Abstract

Excerpted From: Farhang Heydari, Rethinking Federal Inducement of Pretext Stops, 2024 Wisconsin Law Review 181 (2024) (359 Footnotes) (Full Document)

On July 27, 2023, the U.S. Department of Justice (DOJ) announced it had opened a pattern or practice investigation into the Memphis Police Department's (MPD) “use of force and its stops, searches and arrests, as well as whether it engages in discriminatory policing.” DOJ's announcement came about six months after the brutal murder of Tyre Nichols following a traffic stop by a specialized criminal interdiction unit of the MPD. Within minutes of the stop, Mr. Nichols was viciously beaten, tased, repeatedly pepper sprayed, left handcuffed and immobile, and soon died from his injuries.

DOJ's announcement came as no surprise. Recent memory is full of DOJ pattern-and-practice investigations following high-profile killings, such as in Minneapolis after George Floyd, Baltimore after Freddie Gray, and Ferguson after Michael Brown. Moreover, Memphis elected officials and community leaders publicly called for a DOJ investigation. And DOJ had already signaled a keen interest in Memphis: A few weeks after Nichols's murder, the Justice Department's Civil Rights Division announced a criminal investigation into the actions of the officers. In March, DOJ's Office of Community Oriented Policing Services (COPS Office) announced a non-binding review of certain MPD policies and practices as requested by Memphis's mayor and police chief.

There is little question that a federal investigation into policing in Memphis is warranted. Tyre Nichols's death appears, in many ways, to have been the tip of the iceberg. But if the federal government is serious about ending the kind of ineffective and deadly policing that caused Nichols's death in the first place, it also must look inward to the federal policies and programs that drive local police to use widespread traffic stops as a primary crime-fighting tool.

Police traffic stops have long been a focal point of attention. Recently, a steady stream of visceral, on-camera killings during routine traffic stops has built momentum to rethink the relationship between policing and traffic enforcement. A number of jurisdictions around the country have sought to limit low-level, pretextual traffic stops-- singling out that tactic as particularly pernicious. Others are beginning to think more capaciously about what traffic enforcement without police might look like.

Presidential administrations from Bush to Biden are familiar with public outcry against discriminatory traffic enforcement and have responded publicly in support of change. “Driving while black” and racial profiling were a political issue in the presidential election of 2000; following the election, President George W. Bush “declared unequivocally before Congress that racial profiling 'was wrong and we will end it in America.”’ More recently, President Joe Biden's 2022 executive order on policing called for “ending discriminatory pretextual stops.” Investigations by DOJ into local police departments often criticize police overreliance on stops and find a pattern-and-practice of unconstitutional and discriminatory pretextual traffic stops. And the resulting consent decrees have limited local police use of pretextual stops.

Yet, while decrying this harmful policing tactic in public, behind the scenes, the federal government has trained and incentivized police to use the very same tactic--and to do so aggressively. Federal agencies from DOJ to the Department of Transportation (DOT) direct state and local police to conduct traffic stops, create the conditions for police to profit from these stops, train police to use stops as a pretext for various law enforcement goals, and otherwise encourage the widespread use of traffic stops as a crime-fighting tool.

It is difficult to quantify the impact of the federal government's long-standing embrace of pretextual traffic stops. Few of the federal programs collect data on their impact, and even fewer attempt to study their efficacy. None of the programs have addressed publicly the social harms they impose. Still, it is clear that state and local police make more pretext stops because of federal intervention. One can only speculate how much less ubiquitous pretext stops would be today if the federal government had actively discouraged the practice. Instead, the result of federal intervention has been the perpetuation of racial stereotypes among police, discriminatory and illegal stops, policing for profit, and the diversion of resources away from non-policing solutions to traffic safety.

This Article has three parts: Part I provides background for understanding the importance of the federal government's role in encouraging the widespread use of pretext stops. It begins by defining pretext stops, not as a single type of traffic stop, but as a spectrum of police activity that relies on traffic enforcement as a crime-fighting tactic. Using this broad definition, this Part then recounts the evidence and scholarship regarding the benefits and social harms of this tactic. Finally, this Part summarizes previous calls for reforms and details how these calls focus predominantly on the state and local level.

Part II combines previous scholarship and original research to provide a comprehensive account of how the federal government has and continues to encourage police to rely heavily on pretextual traffic stops. The range of federal agencies that play a role here is startling. They include law enforcement agencies that one might expect, such as the Drug Enforcement Agency (DEA) and the Department of Homeland Security (DHS), but also other administrative agencies that ostensibly have little to do with policing, such as the Office on National Drug Control Policy and the Federal Motor Carrier Safety Administration. In addition to the breadth of agencies involved, the mechanisms of federal influence are also myriad: from directing law enforcement investigations to providing training, funding, technology, and access to data.

Part III provides a path forward for the federal government to develop a new, comprehensive, and coherent approach to the use of traffic stops by law enforcement. This approach should center on public safety and avoid falling into tired patterns of harmful and discriminatory stops. To achieve this, this Article proposes a series of tangible reforms, including executive action that changes federal law enforcement policy, the creation of a centralized review process for federal policing programs, and the development of a regulatory method to calculate the social cost of traffic stops. The goal is for policymakers, researchers, and civil society to take up this agenda and spark meaningful change that is long overdue at the federal level.

[. . .]

For too long the federal government has paid lip service to the problem of discriminatory and pretextual traffic stops. It has cast the problem as limited to particular misguided local policing agencies. In fact, behind the scenes, the federal government has long trained and incentivized police to use pretext stops widely, despite a litany of known harms associate with the tactic.

This indictment is also an opportunity. Attention is focused on police reform in ways that it rarely has been. This Article calls on executive officials, legislators, and civil society to develop a new, comprehensive, and coherent approach to traffic enforcement--one that centers public safety and avoids falling into the same harmful and discriminatory patterns.

Assistant Professor of Law, Vanderbilt Law School; Senior Advisor, Policing Project, NYU School of Law.