Sandra Bland, Samuel DuBose and the rise of ‘vehicular stop and frisk’

The deaths of Sandra Bland and Samuel DuBose occurred in very different circumstances — a presumed suicide in a jail cell in Bland’s case and at the hand of an officer in DuBose’s. But the incidents that led to their demise were similar: seemingly routine traffic stops.

The two officers’ full reasons for pulling over Bland and DuBose are unclear, but legal experts say both cases fit a pattern in which black drivers are disproportionately targeted under a system that has been characterized as “vehicular stop and frisk.”

Racially motivated discretionary stops for minor violations of the law have increasingly been authorized by courts and institutionalized in police departments across the U.S., according to activists. 

Police practices that fall under this category include Terry stops, consent searches, civil asset forfeiture and pretextual traffic stops. What they have in common is they grant officers broad discretion to conduct impromptu interrogations and searches of people and vehicles on the basis of nothing more than an articulable suspicion of wrongdoing.

Moreover, data show the result is a disproportionate targeting of nonwhite drivers for stops.

Footage of the Bland and DuBose incidents have raised questions over whether they were subjected to pretextual stops, in which drivers are pulled over for a minor traffic violation primarily to allow an officer to investigate a suspected criminal offense.

The Supreme Court sanctioned pretextual traffic stops in 1996 in Whren v. United States, ruling that as long as an officer has a valid reason for stopping a driver — such as DuBose’s missing license plate or Bland’s failure to signal a lane change — the actual motive for making the stop is irrelevant. It gives legal cover for officers wishing to conduct searches.

Critics of the law say it gives officers free rein to discriminate on racial or ethnic grounds.

 “In a lot of places, police stop black drivers in circumstances that white drivers would normally get a pass for. Since everybody violates the traffic laws at some point, police have high discretion to conduct stops, and reports show those stops are highly disproportionate by race,” said David Rudovsky, a leading civil rights and criminal defense attorney.

In Bland’s case, it makes no difference that police officer Brian Encina appeared to escalate the situation by asking her to extinguish her cigarette and demanding that she exit her vehicle. Here too, the law appears to be on his side.

The Supreme Court held in 1977 and 1998 that officers may order drivers and passengers to exit automobiles as a safety measure. Moreover, the Supreme Court ruled in 2005’s Illinois v. Caballes that officers are free to arrest drivers for fine-only offenses.

“After Whren and Caballes, traffic enforcement will, over time, have less and less to do with ensuring traffic safety and more with getting around the Fourth Amendment warrant requirement … Increasingly, traffic stops will become the pretext for all sorts of stuff that police can't get away with elsewhere,” wrote Scott Henson, the executive director of the Innocence Project of Texas.

Numerous studies have suggested that the discretionary powers allowed under pretextual stops have resulted in black and Latino drivers’ being disproportionately targeted.

A Department of Justice study issued in 2013 found that 52 percent of stops for black drivers were for minor traffic violations, versus 34 percent for white drivers. For 18 percent of black drivers, no reason was given for the stops, while only 8 percent of white drivers weren’t given explanations.

The same study showed that a black motorist is about 31 percent more likely to be pulled over than a white person behind the wheel and about 23 percent more likely than a Hispanic driver.

Carl Williams, a racial justice attorney at the American Civil Liberties Union of Massachusetts, refers to the phenomena as a “vehicular stop and frisk.” 

Criminal law experts say there are signs in Encina’s dashcam footage suggesting that Bland may have been the subject of a pretextual stop. 

“There’s some indication in the video that the officer was perhaps trying to create circumstances where he can pull people over,” said Kami Chavis Simmons, the director of the criminal justice program at Wake Forest University School of Law.

Activists cite the moments leading up to the stop, in which Encina makes a U-turn and then tails Bland before she moves out of the way. It appears that she also believed she was being followed. “I was getting out of your way. You were speeding up, tailing me, so I move over, and you stop me,” she told the officer.

“It looks like it may have been a tactic to get access to her car, with the hopes that she would move over to the next lane without using her signal,” Simmons said. “If you’re driving and experience a police car driving up pretty quickly in the left lane, your response is going to be to move to the right lane to let him pass. That’s what anyone would do.”

Ultimately, we don’t know whether the stop was a deliberate tactic undertaken on the basis of race or some other motive, Simmons said. “In the end, however, these sorts of stops end up having disparate consequences for people of color.” 

Another type of discretionary policing that some say is encouraging racially motivated stops is asset forfeiture, in which officers drivers who have been pulled over for minor traffic violations or who consent to a search may have their assets seized, including cash, even when there is no evidence that it is connected to criminal activity.

The practice has become a cash cow for police precincts across the U.S., particularly in Texas, where the state can retain up to 90 percent of proceeds from civil forfeiture.

According to the Institute for Justice report “Policing for Profit,” from 2001 to 2007, Texas agencies raked in at least $280 million in forfeiture funds. In that period, annual proceeds tripled, and about 74 percent of forfeiture funds were spent on equipment, and nearly a quarter went to salaries and overtime pay.

The law of asset forfeiture permits police to seize what they believe to be proceeds from criminal activity, even before criminal charges are brought — making owners, in effect, guilty until proven innocent.

“You have to prove that the cash seized was somehow not connected to a crime. So innocent people have to prove their innocence,” Louis S. Rulli, a law professor at the University of Pennsylvania, told The Wall Street Journal. “It really turns our whole justice system on its head.”

Authorities more frequently target black people under civil forfeiture laws, according to Simmons, and attaching a financial incentive to routine traffic stops lends itself to abuse. “In Texas, police were stopping folks and basically coercing them into revealing they had cash, under the threat of criminal prosecution,” she said.

From 2006 to 2008, Texas police stopped more than 140 out-of-state drivers, most of them black. In some instances, drivers were told that if they didn’t turn over their cash, their children could be taken by Child Protective Services, according to an article in The New Yorker.

“Once arrested, officers took them to jail and threatened to file charges unless they signed prenotarized statements relinquishing any claim to their valuables. Officers seized cash, cars, cellphones, jewelry and even sneakers. In most cases, criminal charges were never filed, and there was no evidence to conclude the motorists were engaged in illicit activity," the Institute for Justice report said.

Texas Supreme Court Justice Don Willett blasted the practice in 2014. “Unsurprisingly, civil forfeiture, once focused on the illicit goodies of rich drug dealers, now disproportionately ensnares those least capable of protecting themselves, poor Texans who usually capitulate without a fight because mounting a defense is too costly ... A generation ago in America, asset forfeiture was limited to wresting ill-gotten gains from violent criminals. Today it has a distinctive ‘Alice in Wonderland’ flavor, victimizing innocent citizens who’ve done nothing wrong,” he said.

The Texas Department of Public Safety did not respond to a request for comment at the time of publication.

Currently, 42 states allow law enforcement to retain at least 50 percent of civil forfeitures. Of those, 26 states allow police to pocket all the proceeds from seizures. Mounting concern over the practice has led some states to consider legislation to curtail the practice. 

In April, New Mexico passed a law banning the practice. “Like other drug war programs, civil asset forfeiture is disproportionately used against poor people of color who cannot afford to hire lawyers to get their property back. This law is an important step towards repairing some of the damage the drug war has inflicted upon our society and system of justice,” Emily Kaltenbach, the director of the state’s Drug Policy Alliance, said at the time.