How US police got the deadly power to stop drivers at will
It is no surprise that the pursuit and deadly beating of Tyre Nichols was set in motion by a police traffic stop.
Despite repeated criticism of this practice, and the widespread availability of body-cam and cellphone footage, the number of fatalities from such encounters shows no sign of declining.
Between 2017 and November 2022, 730 people were killed by police during these incidents. More than once a week during that time, someone not being pursued or investigated for a violent crime met their death after a traffic stop. An alarming number were stopped on the pretext of any one of a hundred or more petty traffic code violations.
How did police achieve the power, and impunity, to stop motorists seemingly at will?
Beginning in the 1920s, police departments experienced rapid growth because the mass uptake of car ownership called for adequate traffic enforcement. Until then, uniformed officers on wheels had mostly been chasing gangsters and robbers. Would they have the legal right to stop otherwise law-abiding motorists driving in their own private vehicles? Even without a warrant? Yes, the courts decided, because the cars were being operated on public roads.
As Sarah Seo has shown, over the ensuing decades, judges granted more and more powers to the police to stop and search vehicles. In particular, they were given the authority to do so on the mere pretext of suspecting criminal activity – in what is now known as a pretextual traffic stop. But what constitutes a “reasonable” pretext is still a legal gray area. The fourth amendment is supposed to protect us against searches and seizures that are “unreasonable”. The problem is that when fourth amendment cases are brought against police, courts and juries routinely defer to the officer’s testimony.
This judicial tilt in favor of discretionary authority inevitably led to abridgments of civil liberties, and worse.
That it would lead to racial profiling was foreordained. The ability to hit the road is often seen as an American birthright, manifest in the freedom to travel from coast to coast, unrestricted and unsurveilled. Yet the right to enjoy this liberty has never been enjoyed evenly, because of the restrictions historically placed on the movement of Black (and, in many regions, brown) people by vigilantes, police and other government agents.
Today’s warrantless traffic stops are part of the lineage of the many efforts to limit the access of people of color to the heavily mythologized freedom of the open road. So, too, the well-known perils of “driving while Black” or brown are amplified by the paramilitary technology embedded in today’s police cars. Such features include drone-equipped trunks, bumper-mounted GPS dart guns, automatic license plate readers, voice diction technology, facial and biometric recognition, thermal imaging, augmented reality eyewear, smart holsters, ShotSpotter gunfire detectors, and advanced computers and software that allow instant access to government and law enforcement databases. “Hot spot” policing requires hi-tech cars to move in formation, through targeted urban neighborhoods. In 1960, James Baldwin compared an officer “moving through Harlem” to “an occupying soldier in a bitterly hostile country”. Today’s saturation patrols, like Scorpion, the Memphis unit that hunted down Nichols, bear more of a resemblance to counter-insurgency missions by special operations forces.
The traffic stop is likely to be the most common interaction that all of us have with police, and it invariably results in some form of punishment. For every individual who meets a tragic end, there are many others (disproportionately, Black, brown or poor) whose arrests will lead to detention. The 50,000 traffic stops averaged each day are a primary point of capture for the 10 million people who cycle through America’s jails every year, and for the imprisonment of so many of the country’s poorest citizens.
For the rest of us, the punishment comes in the form of traffic fines. Benjamin Franklin said that the only sure things in life are death and taxes – to which we would add traffic fines. They are unavoidable for almost everyone who gets behind a wheel. It is one thing to receive a fine for reckless driving if it does actually act as a deterrent. But most tickets are issued for less laudable reasons. The out-of-control practice of “revenue policing” has very little to do with public safety.
Officers across the country are ordered to issue fines and fees primarily to gin up revenue for local governments squeezed by austerity cuts in public spending. In many jurisdictions, especially those with large Black and brown populations, this extraction of income for petty code violations can account for between 10% and 20% of the general budget; in 2018, a survey found two townships in Louisiana were drawing more than 90% of their general revenue from traffic fines and fees.
Distrust of law enforcement is already deeply rooted in low-income and marginalized communities, and so when police are actively deployed to raise “taxes by citation” it further diminishes their credibility. As for the courts, their integrity crumbles when legal officials are incentivized to collude in the shakedown. The spectacle of judges preying upon the most vulnerable members of the general population to pay their salaries is not a good look, to put it mildly, for a society governed by the rule of law.
But the consequences of “policing for profit” are not confined to siphoning money from the pockets of those least able to pay. For those with limited cashflow, getting slapped with a fine is the first step in a process that can lead to the loss of their freedom. Surcharges and penalties will be added to unpaid tickets, followed by license suspension, or a bench warrant for failing to make a court appearance. If the judge is unwilling to take into account a person’s ability to pay, jail time or probation beckons, and all because of that initial traffic stop for a minor infringement like a broken tail light, a crack in the windshield, a darkened window tint, or low tire pressure. Debtors’ prisons may have been abolished in 1833, but it is shockingly easy to end up behind bars if the state is your creditor. Technically speaking, the arrest will be for contempt of court and not for debt delinquency, but, to the offender, this distinction doesn’t make a lot of difference.
Who among us has not experienced a jolt of dread at the sight of a patrol car in our rear-view mirror, especially when its driver is flashing their blue lights? This visceral unease arises from the knowledge that deputies can stop and interrogate us at will. In reality, their optional authority to do so has never been consistently applied, as it usually has been dependent on the driver’s skin color. According to one study of South Carolina, Black drivers were about 95% more likely to be stopped than white drivers, and 115% more likely than white drivers to be searched in a traffic stop, even though contraband was more likely to be found in searches of white drivers.
Getting behind the wheel of a huge, steel “freedom machine” has long been sold as one of the blessings of the American Way of Life. For too many of us, it is accompanied by the fearful prospect of being stopped by police and being thrust into legal or financial jeopardy. This experience of unfreedom is an ever-present reminder of how the power of the state has been perverted by predatory policing, whether for the purpose of racial control, revenue collection or to fill cells in our bloated prison system.
What will the public outrage at Tyre Nichols’s death achieve? Aside from renewing the call to defund the police, one particular reform should be self-evident. Remove armed police from the business of traffic duties, just as they have been withdrawn from tollbooth and parking enforcement. Nor is public safety served by their insatiable appetite for ticketing for minor infractions. For example, a 2016 study of New York City precincts by Transportation Alternatives showed that officers issued more tickets for tinted windows than for speeding and failure to yield combined; in the predominantly African American neighborhood of Brownsville, over a four-month period, 1,257 summonses were issued for tinted windows and only 85 for failure to yield.
We still don’t know why Tyre Nichols was apprehended. As of Thursday, the official report seems to be odds with the evidence of the video footage. But, aside from the brutality of the officers involved, the ruination of his life, and so many others, can be laid at the door of a defective paradigm of traffic policing. It is high time to try a different approach to public safety – one that would have allowed Nichols to reach his mother’s driveway in peace.
Julie Livingston and Andrew Ross are NYU professors and authors of Cars and Jails: Freedom Dreams, Debt, and Carcerality (OR Books)