Monday, July 9, 2018
Tracey Maclin and Maria Savarese (Boston University - School of Law and Boston University - School of Law) have posted Martin Luther King Jr. And Pretext Stops (and Arrests): Reflections on How Far We Have Not Come Fifty Years Later (University of Memphis Law Review, Vol. 49, June 2018) on SSRN. Here is the abstract:
By January, 1956, the Montgomery Bus boycott was in full-swing. Black citizens in Montgomery, Alabama were refusing to ride the city’s private buses to protest racially segregated seating. On the afternoon of January 26, 1956, twenty-seven-year-old Martin Luther King, Jr. had finished his day of work at the Dexter Avenue Baptist Church in Montgomery. On his drive home, King stopped his vehicle to offer a ride to a group of bus boycotters standing at a downtown car-pool location. After the boycotters entered King’s car, two motorcycle policemen pulled-in behind King’s vehicle. While everyone in King’s car tried to remain calm, the police continued to follow King’s car. At the next car-pool location, when some of King’s passengers began to exit, one of the policemen pulled next to King’s window, stating: “‘Get out, King. You’re under arrest for speeding thirty miles an hour in a twenty-five-mile zone.’” While stunned by the police action, King did not protest. He was arrested and taken to the Montgomery City Jail, where he was processed, fingerprinted and jailed with other black prisoners.
It has been nearly sixty years since Martin Luther King, Jr. was subjected to this arbitrary and discriminatory police practice. Surely, things have changed in America. After the demise of the Jim Crow system, the enactment of federal and civil rights legislation protecting blacks from discriminatory application of state and local laws, and several decades of Supreme Court rulings enforcing the rights of black citizens, it would seem that law enforcement officials can no longer perform this type of arbitrary and bigoted policing. Although much has changed in America, investigatory or pretext stops unfortunately remain ubiquitous. As in King’s case, these stops are not aimed at enforcing the traffic code. Rather, police who conduct investigatory stops are a fishing expedition to look for evidence of criminal conduct. Various types of law enforcement agencies utilize pretext stops; and high-ranking police officials endorse pretext stops as a crime control measure. Indeed, two decades ago, investigatory stops were given a major boost when the federal government actively encouraged state and local police departments to use traffic laws as a basis for stopping cars suspected of drug smuggling.
From one perspective, the use of pretext stops in the War on Drugs specifically, and to fight crime generally, raises no legal alarm. For most white Americans, modern application of this practice may seem annoying, but it is worth the cost in the fight against crime. A motorist is stopped by the police. The officer then questions the motorist about his or her travel plans (and if there are passengers, they are also questioned). Finally, a traffic summons or ticket may be issued. While bothersome, this practice, viewed in the aggregate, does not amount to a constitutional crisis. Moreover, on a rare occasion, criminality is exposed as a result of the stop.
Black Americans, however, have a distinctly different perception of the situation. For King, the pretext stop was much more than a “stop.” The upshot was a frightening ride to jail; at one point during the ride, King believed the police were going to lynch him. Today, the modern pretext stop is on display when a black motorist is seen standing on the side of a highway or city street while police (typically white officers) search his vehicle. Study after study has demonstrated that African-Americans are targeted for pretext stops at a rate greater than white Americans. For blacks, particularly black men, a pretext stop is unequivocal notice of their inferior status in America. As Don Jackson, a former police officer, put it not too long ago: “The black American finds that the most prominent reminder of his second-class citizenship are the police.”
The authors in this symposium were asked to consider how far America has come in the fifty years after the tragic assassination of Martin Luther King, Jr. Of course, America has made substantial progress on several fronts that would have pleased Dr. King had he lived to see them. Many aspects of our criminal justice system, however, would have deeply disappointed King. We are confident that the continued and widespread use of pretext stops and their attended consequences would have offended King. Looking forward, America can honor Dr. King by ending pretext stops.
This article was presented at “MLK 50: Where Do We Go From Here?,” a symposium co-sponsored by the University of Memphis Cecil C. Humphreys School of Law and the National Civil Rights Museum, on April 2-4, 2018. It will be published in the forthcoming Volume 49 of the University Memphis Law Review.