The Phenomenon of “Driving While Black (or Brown)”
For decades, observers have documented that black and brown drivers are more likely than white drivers to be stopped by police, a phenomenon sometimes described as “Driving While [Black/Brown]” or “DWB.” (Similar observations have been made about which pedestrians police choose to stop and frisk, a topic to which we will return.) U.S. Senator Tim Scott (R-S.C.) described in a 2016 speech his experiences as a black motorist, along with incidents in which Capitol police questioned whether he really was a member of the Senate.27 Reporting that he had been stopped by police while driving seven times over the prior year, he asked colleagues to “imagine the frustration, the irritation the sense of a loss of dignity that accompanies each of those stops.”
Noting that in most of the incidents, “[He] was doing nothing more than driving a new car, in the wrong neighborhood, or some other reason just as trivial,” he said, “I have felt the anger, the frustration, the sadness and the humiliation that comes with feeling that you’re being targeted for nothing more than just being yourself.”
After being stopped by Capitol police, Sen. Scott received apologies on multiple occasions from police leadership. Most Americans, however, lack the social capital possessed by Senators and cannot expect that sort of response to complaints.
Although the cause of “DWB” stops is disputed, the existence of the phenomenon is well-documented,28 as are its effects on relations between police departments and minority communities. For example, one of your authors once attended an event in St. Louis at which a leader of the St. Louis City police said that certain St. Louis County police departments treat minority residents so badly, City police have trouble getting cooperation from potential witnesses, impeding the City department’s ability to solve serious crimes.
Robert Wilkins, now a federal appellate judge, was a plaintiff in 1990s litigation related to DWB stops in Maryland. A 2016 CBS News interview in which he describes his experiences is available here: https://www.youtube.com/watch?v=pYsl6AQBZn4
In the spring and summer of 2020, police treatment of members of minority communities—especially African Americans—once again received a national spotlight. The May 2020 killing of George Floyd by police in Minneapolis and the March 2020 killing of Breonna Taylor by police in Louisville aroused particular indignation, inspiring protests across the country. Police response to protests in some cities, including violence captured on video, inspired further calls for reform, along with more radical proposals.
As you read subsequent chapters, consider how Supreme Court criminal procedure decisions affect how police departments interact with communities they exist to serve. For example, does the Court’s Fourth Amendment doctrine encourage police officers to act in ways that build confidence among community members? When police officers violate rules set forth by the Court, do existing legal remedies encourage better future behavior? If you are unhappy with the state of policing, how might things be improved? If instead you think policing is going fairly well, to what do you attribute the discontent exhibited during the 2020 protests?
One purpose of this book is to help you consider questions like these. Recall, however, that most Americans will never attend law school. Knowledge of criminal procedure doctrine among the public is sketchy at best. If Americans better understood Supreme Court doctrine related to the Fourth, Fifth, and Sixth Amendments, do you think they would have more or less faith in the criminal justice system? Why? After finishing this book, answer these questions again and examine whether your own opinions have changed.
A recent study of policing in Ohio strongly suggests that the disparities demonstrated during Wilkins’s lawsuit exist today, at least in some American jurisdictions.
The extreme racial disparities found in nonmoving traffic violations (i.e., driving under suspension and without a seatbelt) among blacks in Cleveland and Shaker, offenses that are generally detected either through electronic surveillance or once a traffic stop has been made, are consistent with Meehan and Ponder’s conclusion that, “officers must be ‘hunting’ for, or clearly noticing, African American drivers,” in these jurisdictions. This practice among law enforcement officers creates a “self-fulfilling prophecy,” in that if black motorists are disproportionately surveilled, stopped, and cited for traffic offenses by police, its cumulative effect can help explain the disproportionate number of blacks that ultimately have their driver’s licenses suspended. And given the strong inducements to drive noted earlier, a considerable segment of these motorists continue to drive, are eventually caught again, and this cycle only repeats itself, with escalating legal and financial consequences accruing to the motorist.
Ronnie A. Dunn, Racial Profiling: A Persistent Civil Rights Challenge Even in the Twenty-First Century, 66 Case W. Res. L. Rev. 957, 991 (2016) (quoting Albert J. Meehan & Michael C. Ponder, Race and Place: The Ecology of Racial Profiling of African American Motorists, 19 Just. Q. 399, 399-400 (2002).
What other constitutional provisions might be violated by pretextual stops? For example, what if police stop only Catholics, or only Hispanics, or only vehicles with bumper stickers supporting political candidates or causes offensive to the officer making the stop?
