The “Tyranny of the OR” is a flawed approach to decisionmaking that assumes there is only a solitary choice between one of two seemingly contradictory strategies or outcomes. Unless we are careful, the debate about how to reduce the racial disparities in traffic stops yet maintain a safe community is vulnerable to the “Tyranny of the OR.” F. Scott Fitzgerald once wrote, “The test of a first-rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function.” That is exactly the attitude our leaders need in fixing the embarrassing racial inequities in traffic stops by the police in Minnesota.
Recent data on Minneapolis police stops should trouble everyone and particularly those of us who are responsible. Fifty-four percent of the 5,113 motorists stopped in Minneapolis from January to Sept. 11, 2018, for equipment violations, such as a broken taillight or headlight, were black, even though blacks make up only about 19 percent of the city’s population. On the other hand, whites — 65 percent of the population — account for about a third of the stops. There are studies in St. Paul and St. Anthony with similar results. But before you conclude this is yet another diatribe about the police, it is not. Everyone — judges, prosecutors, defense attorneys and elected officials — owns a piece of this mess. And everyone needs to contribute to the solution.
Floyd et al. vs. City of New York challenged the New York Police Department’s practices of alleged racial profiling and unconstitutional stop-and-frisks of New York City residents. After a nine-week trial, a federal judge found the New York City Police Department had a practice of racial profiling and unconstitutional stops. Up until that decision, the stops were largely permitted by the New York judges.
Stop-and-frisk was deployed in New York City some 686,000 times at the peak in 2011 and plummeted to 12,000 times in 2016, according to NYPD data. That is about a 98 percent reduction in use of the tactic. The results were dramatic, and not expected by some. To quote Kyle Smith, who wrote in the conservative publication National Review, “the statistics are clear: Crime is lower than ever. It’s possible that crime would be even lower had stop-and-frisk been retained, but that’s moving the goalposts. I and others argued that crime would rise. Instead, it fell. We were wrong.”
“Stop-and-frisk” of people in cars happens in the Twin Cities every day and every evening. These stops are justified not just by the desire to find guns or drugs, but also to combat drunken driving. So the stakes over when we allow stops of cars are not trivial. But as the late Supreme Court Justice Anton Scalia wrote: “Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either.”
The courts in Minnesota have liberally allowed stops of vehicles just as the judges in New York did before the Floyd decision. Reasonable suspicion, which is the standard for a stop, sometimes morphs into “a hunch.”
The opinion in Floyd emphasized the “human toll of unconstitutional stops,” noting that some of the plaintiffs testified that their encounters with the police left them feeling that they did not belong in certain areas of the city. The order characterized many of these stops as “a demeaning and humiliating experience” and went on to conclude, “No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life.”
The law in Minnesota, in many respects, allows pretextual stops. You see, no one really cares about minor equipment violations or de minimis driving conduct. We hope to catch the drunken driver, the drug dealer or a gang member with guns. And so there is aggressive use of any excuse to stop cars. There really is no secret why all these stops are occurring. Stopping people for speeding or ignoring stop signs is understandable, but the data here and nationally show we have a problem. It is time for the police to rethink their practices. It is time for prosecutors to rethink their practices. It is time for judges to rethink when we will permit stops of cars to occur. And, yes, it is time for elected officials to do their part.
A discussion about racism makes many uncomfortable. It is more convenient to point at others, and it is difficult to admit that all of us, to some degree, have implicit biases. Vastly disproportional enforcement of traffic laws based on race undermines what the criminal justice system aspires to be — fair. If you are a victim of a racially profiled stop but are a drunken driver, drug dealer or have an illegal gun, you will get a lawyer and there likely will be a challenge to the unconstitutional stop based upon racial profiling. But if you are sober, have no drugs or illegal guns, you will not get a lawyer and it is exceedingly difficult to challenge what happened to you.
Tolerance of “stop-and-frisk” of people in cars has to stop. There is an economic cost to what we are doing, but the cost of undermining trust in the criminal justice system by communities of color is, or should be, unacceptable.
There is no room for the Tyranny of the OR in finding solutions to the problem of racial disparity in the enforcement of traffic laws. Nor is there any room for simply saying this is a police problem. It is a problem all of the leaders of the criminal-justice system bear some responsibility for. All of us are vulnerable to implicit bias, but that is no excuse for not taking the steps to correct a real problem in our community.
Kevin S. Burke is a Hennepin County district judge.