99% Invisible - 410- Policing the Open Road

Episode Date: August 12, 2020

Before the twentieth century, most Americans rarely came into contact with police officers. But with more and more drivers behind the wheel, police departments rapidly expanded their forces and increased officers’ authority to stop citizens who violated traffic laws. The Fourth Amendment—the constitutional protection against unreasonable searches and seizures—did not effectively shield individuals from government intrusion while driving. Instead, jurists interpreted the amendment narrowly. In a society dependent on cars, everyone (the law-breaking and law-abiding alike) would be subject to discretionary policing. Sarah Seo's remarkable book Policing the Open Road shows how procedures designed to safeguard us on the road actually undermined the nation’s commitment to equal protection before the law. Policing the Open Road

This is 99% invisible. I'm Roman Mars. On July 10th, 2015, a police officer in Prairie View, Texas pulled over a 28-year-old black woman named Sandra Bland. And she was pulled over for turning without signalling, which is a common infraction that police used to stop people in their cars today. This is Sarah Seo, professor at Columbia Law School. And the traffic stopped quickly turned hostile. There was confrontation between the officer about her smoking in her car and the officer got upset. Many of you have probably seen the footage of this arrest. It is very disturbing.

The officer drags bland out of the car and threatens her with a taser. He then arrests her and takes her to jail, where she tragically dies three days later. Blan's death was ruled a suicide, but her treatment at the hands of the police sparked outrage across the country. About a year later, the magazine The Nation published an article trying to analyze everything that went wrong leading up to her arrest. They focused not just on the incident itself, but her entire life's history, her experiences with unemployment, poverty, and mental illness. And when I read the article in The Nation about Sandra Blanc's biography,

one thing that stood out to me was every moment in her life where she experienced a setback happened in the context of her car. Where the police stopped her in her car for a traffic violation, a parking violation that she couldn't afford to pay. And so she sat out in jail or because the police found marijuana in her car that she was using to self-medicate her mental health issues. And so for me, I saw the car as this important character in itself in the systematic ways that black Americans today, black people today in America, are discriminated against, treated unniquely in the justice system.

Sarah Sayos' new book is called Policing the Open Road, How Cars Transformed American Freedom. And it's basically a historical analysis of how we got into this situation, where police have so much power over people in their cars, where black and round people are stopped and searched disproportionately, and where a minor traffic violation, like failing to use a turn signal, can have deadly consequences.

Sao brilliantly connects the history of modern policing with the history of the car. It's a riveting read and an important book for this moment, and I wanted to talk with Professor Sao about it. We started 100 years ago at the dawn of the automotive age. All of a sudden, there were hundreds and thousands of mass-produced cars on streets that were not meant for them. These streets were intended for pedestrians, children played in the streets, trawlies,

a few horse-drawn carriages that could be afforded by the wealthy, and to have suddenly have dozens and then hundreds and then thousands of cars on these streets created chaos and created traffic. So what did we do to respond to the safety issues that that were the result of thousands of cars being thrown onto city streets that were not designed for cars. So we have to think back to a time before the rules of the road became standardized. There were no moral sense of telling us what are the norms of driving on the road. And so local governments when they addressed the traffic problem had to pass a lot of laws setting forth norms so that everybody drove uniformly because that was the best way

to achieve safety on the road. Right, and there were so many of these new laws that ended up being pretty confusing, especially because they varied from state to state and county to county. And so local governments needed to really work to get people to understand these laws and to follow them. Yeah, and they tried a mix of old ways of responding to social problems while searching for new solutions because the car was an innovation that they had not experienced before. And so some of the old ways that they tried to respond was through private voluntary actions. Ministers in churches gave sermons on safety Sunday

exhorting their congregants to obey traffic laws. They also had school boys, preferably boy scouts, direct traffic nearer schools. Washington DC even had women volunteer to manage traffic and report traffic violations. And so some of the old ways of governing relied on private citizens and volunteers to try to maintain order on the streets.

But these were ineffective, and they were ineffective because average citizens who owned and drove cars refused to obey traffic laws. They kept breaking them. And one of the most common laws that they broke were speeding limits, which was a number one contributing factor tax. And so they realized relying on old ways of governing people,

relying on their sense of honor to obey the laws wouldn't work. And so they started shifting towards police law enforcement. And the police at this time, they were not what we think of today. Like police forces were really small. Officers weren't really trained for the job. They were often playing clothes. Maybe they had a little tin star, almost like a night watchman or something. They weren't really in the business of policing the kind of upper middle class, otherwise

law abiding people who were all of a sudden driving around in cars and in breaking all these new traffic laws. Exactly, exactly. And so what local governments throughout the country realized was that trying to enforce the law against normally law abiding citizens, the respectable members of society required somebody with more authority. It required somebody with good judgment. It required somebody who knew the laws, right? To stand head to head and toe to toe with the respectable members of society, even the wealthy ones who drove their cars too fast. And what they realized as they needed

police officers to be professionals. Right. And so we see because of automobile, a shift to professionalize and modernize police departments who couldn't be bribed, who were smart enough to learn all the laws, who were tall enough, there was actually a height requirement so that they could stand above the cars

and people could see their directions managing traffic. And so we see how the police profession itself become more specialized and exclusive out of necessity because of the need to discipline drivers. So was the decision to involve the police and all this like controversial? I mean, I mean, today we take it for granted that police enforced traffic laws, but was there any debate about that at the time? There was debate. There was a group of reforming police chiefs who wanted to modernize and professionalize the police. And the person at the forefront of that movement was a police chief named August Wilmer.

He was a police chief of Berkeley, California, from 1905 to 1932. And a lot of police scholars today call him the father of modern policing in America. And he firmly believed that the police should not enforce traffic. He also believed that the police should not enforce vice laws because the police as professionals were crime fighters and they should devote their time to fighting and investigating crime, not enforcing traffic laws or vice laws like prostitution or anti-licor laws. Right. He didn't see those as serious crimes worthy of the police's attention. It

was more of an administrative task than professional police work. Yeah, and I think the other thing is that traffic quickly came to consume much of the police's time. It became a large part of their duties. And for the police to enforce the letter of the law against these ordinarily law-abiding citizens proved to be a huge headache because nobody liked being enforced. Nobody liked to be ticketed.

Nobody liked to be arrested for a traffic violation. And so what Womor saw was that what he called the respectable citizenry started turning against the police. And he hated that because police as professionals were owed respect, not to stain. And so what he realized to manage this kind of public relations rule of law problem was to advise his officers, actually exercise your judgment and discretion. And let's not enforce the law to the letter. Let's mitigate the harshness of the law, even if the law says to arrest somebody for

a traffic violation. Let's just let them go with the warning. It's better to manage our relations with the citizen rather than to antagonize and alienate them. So he definitely saw the challenges of traffic law enforcement that he did not like at all. Right, even though his opposition didn't end up mattering that much, it was like this is an interesting irony that you present in the book is that cars ended up helping Boomer achieve his goals in having a more modern professional police force. Because so many people were breaking traffic laws that meant they had to have more police, more police officers on the road, and they needed their own patrol cars, and all the traffic tickets helped pay for all of it.

Exactly. And what he didn't entirely anticipate, but what happened pretty quickly was that American society became a car society. And so a lot of crime was taking place in cars on the road anyway. And so very early on, local and state government officials were realizing that crime fighting and

criminal investigation, a lot of it was happening on the road, and that traffic cops while they were looking for safety violations could also look to see if there were evidence of other crimes. And so we see this merging of the duties between traffic enforcement and criminal law enforcement and vice enforcement. This is a period of course where national prohibition is an effect and cars were one of the best ways to transport liquor. Right and so this becomes a major fourth amendment question and that's the amendment that protects against undue searches and seizures. And you know, like we all know, you know, probably from watching TV, that the

police need to get a warrant to search your house, but they actually don't need a warrant to search your car. You know, when did that get decided? It's a question that first comes up in the 1920s at a time when prohibition is an effect, and the mass production of cars has really settled in the American culture. And the reason why this question of whether the police need a warrant to stop in such a car becomes such a big issue in the 1920s is because bootleggers realized that one of the best ways to transport their illicit liquor is in their cars.

And police officers and prohibition agents want to stop cars and search them and they don't, they didn't have time to get a warrant. And they want, so they wanted to be able to do that without a warrant. And this is a really hard issue because the fourth amendment prohibits unreasonable search and seizures of persons houses papers on effects. Cars obviously weren't around when the Constitution was written, but they could be thought of as a fact in this scenario. And so this tension emerged during the prohibition era, but whether it's okay for the police to search a car without a warrant if they suspect that people inside are smuggling alcohol. And this

tension comes to a head in the courts in 1925 with the Carol case. The Carol case was the US Supreme Court's first car search case. It was decided in 1925, but it actually came before the court in 1923. And they had to argue it again a second time because the issues were so difficult. The way that the case started was with three prohibition agents

and a public safety officer from the state of Michigan. They saw a flashy, oldsmobile, convertible, drive past them. And the officers recognized the car. It belonged to a gang of known bootleggers called the Carol Brothers. And so the police decided to go after it. They didn't have any evidence at that time that they saw the car.

There was liquor in the car at the time. They just knew that the Carol Brothers were involved in bootlegging. So they stopped the car and they searched it. And they couldn't find anything. They were about to let the carol brothers go until one of them hit something hard inside the upholstery of the backseat. And so they tore open the upholstery and they found 80-some bottles of liquor sewn into the backseat. The carol brothers tried to bribe them off but they refused the bribe and they prosecuted the case.

The defense attorneys for the Carol Brothers argued that there was no way for the police to have actually known in advance that there was liquor in the car. And so the search was illegal under the Fourth Amendment. And the justice in the court actually thought that this made sense, but they ruled against the Carol Brothers anyway in a decision that we are still living with today. They wrote that cars had so thoroughly changed American society that they needed to be treated differently from other forms of property. The court created an automobile exception to the Fourth Amendment. And so the new constitutional rule that the US Supreme Court set forth in the 1925 Carol case is basically still the law today, which is if a police officer has probable cause to believe that there's

evidence of a crime inside the car, they can stop the car without a warrant. This was a huge change. Instead of needing to go before a judge to determine whether there are grounds to make a search, the officer now had to make that determination for themselves. And if they got sued later on, the police just needed to tell the judge, you know, I had probable cause because of these set of facts that I saw on the road.

And what judges and courts have done throughout the 20th century is exercise what critics have called judicial charity. Another way to put it is courts have often believed the police's account of probable cause. And so over time, over the 20th century, probable cause has become this very loose standard. The impact of the Carol case went beyond cars. 40 years later in Terry versus Ohio,

the Supreme Court legalized stop and frisk, and they justified that decision by pointing to Carol. The Court accepted the logic of Carol that the Fourth Amendment had to evolve to be reasonable to meet the circumstances of a modern world, and so it adopted and cited the Carol decision for that proposition. The Fourth Amendment protects against unreasonable searches and seizures, but over the course of the 20th century, what constitutes a reasonable search has been pretty hard to pen down.

Fourth Amendment, Reasonableness Analysis, has this phrase that comes up a lot in the cases. What is reasonable depends on the totality of the circumstances. Each case has to be decided on its own, case by case. And so when you have each case decided on its own and the police comes before the court testifying us to why he or she acted in this way or that way, a judge is likely to say, you're right. I can't judge what you did in hindsight.

What you do is a difficult job, often dangerous. I'm going to give you the benefit of the doubt. So, fourth amendment, reasonableness determinations have for the most part cited with the police. And over time, that has just given police a lot of discretionary authority. And how has the increased discretionary power impacted the racial dynamic of policing? So the interesting thing about the history of discretionary power is that in the early 20th century, discretionary power was seen as a good thing for citizens. Because an officer who exercises discretion could say, you violated the speed limit. But I'm gonna exercise my discretion

and just let you go off with the warning. Don't do it again, right? But the police exercise their discretion with respect to the poor and people of color, to pull over black and brown drivers more often than white drivers. They exercise their discretion to search the cars of black and brown drivers more often than white drivers. And oftentimes, and this is based off of a study conducted by the Stanford

Open Placing Project, oftentimes they search cars with little suspicion or no suspicion at all when it comes to drivers of color. And so discretion today allows the police to exercise their authority in discriminatory ways. Right. And I mean, if we go back to the Sandra Blancase, you know, I guess we can't say for sure it was racial profiling, but you, but she failed to use a turn signal and the officer chose to use that minor infraction as an excuse to go much further. And I guess what's disturbing about it is that it's not really clear that the officer did anything technically illegal. Yeah, the New York Times asked three or four legal scholars to look at the video of the

encounter and answer the question was the officer who pulled over Sandra Blonde justified in doing what he did. And they all believe that the officer went too far, but they couldn't say that definitively because constitutional law allowed almost all of the actions that he took. The officer can make an arrest for a minor traffic violation. That's reasonable policing. And so the definition of reasonableness has become very broad and capacious.

Yeah. I mean, that's the thing that I find sort of amazing about all this stuff happening at once, is you have this technology, this thing, the car, is created. It takes over American society. And it is a place of diminished fourth amendment protections and a place where you can be policed, you know, kind of capriciously because of the litany of rules that you could possibly be breaking at any one moment in which you could be stopped.

And so it creates this perfect void where the discretion of the officer just fills that void. Yeah, and I think, I think an important point is to think about the context of traffic laws. Almost everybody violates some traffic law at some point, speeding as a common one. So the police officer can choose who to pull over for traffic violation. And during that traffic stop, they can look for facts amounting to probable cause to search a car.

And so you have traffic law enforcement merging with the carol rule, which gives police officers a lot of discretionary power if they want to start investigating. And add to that, all these other doctrines that have been established over the 20th century with respect to cars. Another area of law is a consent doctrine, which

is if an officer gets your consent to search your car, then the Fourth Amendment doesn't apply. And so a common scenario is a traffic or a patrol or an officer stops someone for traffic violation. Looks for a fact that might amount to probable cause, but also asks, can I search your car? And once they have that, they don't be probable cause anymore. And a lot of searches are done through consent.

And depending on the disposition of the officer, they can create probable cause because if they react violently and people push back or react at all or stand up for themselves or assert that they have some kind of right in their person or in this space, this is what happened with the Central Plank case. I mean, there's no reason why he necessarily had to be offended by her having a cigarette that escalated that incident. Because of that, it escalated to the point that she was arrested and she died.

And so again, it just creates this mess of things where one person has too much power because of this confluence of technology and law and how we police it. And I would add that critics had predicted this as soon as the 1925 Carol decision came out. Right? There was one critic that said, reasonable or probable cause is a standard that allows the police to be wrong in some circumstances. Now if you have that kind of standard, a police officer can fudge the truth a little bit, maybe even falsify probable cause. So these critics are already anticipating

the abuse that could happen with the probable or reasonable cause standard for warrantless car searches. We see that today, there was a New York state judge last year who complained about the odor of marijuana as this kind of cliche in police accounts of probable cause because the odor of marijuana is a fact that supports probable cause. But how do you disprove that there was odor of marijuana in the car later in a court of law?

It really comes down to whether the judge believes the police officer that he or she smelled marijuana in the car There's nothing else that a person can do to disprove that fact other than to challenge the credibility of the officer and so this odor of marijuana has become challenge the credibility of the officer. And so this order of marijuana has become this really a common thing that officers will add to their account in the totality of the circumstances to support probable cause. Yeah.

I mean, one of the things that's pretty amazing is that I'm a white man in his 40s. I can afford to hire a good lawyer. And if a police officer pulls behind me in my car, while I'm just what I think of is behaving normally and at hearing to the rules, I get scared. You know, like I think I've done something wrong or I think there's the potential that I will do something wrong. And I can't even imagine what that is like for someone not in my situation, for a black man with a risk of so much higher.

Why have we accepted this? Like, why have we accepted this dynamic where an individual police officer has so much power over a person in their car? I think we accept it, and I think the reason my judges have accepted it is because of the dangers of cars. Cars are really dangerous. Road safety is a big issue. I am scared of drunk drivers.

There are a huge problem on the road, right? I want to be protected on the road. I want to be protected by the state. That is a legitimate function of the government. It's just that because we've delegated that task to the police that also handles criminal enforcement. That's caused so much of the problems we see today. And so I think part of the answer to your question of why haven't we questioned the police enforcement of traffic laws, as I think goes back to traffic safety is a huge deal. But we can question whether

the police are the right institution to handle that or not? Coming up after the break, we're going to take a look at a city that is doing just that, separating traffic enforcement from its police department after this. So the town I live in, Berkeley, California, I live in Berkeley, the headquarters is in beautiful downtown Oakland, California, but I live in Berkeley. It was also the home of the police chief August Volommer, the so-called father of modern policing. Actually, he lived like around the corner from my house. But as Sarah Sayow talks about in her book, Vommer was not a fan of the idea that police should be in charge of enforcing traffic laws.

He did not consider rolling through a stop sign to be a crime worthy of the police's attention. So a hundred years later, the city of Berkeley has made a decision that August Vommer might have approved of. Yeah, so in July of 2020, Berkeley City Council passed this big omnibus motion related to policing. And one of the strategies in there had to do with traffic. That's producer Evan Fitzgerald. Hello, Emmett.

Hey. So explain what actually happened there. So the council is basically beginning the process of taking traffic enforcement out of the hands of its police department. They voted to create a new body, the department of transportation or or Burke dot as they're calling it. Which in addition to doing all the things like traffic engineering and more structural stuff would also administer the rules of the road. And this is very much in the early stages, but that's the intention. That's what they're setting out to do. And one thing that I found so interesting was that the whole idea for this proposal was actually inspired in part by Sarah Sayos' book. We're influenced by Sarah Sayos' book because I think what it brought forward is this idea that it doesn't have to be this way.

This is Barnale Gouche. She's a transportation advocate here in Berkeley. She's on the coordinating committee of a community organization called Walk Bike Berkeley and is the chair of the Berkeley Transportation Commission, which is a body that advises Berkeley City Council on transportation issues. Ghost says that one of her colleagues at Walkbike Berkeley actually heard Sarah Sayos speak on another podcast, the Great War on Cars podcast, check it out. And that got them interested in all this history, and particularly in August Volmer. You know, Volmer, who is the, who's seen often as the father of modern policing, um,

all kinds of issues with him, but even he, even the father of modern policing, didn't think that traffic enforcement should be part of the police department. And that's something we also learned from, from Sarah Soes book. Yeah, I mean, I was totally riveted by that section and thought it was just kind of remarkable. Yeah, and that just got gauche and the folks that walk by Berkeley and other community groups thinking, like, does it have to be this way? I think for a long time, we all took it

for granted that of course police is going to do traffic enforcement. But you actually think about it, the more we share this idea with people, it becomes quite clear that you don't need armed police to ticket somebody who might have stepped off the curb a few minutes before the light change. And you know, Gosh has been working on transit issues for a long time on, you know, questions

of safety and how we can redesign our cities to make them safer and rely less on cars. And she says that enforcement, you know, has always been a major obstacle to getting everyone in the community on cars. And she says that enforcement has always been a major obstacle to getting everyone in the community on board. We do have a lot of anger against cars which are dangerous. We are upset when people park in the bike lane. And enforcement is seen as a tool to create safe streets. But we as transportation advocates are really tired of using transportation safety as a way to stop people. The folks in our community, especially black community members, we're telling us we do not want more police in our neighborhoods

so you can have safety. So we were already beginning to think about what safety looks like from an inclusive perspective. So not just not getting hit by a car, but also not being harassed by a police when you're out walking in the streets. Okay, so Berkeley has created this new Department of Transportation that theoretically will oversee traffic enforcement. But what is that like specifically? Like who will be the person who like stops someone to give them a speeding ticket? Yeah, so I asked Bernali Gosha about this.

And again, it's like the very, very early stages of this. And so there is no concrete answer to that. But she gave me the analogy of a building inspector. So if a building inspector is coming in to check if you are up to code, they're not carrying a gun to enter your house. You know, expecting that they might find drugs. So why is it okay then to use a violation of traffic safety

to escalate to something more than that? That's a good metaphor. So something like the building inspector, but for traffic is the thing. Yeah, I think something kind of like that, an unarmed person who is an expert in traffic and transportation issues. And crucially, and this was an interesting part of the conversation. Crucially, ghost is a person that could also be a part of the effort to engineer and make our streets better.

So that person could use, you know, in responding to a specific incident, they're also able to help provide data on what went wrong from the perspective of urban design. They will be able to report back to the Department of Transportation, on what are some of the infrastructural issues that might be causing people to, are they not able to see the stop sign? Is there a tree branch blocking it? Right? So we hope that it can be somebody who is thinking whose main priority is traffic safety, not looking for crime. And Gosh really emphasized this a lot in our conversation that the traffic enforcement should always be done in conjunction with better design and engineering. So anytime you have a violation, you ask like, is there something about the way that these

streets are designed that could have prevented this? Yeah, so instead of the way it is right now where police and it's totally distinct from planning and engineering and design, it's just a layer added on top of all that stuff. And they do not talk to each other at all. Yeah, and Goshis like very bullish on this that so many traffic problems are really design problems and that we can reduce the amount of enforcement that is needed really dramatically

if these different agencies work together and share data and design streets that are safe streets. So in our interview I asked Sarah Sayo about this new policy in Berkeley and she said that she thinks it's really exciting and that it's a great way to reduce bad interactions between the public and the police because traffic stops are the number one way that people come into contact with law enforcement. And I think this makes a lot of sense for several reasons. One is that the police today are trained in what is called the Warrior mentality

because they are trained to deal with criminal suspects, to investigate crime, to pursue criminal investigations. They tend to see a lot of their encounters in that warrior mentality, which is not necessarily appropriate to traffic law enforcement when it's supposed to be a routine administrative task. I think that the history that I tell in my book

points to some difficulties with this proposal or some challenges to this proposal that have to be addressed. And what are some of those logistical difficulties? The argument that I make in my book is that the police became professionalized, they became modernized, they gained a lot of discretionary power because of the challenges of enforcing traffic laws on the general public. I saw this history repeat itself in the 1990s New York City experiment with meter maids, where New York City has these traffic agents that are not police officers and they're informally called meter mates and they issue citations for low-level offenses mostly parking violations and they realize the same thing that traffic cops in the 1920s and 30s realized. Enforcing traffic laws on the general public is a really hard task and they got a lot of abuse. They were actually

assaulting and so what they wanted, what they lobbied for was to have the status and the authority of police officers because they thought if I have the power of a police officer then the public won't abuse me or assault me when I'm directing traffic. And so basically in New York City, they did everything they could to make meter maids, more like police officers in the end. So they gave them blue uniforms, and they gave them more power, and in the case of they kind of reinvented the police.

Right, and then you wind up in a situation that looks an awful lot like the one you were trying to get away from. So Sarah says that if Berkeley is going to create this new class of traffic enforcer. The city is really going to have to work hard on public education and buy-in so that type of power and force is not required in this new enforcement body. So I think if the public understands the direct connection between their cooperation with traffic agents and societies reliance on policing, then that could go a long way towards not having to fall

back into the cycle of increasing the discretionary authority of whoever it is that enforces traffic laws. So it's the really early stages of all this, but I think it's really exciting that people are trying to shake things up and try new things. Yeah, and interesting, I mean, it's cool for me to see Berkeley sort of at the center of all this history going back 100 years and now coming full circle. Yeah, it's like, it's almost poetic

that it's happening here when it all kind of started here. So is so cool. Well, thanks so much for for for bringing us in having this interview. Thank you Yeah, of course. Thank you 99% invisible was produced this week by Emmett Fitzgerald music by Sean Rial Delaney Hall is our senior producer, Kurt Colstead is the digital director, the rest of the team is Vivian Leigh, Chris Barube, Joe Rosenberg, Katie Mingle, Abby Maudon, Sophia Klatsker, and me Roman Mars. We are a project of 91.7KLW in San Francisco, and produced on Radio Row, which lives at the far corners of North America, but is centered in beautiful, downtown, Oakland, California.

We are a founding member of Radio Topia, a fiercely independent collective of the most innovative listener supported 100% artist-owned podcasts in the world. Find them all at radiotopia.fm. You can totally meet at Roman Mars in the show at 99pi, or we're on Instagram and read it too. We're gonna take a brief summer break so that we can breathe and prepare for all of our big plans in the fall about the book, which you can pre-order at 99pi.org slash book.

In the other special series, we have coming. There's so much good stuff coming on, but we just need a little bit of time to make it all happen and just also take a vacation. So listen to all those back episodes that you didn't get a chance to because of no commuting during COVID, but you can always keep taps on us online at n9nipe.org. Radio tapio. From PRX.