion that she has committed a different offense. The Court did note, however, that selective enforcement of the traffic code based on race is inconsistent with the Equal Protection Clause of the Fourteenth Amendment.

Arkansas v. Sullivan. Arkansas v. Sullivan, 532 U.S. 769 (2001).

Petitioner was arrested and convicted for drug possession after police officers discovered a hatchet and methamphetamine in the petitioner’s vehicle during a traffic stop for speeding. The petitioner claimed that the traffic stop violated the Fourth and Fourteenth Amendments. The Supreme Court of the United States reiterated its holding in Whren that pretextual traffic stops are constitutionally permissible and also held that the Arkansas Supreme Court could not interpret the Fourth Amendment to forbid pretextual traffic stops.

New Developments

The Henry Louis Gates Jr. affair in Cambridge, Massachusetts, during the summer of 2009, brought racial profiling back into the spotlight. Gates, a black Harvard professor, was arrested by Sgt. James Crowley, a white police officer, after a neighbor called 911 when she saw two black men try to break into Gates’ own home. Gates was arrested for disorderly conduct during a heated altercation with Crowley, the aftermath of which famously led to the two sharing beers in the garden of the White House with President Obama.

Racial profiling was likely the reason that the neighbor called 911. A study by Matthew D. Lieberman at UCLA covered in Raina Kelley’s article "Another Racial Incident" showed that both whites and blacks felt more threatened when shown pictures of black men "with neutral facial expression[s]" than when shown such pictures of white men. However, Jeane MacInosh, writing for the AP, questioned how much of a role race played in the subsequent altercation, where Gates allegedly failed to immediately notify the officers that he was in his own home and, as the police were leaving, began to shout at them. The common response seemed to implicate the police as racist, but some commentators, such as Kelley, noted the difficulty in parsing the situation. She wrote that "[b]lack people don’t commit all the crime in the United States, but they do commit some crime, so it’s not wacky for a cop to suspect that an African-American may have actually done something wrong." She argued that opinions are polarized in these instances: either black people are all innocent victims of police harassment or police officers are hardworking individuals making snap decisions based on finely honed instincts. For another nuanced account of the issue, see Richard Thompson Ford’s article "The Depressing Cycle of Racial Accusation" at Slate.com.

Post-Whren cases indicate that such controversy is not confined to public affairs and opinion. Some state courts have declined to apply the Whren standard. New Mexico, in State of New Mexico v. Ochoa, 146 N.M. 32 (N.M. Ct. App. 2008), argues that the New Mexico Constitution offers greater protection to residents. Additionally, it declines to apply Whren because of the "widespread criticism of its legal reasoning, policy choices, and consequences." The Ochoa court noted that a traffic stop should be treated as equivalent to a criminal investigation rather than as enforcement of the traffic code, including all the protections available in the former situation. The Court cites Harris’s article to support this conclusion. The Court writes, "[t]he extensive regulation of all manner of driving subjects virtually all drivers to the whim of officers who choose to selectively enforce the traffic code for improper purposes." This suggests that they do not see the probable cause standard as providing enough protection against officers using traffic stops as a pretext for investigating a more serious offense. Delaware, in State of Delaware v. Heath, 929 A.2d 390 (2006), and Washington, in State of Washington v. Ladson, 979 P.2d 833 (Wash. 1999), are examples of similar disagreement with Whren, finding more protection for individuals against arbitrary police action in their respect State Constitutions.

The Federal District and Circuit Courts, as federal courts bound by the decisions of the Supreme Court on federal law, have to follow the Whren standard. The Northern District of California, in Smith v. City of Oakland, 538 F. Supp. 2d 1217 (N.D. Cal. 2008), is typical of courts’ attempts to work around Whren. In this case, the court limits the holding of Whren to whether subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis. Therefore, "…once there is objective probable cause for a search, an officer's subjective motive does not vitiate the constitutionality of the search; the Fourth Amendment's core protection of probable cause obtains irrespective of personal motive." The Ninth Circuit, in Morena v. Baca, 431 F3d 633 (2005), writes that "Whren held only that the illegitimate subjective motivation of a police officer will not invalidate an otherwise constitutional seizure that is "objectively justifiable" based on facts known to the officer." These attempts to limit Whren demonstrate that the Federal Courts are aware of the controversy surrounding the decision.

Efforts to deal with racial profiling and "Driving While Black" has led some states to record all traffic stops, either through passage of their own legislation or because of settlements with the Justice Department. Nine states laws are aimed specifically at racial profiling, and most mandate that every traffic stop feature information collection on the part of law officers. One critic, DJ Silton, argues in Profiling: A Covertly Racist Nation Rides a Vicious Cycle that, "[n]one of these acts mandate the analysis of the collected data to ensure consistency of recording." Stilton reviews results released from Michigan and Minnesota to show disproportionate stoppage of blacks. In St. Paul, Minnesota, of 41,000 drivers stopped, 26% were African American even though only around 11% of the city is black. In Michigan, probable cause searches were conducted on 23% of black drivers pulled over even though the population of the state is 13.8%. In St. Paul, the police chief denied that there was racial profiling being carried out but six officers were "approached" about the fact that they only pulled over minorities, leading to "minor" punishment in three cases. Silton argues that "[d]ata collection efforts not only potentially result in the punishment of racist police officers, but also provide a catalyst for important policy changes in police departments" and St. Paul has mandated a Miranda-type warning to those pulled over that they have the right to refuse a search of their car. However, even if federal, state, or local governments take action, there is no guarantee these efforts will eliminate racial profiling. As long as the officer can find some probable cause for the stop, even if the first motivation for it was race, there is no real way of accusing the officer of racial animus.

Recent studies in Illinois and Maryland approach the current state of the issue in more depth. The Illinois data is available on the Internet and includes an analysis of traffic stops throughout the state. Overall findings indicated that some minorities (African Americans, Hispanics, and Native Americans) were more likely to be pulled over than Whites and Asians. All minority groups (including Asians) were ultimately more likely to be cited for a violation than Whites. Consent searches on African Americans and Hispanics were disproportionately high, as data indicated that "a Hispanic driver is 2.4 times as likely to be stopped as a Caucasian driver and an African-American driver is about 3 times as likely to be stopped as a Caucasian driver. An article in The Atlantic, writing on the results, noted that "[b]ut the 2008 study also concludes that inferring from this that there is police bias is  "problematic because [it] assume[s] that an officer knows the race of the driver before they make the stop. Very often, particularly at night, and when the vehicles are driving quickly, this is not the case." Many of those cited in the Atlantic article were quick to note that while the data showed a disparity, they were skeptical that this was based on a premeditated view of race. Alexander Weiss, for example, who ran the collection of the portion of the data done through Northwestern University notes that "[a]ll you can conclude is that minorities are more likely to consent to a search, and police are more likely to find contraband in the cars of whites."

The ACLU instituted suit for a Driving while Black class action claim in Maryland. The action utilized the Harris article, (see below) as well as police statistics showing that along the portion of I-95 through Maryland, 70% of drivers stopped were African American even though they comprised 20% of travelers. Additionally, as in Illinois, they were no more likely to have contraband in the car than another group. The case settled with the Maryland State Police agreeing to change procedures and investigate racial profiling claims. An article in the Baltimore Sun, after this agreement, noted that little has changed. The primary problem is that "…the records of the internal police investigations into complaints against individual officers are considered confidential personnel records that are exempt from public scrutiny." This shows that, while institutional changes can be made, it is difficult to prove animus or change the behavior of individual police officers.

Footage from ABC’s Primetime Live shows how a "Driving While Black" incident plays out, with ABC putting video cameras in the cars of African American college students and sending them out into the night:

ABC TV Segment "Driving While Black" Part I and Part II

These videos consider the essential issues of driving while black – are crime statistics, showing African Americans are more likely to commit certain offenses sufficient to warrant pulling over African American drivers? And is there any way to prove that racial profiling is the animus for a traffic stop, especially when there is probable cause on the part of the officer? Can police department efforts really change the actions of individuals?

Recent Articles and Studies

1. James Warren, Driving While Black
   
2. Baltimore Sun article on Maryland settlement
   
3. Matthew D. Lieberman et al, An fMRI Investigation of Race-Related Amygdala Activity in African-American and Caucasian-American Individuals, 8 Nature Neuroscience, 720.
       

Social Science Critiques

Since the study Dr. Lamberth conducted for the defense in New Jersey v. Soto, researchers have become increasingly interested in the frequency and efficacy of racial profiling in law enforcement. David Harris summarizes a few of these studies in his article "The Stories, the Statistics, and the Law: While Driving While Black Matters," including another study conducted by Dr. Lamberth in the state of Maryland. These studies present racial profiling as a nationwide problem. In several different states, including New Jersey, Maryland, Ohio, and Illinois, police officers routinely pull over African-American drivers at rates far in excess of their presence as traffic code offenders on the our nation’s highways. A more recent survey of the empirical literature suggests that minority drivers are three times more likely to be searched during a traffic stop than Caucasian drivers, and nonracial cues cannot explain this disparity. Currently, the Civil Rights Division of the U.S. Department of Justice and more than half of all states monitor racial profiling.

More troublesome than the frequency of racial profiling is the emerging consensus that racial profiling may actually hinder effective law enforcement. A recent study indicates that profiling African-Americans and Hispanics for searches during traffic stops may "yield fewer drugs and fewer drug courier arrests." Moreover, the study suggests that there are nonracial factors that may be effective in a profile, such as driving southbound (the study’s sample covered I-95 in Maryland). However, random searches appeared to be equally effective.

Social Science Critiques Articles

1. Barnes, Assessing the Counterfactual: The Efficacy of Drug Interdiction Absent Racial Profiling,54 Duke L.J. 1089.
   
2. Harris, The Stories, the Statistics, and the Law: While Driving While Black Matters,84 Minn. L. Rev. 265.
   
3. Whitney, The Statistical Evidence of Racial Profiling in Traffic Stops and Searches: Rethinking the Use of Statistics to Prove Discriminatory Intent,49 B.C.L. Rev. 263.