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David A. Harris**

84 Minnesota Law Review 265-326 (1999)
(Permission Requested, citations omitted)

Editor's Note: This article has over 200 footnotes. The footnotes have been edited out for presentation in this forum. I encourage you to see the original article for not only the scholarly documentation but the extensive explanations that Professor Harris provided in his footnotes.




A. The Impact on the Innocent

B. The Criminalization of Blackness

C. Rational Discrimination

D. The Distortion of the Legal System

E. Distortion of the Social World

F. The Undermining of Community-Based Policing



A. The Traffic Stops Statistics Act

B. State Legislation

C. Local Action

D. Litigation

E. Search and Seizure Challenges Under State Constitutional Provisions, Case Law, and Statutes



Each one of those stops, for me, had nothing to do with breaking the law. It had to do with who I was. . . . It's almost like somebody pulls your pants down around your ankles. You're standing there nude, but you've got to act like there's nothing happening.


It has happened to actors Wesley Snipes, Will Smith, Blair Underwood, and LeVar Burton. It has also happened to football player Marcus Allen, and Olympic athletes Al Joyner and Edwin Moses. African-Americans call it "driving while black"--police officers stopping, questioning, and even searching black drivers who have committed no crime, based on the excuse of a traffic offense. And it has even happened to O.J. Simpson lawyer Johnnie Cochran.


In his pre-Simpson days, Cochran worked hand-in-hand with police officers as an Assistant District Attorney in Los Angeles, putting criminals behind bars. Cochran was driving down Sunset Boulevard one Saturday afternoon with his two youngest children in the back seat when a police car stopped him. Looking in his rearview mirror, Cochran got a frightening shock: "the police were out of their car with their guns out." The officers said that they thought Cochran was driving a stolen car, and with no legal basis they began to search it. But instead of finding evidence, they found Cochran's official badge, identifying him as an Assistant District Attorney. "When they saw my badge, they ran for cover," Cochran said.


The incident unnerved Cochran, but it terrified his young children. "[The officers] had their guns out and my kids were in that car crying. My daughter said, 'Daddy, I thought you were with the police.' I had to explain to her why this happened."


Cochran's experience is a textbook example of what many African-American drivers say they go through every day: police using traffic offenses as an excuse to stop and conduct roadside investigations of black drivers and their cars, usually to look for drugs. Normally, if police want to conduct stops and searches for contraband they need probable cause or at least reasonable suspicion that the suspect is involved in an offense. But with the Supreme Court's recent cases involving cars, drivers, and passengers, none of this is necessary. Traffic offenses open the door to stops, searches, and questioning, based on mere hunches, or nothing at all. And African-Americans believe they are subjected to this treatment in numbers far out of proportion to their presence in the driving population.


But is this just a problem of perception, the product of years of mistrust between police and minorities? Is it a problem only in large urban centers? Are these claims supported by statistical evidence, or are they merely strong feelings born of anecdotes?


To answer these questions, a number of African-Americans--all middle class, taxpaying citizens--described their experiences in interviews. The interviewees were drawn from Toledo, Ohio, an almost prototypical medium-sized Midwestern city. Statistics from courts in Toledo and in three other Ohio cities--Dayton, Akron, and Columbus--were analyzed. Research from other areas of the country was also reviewed.


The interviews reveal that African-Americans strongly believe that they are stopped and ticketed more often than whites, and the data from Ohio and elsewhere show that they are right. For example, the Toledo Police Department is at least twice as likely to issue tickets to blacks than to all other drivers. The numbers in Akron, Columbus and Dayton are similar: blacks are about twice as likely to get tickets as those who are not black. When adjusted to reflect the fact that 21% of all black households do not own vehicles, making blacks less likely to drive than others, these numbers increase to even higher levels. All of the assumptions built into this statistical analysis are conservative; they are structured to give the law enforcement agencies the benefit of the doubt. Statistics from cases in New Jersey and Maryland are similar. Sophisticated analyses of stops and driving populations in both states showed racial disparities in traffic stops that were "literally off the charts."


Police departments engage in these practices for a simple reason: they help catch criminals. Since blacks represent a disproportionate share of those arrested for certain crimes, police believe that it makes sense to stop a disproportionate share of blacks. Lt. Ernest Leatherbury, a spokesman for the Maryland State Police (a department that has been sued twice over race-based traffic stops), explained to the Washington Post that stopping an outsized number of blacks was not racism, but rather "an unfortunate byproduct of sound police policies." Carl Williams, Superintendent of the New Jersey State Police, put the matter even more bluntly in an interview with the Newark Star-Ledger. With narcotics today, he said, "it's most likely a minority group that's involved with that." In other words, officers may be targeting blacks and other minorities, but this is a rational thing to do.


This type of thinking means that anyone who is African-American is automatically suspect during every drive to work, the store, or a friend's house. Suspicion is not focused on individuals who have committed crimes, but on a whole racial group. Skin color becomes evidence, and race becomes a proxy for general criminal propensity. Aside from the possibility of suing a police department for these practices--a mammoth undertaking, that should only be undertaken by plaintiffs with absolutely clean records and the thickest skin-- there is no relief available.


Pretextual traffic stops aggravate years of accumulated feelings of injustice, resulting in deepening distrust and cynicism by African-Americans about police and the entire criminal justice system. But the problem goes deeper. If upstanding citizens are treated like criminals by the police, they will not trust those same officers as investigators of crimes or as witnesses in court. Fewer people will trust the police enough to tell them what they know about criminals in their neighborhoods, and some may not vote to convict the guilty in court when they are jurors. Recent polling data show that not just blacks, but a majority of whites believe that blacks face racism at the hands of police. "Driving while black" has begun to threaten the integrity of the entire process not only in the eyes of African-Americans, but of everyone.


This Article begins in Part I by discussing the experiences of three of the African-Americans who were interviewed for this Article. Their stories, selected not because they are unusually harsh but because they are typical, speak for themselves. The frightening and embarrassing nature of the experiences, the emotional difficulties and devastation that often follow, and the ways that they cope, bring to life the statistics, which are discussed in Part II. Part III then shows how the problem is connected to larger issues at the intersection of criminal justice and race. Part IV puts the problem of "driving while black" into its legal context and explains how the law not only allows but encourages these practices. Finally, Part V concludes with a discussion of some approaches that might be taken to address the problem.


**Professor of Law, University of Toledo College of Law. My thanks to Dr. John Lamberth of the Department of Psychology of Temple University, who helped design and interpret the statistical work on the Ohio cities contained in this Article, and whose own work in New Jersey and Maryland has been fundamental to the understanding of the issues discussed here. Thanks also to the members of the Michigan Legal Theory Workshop, where I presented an earlier draft of this paper, and to Professors Joseph Jacoby and Daniel Steinbock, whose guidance and assistance were invaluable. Copyright (c) 1999 by David A. Harris.