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from the oh-no-not-the-extremely-low-‘reasonable-suspicion’-bar dept

Mon, Mar 14th 2022 08:34pm – Tim Cushing

Pretextual stops are law enforcement at its most shameless. The laws and the courts have blessed this activity, which involves cops claiming stops are justified for one reason while using the stop to go fishing for evidence or info related to a completely different criminal act.

The Supreme Court curbed these stops a bit, preventing officers from extending stops past the point of the stated reason without additional reasonable suspicion or probable cause. The application of this ruling has been far from consistent. Some courts have decided it’s the length of the violation that matters. If it’s short enough, it doesn’t count. Other courts have ruled (more correctly) that the length of the constitutional violation doesn’t matter. It’s the violation that counts.

Two years ago, Oregon’s top court took the Supreme Court’s Rodriguez ruling to its logical conclusion, forbidding officers from asking questions unrelated to the purpose of the stop. Cops were angry. This ruling took one of their favorite venues for fishing expeditions off the table, requiring them to stick to the stated task at hand.

Further south, changes to pretextual stops have been handed down — not by a state court but rather by the Los Angeles Police Commission, which (somewhat) oversees the Los Angeles Police Department. The changes are minimal, but they’re enough to get cops and their union reps angried up.

The LAPD has new confines to pretextual stops. Actually, they’re not even confines. They’re hardly anything. They barely require officers to do anything differently. To call this an “overhaul” of pretextual stop policy is to make a mockery of a term that is already frequently misused. Here’s Kevin Rector, reporting for the Los Angeles Times.

Under a new policy adopted Tuesday, Los Angeles police can no longer use minor violations as an excuse to investigate motorists, bicyclists or pedestrians for more serious crimes unless they first have information that justifies the intrusion.

And when officers do make these stops, called “pretextual stops,” they now must record themselves on their body-worn cameras stating their reasons for suspecting a more serious crime has occurred, according to the new rules. Officers who fail to do so will be required first to undergo training and will face increasingly severe discipline for subsequent violations.

This doesn’t prevent cops from stopping people for minor violations. They still can. They just can’t use it as an excuse to ask a million unrelated questions in hopes of finding something more interesting. If the justification is a minor violation, that should be the focus of the stop.

The second part is more interesting. If officers are going to claim they have “reasonable articulable suspicion” for extending a stop, they’re going to actually have to articulate it. That’s going to limit the number of stops that begin with nearly nothing at all before cops work their way backwards to a justification.

None of this should be considered groundbreaking. This should be the minimum expectation of people given the power to take away people’s lives and liberty. They should be expected to articulate their reasons for extending a stop. And they should be able to do so while performing that stop.

There are also exceptions to these new rules. Officers can still perform pretextual stops if they have “articulable information” about more serious crimes. This is something local officers do regularly, often while acting as extensions of federal and local task forces.

In response to these minimal changes, the LAPD’s union has offered its strenuous objection — which basically boils down to “no one should ever change the way LAPD officers do things.”

The vote was made over objections by the police union that represents rank-and-file officers, which said pretextual stops are critical to ensuring public safety and should not be restricted.

That’s always a handy argument, since “public safety” is unquantifiable. It’s like the DHS’s threat level indicator — something that always claims public safety is at risk without any attendant obligation to provide evidence to back this assertion. The union also claims the new rules violate its collective bargaining agreement — another standard argument when policies are altered. Litigation that will cost residents millions while the union argues against Los Angelinos” best interests is all but guaranteed.

The LAPD union is at odds with the LAPD… or at least its top officials. LAPD officials agreed with the changes, expressing only the (reasonable) concern the changes could lead to officer confusion until training on the new procedures is rolled out and completed.

But none of this stopping the Los Angeles Police Protective League from making angry statements that are entirely unmoored from supporting facts.

In a statement, the union said [Commission President William] Briggs “should get off his soapbox, do his homework and tell the truth about pretext stops and the important role they play in taking guns off our streets.”

The statement cited data suggesting there were 817 firearms seized during 726 stops in the Newton Division in 2021, and that the seizures “prevented our residents from being shot, shot at, intimidated, victimized and murdered.”

The union did not say how many of those stops were pretextual stops, or what percentage would be precluded under the new rules.

The stats are available, but the union would rather the public draw conclusions from irrelevant numbers as poorly as the union has. According to outside and internal investigations, the LAPD stops black drivers at five times their share of LA’s population. Blacks and Latinos are stopped far more often than whites, despite being less likely to be carrying contraband. And, despite the union’s “public safety” protests to the contrary, only 2% of traffic stops result in an arrest for any criminal activity, much less serious criminal activity.

These minimal changes may result in a serious attitude adjustment. Pretextual stops are a large contributor to biased policing, allowing officers to play Monday morning quarterback on their own stops by finding justifications after the fact. The initial stop is almost always a ploy. What follows is little more than a fishing expedition combined with a shakedown. No wonder the union is irate. It will make the officers they represent think before they act.

This content was originally published here.

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