“Parking While Black”: The Danger of Extending Traffic Stops to Parking Violations at the Supreme Court
by Katy Naples-Mitchell, Research Fellow at the Charles Hamilton Houston Institute for Race & Justice at Harvard Law School
Ask anyone what the penalty is for a parking violation and they’ll tell you — it’s a ticket, not an arrest. That may be common knowledge, but it’s based on a fundamental Constitutional precept. The Fourth Amendment requires that an officer have probable cause of criminal conduct to make an arrest, and to date the U.S. Supreme Court has never held that you can be arrested and searched for a parking violation, which is often treated as a civil infraction.
In a case soon to be up for consideration by the Supreme Court, Johnson v. United States, the Court must decide whether to answer this question: does a parking violation create enough suspicion of criminal conduct to surround the car, detain its passengers, and begin a prolonged police encounter that could result in your arrest or even land you in prison? Should police be able to invent a criminal investigation based only on a parking violation?
The Law on Pretextual Stops
Just over twenty years ago, in a unanimous opinion authored by the late-Justice Antonin Scalia, the U.S. Supreme Court held in Whren v. United States that a traffic offense committed by a driver was a legitimate basis for a police stop. Further, the Court explained that, provided the officers had probable cause that a traffic violation had occurred, it was improper to probe the officers’ subjective, personal, and even pretextual motives for the stop. The Court held that the Fourth Amendment was unconcerned with the potential for racial profiling if the stop was otherwise justifiable.
The Whren case dealt with a moving violation — officers stopped two young, Black men who were driving in a “high drug” neighborhood of Washington, D.C., and who sped around a corner without putting on their turn signal. When police approached, they noticed illegal drugs in plain view, resulting in the arrest of the driver and passenger. The Court held that the failure to signal was sufficient cause to stop the car in order to enforce the violation and the subsequent drug discovery could be used to prosecute the two men, whether or not the officers stopped the car because they were hoping to turn up drugs.
A few years later, in Atwater v. City of Lago Vista, a narrow five-Justice majority upheld a warrantless arrest based on a seatbelt violation punishable only by a fine. Justice O’Connor authored a dissenting opinion, joined by three colleagues, citing the “recent debate over racial profiling” and arguing for a Fourth Amendment rule that would require officers to respond reasonably and proportionately to the offense committed. So even though this new decision gave police unreasonable power to detain America’s drivers for minor moving violations, it also represented a departure from Whren. In just a few years four Justices had become skeptical of police overreach for minor traffic offenses, especially when the Supreme Court could be seen as tacitly endorsing racial profiling.
Returning to the issue in Johnson, a parking violation is distinguishable from these moving violations in Supreme Court case law; the car is already stopped. There is no legitimate law enforcement need to seize the car or its passengers. The infraction can be handled without any direct police encounter — typically, an officer leaves a ticket on the windshield and moves on. Under the Fourth Amendment, which protects a fundamental right to privacy, this is the proper balance — poor parking alone does not justify a search or seizure.
The Johnson Case
However, a majority of all the judges on the Seventh Circuit Court of Appeals recently disagreed. Applying the twenty-year-old precedent of Whren, the Seventh Circuit en banc held that police officers did not offend the Fourth Amendment’s privacy guarantee and reasonableness requirement when they used a parking violation to spin off a criminal investigation.
The stop occurred on a January evening in Milwaukee, WI, during the polar vortex, with snow on the ground and a wind chill of twenty below. Two police cars carrying a total of five police officers happened upon a car idling in front of a liquor store, parked seven or eight feet from an unmarked crosswalk, with no one in the driver’s seat. As it turned out, the driver had momentarily parked the car while running in to make a purchase.
The officers believed the car might be parked too close to the crosswalk under state law. But what should have been a $30 parking citation under any reasonable response escalated into a full-fledged criminal probe.
These five police officers were patrolling together in two squad cars as part of the Milwaukee Police Department’s since-disbanded Neighborhood Task Force Street Crimes Unit, assigned to patrol so‐called “hot spots” and to “look for smaller infractions and hope that possibly they may lead to bigger and better things,” in the words of one of the officers.
Swooping in and surrounding the parked car, one patrol car pulled up behind and the other parallel to it, flooding the car in light from headlights and spotlights. Officers approached on foot, and one saw a passenger in the backseat, Randy Johnson, moving as if trying to hide something. He opened the door, ordered Mr. Johnson out of the car, and officers pulled out all the passengers and handcuffed them. Once the car door was open, an officer saw a gun on the floor. Mr. Johnson, who had a prior felony conviction, was arrested and prosecuted as a felon in possession of a weapon. At his criminal trial, he sought to have the evidence of the gun excluded, arguing that having five officers descend on the car simply because it was parked near a crosswalk was an unreasonable seizure under the Fourth Amendment, tainting the rest of the encounter.
The Seventh Circuit en banc affirmed the trial judge, who determined that Whren and Atwater permitted police officers to seize the parked car regardless of their underlying agenda. Further, the officers’ later conduct was supported by reasonable suspicion based on Mr. Johnson’s behavior. In a stinging dissent, Judge David Hamilton, joined by two of his colleagues, found no compelling basis to extend Whren to parking violations and urged the Supreme Court to keep “an eye toward practical consequences, including whether the cumulative effects of Fourth Amendment doctrine are reasonable” and whether invasive police intrusions should become “a routine part of American life” in parking enforcement. Judge Hamilton asserted that a more affluent, largely white neighborhood would not have seen this kind of intrusive policing, and faulted the majority for failing to curb racial disparities by giving constitutional cover to the officers’ conduct.
Around the time that Whren was decided, racial profiling of Black motorists was already a subject of public debate, scholarly critique, and scrutiny by organizations like the ACLU. But twenty years later, the problem continues. Based on 2011 data, the Bureau of Justice Statistics found that Black drivers are more likely to be stopped, ticketed, and searched than white drivers. As compared to white drivers, Black drivers are stopped more often for violations other than speeding, like a vehicle defect or a record check. The National Institute of Justice confirms that research, as does a 2017 working paper on traffic stops authored by researchers at the Stanford University Open Policing Project. Mountains of evidence prove that racial disparities infect the entire criminal legal system.
The context for the parking stop at issue in the Johnson case is even starker. A 2011 investigation by the Milwaukee Journal Sentinel found that Black Milwaukee drivers are seven times as likely to be stopped by city police as white Milwaukee drivers, in an analysis of nearly 46,000 traffic stops. Further, Milwaukee police searched the vehicles of Black drivers twice as often as white drivers — one search for every 12 stops — but found contraband in searches at about the same rate among Black and white drivers. In a 2012 follow-up, those racial disparities persisted. And in 2017, the ACLU sued the city of Milwaukee, alleging these racial disparities demonstrate a pattern of unconstitutional policing. Milwaukee settled that lawsuit in July 2018.
Racial profiling carries real trauma for those who experience it, whether or not it ends with the humiliation and pain caused by a wrongful stop or, worse, in life-ending police violence, as in the case of Philando Castile. And yet police stops partially motivated by race have been upheld by courts under the Fourth and Fourteenth Amendments, provided the court finds that race-based law enforcement decisions are not a product of individual racial stereotyping but rather based on “objective crime trend analysis” that identifies “risk factors” to predict criminal behavior, even though supposedly neutral algorithms or factors may carry their own implicit racial biases.
The defendants in the Johnson case did not raise race as an issue, but considering racial disparities in policing is inherently relevant to the Fourth Amendment analysis, as dissenting Judge Hamilton cogently explained and as Justice Sotomayor made clear in her powerful dissent in the 2016 case Utah v. Strieff. What the Constitution defines as reasonable cannot be determined in a vacuum, divorced from on-the-ground realities. The Howard University School of Law Civil and Human Rights Clinic filed an amicus brief in support of Mr. Johnson’s appeal to the U.S. Supreme Court, arguing that extending Whren to parking violations will give police officers unbridled discretion and will disproportionately affect Black Americans — ratifying and expanding the “aggressive policing that goes on in communities of color nationwide.”
The Path Forward
In the last ten years, we have seen courts chip away at broken windows policing and the unconstitutional policy of stop and frisk that targeted young men of color in New York City. Now, the Supreme Court has the opportunity to extend that reasoning to “parking while Black.” So much activity defined as criminal under the law is not about public safety or protection of life and limb, but rather amounts to so-called quality of life offenses. At its foundation, the Fourth Amendment allows only reasonable searches and seizures. The Supreme Court must recognize that it is unreasonable for an officer to turn a parking citation into a criminal investigation, especially when the race of the people involved may be a motivating factor.
A different controversy is presently swirling around the Supreme Court and the date Monday, September 24th, but we can’t lose sight of the fact that eight sitting justices are still actively engaged in determining the scope of our individual rights. On Monday, when the justices gather to discuss dozens of cases, the Court should grant certiorari in the Johnson case. And after oral argument, the justices should say with one voice that the Fourth Amendment does not allow police officers to manipulate mundane parking violations as justification for ordering passengers out of a parked car, arresting them, or conducting a searching criminal probe.
When it’s freezing outside and you pull over to run into a store, you shouldn’t have to fear being swarmed by police for hasty parking. That simply is not a reasonable response — under common sense or the Fourth Amendment.
Katy Naples-Mitchell, J.D., is a Research Fellow at the Houston Institute and former law clerk to the Hon. Anne E. Thompson, U.S.D.J.