The Docket: The Law Defers To Police During Traffic Stops : The NPR Politics Podcast The Docket is a new ongoing series from The NPR Politics Podcast where we examine the backstory of the laws that impact our daily life.

Traffic stops are a routine police practice, but with the rise in body cams and cell phone footage, people have begun to witness how they can escalate to violence and even death. We examine how the law itself may contribute to that escalation. Warning: this episode contains graphic audio.

This episode: congressional correspondent Susan Davis and national justice correspondent Carrie Johnson.

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The Docket: The Law Defers To Police During Traffic Stops

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(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")

SUSAN DAVIS, HOST:

Hey there. It's the NPR POLITICS PODCAST. I'm Susan Davis. I cover Congress.

CARRIE JOHNSON, BYLINE: And I'm Carrie Johnson, national justice correspondent.

DAVIS: And this is The Docket, our ongoing series on the podcast where we're looking at the big legal questions of the day and break down how they're shaping our world. And, Carrie, today we're talking about what I think many people would consider a routine police practice - the traffic stop. This is basically when a police officer pulls over someone for some kind of traffic offense; blowing a red light, not stopping at a stop sign, maybe breaking the speed limit. But then they can use that stop to look for any other number of legal violations, correct?

JOHNSON: Yeah, that's absolutely right. And, in fact, there are a bunch of Supreme Court cases over the years in recent history that basically say that police can stop you for any reason they can articulate when you're driving. That came in a case known as Terry. Other cases have suggested that law enforcement could stop you for any cause that they find reasonable and that you basically have to obey a police order or in many states, you can be charged with a crime for not obeying the order, even though it doesn't make any sense to you as the driver at all.

DAVIS: What I think is so interesting about this issue is that it takes something that is seemingly low intensity, like, oh, you didn't use your turn signal. But we have seen in so many high-profile cases over the years that these traffic stops can escalate and become violent or deadly in a lot of cases. And, you know, you hear from law enforcement who are often will say that traffic stops are one of the sort of high-intensity situations for them because you never know what's going on in that car or what could happen. And obviously, we've seen in these cases in recent years that there's a lot of intensity of the person getting pulled over, especially if they're a person of color.

JOHNSON: Yeah, so many times in these big Justice Department civil rights investigations of police departments and sheriff's offices, you'll find data that suggests that disproportionately, and sometimes by very high numbers, law enforcement is pulling over Black and brown people a lot more often than it's pulling over white people, even though they find contraband less than or at the same rates by race. So this has been an issue that DOJ has been focused on over the years. And then, of course, Sue, as you mentioned, there are a number of really terrible and often tragic incidents that we've been seeing over the years. We had in Virginia, the case of an Army medic Caron Nazario, who was pulled over allegedly for not having proper paperwork for his new car.

(SOUNDBITE OF ARCHIVED RECORDING)

DANIEL CROCKER: How many occupants are in your vehicle?

CARON NAZARIO: What's going on?

CROCKER: How many occupants are in your vehicle?

NAZARIO: It's only myself. Why are your weapons drawn? What's going on?

CROCKER: Open the door slowly and step out. Open the door.

NAZARIO: I'm not getting out the vehicle. What's going on?

CROCKER: Get out of the car.

JOHNSON: He basically waited to pull into a gas station where it was well-lit instead of pulling over on the side of the dark road. And officers pepper sprayed him and beat him up even though he was - he said he was complying.

(SOUNDBITE OF ARCHIVED RECORDING)

NAZARIO: Get your hands off me.

JOE GUTIERREZ: Back up, Daniel.

NAZARIO: I didn't do anything. Don't do that.

CROCKER: Sir, get out of the car now.

NAZARIO: Don't do that. Don't do that.

GUTIERREZ: Hey, get out of the car now.

NAZARIO: Don't do that. I'm trying to talk to you.

GUTIERREZ: Get out.

CROCKER: Ok, I'm going to talk to you. Just get out of the car.

GUTIERREZ: Get out.

NAZARIO: Relax. Can you please relax? Can you please relax?

CROCKER: Get out of the car right now - now.

NAZARIO: This is not how you treat a vet. I'm actively serving this country, and this is how you're going to treat me?

GUTIERREZ: Back up, Daniel. Back up.

NAZARIO: I didn't do anything. Whoa. Hold on. What's going - hold on. Watch it.

JOHNSON: Now he's suing, and one officer got fired. We're learning more and more about a case in Louisiana from 2019 involving Ronald Greene. The body cam video from the law enforcement or the troopers in Louisiana only emerged recently after the AP reported a police officer on the scene denied that there was any for two years.

(SOUNDBITE OF ARCHIVED RECORDING)

CHRIS HOLLINGSWORTH: Get out of your car.

RONALD GREENE: Ok. Ok. I'm scared. I'm sorry. Officer, I'm scared.

JOHNSON: And this is just a terrible scene where Ronald Greene is screaming and crying, and he's scared. He wound up dead. He died there. And then, of course, we've got Sandra Bland from several years ago...

DAVIS: Of course, yeah.

JOHNSON: ...In Texas who was pulled over for basically what she said at the time was a pre-textual traffic stop. She challenged the police officer and didn't want to get out of the car. She was found dead in her jail cell in Texas a few days later - so a lot of really, really horrible situations that have come to light in part because of cellphone video and body cam footage.

DAVIS: And one of the things that all of these incidences have highlighted from a legal perspective is that the law is very deferential to the police officer in these situations.

JOHNSON: It's very deferential, Sue. I first became interested in this because of a Twitter thread from a Fourth Amendment expert named Orin Kerr at UC Berkeley.

And fair to say you're an expert in the fourth amendment, right?

ORIN KERR: I guess that is fair. Yeah, that's what I do all day. So if I'm not an expert now, I never will be. So I guess so.

JOHNSON: And Orin Kerr basically explained to me the law benefits the police officer because of a Supreme Court decision back in 1977.

KERR: So the Supreme Court held in a case called Pennsylvania v. Mimms that officers can order a driver out of the car at any traffic stop for public safety reasons. And the idea was - officer pulling somebody over by the side of the road and the officer doesn't know if the driver is armed, and the officer may just be alone and the person who has the car may have a gun. And so the officer, to protect the officer, can order the person out of the car for these officer safety reasons. And the catch to that is, the court says, they can do that without any showing, specifically, of cause. They don't need to show the person was acting suspiciously or that they had a particular reason, the person had a gun, it's just a bright line rule they can order the person out of the car. What that means for somebody who's in a car is that you could be pulled over for speeding and the officer says, get out of the car, and they can do that under the Supreme Court decision. And you're thinking as the driver, wait. Why are you ordering me out of the car? I didn't do anything. What? I don't understand. But they can do that at any time under this 1977 Supreme Court decision.

JOHNSON: At any time - and it's that confusion and, in a lot of cases, mistrust of the police that can lead to these traffic stops escalating to more serious incidents very quickly.

KERR: Officers are using a set of rules. People don't know what the rules are. They don't know what cause the officer has. They don't know why the officer is doing what the officer is doing. And they may suspect either that the officer's engaging in racial profiling or that the officer does not have enough cause to stop them or order them out of the car or whatever is happening. And so for the citizen, it's really confusing. And that's true even if they happen to be Fourth Amendment experts. The driver of the car just can't really know what's going on. We're seeing again and again as we - I think, really, as video helped show us a lot of what the reality has been for all this time about what's actually happening. And I think we're kind of seeing like, wait a minute. These rules are just - the deck is stacked too much in the officer's favor.

DAVIS: Carrie, I mean traffic stops have been happening for years and years, but it seems like we're just in a moment right now where there's much more public attention focused on both the legal and racial implications of why they're happening.

JOHNSON: I think that's the case. I think, you know, certainly, many, many people are pulled over every day for routine traffic stops. The difference now is that more police officers are wearing cameras on their bodies, and a lot more civilians, a lot more people driving cars and their passengers know and try to protect themselves by recording those interactions. More and more of that is coming to light. More and more reporters and TV shows are paying attention to and broadcasting that footage. And it's really started this conversation or continued this conversation either on the left or on the right of the political divide about how to ensure that everybody goes home safe, not just the driver but also the law enforcement officer.

DAVIS: OK. Let's take a quick break. And when we get back, we're going to talk more about how traffic stops disproportionately impact people of color.

And we're back. And we're talking about how police traffic stops have disproportionately impacted people of color. And, Carrie, to continue the conversation, you've brought a special guest to us on the podcast, so I'm going to give you the honors of introducing him.

JOHNSON: A special guest - Kobie Flowers, an attorney in Baltimore and D.C. who's spent more than 20 years trying cases. He now works on suing police for wrongful convictions and officer misconduct.

Welcome to the podcast, Kobie. We're delighted to have you here.

KOBIE FLOWERS: Thank you so much for having me. It's a delight to be here, and I appreciate your work.

JOHNSON: You know, one of the reasons why I'm so eager to hear what you have to say is the breadth of your experience. You prosecuted civil rights cases for the Justice Department. Then you left the government, became a public defender. And now you're, in some cases, bringing civil lawsuits on behalf of survivors of police brutality. What has that experience showed you about the disconnect between how police operate on the ground and judges' and the public's understanding of all that?

FLOWERS: Well, it's been a journey that, I think, has shown me kind of how we have policing wrong. And so what I mean by that is this. You know, we've been reforming police departments since 1871. This is the 150th year of reforming police departments. Kind of my experience has shown me that, look; we've been doing this for 150 years. And yet we still have very, very serious problems with policing in America, so it just raises the question of we need to do something different than what we've been doing in the last 150 years.

DAVIS: We'd been talking through how traffic stop laws work and how the law can be confusing for the person being pulled over and also how the law gives a pretty good amount of deference to the police officer pulling the person over. Carrie, how has the Supreme Court weighed in on all of this and whether or not the confusion on the driver's part is problematic?

JOHNSON: Yeah, this all happened in a case from 1996 called Whren. It was a unanimous decision from the Supreme Court. And basically, it said a routine traffic violation is enough for the police to stop you in your car and to search your car. And then any anxiety or fear that you feel from that experience is really not protection from any kind of Fourth Amendment search, that the courts would do a balance between the need to protect officer safety during this traffic stop and the need to protect the safety of others on the roads and the driver's anxiety. And in most cases if not all cases, boy, the law enforcement officer is going to win here. And the reason why this has become such a powerful precedent is we've now seen so many cases on video where there are serious injuries and even deaths of drivers and passengers in these vehicles. And it's really kind of shocked the conscience of people who see some of these videos.

FLOWERS: Fundamentally what Whren does is it says police officers, you know, those people that certainly by reputation are thought of as always telling the truth, as always being very honest - what the Supreme Court said in Whren is they can be dishonest, right? They can pull you over for a pre-text. In other words, you can have a busted taillight, but they're really looking at you because they think you are a drug dealer. It is difficult for us as lawyers to try to get at that misconduct.

JOHNSON: Kobie, what I hear you saying is as long as a police officer can come up with some explanation or excuse, it's very hard to penetrate that and get down to maybe a real reason, which is, I didn't like the looks of that guy or that woman, or they're driving too nice a car for the way they look or any kind of - any number of possibly unconstitutional and racist assumptions that they're making. You can't get beyond that if you can always cite, I didn't see the right tag. I saw a broken taillight. You didn't change lanes properly. Any of that is a good enough excuse.

FLOWERS: Absolutely. Police officers, as you started out by saying, Carrie, you know, have a incredible amount of deference and can hide behind that deference they're given by the courts - the Supreme Court in particular - to engage in a lot of misconduct. And then we turn around. We look at the history of policing in America going all the way back to the Ku Klux Klan Act and that a lot of police departments were created out of, you know, going and catching slaves and that the Ku Klux Klan and the police were one in the same. And the law through these various cases and doctrines like qualified immunity have really allowed for a culture in policing to - a culture which, you know, again, gets at a lot of - allows for a lot of unconstitutional misconduct. So again, we look at my job. When I started and where I am, it's very, very difficult, I think, to use the law as your only tool to deal with police misconduct and traffic stops specifically.

DAVIS: Kobie, I want to ask the question that, I think, a lot of our listeners will have listening to this podcast - is, so what do I do? What do I do when I'm being pulled over, whether or not if you know why you're being pulled over? And I ask this question with the caveat that obviously, there could be very different answers to this question based on the color of your skin.

FLOWERS: Yeah. You know, I - it's interesting. My answer is almost - has nothing to do with color. I think that at the end of the day, you know, police officer pulls you over, you must comply because at the end of the day, it is going to be your word against his or her word. And you want to get to the end of the day. And whatever type of misconduct that police officer engages in, again, you just want to get through it, such that you can, you know, go live to see another day. I get pulled over for reasons that I know were pre-textual. And even though I am who I am and I am a lawyer and a civil rights lawyer and, you know, learned and seen what I've seen, I still have been harassed by the police. And I still have to remember that no one cares what I've done or what I know when I'm out on the middle of the road in the middle of no place no place. Best thing you can do is just go ahead and comply and live to see another day and then, you know, call folks like myself if something went wrong.

JOHNSON: Kobie Flowers, thank you so much for joining us today.

FLOWERS: Well, thank you so much, Carrie Johnson and Susan Davis, for having me. It's been a pleasure.

DAVIS: All right. That is a wrap for us today. I'm Susan Davis. I cover Congress.

JOHNSON: And I'm Carrie Johnson, national justice correspondent.

DAVIS: And thanks for listening to the NPR POLITICS PODCAST.

(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")

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