Driving While Black, D.W.B.

Race is not an inherently suspicious characteristic. As a matter of law, the race of a citizen never justifies a law enforcement officer's determination of probable cause or reasonable suspicion. As stated by the Washington Supreme Court, "[i]t is law that racial incongruity, i.e., a person of any race being allegedly 'out of place' in a particular geographic area, should never constitute a finding of reasonable suspicion of criminal behavior." State v. Barber, 118 Wn.2d 335, 346, 823 P.2d 1068 (1992). Yet as a practical matter, race frequently plays a critical part in that judgment.

Especially young African American males frequently report being stopped and detained for reasons that are superficially pretextual. Even affluent people of color, who drive expensive or late modeled cars, often report being stopped by law enforcement officers because of their race. This practice has become so prevalent that the actual justification for such detentions has become widely known as "Driving While Black (D.W.B.)."

To allow police officers to impute criminal intent to members of a racial group is the most destructive of all forms of racism. Discriminatory police conduct injures all racial minorities by denigrating them as a group, by contributing to false stereotypes and reinforcing their historically subordinate position. This results in extraordinary damage to the self respect of ethnic minorities, and promotes the most destructive resentment and contempt toward the law enforcement community.

Enforcing constitutional rights within this context is more difficult because the of uncertainty about when a simple stop and frisk, justified by reasonable suspicion, ripens into an arrest, justified only by probable cause. The application of qualified immunity under these circumstances creates an exception to liability so broad that it threatens to swallow whole the cause of action. The Ninth Circuit Court of Appeals has now made the enforcement of constitutional rights considerably easier with a comprehensive legal analysis and a remarkable sociological analysis. Washington v. City of Santa Monica, 1996 WL 617358 (9th Cir. Oct. 28, 1996).


InWashingtonseveral Santa Monica police officers in police cruisers, followed George Washington and Darryl Hicks, two African-American men, as they drove into the parking garage of their hotel. The police shone searchlights on their car, ordered them out at gunpoint, handcuffed their hands behind their backs and placed them in separate police cars for a period of from five to 25Œminutes. Only after the officers frisked the two men, searched their car and checked their identification did they release "the suspects." WL 617358 at *1.

The police justified the detention/arrest because the plaintiffs allegedly resembled the description of two suspects being sought for 19 armed robberies, and one plaintiff appeared nervous. None of the robberies had occurred in the City of Santa Monica, and the most recent robbery had occurred six days earlier. The Court found that neither plaintiff fit the specifics of the robber's descriptions. Id. At *1-2.

The Plaintiffs filed suit under 42 U.S.C. Section 1983 alleging a violation of their Fourth Amendment rights. The defendant moved for summary judgment on the basis of qualified immunity. The district court denied the motion. The trial court granted a directed verdict for the plaintiffs, and left only the issue of damages for the jury. After the jury deadlocked on damages, a subsequent jury awarded $10,000 in damages. The defendants appealed.

Sociological Analysis

In an opinion by Judge Stephen Reinhardt, the Court devotes considerable energy to analyzing and documenting the sociological phenomena of a pattern of racist law enforcement activity. Initially, the Court recounted claims of discriminatory treatment made by African-American celebrities in Los Angeles such as: Joe Morgan, Hall of Fame baseball player, seized on the basis that "made all black men suspect;" Jamall Wilkes, former L.A. Laker star, erroneously stopped and handcuffed; Al Joyner, 1984 Olympic medalist, stopped twice in twenty minutes, handcuffed and made to lie spread eagled on ground at gunpoint; Wesley Snipes, actor, taken from car at gunpoint, handcuffed, and forced to lie on the ground while a policeman knelled on his neck and held a gun to his head; Blair Underwood, actor, stopped and detained at gunpoint. Id. at fn #1.

African American businessmen and professionals also report similar treatment. For example, Deval Patrick, head of the Civil Rights Division at the Department of Justice, recently reported that "I still get stopped if I'm driving a nice car in the 'wrong' neighborhood." Deval Patrick, Have Americans Forgotten Who They Are?, L.A. Times, Sept. 2, 1996, at B5. Christopher Darden, prosecutor of O.J. Simpson, recently wrote that he is stopped by police five times a year because "I always seem to get pulled over by some cop who is suspicious of a black man driving a Mercedes." Christopher Darden, In Contempt 110 (1996). Id. at *6

The Court in Washington observed that although it was unclear how often non-celebrities are victimized, "[i]t is clear, that African Americans are stopped by the police inŒdisproportionate numbers." Id. at fn #1. Quoting Justice Jackson, the Court stated that "there are many unlawful searches of homes and automobiles of innocent people which turn up nothing incriminating, in which no arrest is made, about which courts do nothing, and about which we never hear." Id.

In support of its conclusion that people of color are victimized more often, the court cites the following authority: Kolender v. Lawson, 461 U.S. 352, 354, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)(Lawson, a law abiding African- American man, was stopped or arrested fifteen times in primarily white neighborhoods in a 22-month period); Jeff Brazil and Steve Berry, Color of Driver is Key to Stops in I-95 Videos, Orl. Sent., Aug. 23, 1992, at A1 and Henry Curtis, Statistics Show Pattern of Discrimination, Orl. Sent. Aug. 23, 1992 at A11 (videotapes show that 70% of stops made by drug interdiction unit on portion of I-95 in Florida are of African-Americans or Hispanics, although they made up only 5% of the drivers on that stretch of the interstate. Only about 5% of these stops lead to arrests); Michael Schneider, State Police I-95 Drug Unit Found to Search Black Motorists 4 Times More Often Than White, Balt. Sun, May 23, 1996, at B2 (reporting similar statistics in Maryland four years later); David A. Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 Ind. L.J. 659, 679-80 (1994); Elizabeth A. Gaynes, The Urban Criminal Justice System: Where Young + Black + Male = Probable Cause, 20 Ford. Urb. L.J. 621, 623-25 (1993); Tracey Maclin, Black and Blue Encounters--Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter?, 26 Val. U.L.Rev. 243, 250-57 (documenting incidents); Developments in the Law--Race and the Criminal Process, 101 Harv. L.Rev. 1472, 1505 (1988)("[P]olice often lower their standards of investigation when a suspect has been described as a minority, thus intruding upon a greater number of individuals who meet the racial description than if the suspect had been described as white."). Id. at *6. Thirteen Ways of Looking at a Black Man, New Yorker, Oct. 23, 1995; see also Michael A. Fletcher, Driven to Extremes; Black Men Take Steps to Avoid Police Stops, Wash. Post, March 29, 1996, at A1 (reporting frequent stops by police of black professionals). Id. at*6.

Legal Analysis

In affirming the lower court's summary judgment in favor of plaintiffs and the denial of qualified immunity, the Court comprehensively reviewed the familiar standard for determining when an investigatory stop ripens into an arrest, requiring probable cause. The Court recognized that the identical police action can be arrest under some circumstances and not inŒothers. "[W]hile certain police actions constitute an arrest in certain circumstances, e.g., where the 'suspects' are cooperative, those same actions may not constitute an arrest where the suspect is uncooperative or the police have specific reasons to believe that a serious threat to the safety of the officers exists." Id. at *3. Although it is often stated that there is no bright-line rule to determine when an investigatory stop becomes an arrest, it is explicitly clear that an arrest occurs once a suspect has been transported to a police station. State v. Lund, 70 Wn.App. 437, 446-447, 853 P.2d 1379 (1993)("Thus, Terry does not allow police, based only on articulable suspicion, to seize a citizen and then transport him or her to the police station for questioning or fingerprinting."); U.S. v. Baron, 860 F.2d 911, 914 (9th Cir. 1988)("Had the police moved Baron to a police station or interrogation room, we would clearly be compelled to hold that she was subject to an arrest.").

Courts endeavor to balance the safety of law enforcement officers against the constitutional right to be free from unlawful search and seizure. In balancing these interests, the Court in Washington recognized that "[w]hile we must not compel police officers to take unnecessary risks, total security is possible, if at all, only in a society that puts a much lesser premium on freedom than does ours." Id. at *5. Some physical jeopardy is inherent in the job of a law enforcement officer. Id. As a consequence, "[u]nder ordinary circumstances, when the police have only reasonable suspicion to make an investigatory stop, drawing weapons and using handcuffs and other restraints will violate the Fourth Amendment." Id.

The Court found that not only was the detention of the Plaintiffs an arrest without probable cause, it also found that qualified immunity did not apply. "The law was also clearly established that if the Terry-stop suspects are cooperative and the officers do not have specific information that they are armed or specific information linking them to a recent or inchoate dangerous crime, the use of such aggressive and highly intrusive tactics is not warranted, at least when, as here, there are no other extraordinary circumstances involved." Id. at *11. According to the Court, it was "obvious" that a reasonable officer should have known that a highly intrusive detention was illegal. Id. at *12.