Coalition Amicus Brief Asks Mass. High Court to Ban Pretextual Traffic Stops

Yesterday we joined the Massachusetts Association of Criminal Defense Lawyers, the New England Innocence Project, and Lawyers for Civil Rights to file an amicus brief before the Massachusetts Supreme Judicial Court, urging our state’s highest court to presumptively exclude evidence discovered as a result of pretextual traffic stops.

Racial disparities in traffic stops are a serious, pervasive, and well-documented problem. More than two decades of research show Black drivers are not only more likely to be stopped than white drivers but also more likely to be ticketed; less likely to be found with contraband when searched; and subject to a lower search threshold, requiring less suspicion, a “double standard [that] is evidence of discrimination.” Studies show this is largely attributable to investigatory stops made in the absence of reasonable suspicion or probable cause of a crime, justified based on a traffic infraction.

Traffic enforcement is the modern “general warrant”: police have unbridled discretion to stop virtually any driver at any time for any number of minor infractions, like turning without signaling or an out of date inspection sticker. Racial discrimination — explicit racial profiling, implicit biases linking blackness and criminality, and structural racism deploying more officers to communities of color — explains the disparities in traffic stops. Meanwhile, data collection on traffic stops in Massachusetts has been stymied by recent legislative changes, preventing individuals from bringing claims of intentional discrimination based on statistical patterns. Plus, the legislature has created new traffic offenses for holding a phone while driving, offering a new easy justification for an otherwise unconstitutional stop. In light of these changes, the problem of racially motivated pretextual stops may get worse—both more pervasive and more difficult to prove.

Our solution is to presumptively exclude evidence obtained from pretextual stops. Judges have the tools to review the totality of the circumstances and assess whether a reasonable police officer would have pulled over the driver in the absence of some pretextual motivation. And, as the custodian of data on traffic stops, the burden must rest with the Commonwealth to prove that an ambiguous stop was unaffected by racial bias.

Read the brief: