Rethinking Federal Inducement of Pretext Stops

Abstract

Few topics in policing have received more attention than pretextual traffic stops—traffic stops made for crime-fighting purposes. Community leaders, legislators, police executives, and even presidents have recognized that the overuse of pretext stops has deleterious effects, including racially disparate enforcement, needless death, and degraded public trust in law enforcement. The result is a growing movement at the state and local level to roll back the widespread use of this tactic. As promising as these developments are, most discussions of pretext stops largely omit a key player that drives the problem: the federal government. Presidents from Bush to Biden have decried discriminatory pretext stops and federal investigations have pushed localities to limit their use of the tactic. Yet, behind the scenes, the federal government has long trained and incentivized police to use pretext stops widely. This Article has two goals: First, to demonstrate that the federal government long has been and continues to be a key driver of pretextual traffic stops by state and local law enforcement. The Article catalogs the multitude of ways that federal agencies push this tactic, and in the process, tells a complex story about how the federal government sets national policing policy. The federal actors involved include law enforcement agencies (as one might expect), but also other administrative agencies whose ostensible missions seem to have little to do with policing. Second, this Article calls for the federal government to develop a new, comprehensive, and coherent approach to traffic stops as a crime-fighting tool—an approach that centers on public safety and avoids falling into tired patterns of harmful and discriminatory enforcement. This Article proposes a variety of tangible reforms, such as changing federal law enforcement policy, creating a centralized review process for federal policing programs, and developing a method to calculate the social cost of a traffic stop. A strong federal response—in tandem with continued state and local action—is the only way to wean policing off traffic stops as a central crime-fighting tool.