It's (Long Past) Time to End Pretext Stops

 by Tracey Maclin

In America, police targeting blacks for arbitrary and disproportionate searches and seizures is a tradition as old as the nation itself. Today, pretextual traffic stops are routinely used against black drivers, and, as in the case of Tyre Nichols, are sometimes fatal. Nichols was stopped by a unit of the Memphis Police Department, known as SCORPION – the Street Crimes Operation to Restore Peace in Our Neighborhoods. Officers in this unit were assigned to crime hot spots in Memphis and utilized pretext stops to investigate motorists and their passengers.

American law enforcement officials should abolish pretextual traffic stops immediately. Doing so would save the lives of future victims and end a practice that has haunted black motorists for decades.

On January 26, 1956, twenty-seven-year-old Martin Luther King, Jr. offered a ride to a group of black citizens who were participating in the Montgomery, Alabama bus boycott. After the boycotters entered King’s car, two motorcycle policemen followed King’s car and eventually stopped and arrested King for speeding thirty miles an hour in a twenty-five-mile-per-hour zone. As he was being transported to jail, King panicked because he believed that the police were going to lynch him. What happened to King is known as a “pretext” stop. The pretext for the stop was the alleged commission of a traffic offense, but the real reason to stop and arrest King had nothing to do with traffic enforcement. The Montgomery police wanted to intimidate King and send a message to Montgomery’s black citizens.

More recently, we have learned the names of other black motorists subject to pretext stops. Philando Castile was pulled over for a cracked tail-light. Sandra Bland was pulled over for failing to use a turn signal when changing lanes. Walter Scott was pulled over for a broken brake light. Castile, Bland, and Scott, like Tyre Nichols, would not live to challenge the police decision to stop them. Each died as a result of a violent encounter with the police after being stopped for a traffic offense. Castile and Scott were shot by officers. Bland was ordered out of her car and slammed to the pavement, handcuffed, and arrested. Three days later, Bland was found dead in a jail cell; the cause of death was suicide by asphyxiation.

Sadly, but not surprisingly, a unanimous Supreme Court has ruled that pretextual traffic stops do not violate the Fourth Amendment’s prohibition against unreasonable searches and seizures. In Whren v. United States, two black motorists, Mike Whren and James Brown, were stopped for traffic offenses by plainclothes vice-squad District of Columbia police officers. Although D.C. police department rules barred plainclothes vice officers from making routine traffic stops, the officers still stopped Whren and Brown. Drugs were found inside their vehicle. Stressing the lack of evidence that Whren and Brown were involved in narcotics activities, the defendants told the Justices that they were stopped because of their race. Moreover, the defendants pointed the Court to evidence that racially-biased traffic enforcement was ubiquitous throughout the nation. The Court held that whenever police have probable cause that a motorist has violated a traffic law, a stop is constitutionally reasonable under the Fourth Amendment. The motivations of the police, including motives based on racial stereotypes or bias, for making the stop are irrelevant. The Court allowed for the possibility of an equal protection claim for intentional race discrimination, but such claims are effectively unavailable in practice, given the extreme difficulty of proving any individual officer's actual subjective motive for a pretextual traffic stop.

After Whren, a vehicle stop is legal provided an officer can identify any traffic offense or minor violation of the law – no matter the officer’s real reason for the stop. The result and message in Whren were not lost on law enforcement officials. Writing in Police Chief Magazine, which describes itself as the professional voice of law enforcement, Roy Caldwell Kime recognized the importance of the case and the fact that pretext stops are a staple of law enforcement procedure. Kime stated the result in Whren sustained the way police “use traffic stops to uncover other criminal activities.”  The message to police was clear. As one instructor for the California Highway Patrol noted: “After Whren … the game was over. We won.”

While law enforcement officials have praised Whren, many legal scholars have taken the opposite view.  Professor Wayne R LaFave, the nation’s foremost scholar on the Fourth Amendment, has written that Whren means police are conferred with “virtual carte blanche to stop people because of the color of their skin or for any other arbitrary reason.” Ultimately, the police power given by Whren facilitates part of the racial bias contaminating America’s criminal justice system. It promotes arbitrary and racist policing – by both white and black cops. Many studies reveal that “driving while black” remains a reality.

The Department of Justice has also recognized that pretext stops violate the constitutional rights of black motorists. After the killing of Michael Brown by a Ferguson, Missouri police officer, in 2016, the Department and the City of Ferguson agreed to a consent decree that bars Ferguson police officers from conducting pretext stops. Thus, to protect the Fourth Amendment rights of blacks living in Ferguson, the federal government required that Ferguson police officers refrain from exercising police authority – pretextual traffic stops – that a unanimous Supreme Court had ruled was constitutional.

The men and women in-charge of America’s law enforcement agencies have the authority to eliminate pretextual stops by their officers. They should do so forthwith. Doing so may prevent another black motorist from experiencing the horror and death suffered by Tyre Nichols.


Guest blogger Tracey Maclin is a Professor of Law and the Raymond & Miriam Ehrlich Chair in United States Constitutional Law at the University of Florida Levin College of Law. He teaches Constitutional Law and Constitutional Criminal Procedure.