Editor’s note: This commentary is by Ana Hernández, a writer and consultant with over 20 years experience in critical analysis, program development, and advocacy on issues of violence and oppression across issues and identities. She lives in Milton.
Last month I was stopped for speeding and, after I provided my license, registration card and proof of insurance, the officer proceeded to ask a series of questions: Where was I coming from and where was I going, what for, was the address on my license current, was I active military, and what was my telephone number?
Two weeks before, I had observed a training provided by the International Association of Chiefs of Police for local law enforcement leaders, one of whom was likely this officer’s supervisor. They were addressing issues of violence against women, and sexual misconduct by police officers was one issue raised periodically.
In one case study analyzed by the group, an officer stopped a woman for speeding and asked a series of questions, including her telephone number. A few days later, this officer called the woman and told her how nice it was to meet the other day, he enjoyed chatting with her, and would she like to meet for a drink or coffee sometime? During the course of the investigation, it was raised that this woman provided her telephone number and, because it is not required during traffic stops, it ostensibly raised the question of her consent to her own subsequent harassment.
The other issue at hand was that then-current department policy did not expressly prohibit anything the officer had done and so therefore it could be argued he was not contravening department standards or know his behavior was prohibited.
One of the few female trainees in the room indicated this would have been a non-issue with her, as she would have refused to provide her number and sharply corrected the officer. I leaned over to my neighbor – an assistant attorney general and prosecutor – and whispered, “But how would one know? If I were stopped and asked for contact information, I’d provide it.” She replied, “I would, too.”
When the officer asked for my telephone number, I asked to know why he was asking these questions, and described how I knew that a telephone number is not a legitimate request. He told me it was standard protocol, and proceeded to ask me about the training – who provided it, when was it, and one or two other questions – and then told me I must have misunderstood. To which I wanted to respond two things: first, I had been stopped in the same locality, only about a mile away, just two weeks before, and had not been asked any of these questions. And second, that I am tired of white men assuming, implying, or in this case, just stating, that I am wrong because they must be right. In this context, as in most, “You must have misunderstood,” effectively closes the possibility of productive conversation, so other than “No, I don’t think I did,” there was nothing left to say. Then, even though I had ample reason to believe I was within my rights to question him and even to refuse, I gave him a telephone number, because I was concerned about the consequences of antagonizing him.
Even though I had ample reason to believe I was within my rights to question him and even to refuse, I gave him a telephone number, because I was concerned about the consequences of antagonizing him.
When he returned, he told me he was giving me a written warning, but before handing it to me, he pointed out the blanks on the form for military status and telephone numbers and told me, if it weren’t standard protocol, it wouldn’t be on the form. And at that point I realized he may well have been conducting the stop as instructed and written out in his department’s standards, and the problems are more complex – whether or not he can be held accountable for following an incorrect policy, and the source of the policy itself.
Fronteras (www.fronterasdesk.org), a collaborative project between public radio stations across the southwestern United States, recently looked into the question of what questions a driver must answer during a traffic stop.
The answer is theoretically simple: If you’re the driver, you must show your registration, insurance, and driver’s license. The exception is Arizona where police can ask you about immigration status.
But as far as what law enforcement is permitted to ask, there are no limits. The disconnect between the two, and the ongoing imbalance of power between law enforcement and civilians – not just that inherent to the system, but also as due to gender and race, among other factors, means that the interests of law enforcement (and the gender and race privilege it codifies) prevail.
Consequently, even though, as Fronteras reports, constitutional scholar Meg Penrose describes questioning beyond the scope of a traffic offense as a violation and potentially unconstitutional seizure, case law gives law enforcement greater, not less, leeway during the course of a routine traffic stop. Some of this is due to linking criminal activity and traffic violations; for example, an officer may conduct a traffic stop with reasonable suspicion of a traffic violation or criminal activity (Berekmer v. McCarty, 468 U.S. 420 (1984); United States v. Arvizu, 534 U.S. 266 (2002)), which has likely contributed to the ongoing problems of racial profiling by law enforcement. Some case law, however, merely endorses the conduct of officers, for example, an officer may conduct a pat-down of driver and passengers during a lawful traffic stop without reason to believe any are involved in criminal activity (Arizona v. Johnson, 555 U.S. 323 (2009)).
Vermont state law requires drivers to provide only their name and address and that of the owner of the vehicle, and to provide their license and registration. But at the same time, law enforcement may “make reasonable orders in enforcement of this title” and “no person may knowingly fail or refuse to comply with any lawful order or direction” of such an officer (23 VSA Ch. 13 Sec. 1013). The law as written is duplicitous – I have rights, but they are not the concern of law enforcement. And what is the merit of a “reasonable” standard as granted and applied to law enforcement? “Reasonable” by definition implies some measure of dialectic and consensus; the important questions about reasonable standards become among and applied to whom.
During the International Association of Chiefs of Police training, it was freely acknowledged that officers are trained to be suspicious and that as an institution, law enforcement is oriented to crisis. These are hardly the conditions under which to cultivate a practice of reason. And in this context, the tendency to do what must be done to end the exchange — tell them what they want, back down — is not illogical.
I fully expect I was speeding and also that I do not know, even now. Along a 19-mile commute, I pass through 16 speed zones, not including the four posted in yellow warning of sharp turns in the road. There are spots along my commute where I pass one speed limit sign and can see the next – the zone is no more than several yards long. If I am paying even fleeting attention to anything other than these signs – the cat stalking something in the yard ahead, the driver tailgating me, or that the car calculates the items in the passenger seat at the weight of a small person and the seatbelt alarm just started ringing – I will miss a sign and drive the wrong speed.
Vermont state law allows municipalities to establish speed limits on all or part of any city, town, village, and some state highways within their jurisdictions, without the requirement of traffic and engineering studies.
Similarly, between state statutes and officer practice, all policy, direction and control of police departments is established on a town-by-town basis. And, while state standards for primary and secondary education provide for teaching students about individual rights and responsibilities, legal and judicial frameworks, and how to effect community change, there is no concomitant education about engaging, observing or shaping any institution charged with protection and enforcement. The closest measure may be the “know your rights” resources published by different groups and interests, such as disability, pregnant and parenting students, health care, and elections, but not only are they neither comprehensive nor routinely distributed, they are not intended to address or create systems’ accountability.
When human and civil rights education is this limited and does not correlate to policing that is this fractured, open-ended and secretive (whether by default or design), the implication is that the rights of the individual are, at best, secondary considerations. Moreover, the goal of law enforcement is not necessarily the recognition and protection of individual rights, for example, the duties of Vermont sheriffs and police are to “preserve the peace, and suppress, with force and strong hand, if necessary, unlawful disorder” (24 VSA Ch. 5 Sec. 299). The imbalances and disconnect between these two systems – individual rights, about which many of us know relatively little, policed by multiple systems that can hold our every weakness and inhumanity as easily as they can hold our potential – create the conditions for restive exchanges.
Postscript
The murder of Michael Brown and the ensuing public actions protesting law enforcement violence, militarization, and lack of accountability erupted in Ferguson, Missouri, as I finished this piece. There is no equivalency between the incidents at hand. It is the frameworks under which law enforcement at all levels develops and operates, and the enormous potential for abuses and impunity, that demand attention and reform.
