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410- Policing the Open Road

2020-08-11 | 🔗

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 an unofficial transcript meant for reference. Accuracy is not guaranteed.
One of the things you get to do when you read a book if you're lucky, if you get to sign them for fans and when things you might not now is that if you buy assigned book in a store the author likely didn't, the actual book they sign in the end paper that was then bound into the book when it was printed phoning, wake her costed and I were sent boxes and boxes of impetus and signed thousands of them for the first printing of the ninety nine percent of visible sitting. That's our new book and you can pre order one or more of those sign copies from Barnes and noble. We have a link I'm not imply dot, Org slashed book and you can see pictures of colonel In endless pages, we have very good signatures by the way sign. Precision, copies are limited, so go now took nine p. I dot org, slash book and rest assured. If you ever see me, I will say any copy of any book for you. We ve had a fantastic response for pre order so far, and everyone is very excited- and I thank you again for bumping up. The priority number so that we can make a splash and be number one on the best seller list and we'd. All kinds of people were
currently fans of upon gas, because we made it for vans and new people as well the ninety nine percent of setting a few guy to the hidden world of everyday design comes out October, sixth, buyers I'm copy. Now at night, p, I dot Org stash book This is ninety nine percent, invisible I'm running Mars. Undulate him twenty fifteen a police up. In Prairie View Texas pulled over a twenty year old black woman named your bland and she was pulled over for turning without signalling, which is a common infraction that peace has to stop people in their cars today, this serious issue, professor.
At Columbia, law, school and the traffic stop 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 other car and threatens her with a taser He then arrest her and takes her to jail where she logically dies three days later plans, That was ruled a suicide, but are true, 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, if it is not just on the internet itself, but her entire lives. History experiences with unemployment, poverty and mental illness, and when I read the article information about Sondra, Blondes biography, one thing
stood out to me was every moment in your life, where she experienced. A setback happened in the context of our car, where the police stopped her in our car for traffic violation, parking violation that she couldn't afford to pay, and so start out in jail or because of police found marijuana in a car that she was using to self medicate, her mental health issues, and so for me, I saw the car as this important character and it's soft and the systematic ways that black Americans today black people today in America are discriminated against. Did unequally and the justice system and services new book is called policing the open road, how cars transformed american freedom, it's basically historical analysis of how we got into this situation where police have so how much power over people in their cars black and brown. People are stopped and searched disproportionately
and were a minor traffic violation like failing to use a turn signal can have deadly consequences. Sale brilliantly connects the history of modern policing with the history of the car. It's a riveting read in an important both for this moment, and I wanted to talk with professor say about it we started one hundred years ago at the dawn of the automotive age. All of a sudden, there were hundreds and thousands of mass produce cars on streets. That word not meant for them. These streets were intended for pedestrians, children played in the streets trolleys a few horse, strong carriages that could be afforded by the wealthy and tat suddenly have dozens, and then hundreds and thousands of cars on the streets, created chaos and created traffic. So we do to respond to the safety issues that
if 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 standardize There were no moral sense of telling us why. Are the norms of driving on the road, and so local governments when they addressed the traffic problem, had to pass a lot of loss setting forth norms so that everybody drove uniformly because that The best way to achieve safety on the road rail- and there were so many of these new laws that ended up being pretty confusing, especially because they varied from state to state in coming to county It's a local governments needed a real 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 at while searching for new solutions, because a car was an innovation that they have not experienced before, and so some of the old ways that they try 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 a school boys, preferably boy scouts, direct traffic, near schools in 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 are ineffective because average citizens who
owned and drove cars refused to obey traffic loss. I kept breaking and one of the most common laws that they broke were speeding, limits on which was a number one, contributing factor, taxes and so They realized relying on old ways of governing people, rely under their sense of honour to obey the laws, wouldn't work, and so they started shifting towards police long force meant and the police at this time that they were not what we think of to day, like police forces, were really small officers world train for the job. They were the there often plainclothes, maybe a little tin star, almost like a night watchman, or something and they weren't really in the business. A policing. The kind of
for a middle class, otherwise law abiding people who were always hadn't drive around in cars and embracing all these new traffic loss, exactly exactly and fell. One 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. Every choirs somebody with good judgment, required somebody who knew the was too good to stand head to head and Toto with her with a respectable member society, even though off the ones who drove their cars too fast and they what they realised as they needed police officers to be professionals ray, and so we see, because I thought him a bill- a shift to professional eyes and modernize pleased. Apart It's who couldn't be bribed who-
smart enough to learn all the laws who were tall enough. There was actually a height requirements they could stand above the cars I mean people could see their directions, bandaging traffic, and so we see how the police profession, itself become more specialised and exclusive by out of necessity, because of the need to discipline dry first so was the decision to involve the police, and obviously controversial I mean I mean today. We take it for granted that the employees enforced traffic laws, but
Was there any debate about about that at the time there was debate, there was a group of reforming police chiefs who wanted to modernize and professional life. The police and the person at the forefront of that improvement was a police chief named August warmer. He was a police chief of Berkeley, California, from nineteen o five to nineteen thirty, two and a lot of please scholars today, call him the father of modern policing in America, and he firmly believed that the police should not enforce traffic. He also believe that the peace should not enforce vice laws, because the police, as professionals where crime fighter then they should devote their time to fighting in investigating crime, not enforcing traffic laws or vice laws like prostitution or lick anti liquor laws like you didn't see those
serious crimes worthy of the police's attention like like it was, moreover, MR of task, then we'll professional police work yeah. I think the other thing is that traffic quickly came to consume much of the places time it became a large part of their duties and for
please to enforce the letter of the law against these ordinarily law abiding citizens proved to be a huge headache because nobody light being enforced. Nobody liked to be ticket and nobody like to be arrested for traffic violation, and so he went Volmer saw was that this? What you call the respectable citizens free started, turning against the police and he hated that because police US professionals were owed, respect, not disdain, and so what he realized too, to manage this kind of public relations. Rule of law problem must is to advise. Has officers actually exercise your judgment and discretion and let's not enforce the law to its to the letter, let's mitigate the harshness of the law, even if the losses to rest somebody for traffic violation, luscious, let them go.
A warning, it's better to manage our relations with the citizen with rather than to attack a knife and alienate them. So he definitely saw the challenges of traffic. Long force meant that he did not like at all. You know his opposition. It didn't matter that much. It was like there's an interesting irony that you present the book is that cars ended up. Helping Bomer achieve his goals and having a more modern professional police force, because only people were breaking traffic laws. That meant they headed tab or police. More points officers on the road and they needed their own patrol cars and all the traffic tickets help paper, 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 lot of crime was taking place in cars on the road anyway and so
very early on local and state government officials were realising 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 and Foresman and criminal law enforcement and vice enforcement. This is a period of course were prohibition. National prohibition is in effect, and cars were one of the best ways to transport liquor. Reins of this becomes a major fourth amendment question the amendment that protects. It undue searches and seizures, and any new legal, we all know probably from what dv that the police need to get a warrant to search your house, but they We don't need a warrant to search your car,
When did that it decided that's a question that first comes up in the nineteen twenties at a time when prohibition is an effect and the mass production of cars has really subtle. Then the american culture and the reason why the question of whether the police need a warrant stop in such a card become such a big issue in the nineteen twenties. It's because bootleggers realised that one of the best ways to transport their illicit liquor is in their cars and police officers and prohibition, agents, one stop cars and search thumb, and they don't. They didn't have time to get a warrant and they what 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, sensations of persons houses papers and affects cars, obviously one around when the constitution was written, but they could be but as in this scenario, and so
Tension emerged during the prohibition era, but whether it's ok for the police to search a car without a warrant if they suspect that people inside our smuggling, alcohol and this tension, comes to ahead in the courts in nineteen twenty five. With the Carol case back Carol case, I was the: U S Supreme Court's first car search case. I was decided in nineteen twenty five, but it actually came before the court at nineteen twenty three and they had to argue it again. A second time because the issues are so difficult. The way that the case started was with three ambition, agents and a public safety officer from the state of Michigan. They saw a flashy Oldsmobile convertible, DR pass them and the officers wrecking political. They belong to a gang of known bootleggers, called the careful brothers and so the he's decided to go after it. They didn't
Have you any evidence that 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 stop the car and they searched it. And they couldn't find anything they were about to lead the Carol her skull until one of them had something hard inside the upholstery of the back seat, and so they tore open the pole street and they found eighty. Some bottles of liquor fell into the back seat, the Carol brothers tried to bribe them off, but they refuse the bribe and they prosecuted the case The defence 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, the justice and the court actually thought this made sense, but they ruled against the Carol Brothers anyway, in a decision that we are still living with today, they wrote that car.
Had so thoroughly changed american society that they needed be treated differently from other forms of property. The court created an we'll exception to the fourth amendment. And so the new constitutional rule that the? U S, Supreme Court, set forth in the nineteen twenty five Carol cases. Basically still the law today, which, as if a police officer, has probable cause to believe that there is evidence of a crime inside the car that can stop 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 to later on the police just needed to tell the judge in her head probable. As because of these sectors, that I saw on the road and what judges and courts have done for the twenty centuries exercise, but critics have called judicial charity
another way to put it is: courts have often believe the police's account of probable cause, and so over time, over the twentieth century. Probable costs become this very. Standard? The impact of the Carol case went beyond cars. Forty years later in Terry Verses, Ohio, the Supreme Court, legalised, stop and risk, and they justified that decision, but point two Carroll, the port accepted the logic of care, all that the fourth in them and had to evolve to be reasonable to meet the circumstances of the modern world, and so it adopted and cited the Carol decision for that proposition, before the amendment protects against unreasonable searches and seizures, but over the court, so the twentieth century, what constitutes a reasonable search has been
pretty hard depend down. Fourth, amendment reasonableness analysis. Has this phrase: that's 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 ass to why he or she acted in this way or about way a judge is likely to say you're right. I can't judge what you did in hindsight, why you do a difficult job, often dangerous, I'm going to give you the benefit of the doubt. So. Fourth amendment reasonableness determinations for the most part sided with the police and over time that has just given place a lot of discretionary authority in how has the increased
Mary Power impacted the racial dynamic, a pleasing. So the interesting thing about the history of discretionary power is that in the early twentieth 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 a warning dont. Do it again right that the police exercise their discretion with respect to the poor and people of color
to pull over black and brown drivers. More often the 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 stand for an open, placing project oftentimes. They search cars with little suspicion or no suspicion, not all when it comes to drivers of color and so discretion today allows please to exercise our authority and discriminatory ways in a mean. If we go back to the central blank case, you know, I guess we can see sure it was racial profiling do you know if she failed to use a turn signal in 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 real
clear. The officer did anything technically illegal. You had the New York Times asked three or four legal scholars to look at the video of encounter and answer. The question was the officer who pulled over Sondra Block justified in doing what he did and they all believe that the officer went too far. But he couldn't say that definitively because constitutional law allowed almost all of actions that he took. The officer can make an arrest for minor traffic violation, that's reasonable, policing, and so the definition of reasonable ness has become come very broad and compassion is, I mean, is something that I find some amazing about all this is happening at once. You have technology. This this thing the car is created. It takes over american society and is a play,
of diminished fourth, amendment projections and a place where you can he policed your kind of capriciously, because of the little 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 discussion of the officer, just fine does that void yeah. I think I think an important point is to think about the context of traffic law, almost everybody, violates some traffic law at some point right, speeding as a common one, so the police officer can choose who to pull over for traffic violation right 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 disk
sorry power if they want to start investigating and add to that all these other doctrines I have been established over the twentieth century with respect to cars, Another area of laws that consent doctrine which, as if an officer, gets your consent to search your car, then the fourth amendment doesn't apply and so of common scenario is a traffic or a patrol or an officer? Stop someone for traffic violation looks for a fact that might mount to probable cause, but also asked. Can I search your car and once they have that made only probable causing it? and a lot of searches are done through consent and dream dismissing the officer they can create probable cause because if they re, violently, and people pushed back
act at all or to stand up for themselves or assert that they have some kind of right in their person or in this space, and this is what happened one case, I there's no reason why he necessarily have to be offended by her having a cigarette. You know that ethical, it had that incident and because it added escalated to the point that she was, students, she died and Again it is creates this mess of things were One person has too much power because of this confluence of technology. And law and in how we policing and I would add that critics have predicted this ass soon, ass, the nineteen twenty five Karel decision came out right. There was one critic that said: rob
more probable, causes a standard that allows the police to be wrong in some circumstances. Now, if he half of that kind of standard, a police officer can fuck the truth a little bit, maybe even falsify probable cause. So these critics reader already anticipating the abuse that could happen with the probable a reasonable cost Anders for warrantless car searches, and we see that today there was a New York State judge last year who complained about the odor of marijuana as this kind of cliffs Shea in police account. The probable cause, because the odor of marijuana is a fact that supports probable cause. But how do you do
prove that there was odour of marijuana and the car later in a court of law. Everley comes down to weather. The judge believes the police officer that he or she smiled Verona in the car and there's nothing else that a person can do do disprove that fact other than to challenge the credibility of office. And so this order of marijuana has become this really common thing that officers wall add to their account, in the totality of the circumstances, to support probable cause We want things, it's pretty amazing is tat, you know, I'm you know a white man in his forty second before to hire a good lawyer and if a police officer pulls behind me in my car, while I'm just right, think of is behaving normally and bake in adhering 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 can you imagine what that is like for someone, not in my situation, for a black man with a risk is so much higher. Why have we accepted this? Like why we accepted this dynamic where,
The visual police officer has so much power over a person in their car. I think we accept it and I think the reason why judges have accepted it is because of the dangers of cars is hard, are really dangerous. Road safety is a big issue. I am scared of drunk drivers there and there are huge problem on the road I want to be protected by the state. That is a legitimate function of the government is just that because we ve delegated that task to the police that also handles criminal enforcement. That's cost so much of the problems we see today. I'm inciting part of the answer to your question of why haven't we questioned the police of horsemen of traffic life, as I think goes back to traffic?
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So the town I live in, Berkeley, California and live in Berkeley. Headquarters is invisible downtown over in California. Where I live in Berkeley, it was also the home of the police chief August Bomer. These so called father of modern policing. Actually he lived around corner from my house, but is a saving talks about in her book. Volmer was not a fan of the idea that police should be in charge of enforcing traffic was he did not consider rolling through a stop signed to be a crime worthy of the name. His attention. So. A hundred years later, the city of Berkeley has me the decision that August Volmer might have approved of yes Oh in July, twenty twenty Berkeley City Council passed this big omnibus motion related to policing and one of the strategies, and there had to do with traffic that's what he's your emphasis? Hello, Emmett, hey! So
swim. 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 would In addition to doing all the things like like traffic engineering and more structural stuff would also administer the rules of the road, and the universe is very much in the early stages, but that, but that's not the intention that, unlike what there it was there, setting out to do, and- and one thing that I found so so interesting- was it that the whole idea for this proposal was actually inspired in part.
By Sarah sales book were influenced by Sir SO's book, because I think what it brought forward is the idea that it doesn't have to be this way. This is born Ali Gauche she's, a transportation advocate here in Berkeley she's on the coordinating committee of a community organisation called Walk Bike Berkeley and as the chair of the Berkeley Transportation Commission, which is a body that advice is Berkeley City Council, on transportation issues and and go says that one of her colleagues at walk by Berkeley actually heard Sarah sales speak on another.
Asked the great war on cars pot cast check it out and that got them interested in all this history, and particularly in August bomber Unabomber, who is the was seen often as the Father abundant policing opens in issues within, but even he even the father, modern policing, didn't think that traffic enforcement should be part of the police department and that something we also learned from from services book yeah I mean I was totally riveted by this section and thought it was just ten for multiple yeah and not just got Goshen the foe. 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 believe suspended a type of enforcement, and 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's might have stepped up by a few minutes before the like change
Any no ghost has been working on transit issues for a long time on questions of safety and how we can redesign our cities make them safer and rely less on cars, and she says that enforcement- you has always been a major obstacle for getting everyone in the community, on board. We do have a lot of anger against cars which are dangerous. Ah, you know we are upset when people right from the beginning and enforcement is seen as a tool to create seeps treats, but we as transportation advocates a really tired. Of using transportation safety as a way to stop people the folks in art. Community, especially black community members, were telling us we do not want a more police and our neighborhoods safe and happy.
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 the police. When you are in your of walking in the streets, superbly is created this new department transportation that theoretically will oversee traffic enforcement. But what is it like specifically like like who will be the person who look Up some one to give them a speeding ticket. Yes, I asked burn Alyosha about this and again at the very, very early stages of this, and so there is no concrete answer to that, but she gimme, the analogy of a building inspector? So, if a building inspectors coming in to check, if you are up to cod, then carrying a gun to increase
house? You are expecting that they might find drugs the wise it ok, then, to use a violation of traffic safety due to escalate to something more than that. It's a good metaphor. So so so something like the building inspector but for traffic is the thing yeah I think something kind of like the unarmed person who is an expert in traffic and transportation issues at anchor and crucially- and this is an interesting part- the conversation crucially ghosts as a person. They could also be a part of the effort to to engineer and make our streets better so that person could use it. You know in responding the specific incident there 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 two worked out in the Department of Transportation on what are some of the infrastructural issues that might be causing people to do not able to see the stop saying. Is there
a tree branch blocking it right, so we hope that it can be somebody who is thinking whose main priorities- traffic safety, not looking for patent and Guph, really emphasise this a lot and our conversation that the traffic enforcement should always be done in conjunction with better design and engineering. So any time you have a violation. You ask like, is there's something about the way that these streets are designed. That could have prevented this so that, instead of the way. This right now we're pleasance, totally distinct from planning and engineering into thy initiative, a layer added on top of all that stuff and they do not talk to each other at all. Yang. Go she's very bullish on this that so many traffic problems are our relief design problems and that we can reduce the amount of enforcement that is needed really dramatically. If these different agencies work together, ensure data and design streets that are safe streets.
So in our interview, I asked ass our assail about this new policy in Berkeley and she said that she thinks it really exciting and that's a great way to reduce your bad interact 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 it makes a lot of funds for several reasons. Why not set the police today are trained in what is called the war their mentality because they are trained to deal with criminal suspects to investigate crimes to purchase, pursue criminal, investing actions they tend to see. A lot of their encounters that warrior mentality, which is not necessarily appropriate to traffic law enforcement when it's out supposed to be a routine administrative task. I think that the history that I tell him my book points to some difficulties with this proposal or some
How unjust to this proposal that have to be addressed in a motor? What are some of those logistical difficulties there, you meant that I make my book is that the police became professionalized. They became modernized the gained a lot of discretionary power because of the challenges of enforcing traffic clause on the general public. I saw this history repeated softened, the ninety nine, these New York City experiment with meter maids, where New York City, as these traffic agents that are not police officers. Member informally called meter, maids and vague, issue, citations for low level offences, but mostly parking violations and They realize the same thing: that traffic off the ninety twenties and thirties realized enforcing travel.
Clause on the general public is a really hard task and they got a lot of abuse. They were actually assaulted and so what they want and what they lobbied for was tat the status and the authority of police officers because they thought, if, if I have the power of a police officer than the public boats, abuse me or assault, when I am directing traffic in so basically in New York City, they did everything they could to make meter maids more like police officers in the answer they gave him blue uniforms and I give more power and, in the case of the kind of reinvented the police, right, and then you end up in a situation that looks an awful lot like the one you Trying to get away from Sisera says that
birth is going to create this. Like new class of traffic enforcer, the cities will even have to work hard on public education and by and so that that type of, like power and force is not required in this new enforcement body. So I think the public understand the direct connection between their cooperation with traffic agents and Societies relies 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 seldom forces traffic laws since 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 in trying to things tat and
an interesting ideas go the means for me to see Berkeley sort of at the centre of all this history going back a hundred years and now coming full circle. Yeah. It's like it's almost poetic than its happening here when it all chemistry The zone cool will thanks so much for four four in having this interview. Thinking here, of course, thank you. Ninety nine percent invisible was produced this week by Emmett Fitzgerald music by showing Rio doing hall is our senior producer. Crook coasted is the digital director. The recipe is billion, lay crisper, Ruby, Joe Rosenberg Katy, mingle, Abbe Madonna Sophia clasped her and me roman Mars, we are project of many one point: seven Caille W in San Francisco in produced on radio row which lives at the bar code of North America, but is centred in beautiful downtown oakland. California,
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Transcript generated on 2020-08-11.