If Overpolicing Happened to Everyone

I am grateful for the thought-provoking responses from Clark Neily, Lars Trautman, and John Pfaff. It is a privilege for a historian to engage with experts working on real-world issues, so I’ve been looking forward to this conversation.

A common theme in the three response essays is the surprise of reading a history of criminal justice from the perspective of Everyman, or the “law-abiding citizen.” While there are many unexpected turns in this history, one aspect that may not be too surprising is that when government officials were dealing with respectable folks, the punitive instinct took time to develop.

Policing was not a widespread mode of governing American society before cars. True, police officers disciplined drunks and vagrants. But everybody else was self-regulated through the common law and voluntary associations like churches and trade unions. Chapter 1 of my book Policing the Open Road describes the strange, sometimes comical, attempts to persuade citizen-drivers to follow the rules of the road by appealing to their honor and reasonableness.

Only after officials and policymakers resigned themselves to the fact that such appeals were insufficient did they supplement traffic law enforcement with criminal punishment. It was the incorrigibility of law-abiding citizens that made the punitive response necessary as a last-resort. Because so many people drove—a majority of families had a car by the mid-1920s—and because every town and city in the country had to deal with the sudden ubiquity of cars, the automobile rendered nineteenth-century self-regulation inadequate and ushered in twentieth-century police governance.

Just how much of this shift was about cars? And, as Lars Trautman asks, where does the practice of stop-and-frisk fit into this story? Even before cars, the police harassed people if they looked out of place. But cars completely changed the historical trajectory of this practice in two ways.

First, traffic policing led to much more policing generally. To use Los Angeles as an example, between 1902 and 1912, the ratio of patrolmen to residents increased by a third. During the same period, traffic arrests went up by over twentyfold, and order-maintenance types of offenses (begging, drunkenness, disturbing the peace, and vagrancy) increased by 45 percent.

Confirming the causation between cars and routine policing, the Los Angeles Police Department reported in 1912 that while the largest task of the traffic squad—which they discovered was “practically self-supporting” from the fines it collected—was to direct traffic, it also “assisted in the general work of the Police Department.” In other words, the need to manage traffic led to more police officers, who then were able to do more police work.

Second, although cars did not precede the existence of police discretion, the policing of “law-abiding” lawbreakers did make it visible as a legal issue. Consider this counterfactual: what would the history of stop-and-frisks look like if the police did not bother respectable people? I submit that the practice would have stayed under the radar.

Here’s why: Terry v. Ohio was decided in 1968, which came pretty late in the social and legal history of stop-and-frisks. Back in the 1930s and 40s, progressive legal reformers had tried to legalize stop-and-frisks. Under the common law, stop-and-frisks were illegal without a valid arrest based on probable cause. The unlawful practice had not been controversial and rarely received the attention of judges and law professors—until cops began to stop and frisk respectable people. Reformers believed that legalization would allay any hard feelings that an innocent person might harbor, while also allowing the police to continue stopping and frisking criminal suspects.

Ultimately, the Terry rule adopted the earlier proposals; the opinion even cited them. The Warren Court attempted to strike a balance between individual rights and law enforcement needs by requiring reasonable suspicion. It was a lower standard than probable cause, but at least it was more than mere suspicion, the standard that the state of Ohio had sought.

To create an entirely new category of searches and seizures that did not require probable cause, both Chief Justice Warren and the earlier reformers cited Carroll v. United States. That’s right—the 1925 case that established the automobile exception, and the very first time that the Court created a new category of searches and seizures that did not require warrants.

Chapter 3 of Policing the Open Road tells the history from Carroll to Terry in more detail. The point that I want to emphasize here is to confirm Trautman’s observation that the “same courts falling over themselves to find all manner of traffic related actions ‘reasonable’ and therefore sufficient to support a stop have done the same sort of mental gymnastics to uphold all manner of stop-and-frisk situations.”

I would go even further to say that cases on the police’s authority to stop and search a person or a car were mutually reinforcing. Carroll provided precedent for Terry, which, in turn, provided precedent for later car cases. In fact, the first case to “give some flesh to the bones of Terry” involved the frisk of a person sitting in a parked car. In the car-dominated United States, the law on policing cars specifically, and the law on policing generally, built on each other.

Policing the Open Road explains how the history of policing Every Driver ended with Driving While Black. Neily’s criticism of Whren v. United States is not only spot-on, it describes the problem more incisively than my initial essay suggests. It’s troubling that under the Supreme Court’s interpretation, the Fourth Amendment countenances pretextual policing and racial profiling. So what is surprising is that the decision was unanimous. What explains the Supreme Court’s consensus on this injustice?

The Whren opinion itself eliminated one possible explanation. Before Whren was decided, several lower courts had cited the challenges of proving that an officer had ulterior motives for stopping a car. But the Court specifically disclaimed evidentiary difficulties as a basis for its ruling.

I suspect that the answer lies in a concern that “traffic law exceptionalism” could end up undermining the rule of law.

As Justice O’Connor remarked, “I don’t know of any other area” of law where “sooner or later most of us are going to commit some traffic violation.” If everybody violates the traffic code, then its enforcement must, by necessity, be selective. This may seem troubling. But selective enforcement alone does not pose a constitutional problem. Police agencies have to prioritize which laws to enforce because of the reality that their resources are limited.

Whren’s lawyer argued, however, that traffic laws are “unique.” There are so many rules and regulations that police officers effectively exercise unrestrained discretion, the very definition of arbitrary power.

But if the Court were to permit a criminal defendant to claim a Fourth Amendment violation based on a pretextual speeding ticket, then a driver could challenge a valid speeding ticket based on pretext—a scenario that several justices mentioned during oral argument. The resulting state of affairs would wreak havoc on traffic-law enforcement and public safety on the streets and highways.

And although traffic laws seem special in how normal and frequent violations are, traffic lawbreaking is arguably an extreme example of a common phenomenon in the modern United States. There are many laws, rules, and regulations that are routinely ignored by both citizens and their enforcers.

The problem, then, is determining “at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement,” as the Whren opinion put it. Today the challenge might involve traffic laws, but the next case might be about the Clean Water Act, and so on. And if the Court were to get in the business of reviewing when valid laws are effectively repealed by widespread lawbreaking—to the point of punishing the police for enforcing those laws—then the rule of law would be turned upside-down.

But what is different about traffic laws from, say, the Clean Water Act, is the racial tilt of criminal patrol. One way of drawing the line between lawful and unlawful enforcement of the laws that everyone violates is to maintain that racially discriminatory enforcement is unconstitutional. This was precisely Whren’s argument, which the Court rejected—at least under the Fourth Amendment. According to Whren, claims of unequal enforcement must be brought under the Fourteenth Amendment’s Equal Protection Clause.

This seems fair enough, and perhaps even the liberal justices signed on to Whren because minority defendants may at least have an equal protection claim.

But there are still two reasons to rue the Court’s decision. First, the very same year that it decided Whren, the Court also decided United States v. Armstrong, which set forth what criminal defendants must do when trying to make a selective prosecution claim on the basis of race. To put it simply, Armstrong made it nearly impossible to do so.

Second, whether one thinks about the overpolicing of minorities as a Fourth Amendment issue or an equal protection issue makes a difference. Viewing this primarily as a discrimination problem, rather than as a problem of policing itself, obscures an important normative question about how much power the police should have in a free and democratic society. Should the police be able to search a car during a routine traffic stop? Should it be possible for minor traffic violations to lead to an unrelated criminal investigation? Unfortunately, these are not the questions that are asked when arguing that minority Americans are not treated the same as “Everyman.”

Finally, John Pfaff ended his response essay with the troubling thought that police reform may face an uphill battle because “when people otherwise uninvolved with the criminal justice system hear about police brutality, aggressiveness, and harassment, they have personal experiences to turn to—experiences that do not line up with those accounts.” I agree wholeheartedly that this is a hurdle. My hope for Policing the Open Road is that readers will never stop asking how our policies and laws would change if the overpolicing of cars happened to us all.

Also from this issue

Lead Essay

  • Sarah A. Seo argues that the advent of the automobile changed American policing. Millions found themselves face to face with law enforcement in new and often unexpected ways. An ethos of “courtesy” soon developed in response to public concern about this new presence in the lives of law-abiding citizens. But courtesy implied discretion, and discretion has often meant racially disparate treatment, as well as serious erosions of the Fourth Amendment.

Response Essays

  • Clark Neily zooms in on the case Whren v. United States, which sustained an extraordinarily deferential standard regarding when law officers may search vehicles. He notes that under Whren, police may even be overtly racist in their choice of whom to search; constitutional reasonableness, the Court has said, does not permit inquiries about such matters.

  • Lars Trautman agrees that automobiles were a big part of the story of police discretion as it developed in the twentieth century. He suggests, however, that the pedestrian stop was also important. Under current Supreme Court doctrine, police may stop pedestrians for a seemingly endless number of “reasonable” causes, allowing them wide discretion to search—or decline to search—anyone. He calls attention to the related developments in pedestrian policing, suggesting that we might have “reached the same destination on foot.”

  • John Pfaff calls attention to the importance of overcriminalization, particularly with regard to misdemeanors. Unfortunately, Americans experience the criminal justice system in very different ways; particularly for white and upper-class people, courtesy is the norm. But others commonly experience another criminal justice system, one in which only trivially bad conduct may lead, not to a warning, but to a stint in jail, a heavy fine, and a criminal record. The solution, he says, is not to abandon courtesy, but to think carefully about the wide range of misdemeanors we have written into law.