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Racial justice

Opinion

May 5, 2021

Twenty-seven percent of unarmed civilians killed by police began with a traffic stop. The Stanford Open Policing Project indicates that a significantly higher proportion of minority drivers than white drivers are stopped by police for traffic violations and are disproportionately frisked, searched, questioned, ticketed and arrested following traffic stops.

And why is it that we need heavily armed police trained in military tactics to enforce most traffic violations? After all, civilian inspectors enforce violations and give out citations for things like restaurant hygiene, workplace health and safety, building codes, and, yes, parking tickets. And unlike traffic stops by armed cops, how often do you hear of civilian inspectors shooting people they’re giving citations to?

The main reason why armed police have assumed responsibility for enforcing traffic laws is to give them a pretext to stop cars in the hopes of conducting a warrantless search, finding evidence of another violation and arresting the driver and possibly the passengers.

Legally, the Supreme Court has all but emasculated the Constitution’s 4th Amendment protection against unreasonable searches and seizures without a search warrant in the context of a traffic stop.

Indeed, in his 1996 majority opinion in Whren v. United States, Justice Scalia ruled that a defendant cannot even raise the argument that the pretext for a traffic stop and warrantless search is based on the driver’s race as a defense under the 4th Amendment.

According to Scalia, it was irrelevant whether the black defendants were racially profiled because the Court had foreclosed “any argument that the constitutional reasonableness depends on the actual motivation of the individual officer.” In other words, the Court can’t even inquire whether the stop was motivated by the cop’s racism. Furthermore, even if the cop admits to being motivated by racism, the stop and search is still constitutionally uncontestable under the 4th Amendment. (Scalia did admit that a defendant might have a claim under the Equal Protection Clause; but the burden of proof that a stop or search was made for racial reasons, if denied by the police, is so high that it’s of little use to minority defendants.)

As Michelle Alexander, author of The New Jim Crow argues, the Supreme Court “closed the courthouse doors to claims of racial bias” in a traffic stop or warrantless search. Or as Clark Nelly of the conservative Cato Institute writes, “Honestly, it’s hard to say which is more dismaying: the continued use of racial profiling by law enforcement…or the judiciary’s persistent indifference to the fact that the ability to fully enjoy Fourth Amendment rights while driving a car in America still turns in significant measure upon the color of one’s skin…”

In short, racial profiling in the context of traffic stops has been endorsed by the Supreme Court. When black or brown motorists are pretextually stopped by police because of their race or ethnicity and the encounter escalates into a fatal police killing, both the police perpetrators and our honorable Supreme Court share responsibility for the needless death.

Excerpted: ‘Want Fewer Police Shootings? Get Armed Cops Out of Traffic Enforcement’

Commondreams.org