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policing the open road

10 june 2019

Americans pride ourselves that ours is a country where you never have to "show your papers." We also pride ourselves on driving everywhere. As a result, most of the time we're away from home, any cop can stop us and ask us to show our papers.

Sarah Seo, in Policing the Open Road, traces the development of traffic-stop law from Prohibition times to the late 20th century, with a glance at the present and future. The legal and Constitutional bases of these traffic stops began to be established during Prohibition, when any car on the road might have been a bootlegger's. Vestiges of that cobbled-together system remain. But the ramifications of traffic stops go far beyond the road. "Scholars have not studied the law or its histories through the automobile," Seo notes (9), but "only by integrating the histories of policing and the regulatory apparatus built around cars can we capture the full scope of the police power in the twentieth century" (12).

The early days of the auto were rife with something of a technical delusion.

Roscoe Pound wrote [in 1930] about how technological innovations … like the automobile, the radio, and the moving picture seemed to magnify "conscious and aggressive individual self-assertion." (34-35)
Prosthesis, portable home, magic carpet, and weapon, the automobile changed its driver and changed the social relations among people on the street. Cars were (and are) simply dangerous. Traffic had to be controlled, but cops can't be everywhere. Dreams of panoptic surveillance of traffic have persisted since the early traffic "towers" that loomed over city streets, right down to 21st-century red-light cameras; but nothing has ever quite replaced the traffic cop: fallible, arbitrarily empowered, far from ubiquitous, a grab-bag of social prejudices trying to enforce a welter of regulations that nobody knows or understands. Policing road behavior, and the extra-vehicular conduct of drivers, is still a labor-intensive business.

"Child, I ain't passed the bar, but I know a little bit / Enough that you won't illegally search my shit," says Jay-Z's persona when a cop pulls him over in "99 Problems." But does he really know how the Constitution applies to car searches? Does anybody? Right from the start, Seo explains, the legal system was reluctant to see the car as truly a portable home. Rather than include cars in the list of "persons, houses, papers, and effects" that the Fourth Amendment secures "against unreasonable searches and seizures," the courts opted for a plethora of increasingly fine-tuned procedural rules that neither drivers nor cops find very intuitive.

Because substantive rights would have greatly limited the discretionary policing that the "law abiding" wanted, the minorities and the poor instead received rules regulating the police's every-growing power. (20)
This "thicket of procedures" (20) of course applied to white and well-off folks too. But since the test of compliance with procedures was usually the "reasonable" discretion of the individual cop, there was wide latitude for "reasonable" race and class prejudice. He looked dangerous: because he was a Negro, because he was a redneck, because he was a Mexican. Why am I writing this in the past tense? The past isn't even past.

"They now stopped respectable people" too, of course (82); we've all been stopped, but some of us have had the pleasant encounters that come with Driving While White and Middle-Class. In the mid-20th-century, innocent "respectables" did not complain when cops pulled them over or even sometimes searched their vehicles (of course finding nothing). The "respectable" did not have much solidarity with the guilty, and the guilty found it difficult to get sympathy or legal remedy when their rights were violated.

Meanwhile, rules for dealing with cop-driver encounters became increasingly fine-grained, seemingly to the point of madness (249-53). Can they search the passenger area of a car? Can they search its trunk? Can they search a locked trunk inside the trunk? Can they search the driver's pockets? A passenger's pockets? The pockets of a garment inside the passenger area of a car but within "grabbing distance?" How would any trained cop, let alone lay driver or passenger, keep track of the answers? Seo quotes Henry Friendly in 1965, quoting Learned Hand in 1952: "Constitutions must not degenerate into vade mecums or codes; when they begin to do so, it is a sign of a community unsure of itself and seeking protection against its own misgivings" (230). We're still unsure, maybe more unsure than ever.

To this day, it's hard to tell exactly what your rights are (because as Seo says, traffic policing is not a matter of rights but of procedures). The Supreme Court tinkers constantly with the mechanism of traffic. Seo cites mainly 20th-century cases, but more are decided all the time; it can sometimes seem that the Court hears little else. In 2007, the Supreme Court held unanimously that a passenger in a pulled-over car can assert Fourth Amendment rights (Brendlin v. California). In 2009, the Supreme Court held unanimously that a passenger in a pulled-over car can be patted down by officers (Arizona v. Johnson). I think that the issue in each cases is that a traffic stop constitutes a seizure of the passengers in the car, who then have various different rights in play, but one case seemed to favor the cops and one the passenger. Or maybe not. The best legal minds in Arizona and California didn't seem to have a clue till the U.S. Supreme Court showed them that everything was blindingly obvious. To them. Maybe.

Basically, a car is a public place, legally, but "in case after case, drivers demanded private rights in a space that the law considered public" (200). Courts responded by littering "the doctrine of searches and seizures with relentlessly litigated, factually nuanced rules of decision" (236).

Americans put up with government mandates when they drive that they'd scream blue murder about if confronted with in other situations. "The multitude of traffic laws that every one disregarded at one point or another gave the police what amounted to a general warrant to stop anyone" (213), which we would hardly put up with at home or on the rare occasions when we walk around. Folks submit meekly to a mandate to buy auto insurance but rebel when it comes to health insurance. They're stopped and frisked and their assets seized, but what can you do, nobody has a right to drive a car. Driving is a privilege, is how we put it, and puts the driver under constant threat of monitoring and control.

Yet the reality is that very few Americans have any choice about driving. Perhaps we are beginning to see "the decline of the car's central role in American life as younger generations prefer urban lifestyles and Uberization" (267) – but even so, that millennial phenomenon applies only to a few better-off members of the latest generation in our more transit-rich cities. If you want to work and shop and just plain exist most places in California, Texas, Florida, or anywhere in flyover country, you need a private automobile – which is legally a public place. Or not. Or sometimes.

Seo stays fairly well focussed on cars in Policing the Open Road, though her larger thesis – that cars made the modern police/civilian balance what it is today – is always in the background. Local police became uniformed and began to drive marked vehicles once cars became common. State police were virtually a creation of the automobile age (78). Synergy between the welfare state and the automobile made all lives increasingly open to data-gathering and inspection (210).

Even larger issues lie beyond Seo's remit. Driving is more and more linked to democracy. "Motor-voter" initiatives, an early form of that link, now seemly quaintly 20th-century-liberal; nowadays more and more conservative legislatures require "voter ID," which in practice means a driver's license, or some non-driving equivalent thereof: all but an internal passport, these days. Driver databases feed jury-duty lists (because a lot of people don't bother to vote and you'd hardly fill jury pools with voters alone); but a lot of drivers are not citizens and thus not eligible for juries. An overzealous conservative Texas Secretary of State recently tried to purge voter rolls based on (highly faulty) citizenship information in driver databases. Meanwhile, irregularities in driver records that are supposedly a frilly "privilege" of modern life trap more and more citizens in a spiral of debt and legal problems. Policing the open road has come to mean policing the entire body politic.

Seo, Sarah A. Policing the Open Road: How cars transformed American freedom. Cambridge, MA: Harvard University Press, 2019. HE 371 .A3S53