By Kate Harris, Sean Hecker, Carmen Iguina González, and Amit Jain
October 30, 2023
Traffic stops are the most common form of interaction between American police officers and individuals.1See, e.g., Jordan Blair Woods, Traffic Without the Police, 73 Stan. L. Rev. 1471, 1475 & n.1 (2021). As proven by the killings of Sandra Bland, Daunte Wright, Patrick Lyoya, Tyre Nichols, and far too many more, officers’ decisions to pull motorists over can quickly escalate into a matter of life and death. These tragedies, which highlight egregious racial disparities in which drivers are stopped, searched, and subjected to violence, have brought well-earned scrutiny to policing in recent years.
In response, municipalities are rethinking traffic enforcement. Several cities have passed moderate but significant “driving equality” ordinances that prohibit police from conducting traffic stops based on “low-level” or “secondary” violations (like recently expired vehicle registrations or single broken brake or headlights). Some municipalities propose creating new, non-police agencies to enforce traffic laws. And the Vera Institute of Justice recently launched a project focused on working with localities across the country to study, draft, and introduce policies to limit police stops.
Passing and implementing these changes, however, is far from easy. Opponents often use unsupported claims and esoteric legal arguments to derail or dilute reform efforts. Even after changes are enacted, implementation may be stymied: in Pittsburgh, after advocates passed a driving equality-style ordinance, the police department halted its implementation, proclaiming (without court approval) that it was legally defective and damaging to officer morale.
This essay aims to help readers navigate common challenges. We draw lessons from the work of activists and advocates to provide a toolkit for those interested in laying the groundwork for such local ordinances, defending their legality, enacting them into law, and maximizing their impact. In doing so, we also identify several ways in which lawyers can support these lifesaving efforts.
I. Laws Rethinking Traffic Enforcement
By one estimate, police pull over more than 50,000 motorists on a typical day. These stops are rife with potential for abuse, in no small part because the Supreme Court has interpreted the Fourth Amendment to allow police officers to conduct so-called “pretext stops,” in which officers’ true motives are not to enforce the traffic laws but to investigate suspected criminal activity or to achieve other aims.2See Whren v. United States, 517 U.S. 806 (1996).
Traffic stops, and particularly pretext stops, are riddled with racial disparities. Empirical analyses demonstrate two key findings: (1) Black drivers are disproportionately stopped, with rates of investigatory or pretext stops for Black drivers often more than double the rates for white drivers; and (2) Black motorists are more likely (once stopped) to be intrusively searched, arrested, and subjected to police violence.3See, e.g., James Forman, Jr., Locking Up Our Own: Crime and Punishment in Black America 212–13 (2017) (citing Charles R. Epp, Steven Maynard-Moody, & Donald P. Haider-Markel, Pulled Over: How Police Stops Define Race and Citizenship 13–14, 65–67, 72–73 (2014)); Frank R. Baumgartner, Derek A. Epp, & Kelsey Shoub, Suspect Citizens: What 20 Million Traffic Stops Tell Us About Policing and Race 215 (2018). The harms from these interactions — the indignity of being stopped and searched; the state surveillance attendant to being charged; the carceral exposure; and physical pain, injury, and death — are well documented. This disturbingly disparate treatment offers no corresponding benefit to public safety; studies show Black motorists are, if anything, less likely than white drivers to be found with contraband.4See, e.g., Benjamin Feigenberg & Conrad Miller, Racial Disparities in Motor Vehicle Searches Cannot Be Justified by Efficiency 32 (NBER Working Paper No. w27761); Emma Pierson et al., A Large-Scale Analysis of Racial Disparities in Police Stops Across the United States, 4 Nature Human Behaviour 736 (2020).
Localities across the country have begun addressing these disparities. Berkeley, CA and Brooklyn Center, MN have proposed creating non-police traffic departments that would take over enforcement.5For the many benefits of this approach, see, e.g., Woods, supra note 1, at 1515–35; Barry Friedman, Disaggregating the Policing Function, 169 U. Pa. L. Rev. 925,967–70 (2021). More narrowly, Berkeley, Philadelphia, and Pittsburgh, PA passed ordinances restricting police stops premised solely on secondary or low-level traffic violations; police departments in Lansing, MI and Los Angeles, CA have implemented analogous changes through shifts in department policies. Three months after police officers killed Tyre Nichols during a traffic stop, the Memphis City Council — in collaboration with one of the champions of the ordinance in Philadelphia — passed its own ordinance prohibiting city police officers from stopping drivers solely for recently expired tags, temporary permit violations, issues with single lights, and other minor municipal traffic violations.
These local measures have not passed without controversy — many have faced political and legal challenges. In the sections that follow, we discuss common obstacles and suggest avenues to solidify support for these measures, rebut arguments often levied against them, and defend them after their passage.
II. Laying the Groundwork
A. Data Collection
Data can be vital to designing, defending, and analyzing an effective ordinance to reconfigure local traffic enforcement. Where data is collected but nonpublic, advocates can use state freedom-of-information laws to procure and analyze it. Where data is not collected at all, litigation or legislative action can force departments to track and publish key metrics.
In Philadelphia, advocates of the “Driving Equality Law” benefited from a 2011 settlement requiring the police to collect data on all stops and frisks, including traffic stops. This mandate created a reservoir of data that included, for each stop, the race of the person stopped, the violation for which they were stopped, and the outcome of the stop. Although the settlement did not require public disclosure of the data, the Defender Association of Philadelphia procured it using Pennsylvania’s “Right to Know Law.”6Videoconference Interview with Michael Mellon, Katherine Parker, and Paula E. Sen, Defender Association of Philadelphia (Mar. 29, 2023). They then used this data to identify which traffic infractions contributed most to racial disparities and were least likely to affect public safety (even as the police would define the term). This analysis served as the foundation of the driving equality effort by informing the ordinance’s enumeration of secondary violations.
Data can also be critical in advocating for an ordinance, including rebutting unfounded assertions about its potential effects. For instance, driving equality opponents often claim low-level traffic stops are necessary to preserve road safety and combat crime. In Philadelphia, the police union claimed secondary stops were necessary to confiscate illegal firearms. But this claim was debunked by the reservoir of data; less than 1% of stops recovered any kind of contraband or weapons. Advocates can also use data to explain whether low-level stops in fact promote safety more broadly (including the safety of the motorists at risk of being stopped and harmed). And if opponents of an ordinance propose removing certain infractions from its scope or adding others, data can reveal the impact any given reclassification would have.
After ordinances are passed, data can help ensure that changes are implemented. In Philadelphia, Defender Association attorneys used data from the settlement to release a public assessment of the Driving Equality Law one year after it took effect. In addition, alongside the driving equality ordinance, the city council separately enacted a data ordinance requiring the police department to collect, publish, and study even more refined information on city traffic stops. This included comprehensive demographic information about drivers and passengers, the violations (if any) that led to the stop, and all police action taken, including any searches, frisks, arrests, and confiscations. The Philadelphia Police Department failed to comply with the data ordinance within the mandated timeframe. If and when the ordinance is implemented, its more granular records will enable more sophisticated assessments of the Driving Equality Law’s impact. In contrast, after Pittsburgh passed a similar ordinance without any corresponding data requirements, the police department simply resumed making prohibited stops (over the mayor’s public objection), relying in part on public safety narratives that have been difficult to rebut without local post-passage data.
Finally, mandatory data collection may also encourage police department policy shifts. North Carolina, for example, instituted certain reporting requirements in 2002. Relying on this data, in 2013, the police chief of Fayetteville directed officers to prioritize reckless driving and similarly hazardous infractions over minor ones that did not pose similar threats to public safety. This reprioritization policy, which lasted for approximately three years, corresponded with a drop in racial disparities, traffic fatalities, uses of force, and citizen complaints, with no uptick in crime.7See generally Mike Dolan Fliss et al., Re-Prioritizing Traffic Stops to Reduce Motor Vehicle Crash Outcomes and Racial Disparities, 7 Inj. Epidemiology 3 (2020) (describing data collection requirements and analyzing Fayetteville traffic stop data between 2002 and 2016). After the police chief retired in 2016, his successor reverted the department’s enforcement policies, and these positive trends reversed almost immediately.
B. Key Collaborators
Data collection is just a start; in reality, debates about policing and criminal law are rarely driven solely by data. Lawyers should seek direction from collaborators who may be instrumental to an ordinance’s passage and implementation.
First and foremost, campaigns that achieve durable change arise from the ground up — they rely on leadership and advocacy from activists, organizers, and other community members with insight into local policing practices, political dynamics, and community needs. For city council members, hearing about the impacts of traffic stops on their constituents’ lives and communities is uniquely impactful.
Police department leaders, the very individuals that oversee implementation of driving equality laws, may also serve as collaborators. Securing buy-in from police leadership during the enactment process can reduce the odds of pushback within the department as officers turn to implementation. Conversely, failure to do so can be difficult to overcome later. Consider Pittsburgh, where the police chief was not involved in negotiations over the city’s ordinance. Once the ordinance was enacted, the police chief stood in opposition and, at one point, refused to follow it altogether. It was not until a new chief took over that the department indicated a willingness to follow the law. In Philadelphia, by contrast, the police department was involved from an early stage of the process. After the ordinance’s passage, the police chief signaled support for it, defended it, and insisted that officers follow it. The support from leadership did not necessarily stop rank-and-file members or the police union from pushing back, but such efforts can be far less threatening to implementation than a lack of buy-in from leadership.
Finally, within the legal community, public defenders are uniquely well-positioned to elevate their clients’ experiences and bring a human element to policy discussions. It is thus unsurprising that the Defender Association of Philadelphia played a central role in developing, passing, and implementing the Driving Equality Law.8Videoconference Interview with Michael Mellon, Katherine Parker, and Paula E. Sen, Defender Association of Philadelphia (Mar. 29, 2023); Videoconference Interview with Daniel Bodah, Marta Nelson, and Aaron Stagoff-Belfort, Vera Institute (Mar. 15, 2023). Notably, the two Defender Association attorneys who spearheaded these efforts, Michael Mellon and Paula Sen, co-lead the organization’s Police Accountability Unit while representing individual clients in everyday criminal cases. The combination of legal expertise and client connections enabled them to highlight the lived realities of people subjected to low-level stops and explain how the police department utilized such stops in practice.9Videoconference Interview with Michael Mellon, Katherine Parker, and Paula E. Sen, Defender Association of Philadelphia (Mar. 29, 2023).
III. Legal Obstacles and Opportunities
Changing traffic policy is ultimately a political endeavor. As such, certain legal issues must be evaluated within the local political context. Questions to consider may include:
A. City-State Preemption
Within this political landscape, the first legal issue to consider is preemption: does the city have the authority to modify traffic enforcement consistent with state law?
The question of municipal autonomy is often presented as a divide between “home rule” states and “Dillon’s Rule” states. Dillon’s Rule, which dates to the 1800s and applies in a minority of states, requires that any exercise of local power be authorized by state statute, so local governments generally cannot legislate absent state enabling legislation.10See, e.g., Paul Diller, Intrastate Preemption, 87 B.U. L. Rev. 1113, 1122–23 (2007). A substantial majority of states, by contrast, now feature some version of “legislative” home rule, under which the presumption is flipped; local governments need not point to a state statutory grant in order to legislate in the first instance. A few states also provide for home rule “immunity,” which prevents states from legislating in specified areas of local policy or on matters of purely local concern.
In practice, the landscape is complex, and neat categorizations are difficult. On one end of the spectrum are states like Virginia, where cities have almost no inherent policymaking authority, though state statutes may include specific grants of authority. On the other are states like Colorado and California, where cities generally can legislate on matters of local concern but may not legislate in conflict with state law on matters of state concern.11See, e.g., Ryals v. City of Englewood, 364 P.3d 900, 905 (Colo. 2016); State Bldg. & Constr. Trades Council of California v. City of Vista, 279 P.3d 1022, 1026–27 (Cal. 2012). In California, even a subset of cities that do not enjoy full home rule authority have the power to “make and enforce . . . all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”12Cal. Const. art. XI, § 7. Different states also afford localities different amounts of fiscal authority and independence.
To our knowledge, the cities that have enacted ordinances to reduce traffic stops all enjoy some extent of home rule authority. But even these cities must grapple with the reality that traffic enforcement is both a state and local issue on which states regularly legislate. Advocates can frame ordinances carefully to avoid conflicts with state law, and should be prepared to analyze claims of preemption and adapt accordingly, using the following techniques:
Framing ordinances precisely. Preemption concerns can be mitigated by making clear that an ordinance is not about total non-enforcement of state traffic laws. Instead, the ordinance might narrowly alter local police departments’ stop authority while leaving open other avenues of enforcement. For instance, some ordinances contemplate enforcement of secondary violations in connection with stops based on primary violations. Alternatively, an ordinance could provide that officers may enforce certain violations by mailing tickets to motorists instead of stopping them. Moreover, many violations often designated as secondary (like expired registration tags) parallel other provisions that address the same conduct in other ways (e.g., parking with expired tags as opposed to driving with them). Cities with some measure of fiscal autonomy can also emphasize the need to prioritize scarce resources by using more cost-effective methods to enforce traffic laws.
Analyzing potential preemption issues. No matter how carefully it is framed, if an ordinance touches on state law, opponents are all but certain to argue preemption. In analyzing these claims — and ideally, even before proposing an ordinance — advocates should look to several sources of law. The starting point will be any home rule provisions of the state constitution or statutes and case law interpreting those provisions. The text of the city charter may further clarify the scope of municipal authority. So, too, can historical practice: have in-state localities previously regulated modes of traffic enforcement? Finally, advocates should carefully scrutinize the state’s motor vehicle code — the most likely source of preemption arguments — to identify potentially problematic provisions, as well as those that afford localities discretion to utilize different methods of enforcement.
Working within limits and advocating to change them. Sometimes, claims of preemption may be meritorious. When Berkeley and Oakland sought to overhaul traffic enforcement, officials determined that the California vehicle code’s enumeration of means by which local authorities could regulate traffic prevented them from transitioning fully to non-police enforcement. By that time, both cities had taken narrower measures that did not raise preemption concerns: Berkeley passed a secondary stops ordinance, while Oakland’s police department voluntarily deprioritized low-level traffic enforcement. Advocates in these cities were not content to stop there — so they turned their efforts towards the state level, leading a state senator to reintroduce legislation that would amend the state vehicle code and remove the barrier.
Discrediting weak arguments. In other cases, advocates can persuade legislators and courts to reject claims of preemption. Prior to the passage of Philadelphia’s Driving Equality Law, its opponents argued that the state’s Motor Vehicle Code occupied the field of traffic regulation. But that code (1) provided that local authorities (such as police departments) could only enforce the code where local governing bodies (such as municipalities) granted them the authority to do so by ordinance, and (2) preserved local governments’ reasonable police powers.13See 75 Pa. C.S.A. §§ 6102(b), 6109. These and other arguments not only persuaded the city council that it was on firm footing, but also resulted in a court upholding the ordinance this spring.
Reducing the odds of hyper preemption. In a phenomenon scholars have dubbed “the new preemption,” “hyper preemption,” and “the attack on American cities,” conservative-controlled states have adopted belligerent measures to block city legislation such as levying fines, cutting off state funding, and even imposing individual damages liability upon city officials.14See, e.g.,Richard Briffault, The Challenge of the New Preemption, 70 Stan. L. Rev. 1995, 1997 (2018); Richard C. Schragger, The Attack on American Cities, 96 Tex. L. Rev. 1163, 1165-66 (2018); Erin Adele Scharff, Hyper Preemption: A Reordering of the State-Local Relationship?, 106 Geo. L. J. 1469, 1472-74 (2018). In recent years, states have begun intervening aggressively, particularly in policing and crime. For instance, the Pennsylvania legislature passed a bill last fall (which the governor vetoed) that would have prohibited Philadelphia and Pittsburgh from building protected bike lanes and pedestrian plazas in retaliation for their driving equality ordinances. Around the same time, the state house impeached Philadelphia’s elected prosecutor, barely one year after voters reelected him by a commanding margin. The Missouri legislature nearly took control of St. Louis’s police department this year — until a deal was struck involving the resignation of that city’s elected prosecutor. Mississippi seized control of policing and judging in Jackson, triggering litigation. And Georgia authorized a state commission to remove prosecutors, in part to ensure that its long-dormant laws criminalizing abortion would be enforced.
Although cities may not always be able to prevent or block these increasingly aggressive measures, the steps above may reduce the risk of hyper preemption. For instance, in states prone to these efforts, city officials should be clear that they aim to modify or reprioritize enforcement, not prohibit it outright. In addition, data remains crucial in countering false narratives that all too often give fuel to these efforts. And the experiences and narratives of people who have been harmed by low-level traffic stops can be powerfully impactful.
Focusing on municipal infractions where necessary. Finally, advocates may largely avoid preemption concerns by moving incrementally if needed. One option is to narrow an ordinance’s scope to municipal — as opposed to state — traffic violations. Memphis’s ordinance, for example, is limited to the city’s own Vehicles and Traffic Code. That feature may help shield it from the Tennessee legislature, which recently demonstrated its willingness to interfere in policing by abolishing community oversight boards. At the same time, such a limitation may well shift police enforcement from municipal to state violations, resulting in higher fines and more prolonged court proceedings for motorists. That said, in Memphis, officers may also have a reduced financial incentive to cite motorists under state law: fines for violations of municipal ordinances flow to the city’s general fund, whereas state violations generate no such revenue for the city.
B. “Separation of Powers”
A city solicitor who reports to a mayor may assert “separation-of-powers” concerns with an ordinance modifying traffic enforcement by arguing the ordinance impermissibly regulates the exercise of an executive or administrative function reserved for the mayor. To be clear, there is no established constitutional separation-of-powers doctrine at the city level.15See, e.g., Alexandra Natapoff, Criminal Municipal Courts, 134 Harv. L. Rev. 964, 1007–10 (2021). Rather, these claims are essentially political turf wars clothed in local law.
Understanding separation-of-powers issues as political can be useful in addressing them. For instance, advocates and city officials in Philadelphia took a two-pronged approach in anticipation of such concerns:
- First, advocates cited Article II, § 2-305 of the Philadelphia Home Rule Charter, which grants the city council the authority to legislate “new powers and duties” to “departments” “herein designated as the agencies of the executive and administrative branch of the City government.” They also identified at least seventeen instances in the city code where the city council had directed the police or other departments to act or refrain from acting, demonstrating that there was ample precedent for such regulation.
- Second, when the Driving Equality Law passed with broad support, the mayor issued a duplicative executive order imposing all the same requirements, so as to avoid setting a precedent that ceded any authority.
To date, we are not aware of any municipal enactments that include remedies for violations of restrictions on police traffic stops. Such remedies may be necessary in some jurisdictions to ensure police department compliance. However, they may also facilitate legal challenges.
Two types of remedies are often invoked in cases involving unlawful police stops. The first is monetary damages. Applying that remedy to the driving equality context, a city could impose some version of civil liability for unlawful secondary stops. From a preemption perspective, home rule cities should be on firm footing to voluntarily subject themselves to such liability. That said, such a measure might provoke backlash from an unsupportive state legislature, particularly because virtually all cities receive significant state funding.
The second potential remedy is a statutory exclusionary rule prohibiting the use of evidence flowing from unlawful stops in criminal proceedings, at least in municipal courts. This would introduce some novel issues. Municipal courts are ostensibly city-controlled and staffed, but they are created under state law; about half are part of “unified” state judiciaries, meaning that a centralized authority is tasked with some measure of administrative responsibility over them. Regardless of this label, funding structures vary widely, as does the extent of state regulation. Municipal courts ordinarily have jurisdiction over misdemeanor prosecutions (which may arise under local or state law) but not felony prosecutions (which may arise only under state law). They process an astonishing number of these cases — at least one-fourth of them nationwide, and over 90% in some states.16Natapoff, supra note 15, at 978, 997.
If a municipality has the authority to enact a misdemeanor ordinance, it should also have the authority to confine that ordinance’s application, including via an exclusionary rule. However, such a policy could have the effect of pushing prosecutors to charge state offenses instead, which may carry harsher penalties. And whether a municipality could enact an exclusionary rule applicable to such state-law prosecutions is a murkier question. For state-law prosecutions in municipal court, some cities may have authority to establish procedural rules, and an exclusionary rule could conceivably be analogized to a procedural or evidentiary restriction. State courts, in contrast, are unlikely to accede to city exclusionary rules in state-law prosecutions.
Given the risks apparent in codifying remedial measures for violations, a city that wishes to ensure that its ordinance achieves meaningful results could pursue alternative options. Those may include working with prosecutors (like those in Ramsey County, MN, Chittenden County, VT, Washtenaw County, MI, and Ingham County, MI) to develop non-prosecution policies. State legislators can establish statewide exclusionary rules as well. For instance, Virginia’s state-level restriction on police stops for certain minor infractions, passed in 2020, prohibits the use of “evidence discovered or obtained as the result of a stop in violation of” the statute, “including evidence discovered or obtained with the operator’s consent.”
IV. Post-Passage Issues
Lawsuits filed by opponents of secondary stops ordinances may present additional opportunities for outside lawyers to lend support, including by serving as a city’s co-counsel or as amicus counsel. For example, when the Philadelphia police union sued to invalidate the Driving Equality Law, the city worked with a law firm to defend the ordinance. A state trial court rejected the lawsuit on the merits this spring, holding that the state vehicle code did not preempt the Driving Equality Law for the reasons discussed above.
Although the Philadelphia court reached the merits, the suit also posed serious questions about whether the union had standing to sue. Including a remedy in an ordinance, however, may make it easier for adverse parties to establish standing and secure judicial review of its merits.
Opponents may also attempt to throw roadblocks at the implementation of an ordinance, as when Pittsburgh police refused to implement that city’s Driving Equality Law. Advocates can reduce the likelihood of lawless behavior going unchecked by using data and personal narratives to educate the public about the dangers of police stops. And mayors and legislators can use their authority to suspend non-complying police chiefs and implement other forms of formal discipline. Advocates and outside lawyers may also consider court action but could face challenges identifying a plaintiff with standing. As a result, enacting an ordinance with remedies (or persuading a prosecutor to adopt a non-prosecution policy) may be advisable if police non-compliance poses more of a concern than preemption.
Cross-departmental organizations may retaliate against ordinances even when a local department’s leadership is on board. In 2022, the Pennsylvania Law Enforcement Accreditation Commission threatened to pull its mostly honorary accreditation of the departments in Philadelphia and Pittsburgh over their driving equality efforts, but it relented after the Philadelphia Police Commissioner testified in defense of that city’s measure.
Because traffic stop ordinances are just one means to the end of protecting individuals from state violence, it is critical that municipalities evaluate their impact, make adjustments, and build on their successes. One year into Philadelphia’s Driving Equality Law, the data revealed that overall traffic stops meaningfully declined, but stops for nontargeted and minor violations increased, and the proportion of drivers pulled over who were Black did not change. In Virginia, meanwhile, a state statute prohibiting secondary stops quickly led to a decline in searches linked to stops — by 40% for Black drivers — but, again, did not appear to meaningfully affect overall racial disparities. In contrast, the department-led changes in Fayetteville and the non-prosecution policy in Ramsey County corresponded with decreases in racial disparities. Although these policies improved the pre-enactment status quo, the mixed results in some jurisdictions should prompt consideration of additional, broader changes.
V. Other Mechanisms of Change
Although this essay focuses on municipal ordinances, advocates should also consider alternative mechanisms of changing traffic enforcement:
- Virginia and Oregon have prohibited low-level traffic stops statewide. Similar legislation was under consideration this year in Connecticut and Washington, but stalled. New York took a modest step in this direction, banning stops based on obstructed rear-view mirrors.
- In partnership with the Vera Institute, the district attorneys of Ramsey County, Chittenden County, and others have agreed to stop prosecuting felonies emerging from non-public-safety-related traffic stops.
- Some cities have police commissions that oversee police departments and may impose limitations on traffic stops, as the commissions in San Francisco, CA and Los Angeles, CA have voted to do. Members of these commissions are ordinarily appointed by the mayor and may require confirmation by the city council. Commissions’ public meetings often include comment periods that can serve as advocacy opportunities.
- State courts may have authority to impose or stiffen exclusionary rules targeting pretextual or race-based stops. For example, the Supreme Judicial Court of Massachusetts revised its precedent in 2020 to make it easier for defendants to suppress evidence in criminal cases, on the basis that the police stop yielding evidence was racially motivated.17See Commonwealth v. Long, 152 N.E.3d 725 (Mass. 2020). Washington’s high court clarified last year that racially disproportionate rates of police contacts, seizures, and uses of force are relevant in determining whether a person has been “seized” by the police.18See State v. Sum, 511 P.3d 92 (Wash. 2022). And the Oregon Supreme Court in 2019 curtailed officers’ ability to use pretextual stops to fish for evidence by limiting the types of questions officers can ask during such stops.19See State v. Arreola-Botello, 451 P.3d 939 (Or. 2019).
- Police departments may voluntarily adopt policies restricting low-level stops. Departments in Minneapolis, Lansing, Seattle, and Oakland have done so, sometimes in collaboration with the city’s mayor.
Although meaningfully changing traffic enforcement can require years of dedication and collaboration, this essay illustrates that there are opportunities for lawyers to contribute at every step. Lawyers can support activists by representing clients impacted by traffic stops and working to amplify their voices; encouraging local legislators to overhaul traffic enforcement; procuring data through information requests and analyzing it to build support for change; assuring city council members of their authority; and assisting in defending ordinances in court.
Suggested Citation: Kate Harris, Sean Hecker, Carmen Iguina González & Amit Jain, The Road to Driving Equality: A Blueprint for Cities to Reduce Traffic Stops, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2023).
- 1See, e.g., Jordan Blair Woods, Traffic Without the Police, 73 Stan. L. Rev. 1471, 1475 & n.1 (2021).
- 2See Whren v. United States, 517 U.S. 806 (1996).
- 3See, e.g., James Forman, Jr., Locking Up Our Own: Crime and Punishment in Black America 212–13 (2017) (citing Charles R. Epp, Steven Maynard-Moody, & Donald P. Haider-Markel, Pulled Over: How Police Stops Define Race and Citizenship 13–14, 65–67, 72–73 (2014)); Frank R. Baumgartner, Derek A. Epp, & Kelsey Shoub, Suspect Citizens: What 20 Million Traffic Stops Tell Us About Policing and Race 215 (2018).
- 4See, e.g., Benjamin Feigenberg & Conrad Miller, Racial Disparities in Motor Vehicle Searches Cannot Be Justified by Efficiency 32 (NBER Working Paper No. w27761); Emma Pierson et al., A Large-Scale Analysis of Racial Disparities in Police Stops Across the United States, 4 Nature Human Behaviour 736 (2020).
- 5For the many benefits of this approach, see, e.g., Woods, supra note 1, at 1515–35; Barry Friedman, Disaggregating the Policing Function, 169 U. Pa. L. Rev. 925,967–70 (2021).
- 6Videoconference Interview with Michael Mellon, Katherine Parker, and Paula E. Sen, Defender Association of Philadelphia (Mar. 29, 2023).
- 7See generally Mike Dolan Fliss et al., Re-Prioritizing Traffic Stops to Reduce Motor Vehicle Crash Outcomes and Racial Disparities, 7 Inj. Epidemiology 3 (2020) (describing data collection requirements and analyzing Fayetteville traffic stop data between 2002 and 2016).
- 8Videoconference Interview with Michael Mellon, Katherine Parker, and Paula E. Sen, Defender Association of Philadelphia (Mar. 29, 2023); Videoconference Interview with Daniel Bodah, Marta Nelson, and Aaron Stagoff-Belfort, Vera Institute (Mar. 15, 2023).
- 9Videoconference Interview with Michael Mellon, Katherine Parker, and Paula E. Sen, Defender Association of Philadelphia (Mar. 29, 2023).
- 10See, e.g., Paul Diller, Intrastate Preemption, 87 B.U. L. Rev. 1113, 1122–23 (2007).
- 11See, e.g., Ryals v. City of Englewood, 364 P.3d 900, 905 (Colo. 2016); State Bldg. & Constr. Trades Council of California v. City of Vista, 279 P.3d 1022, 1026–27 (Cal. 2012).
- 12Cal. Const. art. XI, § 7.
- 13See 75 Pa. C.S.A. §§ 6102(b), 6109.
- 14See, e.g.,Richard Briffault, The Challenge of the New Preemption, 70 Stan. L. Rev. 1995, 1997 (2018); Richard C. Schragger, The Attack on American Cities, 96 Tex. L. Rev. 1163, 1165-66 (2018); Erin Adele Scharff, Hyper Preemption: A Reordering of the State-Local Relationship?, 106 Geo. L. J. 1469, 1472-74 (2018).
- 15See, e.g., Alexandra Natapoff, Criminal Municipal Courts, 134 Harv. L. Rev. 964, 1007–10 (2021).
- 16Natapoff, supra note 15, at 978, 997.
- 17See Commonwealth v. Long, 152 N.E.3d 725 (Mass. 2020).
- 18See State v. Sum, 511 P.3d 92 (Wash. 2022).
- 19See State v. Arreola-Botello, 451 P.3d 939 (Or. 2019).