Ten Miles Square

January/ February 2014 Driving While Black

“Stop and frisk” isn’t just a reality in New York City. New data shows how police target African Americans on highways across America.

By Charles Epp and Steven Maynard-Moody

By contrast, African Americans view investigative stops far more harshly, for reasons that are obvious when you hear their descriptions of the experiences, as we did conducting our survey. One gentleman, Billy, told a story about how, on the way to a job interview in Des Moines, he was pulled over by a Missouri highway patrolman for speeding even though he was going, at most, two miles over the speed limit. The trooper made Billy get out of his car and put his hands on the hood while he searched his car. Finding nothing, explained Billy, the trooper “came back and said, ‘The reason why we checked your car is we’ve been having problems with people trafficking drugs up and down the highway.’ So that was that.” It was not the only time this happened to Billy. On another occasion, he, his wife, and his cousin were pulled over on their way to visit an ill relative and their rental van was searched for drugs by a Missouri sheriff’s deputy.

Another man, Joe, told of being pulled over in Kansas City by an officer who drew his gun, handcuffed him, searched his car, checked his license, then let him go with “no ticket, no nothing.” Asked why he thought the officer had stopped him, Joe said, “I don’t know why, beside driving a nice vehicle, a nice car in the wrong neighborhood.” Joe, too, experienced much the same thing a second time, when an officer pulled him over and checked his license for outstanding warrants (he had none). “I felt violated,” Joe says of that episode. As well he should; warrant check stops are in fact illegal. But in some high-crime areas, an officer in a Kansas City-area department told us, “We stop everything that moves.”

The numbers game that police play with investigatory stops is a recipe for giving offense to large numbers of innocent people. Pervasive, ongoing suspicious inquiry sends the unmistakable message that the targets of this inquiry look like criminals: they are second-class citizens. The vast majority of black respondents to our survey—64 percent, compared to only 23 percent of whites—said that you cannot always trust police to do the right thing. Twenty-two percent of black respondents agreed with the statement that “the police are out to get people like me.” Only 4.5 percent of whites felt this way. The disproportionate personal experience of these stops among blacks is one source of this trust gap. Another is hearing stories of police disrespect from families, friends, and work and faith networks. Among respondents to our survey, 37 percent of black drivers, compared to 15 percent of whites, reported hearing these sorts of stories from members of their own household.

Investigatory police stops teach the lesson that the police are here to get racial minorities, not protect them. This is what Cornell law professor Sherry Colb calls the “targeting harm” of investigatory stops. It is the message that people like you are targets of surveillance, not the beneficiaries of protection. And while investigatory stops do enable police to find some lawbreakers and get them off the street, they also undermine the minority community’s trust in law enforcement and thereby its willingness to share information vital to good police work. Sixteen percent of black respondents to our survey reported that they did not feel comfortable calling the police if they needed help, compared to only 5 percent of whites.

Police leaders say the solution is to train officers to be more polite and respectful. This is not enough. The people we surveyed certainly prefer to be treated politely in police stops. But investigatory police stops are fundamentally unjust—and, according to our survey, feared—no matter how polite the officer.

A more meaningful solution is one put forth by U.S. district judge Shira A. Scheindlin, who in August ruled that New York City’s stop and frisks, as practiced, violate the Constitution. She ordered the New York City Police Department to better train officers in what kinds of justifications for these stops are constitutionally acceptable and to require officers to report the justification for stops in their own words (as opposed to simply checking a box to indicate the type of justification). Importantly, she also appointed a lawyer to monitor the police department’s implementation of these directives. While her decision was suspended by an appellate court, it offers an excellent analysis of the constitutional problems in the practice of stop and frisk. We hope it serves to guide other judicial decisions.

Still, in our view, the judge’s reform directives do not go far enough. The Constitution, at least as interpreted by the Supreme Court, sets the bar too low with regard to what is an acceptable justification for a stop. Police training already teaches officers to justify a stop with “specific, articulable facts and reasonable inferences there from,” the language in the key Supreme Court decision Terry v. Ohio. It is too easy for officers to provide a right-sounding legal justification for what is, in fact, a stop based on inchoate suspicion.

The solution is to prohibit investigatory police stops. This will require a change in police norms. Police leaders celebrate investigatory stops and the few big busts they yield. Instead, these leaders—the heads of professional police associations, police chiefs, and police trainers—should acknowledge how much these stops cause palpable harm to the person stopped and to trust in the police. Departments should prohibit stops unless justified by evidence of a violation. Officers would still have the authority to make traffic safety stops to ticket or arrest drivers for speeding, blowing through red lights, or driving drunk. They would still have the authority to stop people who fit a clear description of a suspect. What they would not have the authority to do is to stop people out of curiosity or unspecified suspicion.

If law enforcement leaders won’t act on their own, political leaders may force them into doing so. The New York mayor’s race showed that stop and frisk has taxed the patience of a substantial number of voters. Our survey shows that New York City is not the only place where that’s true.

Charles Epp and Steven Maynard-Moody are professors at the School of Public Affairs and Administration at the University of Kansas. They are coauthors, with Donald Haider-Markel, of Pulled Over: How Police Stops Define Race and Citizenship.

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