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David A. Harris

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


The interviews excerpted here show that racially biased pretextual traffic stops have a strong and immediate impact on the individual African-American drivers involved. These stops are not the minor inconveniences they might seem to those who are not subjected to them. Rather, they are experiences that can wound the soul and cause psychological scar tissue to form. And the statistics show that these experiences are not simply disconnected anecdotes or exaggerated versions of personal experiences, but rather established and persistent patterns of law enforcement conduct. It may be that these stops do not spring from racism on the part of individual officers, or even from the official policies of the police departments for which they work. Nevertheless, the statistics leave little doubt that, whatever the source of this conduct by police, it has a disparate and degrading impact on blacks.

But racial profiling is important not only because of the damage it does, but also because of the connections between stops of minority drivers and other, larger issues of criminal justice and race. Put another way, "driving while black" reflects, illustrates, and aggravates some of the most important problems we face today when we debate issues involving race, the police, the courts, punishment, crime control, criminal justice, and constitutional law.

A. The Impact on the Innocent

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures, and specifies some of the requirements to be met in order to procure a warrant for a search. Since 1961--and earlier in the federal court system--the Supreme Court has required the exclusion of any evidence obtained through an unconstitutional search or seizure. From its inception, the exclusionary rule has inspired spirited criticism. Cardozo himself said that "the criminal is to go free because the constable has blundered," capturing the idea that the bad guy, caught red handed, gets a tremendous windfall when he escapes punishment because of a mistake in the police officer's behavior. We need not even go all the way back to Cardozo to hear the argument that the exclusion of evidence protects--and rewards--only the guilty.

The justification advanced for the exclusionary rule is that while the guilty may receive the most direct benefit when a court suppresses evidence because of a constitutional violation, the innocent--all the rest of us--are also better off. The right to be free from illegal searches and seizures belongs not just to the guilty, but to everyone. The guilty parties who bring motions to suppress are simply the most convenient vehicles for vindicating these rights, because they will have the incentive--escaping conviction--to litigate the issues. In so doing, the argument goes, the rights of all are vindicated, and police are deterred from violating constitutional rules on pain of failing to convict the guilty. One problem with this argument is that it takes imagination: the beneficiaries of suppressed evidence other than the guilty who escape punishment are ephemeral and amorphous. They are everybody--all of us. And if they are everybody, they quickly become nobody, because law-abiding, taxpaying citizens are unlikely to view ourselves as needing these constitutional protections. After all, we obey the law; we do not commit crimes. We can do without these protections--or so we think.

It is not my intention here to recapitulate every argument for and against the exclusionary rule. Rather, I wish to point out a major difference between the usual Fourth Amendment cases and the most common "driving while black" cases. While police catch some criminals through the use of pretext stops, far more innocent people are likely to be affected by these practices than criminals. Indeed, the black community as a whole undoubtedly needs the protection of the police more than other segments of society because African- Americans are more likely than others to be victims of crime. Ironically, it is members of that same community who are likely to feel the consequences of pretextual stops and be treated like criminals. It is the reverse of the usual Fourth Amendment case, in that there is nothing ghostlike or indefinite about those whose rights would be vindicated by addressing these police practices. On the contrary, the victims are easy to identify because they are the great majority of black people who are subjected to these humiliating and difficult experiences but who have done absolutely nothing to deserve this treatment--except to resemble, in a literally skin-deep way, a small group of criminals. While whites who have done nothing wrong generally have little need to fear constitutional violations by the police, this is decidedly untrue for blacks. Blacks attract undesirable police attention whether they do anything to bring it on themselves or not. This makes "driving while black" a most unusual issue of constitutional criminal procedure: a search and seizure question that directly affects a large, identifiable group of almost entirely innocent people.

B. The Criminalization of Blackness

The fact that the cost of "driving while black" is imposed almost exclusively on the innocent raises another point. Recall that by allowing the police to stop, question, and sometimes even search drivers without regard to the real motives for the search, the Supreme Court has, in effect, turned a blind eye to the use of pretextual stops on a racial basis. That is, as long as the officer or the police department does not come straight out and say that race was the reason for a stop, the stop can always be accomplished based on some other reason--a pretext. Police are therefore free to use blackness as a surrogate indicator or proxy for criminal propensity. While it seems unfair to view all members of one racial or ethnic group as criminal suspects just because some members of that group engage in criminal activity, this is what the law permits.

Stopping disproportionate numbers of black drivers because some small percentage are criminals means that skin color is being used as evidence of wrongdoing. In effect, blackness itself has been criminalized. And if "driving while black" is a powerful example, it is not the only one. For instance, in 1992, the city of Chicago enacted an ordinance that made it a criminal offense for gang members to stand on public streets or sidewalks after police ordered them to disperse. The ordinance was used to make over forty-five thousand arrests of mostly African-American and Latino youths before Illinois courts found the ordinance unconstitutionally vague. Supporters said that the law legitimately targeted gang members who made the streets of black and Latino neighborhoods unsafe for residents. Accordingly, the thousands of arrests that resulted were a net good, regardless of the enormous amount of police discretion that was exercised almost exclusively against African-Americans and Hispanics. Opponents, such as Professor David Cole, argued that the ordinance had, in effect, created a new crime: "standing while black." In June of 1999, the U.S. Supreme Court declared the law unconstitutional, because it did not sufficiently limit the discretion of officers enforcing it.

The arrests under the Chicago ordinance share something with "driving while black": in each instance, the salient quality that attracts police attention will often be the suspect's race or ethnicity. An officer cannot know simply by looking whether a driver has a valid license or carries insurance, as the law requires, and cannot see whether there is a warrant for the arrest of the driver or another occupant of the car. But the officer can see whether the person is black or white. And, as the statistics presented here show, police use blackness as a way to sort those they are interested in investigating from those that they are not. As a consequence, every member of the group becomes a potential criminal in the eyes of law enforcement.

C. Rational Discrimination

When one hears the most common justification offered for the disproportionate numbers of traffic stops of African-Americans, it usually takes the form of rationality, not racism. Blacks commit a disproportionate share of certain crimes, the argument goes. Therefore, it only makes sense for police to focus their efforts on African-Americans. To paraphrase the Maryland State Police officer quoted at the beginning of this Article, this is not racism--it is good policing. It only makes sense to focus law enforcement efforts and resources where they will make the most difference. In other words, targeting blacks is the rational, sound policy choice. It is the efficient approach, as well.

As appealing as this argument may sound, it is fraught with problems because its underlying premise is dubious at best. Government statistics on drug offenses, which are the basis for the great majority of pretext traffic stops, tell us virtually nothing about the racial breakdown of those involved in drug crime. Thinking for a moment about arrest data and victimization surveys makes the reasons for this clear. These statistics show that blacks are indeed overrepresented among those arrested for homicide, rape, robbery, aggravated assault, larceny/theft, and simple assault crimes. Note that because they directly affect their victims, these crimes are at least somewhat likely to be reported to the police and to result in arrests. By contrast, drug offenses are much less likely to be reported, since possessors, buyers, and sellers of narcotics are all willing participants in these crimes. Therefore, arrest data for drug crimes is highly suspect. These data may measure the law enforcement activities and policy choices of the institutions and actors involved in the criminal justice system, but the number of drug arrests does not measure the extent of drug crimes themselves. Similarly, the racial composition of prisons and jail populations or the racial breakdown of sentences for these crimes only measures the actions of those institutions and individuals in charge; it tells us nothing about drug activity itself.

Other statistics on both drug use and drug crime show something surprising in light of the usual beliefs many hold: blacks may not, in fact, be more likely than whites to be involved with drugs. Lamberth's study in Maryland showed that among vehicles stopped and searched, the "hit rates"--the percentage of vehicles searched in which drugs were found--were statistically indistinguishable for blacks and whites. In a related situation, the U.S. Customs Service, which is engaged in drug interdiction efforts at the nation's airports, has used various types of invasive searches from pat downs to body cavity searches against travelers suspected of drug use. The Custom Service's own nationwide figures show that while over forty-three percent of those subjected to these searches were either black or Hispanic, "hit rates" for these searches were actually lower for both blacks and Hispanics than for whites. There is also a considerable amount of data on drug use that belies the standard beliefs. The percentages of drug users who are black or white are roughly the same as the presence of those groups in the population as a whole. For example, blacks constitute approximately twelve percent of the country's population. In 1997, the most recent year for which statistics are available, thirteen percent of all drug users were black. In fact, among black youths, a demographic group often portrayed as most likely to be involved with drugs, use of all illicit substances has actually been consistently lower than among white youths for twenty years running.

Nevertheless, many believe that African-Americans and members of other minority groups are responsible for most drug use and drug trafficking. Carl Williams, the head of the New Jersey State Police dismissed by the Governor in March of 1999, stated that "mostly minorities" trafficked in marijuana and cocaine, and pointed out that when senior American officials went overseas to discuss the drug problem, they went to Mexico, not Ireland. Even if he is wrong, if the many troopers who worked for Williams share his opinions, they will act accordingly. And they will do so by looking for drug criminals among black drivers. Blackness will become an indicator of suspicion of drug crime involvement. This, in turn, means that the belief that blacks are disproportionately involved in drug crimes will become a self- fulfilling prophecy. Because police will look for drug crime among black drivers, they will find it disproportionately among black drivers. More blacks will be arrested, prosecuted, convicted, and jailed, thereby reinforcing the idea that blacks constitute the majority of drug offenders. This will provide a continuing motive and justification for stopping more black drivers as a rational way of using resources to catch the most criminals. At the same time, because police will focus on black drivers, white drivers will receive less attention, and the drug dealers and possessors among them will be apprehended in proportionately smaller numbers than their presence in the population would predict.

The upshot of this thinking is visible in the stark and stunning numbers that show what our criminal justice system is doing when it uses law enforcement practices like racially-biased traffic stops to enforce drug laws. African- Americans are just 12% of the population and 13% of the drug users, but they are about 38% of all those arrested for drug offenses, 59% of all those convicted of drug offenses, and 63% of all those convicted for drug trafficking. While only 33% of whites who are convicted are sent to prison, 50% of convicted blacks are jailed, and blacks who are sent to prison receive higher sentences than whites for the same crimes. For state drug defendants, the average maximum sentence length is fifty-one months for whites and sixty months for blacks.

D. The Distortion of the Legal System

Among the most serious effects of "driving while black" on the larger issues of criminal justice and race are those it has on the legal system itself. The use of pretextual traffic stops distorts the whole system, as well as our perceptions of it. This undermines the system's legitimacy, which effects not only African-Americans but every citizen, since the health of our country depends on a set of legal institutions that have the public's respect.

1. Deep Cynicism

Racially targeted traffic stops cause deep cynicism among blacks about the fairness and legitimacy of law enforcement and courts. Many of those African-Americans interviewed for this Article said this, some in strong terms. Karen Brank said she thought that her law-abiding life, her responsible job, her education, and even her gender protected her from arbitrary treatment by the police. She thought that these stops happened only to young black men playing loud music in their cars. Now, she feels she was "naive," and has considerably less respect for police and all legal institutions. For James, who looks at himself as someone who has toed the line and lived an upright life, constant stops are a reminder that whatever he does, no matter how well he conducts himself, he will still attract unwarranted police attention. Michael describes constant police scrutiny as something blacks have to "play through," like athletes with injuries who must perform despite significant pain.

Thus, it is no wonder that blacks view the criminal justice system in totally different terms than whites do. They have completely different experiences within the system than whites have, so they do not hold the same beliefs about it. Traffic stops of whites usually concern the actual traffic offense allegedly committed; traffic stops of blacks are often arbitrary, grounded not in any traffic offense but in who they are. Since traffic stops are among the most common encounters regular citizens have with police, it is hardly surprising that pretextual traffic stops might lead blacks to view the whole of the system differently. One need only think of the split-screen television images that followed the acquittal in the O.J. Simpson case--stunned, disbelieving whites, juxtaposed with jubilant blacks literally jumping for joy--to understand how deep these divisions are. Polling data have long shown that blacks believe that the justice system is biased against them. For example, in a Justice Department survey released in 1999, blacks were more than twice as likely as whites to say they are dissatisfied with the police. But this cynicism is no longer limited to blacks; it is now beginning to creep into the general population's perception of the system. Recent data show that a majority of whites believe that police racism toward blacks is common. The damage done to the legitimacy of the system has spread across racial groups, and is no longer confined to those who are most immediately affected.

Perhaps the most direct result of this cynicism is that there is considerably more skepticism about the testimony of police officers than there used to be. This is especially true in minority communities. Both the officer and the driver recognize that each pretextual traffic stop involves an untruth. When a black driver asks a police officer why he or she has been stopped, the officer will most likely explain that the driver committed a traffic violation. This may be literally true, since virtually no driver can avoid committing a traffic offense. But odds are that the violation is not the real reason that the officer stopped the driver. This becomes more than obvious when the officer asks the driver whether he or she is carrying drugs or guns, and for consent to search the car. If the stop was really about enforcement of the traffic laws, there would be no need for any search. Thus, for an officer to tell a driver that he or she has been stopped for a traffic offense when the officer's real interest is drug interdiction is a lie--a legally sanctioned one, to be sure, but a lie nonetheless. It should surprise no one, then, that the same people who are subjected to this treatment regard the testimony and statements of police with suspicion, making it increasingly difficult for prosecutors to obtain convictions in any case that depends upon police testimony, as so many cases do. The result may be more cases that end in acquittals or hung juries, even factually and legally strong ones.

2. The Effect on the Guilty

As discussed above, one of the most important reasons that the "driving while black" problem represents an important connection to many larger issues of criminal justice and race is that, unlike many other Fourth Amendment issues, the innocent pay a clear and direct price. Citizens who are not criminals are seen as only indirect beneficiaries of Fourth Amendment litigation in other contexts because the guilty party's vindication of his or her own rights serves to vindicate everyone's rights. Law-abiding blacks, however, have a direct and immediate stake in redressing the "driving while black" problem. While pretextual traffic stops do indeed net some number of law breakers, innocent blacks are imposed upon through frightening and even humiliating stops and searches far more often than the guilty. But the opposite argument is important, too: "driving while black" has a devastating impact upon the guilty. Those who are arrested, prosecuted, and often jailed because of these stops, are suffering great hardships as a result.

The response to this argument is usually that if these folks are indeed guilty, so what? In other words, it is a good thing that the guilty are caught, arrested, and prosecuted, no matter if they are black or white. This is especially true, the argument goes, in the black community, because African- Americans are disproportionately the victims of crime.

But this argument overlooks at least two powerful points. First, prosecution for crimes, especially drug crimes, has had an absolutely devastating impact on black communities nationwide. In 1995, about one in three black men between the ages of 20 and 29 were under the control of the criminal justice system--either in prison or jail, on probation, or on parole. In Washington, D.C., the figure is 50% for all black men between the age of eighteen and thirty-five. Even assuming that all of those caught, prosecuted, convicted and sentenced are guilty, it simply cannot be a good thing that such a large proportion of young men from one community are adjudicated criminals. They often lose their right to vote, sometimes permanently. To say that they suffer difficulties in family life and in gaining employment merely restates the obvious. The effect of such a huge proportion of people living under these disabilities permanently changes the circumstances not just of those incarcerated, but of everyone around them.

This damage is no accident. It is the direct consequence of "rational law enforcement" policies that target blacks. Put simply, there is a connection between where police look for contraband and where they find it. If police policy, whether express or implied, dictates targeting supposedly "drug involved" groups like African-Americans, and if officers follow through on this policy, they will find disproportionate numbers of African-Americans carrying and selling drugs. By the same token, they will not find drugs with the appropriate frequency on whites, because the targeting policy steers police attention away from them. This policy not only discriminates by targeting large numbers of innocent, law abiding African-Americans; it also discriminates between racial groups among the guilty, with blacks having to bear a far greater share of the burden of drug prohibition.

3. The Expansion of Police Discretion

As the discussion of the law involving traffic stops and the police actions that often follow showed, police have nearly complete discretion to decide who to stop. According to all of the evidence available, police frequently exercise this discretion in a racially-biased way, stopping blacks in numbers far out of proportion to their presence on the highway. Law enforcement generally sees this as something positive because the more discretion officers have to fight crime, the better able they will be to do the job.

Police discretion cannot be eliminated; frankly, even if it could be, this would not necessarily be a desirable goal. Officers need discretion to meet individual situations with judgment and intelligence, and to choose their responses so that the ultimate result will make sense. Yet few would contend that police discretion should be limitless. But this is exactly what the pretextual stop doctrine allows. Since everyone violates the traffic code at some point, it is not a matter of whether police can stop a driver, but which driver they want to stop. Police are free to pick and choose the motorists they will pull over, so factors other than direct evidence of law breaking come into play. In the "driving while black" situation, of course, that factor is race. In other law enforcement areas in which the state has nearly limitless discretion to prosecute, the decision could be based on political affiliation, popularity, or any number of other things. What these arenas have in common is that enforcement depends upon external factors, instead of law breaking.

Arguments examining law enforcement discretion have great resonance in the wake of the impeachment of President Clinton. The President was pursued by Independent Counsel Kenneth Starr for four years. Starr had an almost limitless budget, an infinite investigative time frame, and an ever- expandable mandate to investigate a particular set of individuals for any possible criminal activity, rather than to investigate particular offenses. In other words, Starr had nearly complete discretion. This was foreseen in 1988 by Justice Scalia in his dissent in Morrison v. Olsen, the case in which the Supreme Court held the independent counsel statute constitutional. In a long final section of his opinion, Scalia decried the Independent Counsel Act not only as unconstitutional but also as bad policy, precisely because it gave the prosecutor nearly unlimited discretion. Among the words Justice Scalia chose to express this idea were those of Justice Robert Jackson, who, as Attorney General, talked about prosecutorial discretion in a speech to the Second Annual Conference of United States Attorneys. Jackson could just as easily have been discussing police discretion to make traffic stops; in fact, he used that very activity as an illustration.

"Law enforcement is not automatic. It isn't blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. . . . We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning. . . . If the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. . . . It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself."

By substituting "the police" for "the prosecutor" in this excerpt, one gets a strong sense of the unfairness of pretextual traffic stops. The person subjected to a pretextual stop is not targeted for his or her law breaking activity, but for other reasons--in this case, membership in a particular racial or ethnic group thought to be disproportionately involved in drug crimes. And the law leaves police absolutely free to do this.

4. Sentencing

"Driving while black" also distorts the sentences that African-Americans receive for crimes. Research shows that blacks receive longer sentences than whites for the same crimes. One might hope that, with the advent of guidelines systems designed to limit judicial discretion in sentencing through the use of strictly applied nonracial criteria, this discrepancy might begin to disappear, but it has not.

A recent federal sentencing decision illustrates the point. In December of 1998, Judge Nancy Gertner of the Federal District Court for the District of Massachusetts sentenced a defendant named Alexander Leviner for the crime of being a felon in possession of a firearm. Under the Federal Sentencing Guidelines, a major determinant of the sentence a defendant receives is his or her record of prior offenses. The worse the record, the greater the offender score; the greater the offender score, the longer the sentence. Judge Gertner found that Leviner's record consisted "overwhelmingly" of "motor vehicle violations and minor drug possession offenses." Since all of the available evidence indicated that African-Americans experience a proportionally greater number of traffic stops than whites, Judge Gertner reasoned that allowing Leviner's offender score to be inflated by these traffic stop-related offenses represented a continuation of the racial discrimination implicit in the prior offenses into the sentencing process. The judge felt this was improper, and as a result accorded Leviner a "downward departure"--a cut in the usual sentence he could expect, given his criminal record.

It is not clear whether Judge Gertner's decision will survive an appeal. It may be true that police, in general, discriminate against black motorists in their use of traffic stops. But this does not mean that any of the particular stops Leviner experienced in the past were the result of bias. Thus, an appellate court may not find Leviner deserving of the downward departure. Nevertheless, Judge Gertner's opinion points out something important, and not just in Leviner's case. "Driving while black" can have grave consequences not just immediately, when drivers may be at best irritated and at worst arrested or abused, but in the long term, as a minor criminal record builds over time to the point that it comes back to haunt a defendant by enhancing considerably the sentence in some future proceeding. This is simply less likely to happen to whites.

E. Distortion of the Social World

"Driving while black" distorts not only the perception and reality of the criminal justice system, but also the social world. For example, many African-Americans cope with the possibility of pretextual traffic stops by driving drab cars and dressing in ways that are not flamboyant so as not to attract attention. More than that, "driving while black" serves as a spatial restriction on African-Americans, circumscribing their movements. Put simply, blacks know that police and white residents feel that there are areas in which blacks "do not belong." Often, these are all-white suburban communities or upscale commercial areas. When blacks drive through these areas, they may be watched and stopped because they are "out of place." Consequently, blacks try to avoid these places if for no other reason than that they do not want the extra police scrutiny. It is simply more trouble than it is worth to travel to or through these areas. While it is blacks themselves who avoid these communities, and not police officers or anyone else literally keeping them out, in practice it makes little difference. African-Americans do not enter if they can avoid doing so, whether by dint of self-restriction or by government policy.

Another recent example shows even more clearly how "driving while black" can distort the social world. In 1998, the federal government launched "Buckle Up America" in an effort to increase seat belt use. The goal of this national campaign was to make the failure to wear seat belts a primary offense in all fifty states. In many states, seat belt laws are secondary offenses--infractions for which the police cannot stop a car, but for which they can issue a citation once the car is stopped for something else and the seat belt violation is discovered. If seat belt laws are made primary instead of secondary laws, the reasoning is that this would increase seat belt use, which would save thousands of lives per year. Since studies have shown that young African-Americans and Hispanics are more likely to die in automobile accidents than whites because of failure to wear seat belts, any effort to increase seat belt use would likely benefit the black and Hispanic communities more than any other groups.

Given that less frequent use of seats belts has a high cost in the lives and suffering of people of color, one would think that any responsible black organization would do everything possible to support efforts like Buckle Up America. And that is what made the position taken by the National Urban League on the issue so puzzling, at least at first blush. The Urban League told the Secretary of Transportation that its "affiliates' willingness to fully embrace [the] campaign began to stall" because of concern that primary seat belt enforcement laws would simply give police another tool with which to harass black drivers. The League said it could not sign on to the campaign without assurances "that the necessary protections will be put in to ensure that black people and other people of color specifically are not subject to arbitrary stops by police under the guise of enforcement of seat belt laws."

This is a truly disturbing distortion of social reality. Faced with a request to join a campaign to save lives through encouraging the use of a known and proven safety device, the use of which might require some greater degree of traffic enforcement, the decision is not easy for African-Americans. On the contrary, it presents an agonizing choice: encourage the seat belt campaign to save lives and hand the police another reason to make arbitrary stops, or oppose the campaign because of the danger of arbitrary police action, knowing that blacks will be injured and killed in disproportionate numbers because they use seat belts less frequently than others do. Stated simply, it is a choice whites do not have to make.

F. The Undermining of Community-Based Policing

Until recently, police departments concentrated on answering distress calls. The idea was to have police respond to reports of crime relayed to them from a central dispatcher. In essence, the practice was reactive; the idea was to receive reports of crimes committed and respond to them.

But over the past few years, modern policing has moved away from the response model. It was thought to be too slow and too likely to isolate officers from the people and places in which they worked. The new model is often referred to as community policing. Though the term sometimes seems to have as many meanings as people who use it, community policing does have some identifiable characteristics. The idea is for the police to serve the community and become part of it, not to dominate it or occupy it. To accomplish this, police become known to and involved with residents, make efforts to understand their problems, and attack crime in ways that help address those difficulties. The reasoning is that if the police become part of the community, members of the public will feel comfortable enough to help officers identify troubled spots and trouble makers. This will make for better, more proactive policing aimed at problems residents really care about, and engender a greater degree of appreciation of police efforts by residents and more concern for neighborhood problems by the police.

In many minority communities, the history of police/community relations has been characterized not by trust, but by mutual distrust. In Terry v. Ohio, the fountain head of modern street-level law enforcement, the Supreme Court candidly acknowledged that police had often used stop and frisk tactics to control and harass black communities. As one veteran African-American police officer put it, "Black people used to call the police 'the law.' They were the law . . . . The Fourth Amendment didn't apply to black folks because it only applied to white folks." For blacks, trusting the police is difficult; it goes against the grain of years of accumulated distrust and wariness, and countless experiences in which blacks have learned that police are not necessarily there to protect and serve them.

Yet, it is obvious that community policing--both its methods and its goals--depends on mutual trust. As difficult as it will be to build, given the many years of disrespect blacks have suffered at the hands of the police, the community must feel that it can trust the police to treat them as law-abiding citizens if community policing is to succeed. Using traffic stops in racially disproportionate numbers will directly and fundamentally undermine this effort. Why should law-abiding residents of these communities trust the police if, every time they go out for a drive, they are treated like criminals? If the "driving while black" problem is not addressed, community policing will be made much more difficult and may even fail. Thus, aside from the damage "driving while black" stops inflict on African-Americans, there is another powerful reason to change this police behavior: it is in the interest of police departments themselves to correct it.