We Don't Need Cops to Enforce Traffic Laws

The law invented the concept of officer discretion so white drivers could get fewer speeding tickets. If we want to have fair and equitable policing, we’ll have to get over our hatred for speed cameras.
June 11, 2020, 12:00pm
Traffic stop
Image: Flickr user dwightsghost

The protests after George Floyd’s killing have sparked a national debate about how to reduce police power and hold officers responsible for their actions. These proposals have ranged from defunding and abolishing the police to, in the case of presumed Democratic presidential candidate Joe Biden, give police $300 million more for “community policing.”

Regardless of which policy you personally prefer, any effort to eliminate racism in American policing must figure out what to do about traffic enforcement, which is the leading cause of interactions between police and the public, according to the Department of Justice. And, by law, it is almost entirely up to the officer whether to let the person go with a warning, give them a ticket, ask to search their vehicle, or escalate the situation even further. It is an interaction intentionally designed to let the officer do virtually whatever he or she wants, reflecting the inherent biases of our legal system.

Police pull over more than 20 million motorists every year, according to the Stanford Policing Project, which undertook a first-of-its-kind large scale study into what happens during more than 100 million traffic stops. It found “police require less suspicion to search Black and Hispanic drivers than white drivers. This double standard is evidence of discrimination.”

But, traffic enforcement is not just the most common way police interact with people. It is also a foundational element to modern policing that encapsulates how things got so bad and why.

“Historically, that’s how police got a lot of their discretionary power as a matter of policy,” said University of Iowa law professor Sarah Seo and author of Policing the Open Road: How Cars Transformed American Freedom. “Because they need to enforce traffic laws.”

The problem, Seo told Motherboard, has to do with the history of the automobile in America itself. Before the car, basic tort law handled street conflict well enough; if your wagon ran into mine and caused damage to me or my property and we couldn’t settle it like reasonable adults, I’d sue you. This stopped being good enough once cars flooded roads, causing all sorts of conflict and crashes, not to mention death.

At first, private associations like motor clubs tried to encourage safe practices, but such pleas fell on deaf ears. We needed laws, and cities passed traffic laws not too dissimilar from the ones we still have today, although extreme cases like a law in San Francisco governed “the angle at which motorists should make turns from one street into another.”

Police quickly had a problem. With all these new laws, nearly every motorist was routinely breaking at least one of them. Enforcing the letter of the law meant ticketing or arresting so many people as to risk widespread anti-police sentiment. During the 1930s when motor vehicle use became prevalent, nearly every motorist was a well-off white person not used to being hassled by the police.

As a result, police adopted a new approach. They often added “courtesy” as a part of their official slogan, one the New York City Police Department still has today. But the flip side of courtesy, Seo said, is discretion, which became legally codified around the same time. It is up to the officer to judge whether or not they should write a ticket in any given traffic stop. And once Black people started to own cars in greater numbers after World War II, discretion became discrimination.

“By then, discretion for white people still meant being lenient,” Seo said, “but for Black people it meant harsh, abusive treatment.”

Today, we can still see how elemental discretion is to traffic enforcement, because we have an alternative, one many Americans loathe to the bone precisely because it had no discretion: automated enforcement cameras.

Speed and red light cameras are a proven, functional technology that make roads safer by slowing drivers down. They’re widely used in other countries and can also enforce parking restrictions like not blocking bus or bike lanes. They’re incredibly effective enforcers of the law. They never need coffee breaks, don’t let their friends or coworkers off easy, and certainly don’t discriminate based on the color of the driver’s skin. Because these automated systems are looking at vehicles, not people’s faces, they avoid the implicit bias quandaries that, say, facial recognition systems have, although, as Dave Cooke from the Union of Concerned Scientists tweeted, "the equitability of traffic cameras is dependent upon who is determining where to place them."

Because of that, many drivers loathe them, especially ones used to being the beneficiaries of discretion. Only 13 states allow speed cameras and eight have explicitly banned them, including Texas (the rest have no explicit rule about automated enforcement). The most common and highfalutin objections to automated enforcement have to do with the Fifth Amendment rights to face their accuser, which they argue cannot be done when their accuser is a machine.

But this, Seo told Motherboard, is a tell of what they’re really after: discretion.

“The way I translated that argument is: ‘I need to be able to argue my way out of the ticket,’” said Seo. “That argument is made by people who believe as long as they can get a hold of a human officer with discretion, they can get out of a ticket.”

Tellingly, there is a clear demographic trend among people making this argument. They’re white. In all her research on the subject, Seo said she has never come across a minority group arguing traffic cameras are bad. Police unions also lobby against automation because they say the traffic stop has become a key crimefighting tool in arresting people with guns and drugs, although there are obvious staffing implications as well.

In this way, traffic cameras are emblematic of a wider issue with white privilege; it is hard to get the beneficiaries of that privilege to give it up. As the traffic cops of the early 20th Century found, to enforce traffic laws equally bumps up against the fact that, when behind the wheel, everyone breaks the law.

That isn’t to say traffic cameras can do everything. Drunk driving laws, for example, are not a simple matter like speeding tickets where a camera or radar gun can tell if someone is breaking the law before pulling a person over. However, officers need to use discretion not only when deciding whether to pull a vehicle over for suspicion of drunk driving, but also in how to handle a potentially aggravated confrontation, including getting a person out of their vehicle to administer a breathalyzer test (which are often unreliable).

For her part, Seo—who, for the record, supports separating criminal law enforcement from traffic laws and automating as much of it as possible—sees the solution here as part of the larger conversation about defunding the police, and one that harkens back to the original concept of policing in America.

“Historically, police officers come from a concept called ‘the police power’ which does not refer to police officers,” Seo said. “And the way it’s defined as a sovereign, inherent power to govern for people’s health, safety and welfare...When you look at what police officers in the 19th century did, they responded to public safety and welfare, for example finding lost children, taking care of drunk people sleeping on the street. It was very much a caretaking function of the government.”

So, instead of having one department that responds to all kinds of public welfare issues like homelessness, domestic violence, speeding cars, gunshots, and robberies, specialized agencies could respond according to their expertise and have the tools on hand necessary for that specialization alone. DUI patrols, for example, could be trained in de-escalation tactics, detecting intoxicated individuals, and substance abuse treatment.

As with any other drastic reform, these are not perfect solutions and they come with trade-offs including privacy concerns from all the enforcement cameras. But destroying systemic racism requires sacrifices. You may not be able to argue your way out of a speeding ticket, but it also can’t order you to step out of the car.

Update: This piece has been updated with more information about the placement of traffic cameras in some cities.

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