Twenty Years after Whren: A Crisis of Police Legitimacy

Today marks the 20th anniversary of the Supreme Court decision in Whren v. United States. The case clarified the constitutionality of the practice of “pretextual” traffic stops. The Court ruled that so long as an officer can articulate that a driver violated some traffic law, the officer may stop a motorist in order to investigate potential and wholly unrelated criminal activity. The case has effectively become a blueprint for police officers to racially profile drivers without repercussion.

Last fall, I gave a talk at Case Western Reserve Law School in a symposium dedicated to Whren and its legacy. The school’s law review recently published the article that came from that talk. Instead of putting forth an argument to overturn Whren, I argue that police departments ought to curtail or end the use of pretextual stops as a proactive policing measure. The Supreme Court’s ruling that the tactic is constitutional does not make it an ethical or wise tactic to employ.

Simply put, pretextual stops undermine police legitimacy by turning public servants into antagonistic interrogators. In practice, pretextual motor vehicle stops—much like the pedestrian Terry stops used in New York’s infamous Stop-and-Frisk program—ensnare far more innocent people than criminals. And most of the people who are stopped are black or Latino, further eroding police support in those communities. Police departments must establish their legitimacy—through trust and positive interactions—to improve their effectiveness and public safety. Overly aggressive and implicitly discriminatory policing practices undermine that legitimacy.

You can read the whole article here. The rest of this issue of the Case Western Reserve Law Review can be found here.

Update: I also wrote a shorter piece over at Rare describing what happens during a pretextual stop and why it’s so resented by the people who experience them.