Stopped for Air Freshener: How Virginia Gave Cops License to Harass
Virginia needs to take immediate steps to address the disparate impacts of policing and incarceration on Black people. One major contributor to the disparity is “pretextual policing,” which is the practice of stopping someone for a minor traffic violation in order to conduct investigations unrelated to the reason for the stop. Basically, if the police witness a traffic violation, the U.S. Supreme Court says an officer can stop you, regardless of the officer’s personal motivation for the stop. Courts have actually created numerous constitutional exceptions in order to make traffic enforcement a major investigative tool.
If a police officer wants to pull someone over while they’re driving, he needs to have a reasonable, articulable suspicion that the person is committing a crime. This is an extraordinarily low standard under the law – almost any violation of the law will do, and there are hundreds of minor traffic violations that can be the basis for a traffic stop. The officer doesn’t have to be certain that a violation of law is occurring, nor does he need to be right about his suspicions. He only needs to have something more than a “hunch” to pull a car over.
There aren’t very many limits on the police officer’s power to pull a car over. But one limit that does exist is that an officer can’t pull a car over merely because the people inside are Black. The officer cannot merely justify a stop by saying that the driver “looked suspicious” or “out of place” merely because of the driver’s race. But some officers do believe that a Black driver is likely to be committing a crime. Some will pull a car over just because it is occupied by four young Black men, because the officer believes that those kids are probably committing a crime. But saying that out loud – that the officer believes young Black men are more likely to be committing a crime – would violate the law.
So, if the police want to stop a Black person because they find them to be “suspicious,” all the officer has to do is follow the person until they commit some traffic violation. (Or they can always just make one up.) Even honest police will typically not have to follow the average person very far, because there are hundreds of traffic infractions and violations in Virginia law that can serve as the pretext for the stop. Here are some of the most common reasons for pretextual police stops in Virginia, many of which are difficult if not impossible to disprove in court:
Defective Equipment: Tail Lights / License Plate Lights; Brake Lights
Police regularly make stops for having one of two license plate lights out. Although the tail light statute says there must be a white light (singular) that makes the plate visible from at least 50 feet, the more general defective equipment statute makes it unlawful to have or use defective equipment on your vehicle. So, even if the license plate is illuminated and visible, police can still stop you if one of the bulbs is out. A similar issue arises where one of three brake lights is out. The brake light statute does not require a third light, but police can stop for defective equipment if the third light is not working.
Police regularly stop people under this statute for hanging objects from the rearview mirror, including parking permits, rosaries, air fresheners, and perhaps most egregiously, Disabled Parking Placards.
Police can stop a person if an officer says the car was making “excessive levels of noise.” The law, however, does not define how much noise is “excessive”.
Police frequently stop vehicles based on an officer’s visual estimation that the window tinting is too dark. In order to prove such a charge, officers actually have to measure the tint with a standardized device, but they often make these stops even if they do not have the device available.
Registered owner has suspended license
It does not matter who is actually driving the vehicle.
Pedestrian in Roadway/Jaywalking
Police can also stop pedestrians based on pretext. Because a little mild jaywalking is incredibly common, particularly in more urban areas, police can stop pretty much anyone who “looks suspicious” to an officer.
Police can stop anyone they deem to be following another vehicle “more closely than is reasonable and prudent” under the conditions. There is no definition or further guidance in the law as to what is “reasonable and prudent”.
This poorly worded law that could be interpreted as criminalizing driving next to another vehicle.
License plate obscured by frame
The Washington football team frames are particularly problematic.
Even with video, it’s impossible to prove that an officer did not see something fly out of a window.
Traffic stops are the most common reason for people to have contact with the police. But not all traffic stops are created equal. When white people experience anxiety during a traffic stop, they’re afraid that they might get a ticket. For Black people, a traffic stop is a life-threatening experience. Sandra Bland, Samuel DuBose, and Philando Castile are just a few of the hundreds or thousands of Black Americans who have been killed by police officers over the years because their car was pulled over. Countless Black people are stopped without that kind of escalation, but their lives are impacted, nonetheless. They are placed in fear needlessly. Many are pulled over, questioned, or have their car searched multiple times each month for conduct that would go unnoticed for non-Black drivers. Philando Castile was a tragic example of this over-policing of Black people. In the thirteen years before Philando Castile was shot to death by police, he was reportedly stopped at least 52 times, mostly for minor traffic and equipment violations
The surest way to reduce the ability of police officers to use violence against Black people is to reduce the ability of police officers to interject themselves into the lives of Black people. Eliminating stops for minor equipment and traffic violations would drastically decrease the number of police encounters. Additionally, limiting the scope of traffic stops and placing restrictions on searches and seizures during traffic stops would remove the main incentives for pretextual policing, which like other problematic policing practices, tends to disproportionately affect minorities and the poor and undermines public trust in the police. The time to take action is now.
Shawn Stout and Andy Elders contributed to this article.