I want to apologize for even having to qualify traffic stop tips for African-American men as opposed to traffic stop tips for everybody. After all, shouldn’t every citizen expect the same level of treatment when stopped by a police officer? They should, but let’s deal in reality for the time being. Justice is blind is something we say to make ourselves feel better, a warm and fuzzy adage that spares us the ugliness of the truth. What’s more accurate is that justice is a fickle creature whose temperament is more situational. Not unlike my three-year old when it’s time to wake up for preschool.
I’ve spent the past ten years of my life embroiled in the criminal justice system. I worked for the Miami-Dade State Attorney’s Office prior to entering defense practice. I’ve handled everything from DUI to murder. I’ve worked with and against police, calling them as my own witnesses as well as deposing and cross-examining them. In that experience I have learned a few things.
First and foremost, a police officer is a person with a job, no different than your family dentist or the nice young lady who poured my coffee this morning. It’s a tough job, often thankless, with inadequate pay and harsh working conditions. Most folks who become police officers just want to do the job, fly below the radar, and quietly earn a living.
Some in the law enforcement profession have psychological problems. This is not a characteristic unique to police work. You ever dealt with a Spirit Airlines flight attendant? These are the police officers who allow their personal issues to spill over into their work lives. That traffic cop who had a screaming fight with his wife the night before who takes it out on the unsuspecting motorist. The SWAT officer facing a foreclosure who’s a bit too liberal with his Taser.
Cops are not heroes. Heroes are heroes. Title alone does not dictate behavior. A hero is an individual defined by his or her actions. It’s not an unsolicited designation nor a consolation prize bequeathed upon graduation from the academy.
So we can put to rest any and all blanket statements. The all cops are bad or all cops are heroes respective schools of thought. Police officers are people and should be judged individually.
However.
One thing that remains consistent, especially in the wake of high-profile killings of black men at the hands of police officers, is that officers approach situations differently based on their implicit bias. It is my experience that police officers, whether they are conscious of it or not, treat encounters with black males with a greater degree of alertness, aggression, and threat-awareness, than they do encounters with white males. This bias is not limited to white police officers. The shooting death of Keith Lamont Scott in Charlotte is an example of this.
To highlight my point about officers confronting black males with a greater degree of aggression, take a look at the disturbing video involving the recent shooting of Tulsa resident Terence Crutcher. His hands were up, he had no weapon, his car had simply broken down (we’ve all been there). But simply by walking and gesticulating he triggered the heightened fears of Tulsa Police Officer Betty Shelby who shot and killed the man over nothing more than a "perceived" threat.
And that’s all it takes, folks. Police officers discharge their weapons based on their perception, not based on what’s actual. A police officer does not have to see a weapon in order to perceive one. Something as simple as a hand slipping into a pocket can serve as the legally justifiable basis for lethal force.
While I firmly believe that soon-to-be-former Officer Betty Shelby will be indicted for either manslaughter or second-degree murder, her reaction to an otherwise routine police encounter is symptomatic of a greater problem. Police officers are scared of black men.
As we work - hopefully - to somehow solve this problem, I would like to offer my advice to African-American men everywhere on how to survive a police encounter. I will limit the advice to traffic stops since that seems to be where most of these shootings are taking place (Alton Sterling, Philando Castile, Walter Scott, Terence Crutcher, Samuel DeBose, just to name a few).
Remember this - if you are black and you are stopped by a police officer while driving, there is a very good chance that the officer approaching your window will possess a greater level of apprehension than if they were approaching mine (and I carry a loaded gun in my glove box and drive away with nothing more than a slow down and a smile).
Understanding this, there are certain measures you can take that will prevent the escalation of an already tense situation.
TURN SIGNAL - Use it. When you see the lightbar flashing in your rearview immediately activate your turn signal as you look for a place to pull over. In heavy traffic, it may take you a minute to change lanes and pull to the shoulder, but if your turn signal is activated the officer will think that you are complying with their order to stop. If you don’t use your turn signal and you have to drive a ways before you can stop, they may think you are fleeing, which is a felony. This will escalate a traffic stop to a felony stop, meaning they will exit their patrol car with their gun drawn. Avoid this by using your turn signal.
TURN OFF THE IGNITION - Once stopped, turn off the ignition. Do this before the officer starts approaching your car as the movement of your hand to turn the key could provoke the officer’s paranoia. By turning off the ignition, you are easing the officer’s concerns that you may flee the stop. Look at the case of Samuel DeBose who was shot and killed by a Cincinnati officer while driving away from a traffic stop. You can quell the officer’s fear just a little by reminding them that you are not going to run them over.
REMAIN IN YOUR CAR - No matter what, unless ordered out of the car. It doesn’t matter if you have an outstanding bench warrant, you’re drunk, or the car reeks of weed. A misdemeanor arrest is better than instant death. No matter the circumstances, don’t get out of your car to engage the officer. Let them come to you. If you have passengers in your car make sure they remain seated as well.
HANDS ON THE WHEEL - Once the ignition is turned off and your window is down, place your hands on the wheel in the 10 and 2 o’clock positions. Place them on the wheel, don’t grip, and allow enough space between them so that the officer doesn’t suspect that you’re holding something in your hands. Do not move your hands no matter what and make sure they are there when the officer approaches your window. DO NOT, at this point, reach for your license or registration! Think Philando Castile. Keep your hands gently placed on top of the wheel and do not move them.
REACH FOR DOCUMENTS ONLY WHEN ASKED - If it’s a traffic stop (a non-criminal stop) the officer will ask you for your driver’s license, registration, and proof of insurance. Most of us keep our driver’s licenses in our wallets and our registration and insurance cards in the glove box. If you are a black male, it’s better to keep all three of them clipped to your sun visor or even paperclipped together on your dashboard. A pocket is big enough to stash a gun. A glove box is big enough to stash a gun. So reaching in either place could provoke the officer to react. Better to have them already in plain sight or somewhere not big enough to conceal a weapon. When, and only when, the officer asks, do you slowly reach.
TELL THE OFFICER WHAT YOU ARE GOING TO DO BEFORE YOU DO IT - Before you reach for your license or registration specifically tell the officer what you are going to do. “Officer, I am now going to reach for my center console with my right hand.” “Officer, I am going to reach for my sun visor with my left hand.” Tell them, give it a second, then do it slowly. Do it with one hand if possible, leaving the other still resting on the wheel. Officers are taught in the academy to watch hands. It’s better if they only have to worry about one instead of two. Now this narration may seem obnoxious or patronizing to the officer but it’s better than the alternative.
REMAIN STILL WHILE THE OFFICER IS RUNNING YOUR LICENSE - So the next step is for the officer to take your documents back to their patrol car or motorcycle and run your license through their onboard computer system. This will tell them who you are, your prior criminal record, whether your license is valid, or if there are any outstanding warrants. While this is going on, simply remain seated with your hands on the wheel. Resist the urge to pass the time by checking your phone. This creates a perception of fidgety hands.
REMEMBER YOUR RIGHTS BUT ASSERT THEM POLITELY - If the traffic stop escalates into something more, don’t forget that you still have rights. I urge you, however, to exercise them with respect and restraint. Arguing with a cop will get you nowhere. Save that for court. You’ve heard the saying, you can beat the rap but you can’t beat the ride. You’ll never out-logic a cop. However, you may still assert your right to refuse a voluntary search of your car or refuse to incriminate yourself (like when the cop asks you, “do you know why I pulled you over?” Just do this in a polite and calm manner. Throwing a few “sirs” or “ma’ams” in there doesn’t hurt either.
SIGN THE TICKET - In most states it is a crime to refuse to sign a traffic ticket. This act of defiance will turn a non-criminal traffic stop into an arrest. When officers go into arrest mode (especially with a person deemed uncooperative) this is when people can get hurt or killed. Signing a ticket is never an admission of guilt or a promise to pay the fine. It is simply an acknowledgement of the charges and a promise to appear in court. You are not achieving a moral victory by refusing to sign the ticket.
SIGNAL AND DRIVE AWAY SLOWLY - Don’t give the officer a reason to pull you over again. Even if you’re upset or feel disrespected, don’t speed away recklessly. Apply your turn signal and pull out into traffic carefully while obeying the speed limit.
These steps are not solutions to solving the problem of systemic racism in our police departments. They are merely methods for dealing with the reality of the situation.
Eric Matheny is a criminal defense attorney serving clients throughout Miami-Dade County.