Abstract

Excerpted From: Kenneth Williams, If Black Lives Really Matter, We Must End Traffic Stops!, 30 William and Mary Journal of Race, Gender, and Social Justice 309 (Winter, 2024) (482 Footnotes) (Full Document)

Very few issues have garnered more public attention than police involved shootings and their use of deadly force, especially when this force is used against African Americans. That's because African Americans are disproportionately killed by police. These fatal shootings and deaths have resulted in a public outcry among many and demands for justice. As a result, there have been numerous proposals for reforming police practices regarding the use of deadly force and for making police more legally accountable for their actions. There was initial optimism that police body cameras would substantially reduce police involved shootings and make police more accountable. Although most police departments have outfitted their officers with body cameras, this reform has not changed the instances of police involved shootings, and as the police beating death of Tyre Nichols demonstrates, the cameras do not even seem to be a strong deterrent to the unlawful use of deadly force.

In response to the George Floyd murder and the protests that followed, more recent reform proposals have sought to make it more difficult for the police to justify the use of deadly force. These reforms assume that the core of the problem are a few bad officers and that the situation will improve once those bad officers are removed from police forces. However, the core of the problem is not individual racism among police officers; rather, the problem is institutional. Because the problem is institutional, it explains why there has been no reduction in police use of deadly force and, in fact, the numbers of police involved shootings have either remained steady or have increased despite the outcry over these deadly encounters. Furthermore, it explains why there has been no increase in charges being brought against officers and no increase in convictions of police officers involved in deadly shootings.

One of the primary reasons there has not been a decline in police-involved shootings, especially of African Americans, is because frequently these shootings occur during initial non-violent traffic stops and it is fairly easy for police officers to justify a traffic stop. Traffic stops are the most frequent interaction between the police and civilians. Many of the stops are for equipment violations such as broken taillights. Although there is little evidence that traffic stops control crime, they can be very dangerous encounters, primarily for the civilian who has been stopped. A New York Times investigation in 2021 found that, in the previous five years, police officers pulling over cars had killed more than 400 motorists who were neither wielding a gun or knife nor under pursuit for a violent crime--a rate of more than one a week. There is no way to know the number who are injured but not killed during traffic stops since that data is not collected. These traffic stops are especially dangerous for African Americans. are more likely to be stopped by police, and are disproportionately killed by police, even when they are not wielding a weapon or fleeing from a crime.

Although police fatally shoot suspects of all races, this Article's focus is on the shootings of African Americans by the police because of the heavy and disproportionate toll of these fatal shootings on the African American community. This Article will argue that African Americans will continue to be fatally shot and killed by police disproportionately and in many cases unjustifiably as long as police are allowed to stop motorists for minor non-violent traffic infractions. These stops do little to combat crime and are not worth the lives they upend and the continued unconstitutional racial discrimination that motivates many of these stops. Although the standards for police use of force need to be reformed and police culture has to be changed, the other reform that is imperative in order to significantly reduce the disproportionate fatal police shootings of African Americans is to minimize interaction between police and African Americans and the best way to accomplish this is by eliminating non-violent traffic stops. Police should only be able to stop civilians for violations that truly pose a danger to public safety. However, this Article is not advocating that traffic infractions be ignored. Rather, this Article will argue that there are safer and more efficient means of enforcing traffic rules without police-initiated traffic stops.

In order to demonstrate how this issue impacts African Americans of all socio-economic backgrounds, this Article will begin with a description of one of my personal experiences with police-initiated traffic stops. Even though my experience thankfully did not end fatally, many unfortunately have. In the next section, therefore, I will discuss a few high-profile, police-involved fatal shootings of African Americans during traffic stops as illustrations of the problem. In the next section, I will discuss the purposes traffic stops serve other than public safety. Traffic stops are used by many jurisdictions for the purpose of enhancing their revenue. Traffic stops are also often used to investigate other suspected criminal activity. These pretextual stops frequently result in racial profiling thus putting African Americans at increased risk of being killed by police. There is an abundance of evidence that racial profiling in traffic stops is systemic, including traffic stop statistics and the fact that African Americans are stopped less frequently at night when their race is obscured by a “veil of darkness.” The Article then discusses how the U.S. Supreme Court, through a series of decisions, has empowered the police to use racial profiling as a law enforcement mechanism and has made police essentially unaccountable when they do so.

In the next section, the Article argues that given the fact that the Supreme Court has empowered the police with the authority to racially profile with impunity, other reforms should be explored to minimize the risks of harm to African Americans. This Article discusses how police interaction with individuals can be minimized by removing traffic enforcement as a police function. This reform has been implemented in a few U.S. jurisdictions, as well as in some nations, such as New Zealand from 1936 to 1992, but needs to be universally adopted. In the final section, I will respond to some likely objections to eliminating traffic stops, explain why eliminating traffic stops will not imperil public safety or violate constitutional rights, and critique other proposals short of eliminating traffic stops that have been proposed, such as using unarmed traffic agents in lieu of police as enforcement agents, and explain why those measures do not go far enough.

[. . .]

There is not one solution to the problem of police involved killings of African Americans. The best solution would of course be to change the hearts and minds of those police officers whose conscious and subconscious biases cause them to be more fearful of African Americans and to associate them with crime. Changing hearts and minds, however, is a process that occurs over a long period of time. There needs to be more immediate solutions. Most of the reforms that have occurred, such as police body cameras, have been helpful in that they have exposed the problem but incomplete because they have not led to many criminal convictions of the police even when warranted. For instance, it is hard to imagine why a South Carolina jury was unable to reach a verdict after watching a video of the officer shooting a clearly unarmed Walter Scott in the back as he was running away and after watching the officer plant a taser next to Scott's body, all following a stop for a minor traffic violation.

There is only one reform that will absolutely reduce the number of police shootings and that is to minimize the interactions between the police and individuals by discontinuing the use of traffic stops in order to enforce traffic rules. This much needed reform benefits both the police and motorists. By eliminating traffic enforcement from their responsibilities, the police would be able to devote their time to more serious crimes. They also would benefit from not having to deal with both the emotional difficulties that result from fatally shooting a suspect and the legal difficulties that they may encounter as a result. The motorists, especially African Americans and other marginalized individuals, benefit also. That's because for most whites, being stopped by the police is an annoyance but for African Americans, an encounter with a police officer is a potential life-threatening event.

Professor of Law, South Texas College of Law Houston.