Jul
Institutional Racism’s Impact On /A Chronological Guide to a Fvcked Up Night
November 13,2017 was a fvcked up night for me. The reason for it begins years before I was born.
***
Disclaimer: I’m not a lawyer, but I’ve been in close enough proximity to them that I play one on the internet.
In 1968, the SCOTUS sided with the state of Ohio in Terry v. Ohio, 392 U.S. 1 (1968) which laid the foundation for making stop and frisk legal. It was the beginning of the end for the Fourth Amendment protection of probable cause.
In 1977, the SCOTUS overturned the Pennsylvania Supreme Court in Pennsylvania vs. Mimms, 434 U.S 106 (1977)1. For drivers, this was basically the end of Fourth Amendment protection, protection against unreasonable search and seizure, and simultaneously perhaps the most significant win for institutional racism regarding police dealing with drivers ever.
In this case, the police stopped Mimms for driving a car with an expired license plate. One of the officers asked Mimms to step out of the car and produce his license and registration. Mimms complied willingly, which allowed the officer to see a bulge under his jacket. Upon patting Mimms down, they found a weapon. Mimms was arrested and then indicted for carrying a concealed weapon and unlicensed firearm. His motion to suppress the revolver was denied, and after a trial at which the revolver was introduced in evidence, he was convicted. The Pennsylvania Supreme Court reversed the conviction on the grounds that the revolver was seized in violation of the Fourth Amendment.
Since the legality and facts of the stop weren’t in dispute, the court decided the only thing to be evaluated was whether or not there was a Fourth Amendment violation by asking the driver to step out of the car. The majority ruling by the Supreme Court overturned the decision based on two basic arguments:
- The stop was legit. Mimms’ license plate was expired which made the stop lawful.
- Since the stop was lawful, the Fourth Amendment violation that the Pennsylvania Supreme Court noted was de minimus, or too trivial to consider, when weighed against the officer’s safety. A concern which was “legitimate and weighty.”
In short, Mimms made it legal for a police officer to order a person out of the car for the police officer’s “safety” and not for probable cause.
****
In August 2016, I met lil mama after a deep and significant personal revolution which I wrote about a month later for my birthday after a vacation to St. Maarten .
***
Irony
On November 10, 2017, lil’ mama and I set out from Oak Cliff,U.S.A to Lawrence and Ottawa, KS, where she was raised. She had been talking for a while about visiting her grandmother and having me meet her extended family. She wanted to surprise her grandmother and inform her of our upcoming move to San Diego (at present I’m a La Jolla resident, but I’m still Triple D in my soul).
During the trip, I developed a new appreciation and respect for her. Ottawa, is the definition of bumblefvck, KS and Fly Over, U.S.A. It looks like a meth dealer’s paradise. No disrespect.
Before my spiritual revolution, I would have foolishly reveled in how my degree and subsequent professional achievement distanced me from this environment, and made me exist on a level higher and better than the folks I met on this trip. Many of whom were her family who have varying degrees of achievement — from recently released inmates to self-made entrepreneurs. But, as I’ve matured and had life humble me, this cemented — in graphic detail — how we are all many times a product of our environment, and always a product of our opportunity.
We visited her cousin in Olathe, a well-to-do suburb of Kansas City. While there, they reminisced about the 12 black people at their high school growing up. Her cousin now admirably works at that same high school as a coach and mentioned with pride how that number had tripled (quick math brings the total to 36 a decade later). I got to see up close her extremely humble beginnings. We were there to evaluate the possibility of flipping her childhood home. We quickly saw that was hopeless, as the land had little value, and the actual structure had deteriorated passed possible break-even, to significant liability. I grew more impressed that she had made it to Spelman before having to return to Kansas because of the financial strain it put on her parents, and at the achievement of her subsequent master’s degree (which technically makes her more educated than me).
Ironically, by this time, for some time, my revolutionary spirit had been calming. I was a long way away from having zero dollars in my account and having to ask for help with my rent. I have what most would agree is a very good job, one that pays me at the top 5 – 10 percent of my demographic.
As a matter of fact, at some point between the drive there and our leaving to return home, I was actually telling her, how with the exception of two, every other interaction with the police I had earned. And, being a resident of Plano, TX, a semi-affluent suburb of Dallas for my formative years, (where all of the officers are college educated) for the most part, my interactions with police were extremely reasonable – if not pleasant — except for that time during my misguided aspirations of hood-niggadom. (In addition, Plano was consistently a top 5 school district in the country which undoubtedly facilitated my college opportunities.) Basically, with the exception of an uncomfortable run in with the NYPD for not signaling to merge onto a RESIDENTIAL street from being parked on said RESIDENTIAL street, and explicitly stating I didn’t consent to a search, I hadn’t experienced institutional racism from a police standpoint in any meaningful way.
A FVCKED UP NIGHT
On November 13, this would change, drastically. It is important to note there were several folks heading back to Texas, south on I-35, who had fog lamps on. It is also important to note that the officer to be who would stop me already had someone stopped as we drove by. I don’t know the reason for that stop, but that person was not asked to step out of the car. Put a pin in that.
At approximately 7:20 pm CST, on our way back from Ottawa/Lawrence, we were pulled over while I was driving for “unlawful display of fog lamps.” Officer C. Miller #421, the detaining officer, lit us up, signaling that all too familiar feeling for black men. I pulled over a significant distance past the right shoulder into the grass. Put a pin in that too.
The Oklahoma Highway Patrol
On July 1, 1932, the Oklahoma Highway Patrol was legislatively formed to combat growing car collisions, crime and the expansion of the highway systems in the state.
The Oklahoma Highway Patrol, a division of the Oklahoma Department of Public Safety (DPS), is under the command and direction of the chief of the patrol. The majority of the members are assigned to the thirteen field Troops, A through M and the turnpike Troops, X and Y. These field troopers are responsible for patrolling Oklahoma’s state maintained roads and highways.
Officer Miller didn’t belong to any of these. Officer Miller belongs to troop SO.
Troop SO: Special Operations, has four main objectives, most relevant:
Criminal Interdiction: Criminal Interdiction consists of Troopers with special training and equipment to enable them to detect and arrest criminals of all types as they travel on the highways of Oklahoma. This group of Troopers are also trained as Canine Handlers.
The Stop
Officer C. Miller #421 pulled his truck, a Tahoe, behind the car, a 2015 Honda, slightly to the left which would protect him from oncoming traffic in the event he chose to come to the driver side to speak to me.
Officer C. Miller #421 came to the passenger side window and asked for my license and registration.
Me: *Hands license to officer*
#421: “Where’s your insurance?”
Lil Mama: “Hi, I have the insurance on my phone. This is my car, any questions you have about it I can answer.”
#421: Alright, Mr. Ware, the reason I’ve pulled you over is b/c you have your fog lights on and there’s no fog.
Bae: “Ok, we’re from TX and the setting is automatic which is legal in TX.”
#421: “Alright, Mr. Ware, why don’t you come back to the cruiser with me and we’ll get you a warning issued and get you on your way.”
Bae: “Why does he need to get out of the car?”
#421: “This is how I conduct business.”
Me: *Exits the car and goes to sit in the front of the cruiser as ordered*
***
Foreshadowing Fvck Sh!t
Judge Thurgood Marshall, who wrote “separately to emphasize the extent to which the Court today departs from the teachings of Terry v. Ohio, 392 U. S. 1 (1968)” and Justice Stevens who authored the minority opinion, both dissented on Mimms. This would foreshadow the, in my opinion, abuse of authority that I would experience, some forty years later almost to the date.
To summarize Justice Marshall:
- The officer in Terry had patrolled the area of downtown Cleveland for 30 years unlike the officers who pulled Mimms over for a routine stop. He watched Terry and his companion case the place, and then meet up with a different third party with whom they had met earlier. He followed, asked for their names, and upon them responding with a mumble, he frisked them.
- “The `stop and frisk` in Terry was thus justified by the probability not only that a crime was about to be committed, but also that the crime `would be likely to involve the use of weapons.` The Court narrowed its ruling to situations in which the officer believes that ‘the persons with whom he is dealing may be armed and presently dangerous’ and ‘fear[s] for his own or others’ safety.'”
- In this case ,‘“the circumstance . . . which justified the interference in the first place” was an expired license plate. There is simply no relation at all between that circumstance and the order to step out of the car.’
- This decision extends Terry from a limited scope, to a much broader issue solely on the basis of certiorari papers (2), or overturning a state supreme court without any arguments being heard. This significantly damages the court’s credibility and has damaging institutional consequences.
Basically, this ruling empowered all police to violate (NY Voice) in the future.
Summarizing Judge Stevens, who authored the minority decision cited by Marshall:
- Terry, ten years prior, allowed a lower standard than probable cause for very specific situations of search and seizure. This changed the way the Fourth Amendment was handled on a national level. This case further lowers the standard on a much broader level for a major category of police interactions, without argument.
- The most disturbing aspect of his case is that such an important decision was made on an irrelevant case. Mimms had already served his time by the time the decision was announced, and had withdrawn his appeal.
- Officer safety is important, but just because something deals with the Fourth Amendment doesn’t mean the SCOTUS should prioritize it. Each case should have the chance to be heard and decided on its own facts. This approach would decide major policy and eliminate the ability to evaluate on a case-by-case basis. Also, the evidence to make this decision is “dubious at best.”
- The study used to justify the statement that a police officer is in no less danger based on interaction with a citizen in a car is statistically ridiculous (my words not his, but as an economist, the study is horrendous, most significant is it was not a representative sample).
- There are differing opinions on the safest way to deal with a stop. Some say it’s safest to leave the person in the car. Regardless of opinion, you can’t completely legislate out all of the risk associated with being a police officer involved in a stop. There are plenty of scenarios in the millions of stops that occur daily, that make getting out of the car an unreasonable and arbitrary use of power. This law will affect different demographics very differently, and basically, if you scared, go to church.
- If this was truly about safety, it should include language specifically to searching for a weapon or asking the driver to lean on the hood. There’s no proof this added standard adds to safety in this case. If he had left him in the car, there is no evidence he would have shot him and it is more likely that he would have gotten his citation and gone about his day.
- Terry provides sufficient protection in the event the police are in danger without the risk of unacceptable error that this decision allows.
And Most importantly:
“But to eliminate any requirement that an officer be able to explain the reasons for his actions signals an abandonment of effective judicial supervision of this kind of seizure and leaves police discretion utterly without limits. Some citizens will be subjected to this minor indignity while others — perhaps those with more expensive cars, or different bumper stickers, or different-colored skin — may escape it entirely.” – Justice Stevens
***
Officer #421 spoke to us authoritatively, but not disrespectfully. Slightly dickish, but tolerable…up until this point.
He wasn’t afraid of us, and he didn’t search the vehicle for weapons. As I exited the car, I could see he was of a similar build to myself. He was in shape, and his posture and method of speaking made it apparent to me he very likely had a military background. He was extremely calm.
If we shot the fair one, with no weapons, I like my chances just throwin hands outside of any law enforcement situation. I accept the possibility of a loss because he probably knows some sh!t, but he didn’t give off a Special Forces vibe, but it was a possibility given his assignment.
But this wasn’t that.
Officer #421 was in a specialized unit, SO – Criminal Interdiction. How I know this is where we start to have an issue.
Front seat of #421’s cruiser
#421: What brings you to Oklahoma?
Me: We were in Kansas.
#421: What brought you to Kansas?
Me: Visiting
#421: Family?
Me: She does.
#421: What do you do in Dallas?
Me: I work from home.
#421: What?
Me: *Louder* I. Work. From. Home.
#421 to dispatch: Triple I, Black Male, *reads my DL #*
Me: *Takes mindful breath (4,7,8)*
Dispatch: Black male, *verifies address and DL number*, no felonies or active warrants
#421 to dispatch: 10-4
#421 to me: I’m going to go check with *lil mama* about the insurance I’ll be right back. There’s a dog in the back but he won’t bite you, Ok.
Me: *Silence, simultaneously swallowing rage and increased anxiety*
#421: OK *a little firmer*
Me: Yeah, iight…
#421 would go and ask lil mama some questions that I would later find out amounted to treating us how you would in a police interrogation.
Separate the suspects, try and drive a wedge in the story by verifying the information I told him to find cause to dig deeper and detain us further.
*#421 Returns*
#421: Alright Mr. Ware, here’s your warning. Do you have any questions for me?
Me: Yeah, what’s your name?
#421:[C.] Miller it’s on the citation.
Me: Ok thanks. Is your badge # too?
#421: Yes….
*Silence*
#421: Mr. Ware before I let you go, I’ve noticed your heart’s beating a little hard, and you’ve taken some deep breaths, are you sure there’s nothing else going on that you want to tell me?
Me: I’m sure. I’m not used to being pulled out of the car [and put into police cars] for routine traffic stops that are only supposed to be a warning.
#421: Yeah she mentioned that. The Supreme Court allows me to remove you from your vehicle during a stop.
Me: I know, that’s why I complied. You have a good night. *Exits vehicle*
Irony
It was at the mention of the Supreme Court, that we both acknowledged his realization that he had underestimated who he was stopping. Basically the wrong Negus, and he was both right/and wrong. At the time I initially wrote this, I had reached out to some lawyer friends about proofreading an Internal Affairs complaint as well as strongly considering one with the Federal Department of Justice. As of now, I still haven’t done so, b/c I accept there’s little likelihood of success, and one must be judicious about how they spend their energy.
You’ll recall earlier I mentioned that my revolutionary spirit was being calmed, almost to apathy. I had begun to sink into the appreciation for the opportunity to be born where I was and receive the education I did. In addition, the fact that my stance on institutional racism, given my lack of being meaningfully impacted by it (from the standpoint of police interactions), was washed away by a quasi-respectful, quasi-dickish encounter in which I only received a warning is almost the height of Irony. See, it’s not the fact that I experienced institutional racism that reignited my fire and passion to finally publish my blog.
What really lit my fire is; this brand of racism had sophistication to it.
#421 wasn’t overtly bigoted. He probably has no individual specific problem with black people. But, institutions do. In fact, had he been an obvious bigot, I could have taken solace in my intellectual superiority over said bigot.
I would have remained unmotivated to really express myself. I wouldn’t have gone to study the case law and tell my story in a way that, hopefully, articulates and shines yet another and accessible light on a real problem. I want to underscore the need for wholesale criminal justice reform from law enforcement to sentencing to someone who was previously uninterested or increasingly apathetic.
But see, #421 wasn’t a dickhead, he had a sophisticated knowledge of just how far the institutions that support him allow him to push. His charge from a Troop SO specifically, Criminal Interdiction, encourages him to use his “special training and equipment to enable them to detect and arrest criminals of all types as they travel on the highways of Oklahoma. This group of Troopers are also trained as Canine Handlers.” These are institutional forces that encourage and allow his treatment of me with very little fear of repercussions.
As I mentioned, the canine is where he pushed too far. His abuse of Mimms, in my view, was due to arrogance and belief (somewhat justified) in his own cunning. He used the guise of putting me in his car for a warning, and as I’m sure he would argue, my safety (from oncoming traffic), as a mechanism to see if the dog in his vehicle would come up with a hit. Once he didn’t get that, he continued the stop by asking questions I had already answered.
Mimms allows him to order me out of the car, but it doesn’t allow him to order me into his car. He used coercion to illegally detain me under the cover of Mimms. Further, once I had been put in his car, I was legally detained, so I would have been well within my right to remain silent. However, I knew that that would make my night more difficult, and would significantly slow my progress in getting home (I still had three hours, on an 8 hour trip to go).
Here’s how we know it was an abuse:
It wasn’t cold, and I could have easily stood alongside the passenger side of the car, far removed from any risk of oncoming traffic. He didn’t search the car which paired with his demeanor and the fact that he didn’t order lil’ mama out of the car, (which he was allowed to do by Brenlin vs. California 2007 551 U.S. 249 (2007)) indicates he wasn’t concerned with his safety. The spirit of each of these cases, (Wilson extended Mimms to the passenger, Brendlin confirmed passengers could be ordered out too, since they were seized at the same time the driver was) was officer safety. He clearly didn’t fear his own. Putting me in the car to see if the dog got a hit on me was clever, but a gross overreach.
The irony that these rulings have essentially eroded the Fourth Amendment in a way that was predicted by Marshall and Jennings and he still abused them is not lost on me. It speaks to an institutional mindset enabled by the culture of the message that has been sent about the priority of “officer safety” over personal liberty.
The fact that I’m an well-educated, gainfully-employed man causes me to ponder whether, everything else being equal except the presence of melanin, my fellow alumni would experience this “petty indignity.”
Perspective is important.
In the grand scheme of things, I didn’t get off that bad. I got a warning and inconvenienced even though my rights were significantly tested at best and violated at worst.
I didn’t end up like this: https://www.youtube.com/watch?v=rmIfTEZRBko
Or this: https://www.youtube.com/watch?v=GqbtgrOs6Ws
I don’t dare compare my experience with either of these, or any of the much more serious examples that lead to tragic outcomes daily.
But I show them to reiterate, perhaps there’s a systemic problem in Oklahoma, and that there’s clearly an issue in the way the police deal with citizens, especially black ones. I mentioned earlier about my financial standing. This wasn’t to toot my own horn. It was to illustrate the insult added to the injury, in that we fund our own oppression. Oklahoma receives about 30% of their state budget from federal aid. My tax dollars hard at work.
Further, lil mama’s sister, who I have a “strained” relationship with, told bae she was happy I was alive after the ordeal. This is the part of the black existence in America whose normalcy is most disturbing. The fact that from the time we are detained to the time we are let go if we are that lucky, we and the people who care for us, experience a crippling fear that is unlikely to be understood by anyone with a melanin deficiency.
Something much greater has come from this. I’ve been reawakened in a way that I assure you won’t again be easily extinguished.
So for that, I thank you Officer C. Miller #421.
Reference
Pennsylvania v. Mimms, 434 U.S. 106 (1977)
Pennsylvania v. Mimms
No. 76-1830
Decided December 5, 1977
434 U.S. 106
- Footnote from Professor Ernest Brown:
“[S]ummary reversal on certiorari papers appears in many cases to raise serious question whether there has not been decision without that hearing usually thought due from judicial tribunals. . . . [T]here [is] the question whether the Court does not pay a disproportionate price in public regard when it defeats counsel’s reasonable expectation of a hearing, based upon the Court’s own rules. If the Court exercises its certiorari jurisdiction to deal with problems of national legal significance, it hardly needs demonstration that such matters warrant hearing on the merits.”
