Pulled Over: How Police Stops Define Race and Citizenship

CHARLES R. EPP is professor in the School of Public Affairs and Administration at the University of Kansas and the author of Making Rights Real, also published by the University of Chicago Press. STEPHEN MAYNARD-MOODY is professor in the School of Public Affairs and Administration and director of the Institute for Policy and Social Research, both at the University of Kansas. DONALD P. HAIDER-MARKEL is professor in the Department of Political Science at the University of Kansas.

The University of Chicago Press, Chicago 60637

The University of Chicago Press, Ltd., London

© 2014 by The University of Chicago

All rights reserved. Published 2014.

Printed in the United States of America

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ISBN-13: 978-0-226-11385-2 (cloth)

ISBN-13: 978-0-226-11399-9 (paper)

ISBN-13: 978-0-226-11404-0 (e-book)

DOI: 10.7208/chicago/9780226114040.001.0001

Library of Congress Cataloging-in-Publication Data

Epp, Charles R., author.

Pulled over : how police stops define race and citizenship / Charles R. Epp, Steven Maynard-Moody, and Donald Haider-Markel.

pages cm—(The Chicago series in law and society)

ISBN 978-0-226-11385-2 (cloth : alk. paper)—ISBN 978-0-226-11399-9 (pbk. : alk. paper)—ISBN 978-0-226-11404-0 (e-book)    1. Racial profiling in law enforcement—United States.   2. Traffic violations—United States.   3. Police—Complaints against—United States.   I. Maynard-Moody, Steven, author.   II. Haider-Markel, Donald P., author.   III. Title.   IV. Series: Chicago series in law and society.

HV7936.R3E77 2014

363.2'32—dc23

2013022799

This paper meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of Paper).

Pulled Over

How Police Stops Define Race and Citizenship

CHARLES R. EPP,

STEVEN MAYNARD-MOODY

& DONALD HAIDER-MARKEL

THE UNIVERSITY OF CHICAGO PRESS

CHICAGO AND LONDON

The Chicago Series in Law and Society

Edited by John M. Conley and Lynn Mather

Also in the series:

THE THREE AND A HALF MINUTE TRANSACTION: BOILERPLATE AND THE LIMITS OF CONTRACT DESIGN by Mitu Gulati and Robert E. Scott

THIS IS NOT CIVIL RIGHTS: DISCOVERING RIGHTS TALKS IN 1939 AMERICA by George I. Lovell

FAILING LAW SCHOOLS by Brian Z. Tamanaha

EVERYDAY LAW ON THE STREET: CITY GOVERNANCE IN AN AGE OF DIVERSITY by Mariana Valverde

LAWYERS IN PRACTICE: ETHICAL DECISION MAKING IN CONTEXT Edited by Leslie C. Levin and Lynn Mather

COLLATERAL KNOWLEDGE: LEGAL REASONING IN THE GLOBAL FINANCIAL MARKETS by Annelise Riles

SPECIALIZING THE COURTS by Lawrence Baum

ASIAN LEGAL REVIVALS: LAWYER-COMPRADORS AND COLONIAL STRATEGIES IN THE RESHAPING OF ASIAN STATES by Yves Dezalay and Bryant G. Garth

THE LANGUAGE OF STATUTES: LAWS AND THEIR INTERPRETATION by Lawrence M. Solan

INVITATION TO LAW AND SOCIETY: AN INTRODUCTION TO THE STUDY OF REAL LAW by Kitty Calavita

BELONGING IN AN ADOPTED WORLD by Barbara Yngvesson

MAKING RIGHTS REAL: ACTIVISTS, BUREAUCRATS, AND THE CREATION OF THE LEGALISTIC STATE by Charles R. Epp

Additional series titles follow the index

FOR LORA AND NICHOLAI

—C.R.E.

FOR THOSE WHO ANSWERED OUR QUESTIONS AND TOLD THEIR STORIES, OUR TEACHERS

—S.M.-M.

FOR MICHELE AND JESIAH

—D.H.-M.

Contents

List of Tables

List of Figures

List of Narratives

Preface and Acknowledgments

CHAPTER 1. I Felt Violated

CHAPTER 2. Looking Beyond the License Plate

CHAPTER 3. The Decision to Stop a Driver

CHAPTER 4. Experiences during the Stop

CHAPTER 5. How Investigatory Intrusions Are Deliberately Planned (and Racially Based)

CHAPTER 6. Evaluating the Stop: Looking Beyond Official Politeness

CHAPTER 7. The Broader Lessons (and Harms) of Police Stops

CHAPTER 8. Toward Racial Justice in Police Stops

Appendix. Methodology

Notes

Bibliography

Index

Tables

3.1. Likelihood of being stopped for traffic-safety and investigatory reasons

4.1. Extent to which drivers speak disrespectfully to the officer

5.1. A summary of black drivers’ narratives of stops, by type

5.2. A summary of white drivers’ narratives of stops, by type

5.3. How the type of stop shapes racial bias

5.4. Are disrespectful black drivers treated more harshly than disrespectful white drivers?

5.5. Likelihood of being searched in investigatory stops

5.6. Speeding stops: how race of driver and disrespect to officer interact to shape sanctions

6.1. Drivers’ evaluations of the legitimacy of police stops

7.1. Distrust of the police

7.2. Limits to freedom of travel

7.3. Racial identification

A.1. Sample weights

Figures

3.1. Justifications for most recent police stop, by race of driver

3.2. Speeding stops: likelihood of being stopped for speeding ≥7 mph over the limit

3.3. Investigatory stops: likelihood of being stopped for a discretionary reason

3.4. Multiple stops: likelihood of being stopped more than once in the last year

3.5. The effect of vehicle value

3.6. The effect of driving a domestic luxury vehicle

3.7. Stops of African American drivers, by type of stop and location

4.1. Speeding stops: intrusions and sanctions, by race

4.2. Investigatory stops: intrusions and sanctions, by race

4.3. Speeding stops: officer demeanor, by race of driver

4.4. Investigatory stops: officer demeanor, by race of driver

5.1. Searches of African American drivers, by type of stop and location of stop

5.2. Searches of white drivers, by type of stop and location of stop

5.3. Incidence of officers’ questions as to why African American driver is in the area

5.4. Incidence of officers’ questions as to why white driver is in the area

6.1. Evaluations of the legitimacy of the stop, by race and gender of driver

6.2. The impact of various factors on the driver’s evaluation of the most recent stop

7.1. The police are out to get people like me

7.2. Percentage of drivers who would feel uncomfortable calling the police for help

7.3. Percentage of drivers, by race, on various dimensions of distrust of the police

7.4. Freedom of travel

A.1. Likelihood of being stopped in investigatory stop, by race

A.2. Histogram of the distribution of the index measuring the extent of intrusions and sanctions experienced by stopped drivers

A.3. Histogram of the index measuring the officer’s demeanor experienced by stopped drivers

Narratives

1.1. Joe, African American male: I felt violated

3.1. Deana, African American female: Stopped for no reason

3.2. Traffic officer, white male: It happened to be an African American female

3.3. Lisa, African American female: Followed me home for two weeks

3.4. Kenneth, African American male: Nobody move

4.1. Keith, white male: It wasn’t any great big deal

4.2. Darrell, African American male: And they put handcuffs on, too

4.3. Traffic officer, African American male: Nothing is ever routine

4.4. Traffic Officer, white male: I am kind of like a recording

5.1. Elizabeth, African American female: Putting the spotlight on me like I was a criminal

5.2. Billy, African American male: He said that I was going 67 in a 65-mph zone

6.1. Jeff, white male: Maybe I should have gotten away with it

6.2. Billy, African American male: We didn’t get a ticket or anything, but the officers searched the car

6.3. Laura, white female: Military ID

Preface and Acknowledgments

Oh, your book is about racial profiling. We commonly confront this response when asked to describe our research. Well, sort of, but not really, we respond. The term racial profiling has come to imply that African Americans and Latinos are stopped at higher rates because police officers deliberately choose to stop more of them. This is a widely held assumption. As this book was going to press, federal judge Shira Scheindlin ruled that New York City’s practice of widespread stop-and-frisks is unconstitutional. New York mayor Michael Bloomberg attacked the decision, declaring that it unfairly treats the New York police as if they were racist holdovers from America’s benighted past. Stop-and-frisk is not racial profiling, the mayor declared. I signed a law banning racial profiling, he added, and the police commissioner has zero tolerance for it.

We hope that this book will show what is wrong with this and similar defenses of what we will call investigatory stops, of which the stop-and-frisk is one example. The mayor’s claims artfully dodge the real issues, implying that to criticize racial disparities in stops is to attack the motives of individual officers. If it is acknowledged that individual officers are not deliberately racist, according to this view, then there is no problem. But there is a problem, and the common focus on officers’ motives misunderstands its source. That source is the police practice of investigatory stops and how this officially guided practice prompts officers to act on implicit stereotypes of who looks suspicious. Investigatory stops are aimed not at enforcing a law but checking whether a person is up to no good. When police departments encourage their officers to make investigatory stops, this necessarily translates into an expectation to make stops on the basis of inchoate suspicions. What happens then, as every law enforcement specialist knows, is precisely what the New York statistics reveal: the vast majority of those stopped are innocent, and racial minorities are disproportionately represented among these innocent victims of intrusive stops. As an officer long ago observed to journalist Gary Webb, You’ve got to kiss a lot of frogs before you find that one prince.

And so this book is about much more than racial profiling. As we examined our survey data, listened to police officers and drivers, and read more deeply, we discovered that race shapes and is shaped by police stops in often hidden and subtle but profound and foundational ways. We show how race is embedded in police practice and criminal justice policy even when police departments have taken deliberate steps to prohibit racial profiling; how official police practices and training encourage officers to make large numbers of stops merely to check people out; how these practices implicitly incorporate negative stereotypes of African American and Latino criminality; and how these practices, in the context of negative racial stereotypes, lead officers when carrying out criminal surveillance to stop African Americans and Latinos at much higher rates than whites. The people who are subjected to these investigatory stops regard them as deeply unfair and an affront to their equal rights. Ultimately, police stops pursuant to these official practices construct and reconstruct the meaning of rights, citizenship, and race. Pulled Over is our effort to describe and understand the racial framing of police stops, especially investigatory stops, a police practice that is the deeper source of racial disparities and is more entrenched and troubling than racial profiling.

Along the way we have had much help. Two extraordinary graduate students, Laura Lucas and Shannon Portillo (now Professor Portillo), assisted and often guided us. Advice from Matthew Zingraff and Chris Crandall helped us to improve our survey design. Glenn Adams, Monica Biernat, and Chris Crandall deepened our understanding of stereotyping. Whenever we were uncertain of data analysis steps, Jacob Fowles and especially Bert Kritzer provided insight and practical advice. This book is much improved by the deep and thoughtful critiques of the University of Chicago Press series editors, John M. Conley and Lynn Mather, and the anonymous reviewers. Marie Provine offered continued insight and advice as we worked through revisions. Our editor, John Tryneski, provided encouragement when we needed encouraging and insight when we needed guidance. At the Institute for Policy & Social Research, Laura Stull refined our figures and Whitney Onasch copyedited our manuscript before we sent it out for review.

We took more years than we care to admit to try to understand our findings. Colleagues too numerous to mention challenged our observations and insights and were generous with suggestions. We are grateful for comments and suggestions from Bentley Allen, Mario Barnes, Dick Brisbin, Paul Chevigny, Lauren Foley, John Gilliom, Joel Grossman, Donald Green, Bernard Harcourt, Margaret Keck, Michael Musheno, Mitch Pickerill, Adam Scheingate, Jerome Skolnick, Lester Spence, and Steve Teles. (And Chuck is grateful for ongoing conversations with Lora Jost over many years.) Portions of this work have been presented at seminars at the following universities: California at Berkeley, Yale, Johns Hopkins, Ohio, West Virginia, Kansas, Lviv (Ukraine), and Aarhus (Denmark). Questions and comments from discussants, panel members, and audiences at the annual meetings of the Law and Society Association, State Policy and Politics Section of the American Political Science Association, and Midwest Political Science Association continually challenged our emerging understanding of the findings.

This material is based on work supported by the National Science Foundation under Grant No. SES-0214199. Any opinions, findings, and conclusions or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of the National Science Foundation.

Thank you all.

CHAPTER ONE

I Felt Violated

NARRATIVE 1.1.

Joe, African American male: I Felt Violated

One time that I particularly remember, I was just, I don’t know how to explain it—I felt violated.

I was doing the speed limit, I got pulled over and was asked for my driver’s license and registration. I went and asked why I was being pulled over. He just pretty much stated that there was a warrant check. And pretty much ran my license and asked if I had any warrants for my arrest and I told him, No. And he ran my plate and driver’s license and asked if that was my current address and all that good stuff and then released me.¹

The stop Joe describes in his brief narrative might appear, at first glance, to be inconsequential. Some might say it was merely a minor inconvenience in the police war on crime. The officer was professionally courteous and, in the end, issued no citation. It was all over in a few minutes. Research tells us stopped drivers are most concerned about police rudeness and sanctions, and on these dimensions, Joe could hardly have fared better. Yet Joe’s emotional response was palpable and raw. This African American man was not merely annoyed or angry. He felt violated.

Joe’s experience and indignation are common among African American drivers. In this book we will share similar stories from many African American drivers and will verify that their experiences fit widespread patterns revealed in a survey of 2,329 drivers. For example, Deana, an African American woman, was stopped twice within five minutes one night by different officers who only asked where she was going.² Lisa was followed home from work at 10:30 every night for two weeks—every night—by police officers who looked closely at her and asked whether she owned the Corvette she was driving. Billy was stopped and questioned and his car was searched on two different occasions.³ Kenneth was stopped, held in a police car and questioned, and then released.⁴ In some cases the stop was more intrusive. Joe, the driver in our opening narrative, told us of a previous stop in which an officer pulled him over, approached him with his hand on his gun, handcuffed him, and ran a warrant check. Darrell was stopped along with several high school buddies while driving through a white neighborhood, held in handcuffs on the sidewalk for an hour, and then released.⁵ In most of these stops, the African American driver described the officer as polite or even nice. In none was the driver given a ticket. And yet in each case, the driver described to us fear and resentment of the experience. White drivers rarely share these experiences, making police stops a defining aspect of the racial divide in America.

Police stops matter. No form of direct government control comes close to these stops in sheer numbers, frequency, proportion of the population affected, and, in many instances, the degree of coercive intrusion. The police make some eighteen million traffic stops per year in the United States.⁶ Nationally, 12 percent of drivers are stopped per year by the police.⁷ Among racial minorities the rate is considerably higher: 24 percent or more by some estimates.⁸ In a police stop the driver (or pedestrian) is arrested for the duration of the stop, is not free to leave, and is sometimes subjected to the most searching of inquiries, ranging from intrusive questions (What are you doing in this area?) to a physical pat-down, a search of the vehicle, or handcuffing. Being stopped is a potent experience. Drivers vividly remember the details and share stories of police stops with family and friends. While driving, they note who is stopped by the police and what is transpiring in the stop: a single officer writing a ticket or several officers conducting a vehicle search while the driver stands alone at the front of his vehicle.

Police stops convey powerful messages about citizenship and equality. Across millions of stops, these experiences are translated into common stories about who is an equal member of a rule-governed society and who is subjected to arbitrary surveillance and inquiry. With the growing push to use local police in immigration enforcement, Latinos are increasingly likely to share African Americans’ long experience of inquisitorial stops. Show me your papers will become a common command to people who look stereotypically Latino. When people like Joe, Deana, Lisa, Billy, Kenneth, Darrell, and others we will introduce in this book are subjected to intrusive, arbitrary inquiries when stopped, and other people—white people—are largely free of these inquiries, police stops actively re-create and enforce the country’s racial divide. Stops contribute to what Michael Dawson has called African Americans’ linked fate, or the sense, based directly on experience, that racial discrimination is still a defining feature of American life.⁹

In a country that celebrates democracy and racial equality, this police-defined racial divide is a deep and festering wound. In an era of police reforms, among them community policing and the growing diversity of the ranks of officers, it represents an institutional failure. From the controversies over highway drug interdiction in Maryland and New Jersey in the 1990s to the recent debates over racial profiling of Latinos in Arizona and racially discriminatory stopping and frisking of pedestrians in New York City, it is well established that racial minorities are more likely than whites to be stopped by the police.¹⁰ But disparities in who is stopped are only the most obvious indicator of how police stops both reflect and define racial division in the United States. In stops, racial minorities are questioned, handcuffed, and searched at dramatically higher rates than whites are; they are much more likely than whites to perceive the stop as unfair; and they distrust the police in general at much higher rates than whites do. On each of these dimensions the racial gap is wide. These patterns appear in the frisking of pedestrians by big-city police, stops and searches of vehicles on interstate highways by state patrols, and, our focus, stops of drivers on city and suburban streets by local police. Although these types of stops differ in some ways,¹¹ they are united by their essential racial characteristics: in each, police officers disproportionately stop racial minorities and act more intrusively toward them during the stop.

Why do racial disparities in police stops persist despite a widespread legal and moral commitment to nondiscrimination? This question is the subject of considerable research and controversy, much of it conducted via increasingly sophisticated statistical studies. The standard answers fall roughly into two competing camps. One is that racial disparities reflect racism (whether deliberate or implicit) on the part of individual officers, the other that officers are rationally justified in stopping black people at higher rates than whites because they commit crimes at higher rates.¹²

Missing from much of this commentary is attention to how police stops are organized and conducted, and how the people who are subjected to these stops think about them. This study returns the focus to these basic issues. Here, the focus is on the lived practice and the lived experience of police stops.

This shift in focus has led us to believe that current debates over racial profiling, as it is commonly called, rest on two basic assumptions that are, at best, incomplete. By enlarging the discussion, we hope to increase understanding and open new possibilities for reform. The first assumption is that what African Americans find offensive—and what ultimately distinguishes a racially problematic stop from a racially legitimate stop—is primarily officer rudeness and disrespect, not other elements of the stop itself. This assumption reflects the widespread belief that racism is mainly a personal animus and is expressed in interpersonal rudeness. It is further based on the psychological theory of procedural justice, which teaches that people evaluate the legitimacy of official decisions on the basis of whether the process seems fair, not whether they got a favorable outcome.¹³ For example, a driver is likely to accept the legitimacy of a traffic ticket if he or she feels the officer acted fairly.

Drivers do value fair treatment and feel demeaned when treated unfairly, and this fact supports a legal theory that runs parallel to the psychological one: fair procedures are valuable not only because they minimize mistakes but also they affirm the inherent dignity of the individual.¹⁴ According to this legal theory, an essential purpose of fair procedure is to treat the people subjected to official procedures as "people, not things."¹⁵ In the narrative above, Joe’s sense of violation reflected his sense that he was not accorded this dignity.

But we emphatically depart from how the psychological version of this theory has been interpreted in the context of police stops. In that context, it has been claimed that since people have difficulty knowing whether a stop is truly fair, they make an inference based on whether the officer seemed respectful. As Tom Tyler, the leading scholar of procedural justice, has put it, while officers should be fair as well as politely respectful, appearing to be respectful is especially advantageous in reducing public dissatisfaction about [racial] profiling.¹⁶

This claim that people will view police stops as legitimate if the officers are polite and respectful has allowed the widespread stopping of racial minorities to fester. William Stuntz, the noted Harvard criminal law professor, said as much: "If Tyler’s claims are even partly true, the police could simultaneously increase the number of Terry stops [stop-and-frisks], decrease the injury those stops cause, and substantially reduce complaints of police discrimination—all without changing the way they select search targets. . . . Worrying about how street stops happen makes more sense than worrying about how many of them happen."¹⁷ By saying officers could gain acceptance of investigatory stops without changing the way they select search targets, Stuntz suggests that officers could continue to target large numbers of racial minorities for these stops—so long as investigatory stops are carried out more politely and suspects are treated with more dignity.¹⁸ As we will show in chapter 2, the leaders of professional policing responded to the racial profiling controversy by urging departments to train their officers to be unfailingly respectful when stopping people—as if this would address the problem.

Joe, Deana, Lisa, Kenneth, Billy, and many other African Americans who we will introduce in this book certainly prefer to be treated politely in police stops. But in their experience, official politeness could not convert an otherwise offensive police stop into a fair and legitimate one. Some police stops are recognized to be fundamentally unjust no matter how polite or nice the officer. The deeper problem in these polite but unjust stops is that they are part of a broad, continuing pattern in which racial minorities are disproportionately subjected to suspicious inquiries without any particular basis or justification. Pervasive, ongoing suspicious inquiry sends the unmistakable message that the targets of this inquiry look like criminals: they are second-class citizens. Law professor Sherry Colb called this targeting harm: the person targeted by such a stop is left wondering, ‘Why me? Why have the police singled me out when they lacked an evidentiary basis? Why didn’t they search someone else instead or as well? What gave them the gut feeling that I am a criminal?’¹⁹ These harms are compounded when the person targeted believes, on the basis of widely known patterns, that he or she has been selected because of race. Targeting in this way generates especially pernicious social costs, as Bernard Harcourt observes, by turning increasing numbers of the targeted groups into convicted criminals or innocent but distrustful subjects of surveillance who feel treated like criminals—and by giving others the comparative freedom from such control.²⁰ Accompanying these harms is the invasion of privacy imposed by the officer’s questions and searches. To the question Why are you in this neighborhood? most people will think with considerable justification, Why is that any business of yours? But when the questioner is a police officer, they will offer an answer while feeling their privacy invaded and their dignity eroded. Patting down a person’s body in search of a weapon or a bag of drugs or rifling through the contents of a vehicle only on the basis of the hope that by chance some such searches will turn up contraband are even deeper intrusions of privacy and assaults on dignity.

The earliest psychological research on procedural justice acknowledged that politeness may not be enough. If people who are subjected to an ongoing, discriminatory pattern learn to recognize it as such, they will come to conclude that the process is deeply unfair even if the officials carrying it out are unfailingly respectful and polite. As Tyler put it in an early, prescient caveat to the psychological theory of procedural justice, even if officials appear to be respectful a procedure that consistently produces unfair outcomes will eventually be viewed as unfair itself.²¹

This deeper truth has been forgotten in the effort to legitimate inquisitive police stops by making the officers more polite. What makes inquisitive police stops so offensive to so many African Americans and Latinos is not that the officers carrying them out are impolite or even frankly bigoted, but that these stops are common, repeated, routine, and even scripted. This scripted practice treats its targets not as individuals worthy of dignity but as numbers to be processed in search of the small percentage who are carrying contraband or have an outstanding warrant.

This leads to the second faulty assumption in current debates over racial profiling: it is the belief that racial disparities in police stops are the product of discriminatory police officers rather than an institutionalized practice that is inherently unfair and discriminatory. The focus has been on identifying and reducing intentional discrimination. Was the officer who stopped Joe frankly racist but careful to hide it? If not deliberately bigoted, was he acting on the basis of implicit negative stereotypes of black people, stereotypes that he may not have been aware that he held? Or was he acting rationally, on the assumption that his warrant checks would be more efficient if focused on black men? These are the positions in a growing debate over the source of racial disparities in police stops and, more broadly, on the status of racism in American society.²²

The Supreme Court, too, assumes that discriminatory intent, rather than discriminatory practice, is the problem.²³ Under the constitutional law governing fair procedure in police stops, if an officer deliberately stops a person only because that person is black, then the officer is acting with discriminatory intent and the stop is illegitimate. But this is only a theoretical possibility, because the court requires direct evidence that a stop is intentionally biased. If the officer has some legal justification for the stop, however trivial—for example, the driver’s car has a burned-out license-plate light—and does not frankly admit to targeting minorities, then the stop is constitutionally acceptable, according to current standards.

The search for discriminatory intent is a distraction. Few people, and virtually none in positions of authority, frankly acknowledge racist intent. Occasionally people make a verbal slip, and then their opponents and the media cry gotcha! But these gotcha moments do not speak to the real issues at stake. For Joe and other minorities, it matters little if we somehow know whether the officer merely recognized that Joe was black or actually thought, "I’m going to check out that black guy because he’s black." The distinction is exceedingly fine and virtually unknowable, yet constitutional law gives any police stop a free pass unless it can be shown that the officer did think such a thing.

This book rests on the different assumption that every member of our society, police officers included, recognizes the social fact of race and widespread stereotypes of blacks and whites.²⁴ Who doesn’t know the prejudicial stereotype that blacks are lazy, prefer to live on welfare, are prone to complaining, and are aggressive or violent? Awareness of these stereotypes is enough to make acting on the stereotypes a possibility. Fifty-eight percent of whites in a recent survey even acknowledged agreeing with at least one of these common negative stereotypes of black people.²⁵ But