An Empirical Assessment of Pretextual Stops and Racial Profiling

52 Pages Posted: 10 Jan 2020

See all articles by Stephen Rushin

Stephen Rushin

Loyola University Chicago School of Law

Griffin Sims Edwards

University of Alabama at Birmingham - Department of Marketing, Industrial Distribution & Economics

Date Written: September 15, 2019

Abstract

This Article empirically illustrates that legal doctrines permitting police officers to engage in pretextual traffic stops may contribute to a statistically significant increase in racial profiling. In 1996, the U.S. Supreme Court held in Whren v. United States that pretextual traffic stops do not violate the Fourth Amendment. As long as police officers identify an objective violation of a traffic law, they may lawfully stop a motorist—even if their actual intention is to use the stop to investigate a hunch that by itself does not amount to probable cause or reasonable suspicion.

Scholars and civil rights activists have widely criticized Whren, arguing that it gives police officers permission to engage in racial profiling. But social scientists have historically struggled to develop an empirical methodology to evaluate how Whren influenced police behavior.

The State of Washington presents a unique opportunity to test the effects of pretextual stop doctrines on police behavior. In the years since the Whren decision, Washington has experimented with multiple rules that provide differing levels of protection against pretextual stops. In 1999, the Washington Supreme Court held in State v. Ladson that their state constitution barred police from conducting pretextual traffic stops. Then in 2012, the court eased this restriction on pretextual stops in State v. Arreola.

By relying on a comprehensive dataset of 8,257,527 traffic stops conducted by the Washington State Patrol from 2008 through 2015, we find that the Arreola decision is associated with a statistically significant increase in traffic stops of non-white drivers relative to white drivers. Further, we find this increase in traffic stops of non-white drivers concentrated during daytime hours, when officers can more easily ascertain a driver’s race through visual observation. We also find evidence that police officers search the vehicles of non-white drivers more frequently than white drivers after Arreola.

Combined, this data provides compelling evidence that judicial decisions like Whren and Arreola may increase the probability of racial profiling by police officers. We conclude by discussing the implications of these findings for the literature on police accountability.

Keywords: police, policing, racial profiling, civil rights, discrimination, traffic stops, searches, veil of darkness, police misconduct

JEL Classification: K1, K10, K14, K19

Suggested Citation

Rushin, Stephen and Edwards, Griffin Sims, An Empirical Assessment of Pretextual Stops and Racial Profiling (September 15, 2019). Stanford Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3506876 or http://dx.doi.org/10.2139/ssrn.3506876

Stephen Rushin (Contact Author)

Loyola University Chicago School of Law ( email )

25 E. Pearson
Chicago, IL 60611
United States

Griffin Sims Edwards

University of Alabama at Birmingham - Department of Marketing, Industrial Distribution & Economics ( email )

The University of Alabama at Birmingham
1720 2nd Ave South
Birmingham, AL 35294
United States

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