Reducing Opportunities to Discriminate by Limiting the Police’s Ability to Detain

Gov. Roy Cooper’s Task Force on Racial Equity recently released a report calling for widespread changes to address racial bias within North Carolina’s policing and criminal justice systems. “Black drivers are twice as likely to be pulled over as white drivers,” the report states, citing statewide law enforcement data, and “once pulled over, black drivers are twice as likely to be searched, yet less than 10% of these searches lead to arrest. These disparities contribute to the distrust of law enforcement in communities of color.”
By eliminating Pretext Stops and creating a two-tiered system of Primary and Secondary offenses, the opportunity to make racially motivated detentions by police would be reduced.

Pretext Stops

In a pretext stop, an officer pulls over a motorist for a minor traffic or equipment violation and uses the stop as an opportunity to investigate a completely different and unrelated crime. The Supreme Court ruled in Whren v. United States that pretext stops were constitutional regardless of the police’s true motive to search for drugs or other crimes as long as there had existed any minor traffic violation.
Although police insist the stops are useful for investigating drugs and weapons possession, human trafficking, and drunken driving, among other crimes, it is clear that black motorists especially young men have been subject to stops far more frequently than their white counterparts for petty traffic or equipment violations — failure to signal, broken license plate light, tinted windows and the like.
As part of the movement to curb police brutality, there is renewed interest in reducing, or eliminating, pretext stops, which studies have shown to be racially biased. “One of the things the George Floyd killing and other instances have made clear is police intervention can be highly problematic, especially for minority populations. Our legislative aim is to reduce the opportunity for law enforcement of minor infractions,” (Virginia state Sen. Scott Surovell)

Designating Minor Traffic Violations as Secondary Offenses

Lawmakers argued police often use the violations as a pretext to stop and search people they suspect of other crimes, enabling racial profiling. Cell phone cameras and police body cameras have shown us the disparity in the nature, tenor, and duration of police interactions with white drivers and passengers vs police interactions with black drivers and passengers. In an effort to reduce the opportunity for discrimination and disparate treatment, Virginia and Oregon have designated primary and secondary traffic offenses. If a secondary offense such as a broken taillight is observed with nothing more, the officer could not initiate a traffic stop.

Beginning March 1, 2021, Virginia police would be prohibited from making a traffic stop when they see vehicles with non-functioning brake and taillights, a broken or loud exhaust system, tinted windows, objects dangling from a rearview mirror, someone smoking in a car with a minor present or a state inspection that is less than four months past its expiration date. The police could only issue citations if a driver is stopped for a more serious infraction, such as speeding or reckless driving. The legislation also reduced jaywalking to a secondary offense.

Claire Gastañaga, the executive director of the ACLU of Virginia, said a study has shown that black Virginians are 3.4 times more likely than whites to be arrested on marijuana possession charges. That’s the case, experts say, even though studies show the races use the drug at similar rates. “We want to get police out of the business of hectoring people” on low-level violations “to get them on something else.”…“Having the police decide that they think somebody’s suspicious, so they’re going to pull them over for, you know, a Puerto Rican flag dangling from their mirror, and then trying to use that to bootstrap into a broader investigation, that’s what we’re trying to stop,” she said. “We’re trying to limit the interactions of police with Black and brown communities in Virginia who have been subjected to over-policing on a routine basis,” she said.

A recent ruling by the Oregon Supreme Court has banned a controversial policing practice: No longer can officers use a broken taillight or a failure to signal as a justification for scouting a driver’s car for illegal guns or drugs.
The ruling instructs officers to stick to questions “reasonably related” to the reason the driver was pulled over, effectively ending law enforcement’s ability to turn a routine traffic stop into a fishing expedition for a more serious offense.

As articulated by the Governor’s Task Force for Racial Equity, North Carolina’s citizens deserve to be protected from over-policing and arbitrary enforcement of traffic laws. Ending pretext stops and developing a two-tiered system wherein minor traffic infractions are deemed secondary and cannot, in and of themselves, form the basis for a traffic stop will constitute a positive step towards a more just treatment of minority drivers.
1. Doran, Will and Bridges, Virginia,,

2. “Police ‘Pretext’ Traffic Stops Need to End, Some Lawmakers Say, September 3, 2020, By Marsha Mercer