By Brian Whepley
A surprising revelation led professors at the University of Kansas to identify a widely accepted police practice – the investigative stop – as a threat to the rights of racial minorities. This is the story of their provocative interpretation and how it became a book that’s prompting dialogue in the law enforcement community.
It became what researcher Charles Epp, a professor at the university,
calls a “holy crap” moment.
Sitting in a Lawrence coffee shop, Epp was paging through several dozen narratives he and his fellow researchers had collected. The stories sprang from a survey of more than 2,300 Kansas City-area motorists that took an in-depth look at the consequences of police stopping drivers. Feeling he was onto something but not sure what, he sorted them into two piles – one detailing the stories whites told, the other describing the experiences of black people.
The narratives captured voices that had not been extensively studied or heard in discussions of motorists pulled over by police: the drivers themselves. From those stories they learned that the experience – of flashing lights, pulling to the roadside and interacting with a law officer – is often profoundly different depending upon whether you’re black, Latino or white.
The contrasts that took shape in those separate stacks helped form the basis for “Pulled Over: How Police Stops Define Race and Citizenship,” an April 2014 book from the University of Chicago Press that Epp, a professor in KU’s School of Public Affairs and Administration, authored along with fellow public affairs professor Steven Maynard-Moody and Donald Haider-Markel, a KU political science professor.
It wasn’t just that black people were more likely to get pulled over by the police than whites. For many African-American drivers, “It’s like, ‘Duh.’ It’s obvious. They live this,” says Maynard-Moody.
No, what was most telling was the deep impact that a very particular type of stop had on African- Americans. Black drivers weren’t deeply bothered by quick stops when police pulled them over and gave them a traffic ticket. It was only when stops – often for a minor violation like a broken taillight or failure to signal a lane change or going 2 mph over the limit – turned into drawn-out investigations, often punctuated by probing questions and requests to search the vehicle, that the stops left a deep impression. Even if the officer ended the interaction by letting the motorists go on their way.
The “holy” revelation, the one that led the professors to call the drivers their “teachers,” was their delineation of police stops into two distinct groups: traffic stops and investigatory stops. The distinction is, along with the stories, a major contribution that “Pulled Over” makes to conversations about race and profiling, reviewers say. The findings amount to a striking systemic interpretation about why it’s so difficult to move the needle on a significant adaptive challenge – healing the oft-strained relationship between minority communities and law enforcement.
Trying to understand how a police stop “hit so deep” – often not bringing a ticket but leading black motorists feeling “violated” – drove the researchers’ search for answers.
“Why does this momentarily polite stop that didn’t end up with any consequence bring this extreme word that’s somewhere between having your rights violated and having your person violated, why would they use that word?” Maynard-Moody says they asked themselves. “Because in some sense, it’s inexplicable … because what happened was ‘nothing.’”
The explanation the professors developed was that investigatory stops fall disproportionately on African-Americans – especially young black men – and leave them less willing to cooperate with authorities and even doubt their place in society and as citizens.
“What’s communicated is that they are worthy of surveillance, worthy of control, that they are the legitimate target of this gaze of the state,” Maynard-Moody says. “They are less powerful, less citizen in a way; they are diminished citizens in our community. … They are equal in front of the law, but not really.”
The researchers found that when African Americans experienced an investigatory stop, it mattered little whether the officer was nice and polite to the driver. They still felt violated.
It’s a feeling that more minorities may be at risk of feeling more often, the authors write.
“As laws encourage police to hunt for illegal immigrants and the use of investigatory stops expands to target Latinos, these unjust and antidemocratic patterns, unless deliberately checked, are likely to only become more widespread,” they write in their concluding chapter. “Police stops to check for immigration documents will be ethnically framed in the way investigatory stops have been racially framed.”
Such findings have hit home for some in law enforcement, such as Robert Sullivan, coordinator of the Johnson County Criminal Justice Advisory Council.
“When I made a car stop,” says Sullivan, a former reserve deputy in Lyon County, “I wanted to make sure that I was extremely professional and very, very polite. I was just crushed that, while that’s important, it doesn’t fix anything.”
Exploring a tough interpretation about something like police investigatory stops might be enlightening, but it’s not exactly comforting. This way of diagnosing a situation means looking beyond a scapegoat and instead working to understand how policies, people, systems and culture fit together to create a problem. Using this kind of explanation to drive what you do is fundamental to exercising leadership well, but it also means embracing a challenging, drawn-out process of incremental change and weighing trade-offs.
For instance, as compelling as they can be, the book’s findings have hardly revolutionized law enforcement. In a 2015 study by another researcher, Michael Birzer of Wichita State University, a survey of 61 Kansas law officers from 15 different agencies found authorities overwhelmingly “agreed that the pretext stop is an important and necessary tool to suppress crime.”
For the officer on the street, pretext stops – another name for investigatory stops – carry useful benefits and have led to newsworthy arrests and drugs being taken off the street. It’s seen as a fundamental way to stop more serious crimes before they happen. The opposite view, one the KU researchers take, is that many, many police stops are required to make those arrests and seize those drugs, and the cost to the innocent drivers stopped and let go in the process isn’t worth the trade-off.
Not about ‘bad apples‘
Throughout their book, the KU authors were able to point toward some of the lesser-noticed consequences of stopping lots of drivers for minor, sometimes even contrived, offenses in the hope of finding a few criminals.
They found that African-Americans were
five times more likely to have their
vehicles searched, and that a black man
had to hit age 50 before his chance
of being pulled over equaled that of a
young white man.
They documented how, being pulled over more often, members of the black community share those stories, reinforcing distrust of police.
They heard recollections of being followed home night after night by police, of being handcuffed at curbside and then being released with little explanation, of an officer pulling a gun because a driver asked why he’d been stopped, and of the overall feeling of being violated on both a legal and personal level.
“Steven said we really ought to follow up and get … their own stories in their own words,” Epp recalls in an on-campus interview with Maynard-Moody in late April. “That ended up being the crucial element of the data gathering, because the stories were so revealing.”
What Epp and Maynard-Moody found is provocative because the practice of using investigatory stops is deeply embedded in training and criminal justice theory, with some departments acknowledging they use the approach and others practicing it somewhat quietly and to varying degrees. But it results, the authors say, in a form of institutional racism – one where the practice is responsible, not the people practicing it – that is very difficult to get your head around, not to mention confront or resolve.
“Part of the challenge … is that you can have racialized practices and you can act in a way that is based on and perpetuates bias, but that doesn’t necessarily mean you are any more racist than anyone else,” says Maynard-Moody. “That I think is a hard part of the conversation.”
“We don’t want to paint this as evil intent,” Epp says. But “we would never argue that there aren’t bad apples.”
Factoring into the discussion are studies like one in New York City that found that police found drugs or guns in less than 2 percent of stop and frisk searches. The debate over police stops and other intrusive practices involves weighing competing values that include the desire for public safety and police visibility versus others in the community feeling resentful and less safe when police are around.
However, there’s a larger context that also needs to be understood. Reducing the use of something like the investigatory stop means re-examining the ways in which law enforcement has worked and finding other effective ways of doing their jobs.
“To be fair,” Epp says, “the practice comes out of a tradition in policing that’s really developed in the last 40 years to use research and to use training to improve police performance. And that has produced many good developments in policing. … So it’s a little bit hard to shift the leadership in policing on this question when they are so convinced this tradition is good. … Their failing has been to not track the downsides of it, to only look at the catching-the-bad-guys side of it and to not really see how those people who are stopped feel about it or perceive it and how it affects their willingness to cooperate going ahead.”
Practices can be changed
“Pulled Over” came out just before the 2014 Michael Brown shooting death in Ferguson, Missouri, which didn’t involve a traffic stop, and more than a year ahead of the controversial fatal shootings of Walter Scott in North Charleston, South Carolina, and Samuel DuBose in Cincinnati, both of whom had been pulled over by police.
The researchers didn’t expect the book to lead to quick change. In fact, they believed that change, if it came, would come slowly. Still, they felt driven to change the conversation.
“I remember feeling very strongly through that summer, after Michael Brown was shot, that a big part of the underlying reality was just being missed in the discussion,” Epp says.
“Usually what you see if you look at all of the post-Ferguson events in particular, the leadership narrative is what we would call the ‘bad apple narrative.’ So it’s not the fault of the department, it’s not the fault of the leadership of the department, it’s the fault of a few bad apples overreacting, or of a racist cop,” Maynard-Moody says.
“If you say the problem is institutionalized racism, which is a very legitimate statement, it’s almost like, ‘Whoa, we can’t deal with that.’ When you get it down to various clearly articulated institutionalized practices, then you can change practices. Those can be changed,” he says.
When newspapers called the authors asking for comment on this shooting or that, they sometimes felt “strange” to be looked to amid the tragedy. They felt far more comfortable to have others, black journalists among them, take in their ideas and have a new frame of reference.
“So many of these issues are hiding in plain sight. So part of our job is to make them less hidden,” says Maynard-Moody. “That’s part of the goal of the academic, to reveal what’s hiding in plain sight.”
The researchers not only shined the light
but also suggested solutions, while recognizing
the powerful pressures that those working
in law enforcement face.
Their proposals address investigatory stops on several fronts – including departmental policies, training and the courts – and in steps both immediate and longer term. These include banning stops where there isn’t a clear violation of the law and requiring officers to clearly record the reason for each stop. In addition, they say, searches should be banned unless there is clear probable cause of a crime, as “consent” searches often leave drivers feeling like they have no choice but to say yes, contributing to feelings of violation and bias.
They maintain the courts bear responsibility, as rulings have helped legitimize investigatory stops, yet concede change isn’t likely to come quickly via that avenue. Still, a 2016 dissent by U.S. Supreme Court Justice Sonia Sotomayor citing their book holds out the possibility of change.
Most directly, they say senior police officials have the greatest, most immediate power to alter policies and practices and drive change in training methods that prescribe investigatory standards as an effective law enforcement tool.
“I have immense respect for progressive police chiefs and command-level officers. They’re often really trying hard to do the right thing. In many areas, they are committed to community policing and good relations with neighborhoods. Ironically, at the same time in some of those places, they are also deploying this kind of stop,” Epp says.
“The police who are most willing to talk frankly say something like this: … ‘I sort of get this, but what else can we do to fight crime in these communities? Until we have another tool that we are convinced works, we are sort of left to using this one.’ And that is an interesting and sort of frustrating response, a kind of, we get it, which means we’re starting to see the downsides but we need to have some sort of alternative.”
Shifting the context
The topic of racial profiling is often a deeply frustrating one for police officers, who feel as though they’re being put in a no-win situation. Kansas officers, for instance, tend to see a media-driven narrative that over-reports incidents involving police and minorities, and often “jaded coverage against the police.”
Furthermore, community members often want to crack down on crime unless they’re the ones being targeted, say for speeding or running a red light. In the survey done by Wichita State’s Birzer, officers reported that they were commonly accused of racial profiling by motorists, which they saw as an effort at intimidation to get out of the citation or back off their suspicions. (Interestingly, the KU researchers indicate that black people are more likely than white people to challenge the fairness of traffic-safety stops, a possible reflection of the bad taste left by investigatory stops. The researchers also point out that black people perceive traffic stops where they are lectured by an officer as being more legitimate because it shows they actually did something wrong.)
Birzer found that officers do not believe that they should be required to provide a race-neutral reason for a stop or complete additional paperwork each time they make use of a pretext stop. Some even question the very use of the term, saying that the violation officers observed is the purpose of the stop. “As one officer explains,” Birzer writes, “‘They either used their turn signal or not; the brake light is cracked, or it’s not cracked.’”
For some officers, though, the book
has offered an opening for better
understanding of how they are viewed
“Officers who actually read the book, as opposed to just getting an impression of it, they never say, ‘I can’t believe you called us racists.’ They get that we’re not making that kind of an allegation,” Epp says. “So that’s heartening, and that makes it at least possible to have the conversations with the police officers.”
Sullivan, the Johnson County criminal justice coordinator, recalled that in his reserve deputy days there was an expectation of being “on the radio” and showing action and initiative through many check-them-out traffic stops for equipment or other violations that rarely brought a ticket. “I had no malicious intent whatsoever. Until I approached the driver’s side window, I didn’t have any idea of the race or gender of the person I pulled over. So I used to bristle a bit when people would suggest that police officers are racially biased.”
Having been tipped to “Pulled Over” by a colleague, and finding much to mull in its pages, Sullivan asked Epp to speak at the advisory council meeting. The county, he says, has been working on a number of fronts to be more inclusive of minority residents. The book fit well into those discussions.
“I did not want our law enforcement officers to immediately be on the defensive. That wasn’t the intent of having this discussion,” Sullivan says. “The discussion was just to know that there seems to be a difference between traffic safety enforcement and investigatory stops and that investigatory stops cast a much wider net for minority individuals than it does for white individuals. And that is a policy decision that might be causing more harm than good in the long run. The harm it causes may or may not far outweigh the short-term gains of disrupting criminal activity. “
Those affected have increasingly owned the problem, raising their voices against police stops that disproportionately affect them and their community. In some communities, such as North Charleston, use of the stops has plunged.
“The debate in the last three years has shifted, and it’s shifted in large part because of protest by African-Americans who have been experiencing this thing for a very long time,” Epp says. “They have actually shifted the debate, more than anybody else. To the extent that the book has gotten attention, it’s got attention because of that shift in context.”
As a result, it’s become possible for more people in law enforcement and beyond to consider the potential downside of the investigatory stop and begin reconciling that with what they know about creating safer, lower-crime communities.
“Up till now, the message has been, ‘Make a stop, because you may well catch a criminal, you may well catch a drug dealer, you may make the big bust that leads to fame,’” Epp says. “We suggest the message ought to be flipped, that when in doubt don’t make that stop, because most of the time the person you stop is innocent and is harmed in the process. So the stop based on suspicion that asks probing questions, even if the person is let go with no legal sanction, there are harmful consequences to them and also to the police going down the road.”
This article was originally published in the Fall 2017 issue of The Journal, a publication of the Kansas Leadership Center. To learn more about KLC, visit http://kansasleadershipcenter.org. For a subscription to the printed edition of The Journal, visit klcjr.nl/amzsubscribe.