Thin Blue Lies: How Pretextual Stops Undermine Police Legitimacy

Jonathan Blanks joins us for a discussion about police stops and the Fourth Amendment. Is there a war on cops?

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What’s a pretextual police stop? When do police need your consent to a search, and are these searches unconstitutional? 

Jonathan Blanks joins us this week to share his findings on how police searches disproportionately affect minorities.

Show Notes and Further Reading

Jonathan Blanks’s “Thin Blue Lies: How Pretextual Stops Undermine Police Legitimacy” appears in Volume 66, Issue 4 of the Case Western Reserve Law Review.

Here’s a previous Free Thoughts episode with Blanks on police misconduct. Listeners may also be interested in this Free Thoughts episode with Adam Bates and Matthew Feeney on how new technologies are changing law enforcement.

Blanks mentions this article by George L. Kelling and James Q. Wilson in the March 1982 issue of The Atlantic, which originated the “broken windows” theory of policing.

Aaron mentions watching the 1971 Don Siegel film Dirty Harry, starring Clint Eastwood.

Transcript

Aaron Powell: Welcome to Free Thoughts from Libertarianism.org and the Cato Institute. I’m Aaron Powell.

Trevor Burrus: And I’m Trevor Burrus.

Aaron Powell: Joining us today is our colleague, Jonathan Blanks. He’s a research associate in Cato’s project on criminal justice and managing editor of PoliceMisconduct.net. Welcome back to Free Thoughts.

Jonathan Blanks: Thank you very much.

Aaron Powell: Is there a war on cops?

Jonathan Blanks: The short answer is no. The longer, more complicated answer is right now for a bunch of different reasons, I think a lot of it has to do with more video recordings of police officers doing bad things or doing things that people find shocking. There’s a lot more emphasis behind the criticisms that the police are facing whether it’s Black Lives Matter or it’s people looking at certain officer-involved shootings and freaking out like “Oh, my God, I can’t believe I did that.” And so I think that’s become elevated because there’s more evidence for it, but in some communities in particularly minority communities, the complaints have always been there. It’s just now more people are paying attention.

Trevor Burrus: I think that this is interesting because everyone walks around with a camera in their pocket and I think the minority communities have been making complaints like these for a long time. And one joke I’ve made is that by everyone having a camera in their pocket, we now know that big foot aliens and ghosts are not real but cops are pretty bad at dealing—or many cops are pretty bad at dealing with minority communities. So, what have minority communities known for a long time about the way cops deal with them?

Jonathan Blanks: The Fourth Amendment is—I wouldn’t say it’s an illusion but it’s certainly less strong and I think a lot of people thinks it is. I don’t think a lot of Americans understand how often the police abuse it. I mean sometimes they search you whether or not you consent. I was on a panel recently with Neil Franklin of law enforcement against probation. And we were talking about consent searches and pretextual stops, and he said, “You know the fact of the matter is? Sometimes they’re going to search you anyway. You can say no, doesn’t matter.” And Baltimore is just like one of these sort of exceptions at all—I mean one of these examples that this happens a lot.

Trevor Burrus: You said pretextual stops. What is a pretextual stop?

Jonathan Blanks: A pretextual stop is when an officer stops a motorist for a particular traffic violation. It can be anything from a broken taillight to, you know, maybe swerving a little off of your line or that little light above your license plate, if that’s out in certain states, that’s an offense. And so, they want to pull you over because they think you’re a criminal, but they can’t pull you over just because you look funny. They have to say, you know, “We stopped them for this particular reason and the Supreme Court says as long as I have that legitimate reason that’s traffic-based, it’s completely legit.”

Aaron Powell: When they’re pulling people over pretextually, when they’re—you know, the light above the license plate is out, is it—do they typically have a let’s call it legitimate reason to think that you are up to criminal activity and they just don’t have a legally good reason to pull you over so the license plate being out is kind of a necessary step to get there? Or is it just—is this much more like racial profiling or straight up like “there’s a black guy driving in this neighbor, so therefore”?

Jonathan Blanks: I think the perception is not only towards the latter two. I can’t tell you because we really don’t know the data on how often these stops happen. I mean in some places, we’re getting more data on how often these stops happen. But because the police officer has such wide discretion, it’s going to vary from officer to officer. But certainly in the way that these stops typically go down, it is, you know, very much based on very, very light perceptions of criminal activity. I don’t think that there’s anything reasonable behind most of these at all.

Trevor Burrus: Yeah. You mentioned the case called Whren which I studied in law school and I guess you did too, Aaron.

Aaron Powell: Yes, but my memory for which course is like—I will remember the case if you talk about the fact, but I will not match the name to it ahead of time.

Trevor Burrus: I don’t even know if you remember law school anymore. I don’t even know if he remembers going to law school anymore, but that’s—

Aaron Powell: I have recollections.

Trevor Burrus: What was Whren about? And what—you mentioned the Supreme Court, what was the actual sort of nuts of the case there?

Jonathan Blanks: So, I believe it was in D.C. There were a couple African American gentleman in a car and I believe that they went through a stop sign. And the police had been trailing them because they suspected—like they suspected drug activity. And so because they actually did blow through the stop sign, that they had a legitimate reason for pulling them over and the Supreme Court said, “Well, if you have that legitimate reason, then anything that comes from that is okay.” What was interesting is Justice Scalia who wrote the opinion wrote in that “had the plaintiffs actually argued that they were pulled over because they were black, that’s an equal protection issue. But theirs was a Fourth Amendment issue and, therefore, it didn’t matter” because he said, “Of course, if it was—if you could prove that they stopped you because you are black, well, then, we would obviously side with you because that’s not a legitimate reason for a stop.” But because there are so many different ways that you can violate a traffic law, it’s basically—it’s just a matter of time until you break one unless you are just the more impeccable, thoughtful driver and you know every little thing that could possibly be done.

Aaron Powell: What is everything that comes from that mean in this case? So the cops—the guys blow through a stop sign. The cops pulled them over, which on its face seems—I mean we have—it’s illegal to blow through a stop sign and so if you’ve committed an illegal activity in front of a cop, it seems perfectly reasonable for them to stop you or, otherwise, penalize you for committing the act. And so then, are they just—stopping you naturally involves walking up to the driver’s side window and asking for your license and all that. And so is this then they happen to see big bags of drugs on the front seat? Or are they doing something else that feels more illegitimate after stopping you for the stop sign?

Jonathan Blanks: Right, exactly. If these pretextual stops were just to like stop someone, talk to them and walk away like deal with whatever reason they stopped you or like, you know, they take you for having a busted taillight. They take you for going through the stop sign. I don’t think that these stops would be as problematic as they are because what happens more often is the officer uses that opportunity to try and get you to get consent to a search or as I said earlier may just blow through your consent in the first place and search your car anyway. They can say that they smelled marijuana. If they see anything that like—that is drug paraphernalia whether it’s, you know, a hand-rolled cigarette in the ashtray that looks like a marijuana cigarette or one of those little clippy things known as a roach clip or—

Trevor Burrus: If they see tea that spilled on your backseat.

Jonathan Blanks: Yeah, any sort of reason. That’s probable cause. Now it can be wrong, but it’s probable cause, then the search is legitimate. And so any evidence I get from that is admissible in court.

Trevor Burrus: Was Whren wrongly decided? Because when you read Scalia’s opinion, it’s pretty clear that he thinks that the rule that they were asking for basically, the ability to look into and challenge the intent and motive of a cop behind a legitimate police action—I think he called it something like an unreasonable reasonable action, like that’s what they were asking the court to look into because like if you did a stop sign stop for these reasons, fine, but you have to—we’re going to psychoanalyze police. We’re going to put police on notice. You kind of thought it was unadministrable and it would make cops feel that they couldn’t really do their job. That seems to make sense. So, was Whren rightly decided?

Jonathan Blanks: I think Whren was rightly decided and when I wrote my law review article on the piece—I mean on the case, I didn’t argue that it wasn’t. The issue is—this is a policy matter at this point. Just because it’s constitutional doesn’t make it, you know, ethical or useful. And so, what happens is so many innocent people are pulled up in these stops and are pressured and sometimes lied to to give up their right to refuse a search that it can breed resentment within particularly minority communities who suffer this more often than white people do.

Aaron Powell: So then is the problem them pulling over people pretextually? Or is the problem them pressuring and lying after pulling them over?

Jonathan Blanks: I think a lot of it has to do with the latter. I mean—again, if you’re continually pulling people over for minor stuff, I think that’s still going to have an effect in the community, but it’s really the fact that—because I mean I don’t really care if a police officer pulls someone over for like the taillight above their license plate or their broken taillight. It’s just that the two problems that come out of this is if you’re just using it to pry into someone’s life and to lie to them to give up their right to a search because you’re looking for drugs or money, you know, that’s going to drive resentment. The other part of this is these fines—I mean a lot of times people don’t get their cars fixed because they can’t afford if they’re living paycheck to paycheck, and if you top $150 fine on top of that, that’s going to make it even worse, then they might get their license suspended and then they get caught again for pretextual stop with their license suspended. And so the fees add up and one of those sort of backdoor pleasing for profit instead of like the civil asset forfeiture which is another reason why police officers do this pretextual stop where they get to keep the money. The department gets to keep the money that they seize from suspected drug suspect. But it just becomes another way for police to harass more people.

Aaron Powell: Maybe it would be helpful for our listeners who aren’t familiar with this when we’re talking about so they lie to them in order to get them to consent to a search or they pressure them, like what they’re lying about. So, if you could give maybe a very quick recap of when they’re actually allowed to search you, what those standards are—like you mentioned having probable cause, like what probable cause actually means?

Jonathan Blanks: Probable cause means that there is—I don’t know the precise legal definition but—

Trevor Burrus: It’s articulated in different cases in a variety of different ways.

Jonathan Blanks: Right. But basically, they have to have some sort of evidence that there was a crime and there is a crime going on. What they have to do if they don’t have probable cause is get your consent. The Fourth Amendment says that without a warrant, you need, I guess the Fourth Amendment doesn’t say consent but—

Trevor Burrus: You could always search someone with consent.

Jonathan Blanks: Yeah. You can always search someone with consent.

Trevor Burrus: I could tell you you could search me right now, Jon.

Jonathan Blanks: Yeah. But, without a warrant, they either need probable cause or they need consent from the driver. But they can lie to you and say, “Well, you know, they can just make this easier or I’m going to call the K9 here and like all these other people—we’re just going to search you anyway.” And I mean sometimes they will actually follow through on that, but more often than not, it’s a bluff to just get you to give away your rights.

Trevor Burrus: So they just drag it out and then, of course, the dog, the magic probable cause machine known as a drug-sniffing dog will usually alert that there are in fact drugs in the car.

Jonathan Blanks: I don’t know about usually.

Trevor Burrus: Yeah, I don’t know if we have data on that, but it’s definitely not a fool-proof mechanism.

Jonathan Blanks: No, absolutely not.

Trevor Burrus: So, this system we have—these multiple interactions with the cops which I think is a point that has been made in a variety of ways. Because we have laws like you can’t have the light above your license plate out or cigarette taxes in New York City or the kind of nickel-and-diming of the Ferguson people with different fines for having their shades in different colors and they’re shrubbery too high and this seems to be disproportionally put on to minority communities and this all breeds a distrust of police and that has bad effects.

Jonathan Blanks: Well, absolutely. I mean the relationship between minority communities particularly blacks in the United States and law enforcement has never been a good one, it just never. And as time has gone on, the relationship has changed in different ways. Back in the ‘60s and ‘70s, you had officers openly using, you know, racial epithets and like people up against the wall and the courts pushed back against that. And so you have a much—typically, not always but typically more professional police that are operating right now where they’re not going to yell, you know, obscenities at you and they’re not going to do all the sorts of things that—like the sort of Dirty Harry style breaking—like bending and breaking the rules to get the stuff out of you.

Trevor Burrus: Aaron just watched Dirty Harry, didn’t you? And you say it’s disturbing.

Aaron Powell: I just watched it for the first time last week and watching it having all of the stuff about police misconduct in the news, it’s like—I mean I watched—I have a high tolerance for like, you know, you can watch stuff and see like, yes, this just came out in the 1920s and has racist elements and like you just accept, but like Dirty Harry was really uncomfortable to watch. It’s like really difficult to sit through because it’s so—

Trevor Burrus: Bad cops. Yeah.

Aaron Powell: —racist and so bad cop and—

Trevor Burrus: Yeah. So the distrust in the minority communities comes from—it’s different now than it was.

Jonathan Blanks: But I mean it still has a lingering effect because if you’re being pulled over because you’re in a drug neighborhood, well, if you live there, you know, you fit the description. I mean that just becomes willy-nilly, you know. And particularly for young black men, they get harassed more often than anything. There was a study that came out in early August that showed two-thirds of blacks knew someone who has been harassed or had a violent encounter with a police officer and 30% said it was themselves. So you’re talking about almost a third of blacks between 18 and 30 saying that they’ve had run-ins with the police and this isn’t like—they’re not all criminals certainly and so it’s just—if that’s the sort of relationship that you have just walking out of your house, in your own neighborhood or, God forbid, you go to a neighborhood that’s predominantly white and you’re just going to get stopped, you know, because you look suspicious. You fit the description of a robbery suspect. Maybe that suspect exists, maybe it doesn’t, but it’s a reason that again the police can pull you over. They’ll usually say, “He fits the description of a robbery suspect and then he had a busted taillight.” That’s what happened in Minnesota with the shooting up there. The officer said that he pulled him over for whatever reason, but he had a wide nose and that he fit—and that’s how he looked like—

Trevor Burrus: It’s like code—like, yeah.

Jonathan Blanks: Fitting a robbery suspect. Yeah, right. So—and that sort of thing and that is where, you know, these antagonistic relationship like just perpetuates. I mean you grow up already not really trusting police because you’ve heard stories from your friends and family and then you walk out of your house and you get it too and then you’re going to tell your friends and family and that just sort of cascades through a community. And they know when like—when they’re neighbors, they see their neighbors, you know, get the doors kicked down or when they get stopped. And because of the segregated nature of our communities, because of the way that police officers and police departments police these neighborhoods differently whether it’s like southeast D.C. versus Georgetown, you know. People see that and they’re going to resent it.

Aaron Powell: But, okay, a conservative critique of this line of argument might respond with “Well, yes, of course, the police police differently in southeast D.C. than they do in Georgetown because Georgetown is quite a bit different from southeast D.C. There’s less crime. There’s less violence that this isn’t the police harassing blacks or other minorities. It’s just that those neighborhoods are more violent, are higher crime that the police are more likely to find criminal activity when they pull people over there. And so you’re going where the criminal activity is and you’re responding to it and that sucks for the people in those neighborhoods who are not criminals or not caught up in any criminal activity, but that’s not really the cops fault.”

Trevor Burrus: Or to put even just like a more direct point on that. I looked this up on Wikipedia so this might be wrong that the recent last year was homicide rate for blacks is 8 times the rate of whites. So, if you were just looking for homicide suspects who are described as black, the stop rate would maybe be 8 times higher. That would be the right proportion.

Jonathan Blanks: Well, yeah, but like our system of individualized suspicion doesn’t talk about, you know, being able to stop people for proportional reasons. You have to have a reason. And going back to what Aaron was saying, you know, the police are going to those areas. They should be there more often. I don’t disagree, but that doesn’t mean that any response that they give is acceptable when you have these jump-out cars in southeast D.C. or, you know—

Trevor Burrus: What’s a jump-out car?

Jonathan Blanks: A jump-out car is—it’s never been confirmed by the D.C. police, but like heavily anecdotal evidence that these cars of unmarked police cars are in southeast and they will just jump out of their cars and throw kids up against the wall and search them for guns. There is the gun recovery unit that is—that the police do recognize and they still flaunt it on their website. I follow the D.C. police Twitter account and they were like, “Oh, gun recovered,” you know, and they show a picture of it and whatever. But the way they often do this is sometimes they’re in tactical gear and Judge Janice Rogers Brown of the D.C. Circuit Court of Appeals wrote an opinion about this as a concurrence where she talked about sort of the imaginary nature of consent in these sorts of encounters where police officers jump out in tactical gear on a bunch of kids just hanging out and say, you know—they might have the weapons drawn just like, “Hey, we need to search you for guns.” That’s getting consent out of something like that is—she compared it to Sasquatch, finding Sasquatch credible. That’s how—

Trevor Burrus: You freeze them. They feel forced.

Jonathan Blanks: Yeah. And the thing—

Trevor Burrus: They can’t walk away from that.

Jonathan Blanks: Right.

Trevor Burrus: “No, thank you, officer. I don’t want to be searched today.”

Jonathan Blanks: Right. And if you pull that in Georgetown, the idea that this would be consent would be laughed out of court. But because of precedent, she had to go along with it because this is what the Supreme Court and other courts have gone with. And that sort of difference—yes, you should police more violent areas more, you know, more proactively but that doesn’t mean you get to violate the people’s right who live there just because, well, they face more danger. Well, you’re going to have to deal with that in a constitutional way. And unfortunately, the courts have like expanded what constitutional is into a way that’s barely recognizable.

Trevor Burrus: The interesting word in your essay is legitimacy which is an interesting term just for legal philosophers, political philosophers, when is government perceived as legitimate because I mean that’s the least unnecessary condition to some sort of peace and not actually just thwarting the government and trying to overthrow it and you have a great line that says there is two dominant methods the government can use to encourage compliance with the law. Now I’m going to make a little comment on that because, of course, you can’t force everyone to comply all the time with force. That would be pretty weird and that’s—and so we say its deterrence through fear which would be this when we got cop on every corner and then cooperation through legitimacy which is something like the IRS has to depend upon people, you know, sitting in their taxes for example. They can’t enforce it enough. Now, the legitimacy function here, cooperation to legitimacy, how does this affect minority neighborhood’s perception of even legitimacy of police if not just the government on top of that?

Jonathan Blanks: If you look at the way that police are in these minority neighborhoods, they’ve been likened to occupying forces. Now, you might feel that you have to go along because you feel that this force is going to come upon you in a very harsh and antagonistic manner, but the thing is that it doesn’t really jive with the protect and serve model that goes along with so many police departments. And so, when those police officers don’t have positive relationship with the community ever or in very rare circumstances, then that decreases the legitimacy of what they’re trying to do. Now, this can eat at the core of the community because what you have when this happens in a highly violent area as many minority communities are. You have high homicide rates and—

There’s a great book by Jill Leovy called Ghettoside that goes through this where homicide detectors have a hard time getting cooperation from the minority communities because those communities don’t trust the police. And this is—like this legitimacy and this trust is so broken you hear this. I’ve heard this from cops that I just met on the street—or not on the street, but in social gatherings where they’ve been to homicide scenes where the kid is dying and they say, “Who did this to you?” And they’re like “Fuck you, I’m not telling you.” And that—I mean if someone is dying and someone may know who killed them and they don’t want you to get it, that is a broken relationship. And so, because of these issues and a lot of times that’s not the homicide cops that are causing these problems. It’s the frontline cops that are overpolicing for stupid little stuff like, you know—you know, I’m not going to sit here and judge every, you know, law that I think is a little crazy but, you know, cigarette taxes with the Eric Garner thing in Staten Island. There are different ways we can go through this. We could say, “Hey, Eric, not today” because there was a directive. There was a political directive for police officers to start cracking down on that, but it’s like officer goes, “Hey, man, not today. Take it somewhere else.” You know, that doesn’t end up in a violent encounter that happened. But, I think too often police officers just go out with this us versus them mentality and they’re going out to crack skulls or, you know, just show who’s boss and they’re going to like enforce their will on the people that they’re assigned to police.

Aaron Powell: Okay. So I’ll keep my social conservative hat on for a little bit longer and give the what I think might be the counterargument from that set to what you just said which is that maybe this is just necessary, maybe it’s that these communities don’t respect law and order. The lack of cooperation is not because they have had these bad experiences with the cops but because there’s just a high level of criminal element and criminals don’t want to cooperate with the cops, that maybe the cops need to behave this way because we see—we read stories all the time not least of all what happened in Dallas of cops getting killed in the line of duty and so they’ve got to behave in ways that protects their own lives because they’ve got to go home to their families at the end of their shift. And so it would be awfully nice if you could have that model of the neighborhood cop walking the beat and being friends with everyone in the community, but if the community just doesn’t like cops and wants to act like a bunch of criminals, that’s going to be awfully hard.

Jonathan Blanks: Well, the community isn’t acting like a bunch of criminals. There are criminal elements there and that has to do with socioeconomic issues, education, but also has a lot to do with how they view society, what’s the incentive to play the rules of society if the rights that’s supposed to protect anyone don’t apply to you. Fourth Amendment doesn’t apply to you, why should I follow your rules. But to go beyond that, if the community doesn’t respect the police, the answer certainly isn’t to reify that disrespect. It makes your job harder for your police officer. If you can’t get cooperation, you can’t solve crimes and that means you are going to be hostile going into that neighborhood. As a public policy matter, you can’t just be like “Okay, black people, trust us.” That doesn’t work. What you have to do is go out and, you know, sell yourself to the community. It’s like, “Hey, I’m here to help. I understand that in the past we haven’t—you know, we’ve gone about this the wrong way. We want to keep you safe, but this is not—we can’t continue this really hyper-aggressive policing because it’s not working. It just isn’t.” And there’s more data coming out. New York City just released a report on the effectiveness of broken windows policing. There’s no concrete evidence that—

Aaron Powell: What’s broken windows policing?

Jonathan Blanks: Oh, broken windows policing was started by an article in the Atlantic by George Kelling and James Q. Wilson back in the early ‘80s and it argued that—they argued in that piece that where you saw sort of the deteriorating infrastructure and like broken windows, graffiti on walls, all the sort of—

Trevor Burrus: Cosmetic.

Jonathan Blanks: Cosmetic quality of life areas, that’s where you saw a crime and a more serious crime. And the idea was you crack down on this petty crime and you will decrease violent crime. But we’ve had 20 years of experience—30 years of experience with this now in certain areas. And the data just doesn’t support that that’s really going on and you had D.C. police chief Cathy Lanier at a panel several years ago talked about how that sort of—that morphed into zero tolerance policing. So if a police officer saw anything that was possibly illegal, they run you in. Well, what that actually does is you take someone off the street, you also take that police officer off the street and so they’re now filling paperwork downtown and the officer on patrol is no longer on patrol which dissuades criminal action from happening, which—and then you give—you have all the attendant problem with that person just got arrested, you know. Maybe it was for a very small amount of drugs, they get kicked out of public housing. They become, you know, less secure and more likely to go into crime. So, it’s just like this—still that sort of thing feeds into this vicious cycle that of all the attendant problems in our criminal justice system.

Trevor Burrus: Is it really that clear that broken windows policing doesn’t work? I mean there’s a lot of people who would disagree with you. The data is not. Because the crime rate has gone down and we’ve had more broken windows policing. And the theory of broken windows policing makes some amount of sense. I always compare it to a roommate situation where if—a house can go awry as soon as like people are like leaving their dishes out, that everyone leaves their dishes out that other things become a problem, so you have to like stop at the beginning and make sure that you pick up things and that makes everything better. So it seems that broken windows policing is not a bad theory, but maybe your point is actually better that the broken windows policing if you are enforcing to the hilt these small things, you create a legitimacy problem which could have downstream effects.

Jonathan Blanks: Absolutely. And the data that I’ve seen—it’s inconclusive at best, but when New York City is coming out and saying, “Yeah, there’s no evidence saying that our actions over the past 30 years have actually led to the decline in crime,” you know, I’m going to take them at their word. But beyond that, it doesn’t make sense because violent crimes aren’t typically done in the same sort of way that—or like, you know, selling cigarettes is, right? You have violence that comes from—it’s a very heated moment. It’s very—you know, there’s some sort of reason or it’s in retaliation for something. But—and not saying the police should never worry about, you know, people, you know, tagging walls with graffiti or anything like that, but they don’t necessarily have to go about it in the way that is so aggressive and so in your face and antagonistic, you know. Obviously, you know, if we’re going to start fining people for that, that makes—I mean not even start. If we’re going to fine people for that, that’s cool, but do it in a way that is like respectful and maybe find help for these kids like, you know, because a lot of times it’s like they have no job. They’ve got nothing better to do but they like to draw, like the guys who I knew who did graffiti in school, they became tattoo artists, you know. I mean—and there is—and they seem to be doing successful and doing well.

Trevor Burrus: Well, it is interesting to try and think of behind the theory of broken windows policing. What is actually the connection between graffiti and murders? You know, it’s like
“Well, we cleaned up all this graffiti. There would be much fewer murders.” I mean it seems that they keep missing some sort of puzzle link in that chain.

Jonathan Blanks: I think it tends to be—I mean when I look at an area that is dilapidated, not cared for, I also look for police presence and I see what kind of police presence it is. If you see a bunch of guys in tactical gear, then it’s like—again, occupying force instead of a police officer going into a bodega and saying, “Hey, how’s it going? You know, everyone doing okay today? Having any problems?” you know, and becoming parts of the community. Because so much of—and part of this is—not to throw this all on cops, which is like being bad. A lot of this has to do with like technical advances that people don’t think about. When police officers walk the beat, you know, they were much more friendly and they knew the neighborhood and they had good relationships. My dad was very much like this. But what happened was people started complaining about long wait times on 911 calls. Well, what does that do? Well, that’s a noise in the community saying we want this fixed and so politicians say, “Get better on 911 calls.” So, what did people do—what did that do? That put cops in cars on their radios. So, as soon as 911 call hits, they go.

And so that pulled the cops off the streets and into their cars, and so—and now when they jump out of their cars, more often than not, it’s not a 911 call or some other disturbance where they’re going to have to start some problems. I mean they’re going to have to solve some problems. And, very often, they have to take control of that situation. So it becomes increasingly—I mean it just kind of by nature becomes hostile or at least confrontational, certainly control a situation. I mean that could be like, “Hey, how’s everyone doing?” Two people yelling at each other and one might have some sort of weapon on them. They’re going to come out and try to take control immediately.

And, the problem is that 911 response times, no correlation to crime rates. And so what we have is not a public safety rationale behind police officers in cars but a political one. And I’m not saying that no one should—you know, we should, you know, lower response times on that sort of thing but we need to find ways to get police back towards public safety concerns and away from the strictly political.

Aaron Powell: Then how much of this is the reasons that you’ve given? We’ve talked a lot about race and there’s been racism in police departments for as long as we’ve had police departments. But now you’re talking about incentives and much more subtle effects like putting them in cars, which shifts how they interact with situations. So what’s the—is this a race problem? Is this—like how new is this problem? Has it been getting as far as aggressive police saying and getting away from meaningful public safety policies? Has it been going on for a long time? Is it getting noticeably worse now than it used to be? And then we also talked about how crime rates are declining. Murder rates are down and so why can’t we say, “Look, yeah, this isn’t—you know, aggressive policing may have these negative effects but we keep hearing about it, but crime keeps going down and crime going down is a good thing.

Jonathan Blanks: To take the part of that is it, you know, is aggressive policing worse? It’s hard to say because we don’t have very good data. What I can say is the incentives askew toward aggressive policing for varying reasons. As I said earlier, civil asset forfeiture gives police officers financial incentives to pull over cars that they believe are carrying drug proceeds, not drugs, not guns but drug proceeds to go into their department to either fund their drug task force or just go into their general police fund, paid for overtime that sort of stuff.

Trevor Burrus: Or margarita machines.

Jonathan Blanks: Or margarita machines. You have the top on crime rhetoric from the ‘90s that was—that, you know, culminated the 1994 Crime Bill that gave—you know, that created the cops officer community—or community-oriented policing office. You had, you know, like the Willy Horton ad from earlier in that decade where—or actually it’s late ‘80s where they were just scaring people with like scary black eye, you know, we need to get tough on crime. So we got a lot more cops and the cops were out there to lower the crime rate. They’re out there to jail people and so we have this—I mean the incarceration rate was going up before that, but then it just sort of like jumps. Not necessarily strictly because of federal involvement, but it goes into it. So you have this rising incarceration rate. You have—this is affecting black people particularly because of the way our laws have been implemented. There’s a great book by the late William Stuntz called The Collapse of American Criminal Justice and in that he argued that what you had was a white electorate that was scared of what was going on in the inner cities because D.C. in the ‘80s and ‘90s was a very dangerous place and other inner cities were similar. And so what you had was aggressive policing that was supported both on the federal level and the local level, so you got a lot more cops on the streets and they’re out there to bring people in and they think punishment, you know, these massive mandatory minimum punishments and going out and just being aggressive and all of that. And it just had an impact on that community. The people who are voting for these laws never really felt them effective. I mean you don’t—again, we don’t see this kind of aggressive policing in Georgetown. We don’t see it in affluent white neighborhoods. Everyone knows that drugs go on in those neighborhoods but they’re not enforced in the same way. And so you had this disconnect between the people who are incentivized to support these laws and the people who are actually feeling the effects of them. And, of course, with the people who are feeling the effect, they get disenfranchised with a felony conviction. So that further decreases their political capital to change that sort of thing. And so, yes, it’s about race but it’s not necessarily about racist cops or racist lawmakers. It’s about what that policing looks like in the society in which we live.

Trevor Burrus: I want to go down a little bit more on this race question because some people will say things, you know, like our racist criminal justice system or cops are racists or things like this, and it upsets conservatives. I mean—and it upsets me to some degree too because it’s a little bit facile in the sense of how this has actually worked. I mean it has racial effects but every cop is not a KKK member. So how do the effects of racism manifest themselves? And we’ve talked about some of them but like what does it mean to say—if you would say cops are racist, like what does that mean?

Jonathan Blanks: I mean I tend not to go there. Generally, I try to think of and try to explain racism in various ways. I don’t really like the term because racism people get the idea that, you know, people saying nigger and, you know—

Trevor Burrus: Mark Fuhrman.

Jonathan Blanks: Mark Fuhrman, you know, go for their back and you have, you know, peaceful protesters hosed down by fire departments in Birmingham and Bull Connor, that sort of stuff. And so much of how it actually manifest itself is what a lot of people call implicit bias where you’re going to treat people outside of your—sort of your social group more harshly than you would someone in your own group. And you see this in like media where you have—like in the aftermath of Katrina, you had these pictures of people waiting through water, carrying property whether it’s a TV or just a bag of stuff. And the white people who were viewed doing that were, you know, survivors and like refugees and the black people who were carrying that were looters, you know. It is just that sort of—those just assumptions that people jump to. And I don’t like calling the system racist. I don’t like calling various people or organizations racist. You can talk about institutional racism because I think that is sort of the effects that we’re seeing that we can see in the data that like what’s going on and who is being targeted for various actions like pretextual stops, the numbers skew highly towards minorities particularly blacks. But that’s not the same thing as “Oh, the cop who shot X and, you know, such and such was a racist cop.” Maybe, I don’t know but it’s not really relevant. The guy is dead and we have to figure out why that happened and what were the things that led up to that. And so I think that when you start looking at policies, you should say, “Okay, maybe we should pull back aggressive policing. We should like lower the number of pretextual stops to decrease the amount of antagonism that’s going on between the police and the community.”

Trevor Burrus: And the race—but there are like—you see occasionally stories about the makeup of a police department, how a police department can become racially-tinged within itself, maybe 10% of the cops are maybe very actually racist and you see the police forums which could be shocking.

Aaron Powell: Their online discussions.

Trevor Burrus: Yeah, online discussion forums that could be shockingly racist. And then they teach or they, you know, mentor people who are less racist but I mean it seems to be—you know, for a cop who’s trying to be a good cop who just thinks, you know, in his head that a black guy I mean is probably up to no good, why is he here? You know, he’s just suffering from this kind of bias. He said he’s not Bull Connor or a KKK and all you would need is a—you know, a slight percentage of some cops to think this way and you would have a pretty big aggregate effect of the way policing is felt by minority communities. And then the legitimacy point is—we can restore legitimacy and then talk about how we can lower crime but they’re connected, correct?

Jonathan Blanks: Yeah, I think so. And because even—while police departments like focus on this implicit bias, I don’t know if it’s necessarily useful in every account because if you’re just—you know, some police departments, what they’re going to do is they’re going to start counting, you know, the race of the people that get pulled over, but you’re still keeping the aggressive tactics. You’re just trying to be, you know, more—you know, more equal about it. How about stop doing it in the first place? I mean obviously this ties into war on drugs. Without the war on drugs, you just don’t have that sort of need or that incentive to pull as many people over because the idea that you’re just going to pull over some random black guy and find, you know, the stuff that was stolen in a robbery is just like—it’s really, really low unless—I mean you happen to be—they’re speeding away from a place that just had 911 called and, of course, yeah, you can pull those guys over, but again they’re speeding. It’s not—but this sort of like going fishing as a way to fight crime is neither efficient nor particularly effective.

Aaron Powell: Does this mean then that solving this problem that ending aggressive policing—so if we stop doing pretextual stops or we radically reduce the number of stops, then we’re going to let more people who have drugs or drug money in their cars get away in a sense. And so this fixing the problem with policing require or at least strongly point us in the direction of first ending the drug war? Like how much can we actually reform things if we keep waging the drug war?

Jonathan Blanks: Yeah, I mean I think—I think the drug war is a big part of it or at least changing the way we do it. I mean we’re not going to legalize heroin and cocaine anytime in the near future, I’m sorry to say. But the amount of resources and personnel that are driven toward drug interdiction is a massive problem. And the thing is just like you said, “Well, how much of it, you know, where letting the drugs and guns and money go through?” Well, but if they are focusing—I mean we’ve got police officers on tape saying or we’re catching them going, you know, coming out of New York City because presumably they’ve already dropped the drugs off and, you know, they’re trying to catch the catch because they—under asset forfeiture laws, they can sell property that is used in commission of a crime but they can’t sell the drugs, right?

Aaron Powell: Well, but this isn’t …

Trevor Burrus: That would be amazing.

Jonathan Blanks: Yeah.

Aaron Powell: But we could reframe that as, you know, good economists and say its subjective value like—so you want to—what you’re trying to do when you stop them is take away their incentives to continue to deal drugs because that’s what we want them to stop doing. And so if they went to New York City and traded this trunk full of drugs for a certain amount of money, it was because they valued the money more than the drugs. And so, of course, you would stop them when you can take away the thing that they value more rather than the things they value less.

Jonathan Blanks: Right. But the person who’s dropping the drugs off is very—is often not the kingpin. The kingpin of any major drug organization is like—has mules all over the place. They don’t care—they figure that some of their—they calculate that some of their product is going to get stopped. They want their money but, you know, stopping $50,000 from getting to El Chapo when he was still free doesn’t do anything to him. And so if you’re like—I mean even law enforcement estimates, they think they get maybe 10%. You know, so 90% is getting through regardless, but they’re like—if they’re targeting for the money, that’s just even more drugs that are going onto the streets. The drug is already out there. Nothing they can do about that. And so I don’t think that that sort of policing has public safety at all in mind and so that’s just one other thing we can change. If we decide we still want to go after drug traffickers, that’s fine but take the profit movement out of it. So they can say, “All right, does that mean maybe funding police officers in a different way?” Maybe. I don’t know, but certainly not through asset forfeiture in which the police officers are highly incentivized to find the cash and not the drugs and guns that they say are just terrible scourge on the community, which you know I think is not as true as they like it to be.

Trevor Burrus: It does seem like the drug war is the reason for these stops—the ability to find these things. I mean our colleague, Adam Bates, said on a previous episode that there’s a huge smoking hole in the middle of the Fourth Amendment left by the drug war. So if we’re going to have a broad conversation about how to change things, that probably is the single biggest policy effect we could make.

Aaron Powell: Basically, every Supreme Court case that undercuts the Fourth Amendment is a drug case.

Jonathan Blanks: Yeah, absolutely.

Trevor Burrus: And so that would be part of the question of reform, which gets us to the question Aaron wrote out which I actually don’t even—I’m not sure I know the answer to this question. I mean I know it’s very complex your answer to this question which is your thoughts on the Black Lives Matter movement.

Jonathan Blanks: Well, I mean it’s a decentralized thing and then like last year, they came out with Campaign Zero which came out with a bunch of really good ideas for how reform police collected databases on, you know, law enforcement Bill of Rights laws which allow—which give various privileges and rights to police officers after use of force or some other misconduct where they don’t have to talk to an investigator about a shooting for like 10 days or longer or they, you know, always have counsel. Sometimes some of these laws say that they get to have evidence against—all the evidence against them before they make their statement. Full discovery for a potential defendant before you even talk to anyone, let alone reject or accept a plea deal is insane. I mean I wish everyone got that sort of protection, but that’s not the way the state works. So they’ve gone through and found the various laws and protections that disadvantaged justice in the name of protecting police officers. So, in that sort of thing, they’re doing great. But another group affiliated with BLM recently put out new similar sort of like broad strategy, things that are list of demands that people want. And one of them under like ending the war on black people as they put it involved stopping funding of the police including like body cameras and I think that’s blaming tech versus policy whereas—I mean there was also a recent report this week about how like 70% of body camera policies allow police to view the footage without letting the public see the footage. That’s bad, and so we need to talk about crafting policy. Blaming tech qua tech doesn’t make any sense. So unfortunately, this is sort of being brought into a larger, you know, progressive like wish list that—

Jonathan Blanks: Same thing happened to Occupy …

Trevor Burrus: Like ending student loans.

Jonathan Blanks: Yeah, yeah. And, you know, we can make arguments, you know, for and against those things on their own merits. But generally I’m supportive of them if I don’t—not necessarily support everything that they believe because I mean it’s a movement, you know. I don’t agree with everything all libertarians say. It’s just not—that’s not really—I don’t think it’s too important to like say, “Oh, I support XYZ of what they do.” I think generally they’re a good idea but—

Trevor Burrus: When conservatives say all lives matter, are they missing something?

Jonathan Blanks: Yes. I’ve heard of various metaphors to the response to that. It’s like going to the doctor with a broken arm and saying, “Hey, doc, can you fix my broken arm?” And he’s just like, “Yeah, but all bones are important.” And he’s like, “Well, yeah, but can you work on this one?” So it’s—I think not understanding that there is a particular problem that black people face because of the way they’re policed, not just the shootings and that’s one thing I would like to try to get over people. It’s like if you’re waiting for the justice system to, you know, prosecute police officers for shooting people, you’re putting your eggs in the wrong basket because of thousands of shootings like between 2005 and 2015, there were 59 charges brought I think total, right? And then the conviction rate is even lower than that. What you have is a system of policing that makes antagonistic encounters more likely and if you decrease that, you’re going to decrease the bodies in the streets. But until that changes, and again this is partially driven by the drug war, we’re going to continue to see this whether it’s, you know—it seemed to like die down over the winter, but it’s back in the summer because it’s easier to protest and that sort of thing. We’re going to have this until we start changing policing. There are 18,000 police forces in this country. It’s going to take a while and I think people really need to like wrap their head around that this is a broad police reform that has to focus on incentives and not just, “Oh, there’s another dead black person.” That’s not enough.

Aaron Ross Powell: Thank you for listening. If you enjoyed today’s show, please take a moment to rate us on iTunes. Free Thoughts is produced by Evan Banks and Mark McDaniel. To learn more, find us on the web at www.libertarianism.org.