Pulled Over

How Police Stops Define Race and Citizenship

Charles R. Epp, Steven Maynard-Moody, Donald P. Haider-Markel

• Publisher: University of Chicago Press
• Year: 2014
• ISBN:
  9780226114040
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

In sheer numbers, no form of government control comes close to the police stop. Each year, twelve percent of drivers in the United States are stopped by the police, and the figure is almost double among racial minorities. Police stops are among the most recognizable and frequently criticized incidences of racial profiling, but, while numerous studies have shown that minorities are pulled over at higher rates, none have examined how police stops have come to be both encouraged and institutionalized.
Pulled Over deftly traces the strange history of the investigatory police stop, from its discredited beginning as "aggressive patrolling" to its current status as accepted institutional practice. Drawing on the richest study of police stops to date, the authors show that who is stopped and how they are treated convey powerful messages about citizenship and racial disparity in the United States. For African Americans, for instance, the experience of investigatory stops erodes the perceived legitimacy of police stops and of the police generally, leading to decreased trust in the police and less willingness to solicit police assistance or to self-censor in terms of clothing or where they drive. This holds true even when police are courteous and respectful throughout the encounters and follow seemingly colorblind institutional protocols. With a growing push in recent years to use local police in immigration efforts, Hispanics stand poised to share African Americans' long experience of investigative stops.
In a country that celebrates democracy and racial equality, investigatory stops have a profound and deleterious effect on African American and other minority communities that merits serious reconsideration. Pulled Over offers practical recommendations on how reforms can protect the rights of citizens and still effectively combat crime.

CHAPTER ONE

“I Felt Violated”

NARRATIVE 1.1.

Joe, African American male: “I Felt Violated”

One time that I particularly remember, I was just, I don’t know how to explain it—I felt violated.

I was doing the speed limit, I got pulled over and was asked for my driver’s license and registration. I went and asked why I was being pulled over. He just pretty much stated that there was a warrant check. And pretty much ran my license and asked if I had any warrants for my arrest and I told him, “No.” And he ran my plate and driver’s license and asked if that was my current address and all that good stuff and then released me.¹

The stop Joe describes in his brief narrative might appear, at first glance, to be inconsequential. Some might say it was merely a minor inconvenience in the police war on crime. The officer was professionally courteous and, in the end, issued no citation. It was all over in a few minutes. Research tells us stopped drivers are most concerned about police rudeness and sanctions, and on these dimensions, Joe could hardly have fared better. Yet Joe’s emotional response was palpable and raw. This African American man was not merely annoyed or angry. He felt violated.

Joe’s experience and indignation are common among African American drivers. In this book we will share similar stories from many African American drivers and will verify that their experiences fit widespread patterns revealed in a survey of 2,329 drivers. For example, Deana, an African American woman, was stopped twice within five minutes one night by different officers who only asked where she was going.² Lisa was followed home from work at 10:30 every night for two weeks—every night—by police officers who looked closely at her and asked whether she owned the Corvette she was driving. Billy was stopped and questioned and his car was searched on two different occasions.³ Kenneth was stopped, held in a police car and questioned, and then released.⁴ In some cases the stop was more intrusive. Joe, the driver in our opening narrative, told us of a previous stop in which an officer pulled him over, approached him with his hand on his gun, handcuffed him, and ran a warrant check. Darrell was stopped along with several high school buddies while driving through a white neighborhood, held in handcuffs on the sidewalk for an hour, and then released.⁵ In most of these stops, the African American driver described the officer as “polite” or even “nice.” In none was the driver given a ticket. And yet in each case, the driver described to us fear and resentment of the experience. White drivers rarely share these experiences, making police stops a defining aspect of the racial divide in America.

Police stops matter. No form of direct government control comes close to these stops in sheer numbers, frequency, proportion of the population affected, and, in many instances, the degree of coercive intrusion. The police make some eighteen million traffic stops per year in the United States.⁶ Nationally, 12 percent of drivers are stopped per year by the police.⁷ Among racial minorities the rate is considerably higher: 24 percent or more by some estimates.⁸ In a police stop the driver (or pedestrian) is arrested for the duration of the stop, is not free to leave, and is sometimes subjected to the most searching of inquiries, ranging from intrusive questions (What are you doing in this area?) to a physical pat-down, a search of the vehicle, or handcuffing. Being stopped is a potent experience. Drivers vividly remember the details and share stories of police stops with family and friends. While driving, they note who is stopped by the police and what is transpiring in the stop: a single officer writing a ticket or several officers conducting a vehicle search while the driver stands alone at the front of his vehicle.

Police stops convey powerful messages about citizenship and equality. Across millions of stops, these experiences are translated into common stories about who is an equal member of a rule-governed society and who is subjected to arbitrary surveillance and inquiry. With the growing push to use local police in immigration enforcement, Latinos are increasingly likely to share African Americans’ long experience of inquisitorial stops. “Show me your papers” will become a common command to people who look stereotypically Latino. When people like Joe, Deana, Lisa, Billy, Kenneth, Darrell, and others we will introduce in this book are subjected to intrusive, arbitrary inquiries when stopped, and other people—white people—are largely free of these inquiries, police stops actively re-create and enforce the country’s racial divide. Stops contribute to what Michael Dawson has called African Americans’ “linked fate,” or the sense, based directly on experience, that racial discrimination is still a defining feature of American life.⁹

In a country that celebrates democracy and racial equality, this police-defined racial divide is a deep and festering wound. In an era of police reforms, among them community policing and the growing diversity of the ranks of officers, it represents an institutional failure. From the controversies over highway drug interdiction in Maryland and New Jersey in the 1990s to the recent debates over racial profiling of Latinos in Arizona and racially discriminatory stopping and frisking of pedestrians in New York City, it is well established that racial minorities are more likely than whites to be stopped by the police.¹⁰ But disparities in who is stopped are only the most obvious indicator of how police stops both reflect and define racial division in the United States. In stops, racial minorities are questioned, handcuffed, and searched at dramatically higher rates than whites are; they are much more likely than whites to perceive the stop as unfair; and they distrust the police in general at much higher rates than whites do. On each of these dimensions the racial gap is wide. These patterns appear in the frisking of pedestrians by big-city police, stops and searches of vehicles on interstate highways by state patrols, and, our focus, stops of drivers on city and suburban streets by local police. Although these types of stops differ in some ways,¹¹ they are united by their essential racial characteristics: in each, police officers disproportionately stop racial minorities and act more intrusively toward them during the stop.

Why do racial disparities in police stops persist despite a widespread legal and moral commitment to nondiscrimination? This question is the subject of considerable research and controversy, much of it conducted via increasingly sophisticated statistical studies. The standard answers fall roughly into two competing camps. One is that racial disparities reflect racism (whether deliberate or implicit) on the part of individual officers, the other that officers are rationally justified in stopping black people at higher rates than whites because they commit crimes at higher rates.¹²

Missing from much of this commentary is attention to how police stops are organized and conducted, and how the people who are subjected to these stops think about them. This study returns the focus to these basic issues. Here, the focus is on the lived practice and the lived experience of police stops.

This shift in focus has led us to believe that current debates over “racial profiling,” as it is commonly called, rest on two basic assumptions that are, at best, incomplete. By enlarging the discussion, we hope to increase understanding and open new possibilities for reform. The first assumption is that what African Americans find offensive—and what ultimately distinguishes a racially problematic stop from a racially legitimate stop—is primarily officer rudeness and disrespect, not other elements of the stop itself. This assumption reflects the widespread belief that racism is mainly a personal animus and is expressed in interpersonal rudeness. It is further based on the psychological theory of procedural justice, which teaches that people evaluate the legitimacy of official decisions on the basis of whether the process seems fair, not whether they got a favorable outcome.¹³ For example, a driver is likely to accept the legitimacy of a traffic ticket if he or she feels the officer acted fairly.

Drivers do value fair treatment and feel demeaned when treated unfairly, and this fact supports a legal theory that runs parallel to the psychological one: fair procedures are valuable not only because they minimize mistakes but also they affirm the inherent dignity of the individual.¹⁴ According to this legal theory, an essential purpose of fair procedure is to treat the people subjected to official procedures as “people,” not “things.”¹⁵ In the narrative above, Joe’s sense of violation reflected his sense that he was not accorded this dignity.

But we emphatically depart from how the psychological version of this theory has been interpreted in the context of police stops. In that context, it has been claimed that since people have difficulty knowing whether a stop is truly fair, they make an inference based on whether the officer seemed respectful. As Tom Tyler, the leading scholar of procedural justice, has put it, while officers should be fair as well as politely respectful, appearing to be respectful “is especially advantageous in reducing public dissatisfaction about [racial] profiling.”¹⁶

This claim that people will view police stops as legitimate if the officers are polite and respectful has allowed the widespread stopping of racial minorities to fester. William Stuntz, the noted Harvard criminal law professor, said as much: “If Tyler’s claims are even partly true, the police could simultaneously increase the number of Terry stops [stop-and-frisks], decrease the injury those stops cause, and substantially reduce complaints of police discrimination—all without changing the way they select search targets. . . . Worrying about how street stops happen makes more sense than worrying about how many of them happen.”¹⁷ By saying officers could gain acceptance of investigatory stops “without changing the way they select search targets,” Stuntz suggests that officers could continue to target large numbers of racial minorities for these stops—so long as investigatory stops are “carried out more politely” and suspects are “treated with more dignity.”¹⁸ As we will show in chapter 2, the leaders of professional policing responded to the racial profiling controversy by urging departments to train their officers to be unfailingly respectful when stopping people—as if this would address the problem.

Joe, Deana, Lisa, Kenneth, Billy, and many other African Americans who we will introduce in this book certainly prefer to be treated politely in police stops. But in their experience, official politeness could not convert an otherwise offensive police stop into a fair and legitimate one. Some police stops are recognized to be fundamentally unjust no matter how “polite” or “nice” the officer. The deeper problem in these polite but unjust stops is that they are part of a broad, continuing pattern in which racial minorities are disproportionately subjected to suspicious inquiries without any particular basis or justification. Pervasive, ongoing suspicious inquiry sends the unmistakable message that the targets of this inquiry look like criminals: they are second-class citizens. Law professor Sherry Colb called this “targeting harm”: the person targeted by such a stop “is left wondering, ‘Why me? Why have the police singled me out when they lacked an evidentiary basis? Why didn’t they search someone else instead or as well? What gave them the gut feeling that I am a criminal?’”¹⁹ These harms are compounded when the person targeted believes, on the basis of widely known patterns, that he or she has been selected because of race. Targeting in this way generates especially pernicious social costs, as Bernard Harcourt observes, by turning increasing numbers of the targeted groups into convicted criminals or innocent but distrustful subjects of surveillance who feel treated like criminals—and by giving others the comparative freedom from such control.²⁰ Accompanying these harms is the invasion of privacy imposed by the officer’s questions and searches. To the question “Why are you in this neighborhood?” most people will think with considerable justification, “Why is that any business of yours?” But when the questioner is a police officer, they will offer an answer while feeling their privacy invaded and their dignity eroded. Patting down a person’s body in search of a weapon or a bag of drugs or rifling through the contents of a vehicle only on the basis of the hope that by chance some such searches will turn up contraband are even deeper intrusions of privacy and assaults on dignity.

The earliest psychological research on procedural justice acknowledged that politeness may not be enough. If people who are subjected to an ongoing, discriminatory pattern learn to recognize it as such, they will come to conclude that the process is deeply unfair even if the officials carrying it out are unfailingly respectful and polite. As Tyler put it in an early, prescient caveat to the psychological theory of procedural justice, even if officials appear to be respectful “a procedure that consistently produces unfair outcomes will eventually be viewed as unfair itself.”²¹

This deeper truth has been forgotten in the effort to legitimate inquisitive police stops by making the officers more polite. What makes inquisitive police stops so offensive to so many African Americans and Latinos is not that the officers carrying them out are impolite or even frankly bigoted, but that these stops are common, repeated, routine, and even scripted. This scripted practice treats its targets not as individuals worthy of dignity but as numbers to be processed in search of the small percentage who are carrying contraband or have an outstanding warrant.

This leads to the second faulty assumption in current debates over “racial profiling”: it is the belief that racial disparities in police stops are the product of discriminatory police officers rather than an institutionalized practice that is inherently unfair and discriminatory. The focus has been on identifying and reducing “intentional” discrimination. Was the officer who stopped Joe frankly racist but careful to hide it? If not deliberately bigoted, was he acting on the basis of implicit negative stereotypes of black people, stereotypes that he may not have been aware that he held? Or was he acting rationally, on the assumption that his warrant checks would be more efficient if focused on black men? These are the positions in a growing debate over the source of racial disparities in police stops and, more broadly, on the status of racism in American society.²²

The Supreme Court, too, assumes that discriminatory intent, rather than discriminatory practice, is the problem.²³ Under the constitutional law governing fair procedure in police stops, if an officer deliberately stops a person only because that person is black, then the officer is acting with discriminatory intent and the stop is illegitimate. But this is only a theoretical possibility, because the court requires direct evidence that a stop is intentionally biased. If the officer has some legal justification for the stop, ho...