Policing the Open Road, by Sarah A. Seo

In an episode of Legend of Korra I watched a while back, there's a moment when an old-timey-looking car turns on the flashing red and blue lights which announce it as a police car, about to start chasing criminals. That struck me as strange, when it wouldn't have done usually, because I was one chapter into Policing the Open Road at the time, and had seen on page three an illustration of a similarly old-timey-looking police car, with the canopied carriage and the spoked wheels – a car from the New York Police Department circa 1925 – which was distinguished not by flashing lights, not by a siren, not even by being the same make and model as the other cars on the force at the time, but only by the letters 'PG' written on the side about a handspan high. Sirens and standardisation came later, but they're now an intuitive way of saying 'police': Legend of Korra has police and cars, so why wouldn't it have the siren and lights?

The reason we have ended up with sirens and lights is that without them, bad things happened. In the case described beside the illustration of the inconspicuous police vehicle – a case about events which took place some ten years earlier in Arizona – a couple driving home from a dinner party didn't know that the car chasing wildly after them had police in it, because the road and engine combined to obscure all cries of “Stop police” and the dimness hid the insignia. The police, thinking they were pursuing robbers, shot at their wheels and accidentally killed one of them. All three officers were charged with murder. The Arizona Supreme Court ruled that even if the people being pursued had heard the cries of “stop, police,” even if they had identified the police vehicle, the officers' pursuit of them would still have been “more suggestive of a holdup by highwaymen than an arrest by peace officers.” At that time, the right of the police to make a motorist stop their car and get out didn't exist.

This book is a history of the traffic stop in American law, and a book which points out that the solution to the problems in the case above – change the car – has made itself intuitive, and distracts from the other possibility – change the police. The book is also an argument that the existence of police as we know them depends on the car and its unprecedented demands; that part, I do not fully buy, for this is the kind of book which leans into its case, and I have to scrutinize some of its arguments to see which of them are referring to facts and which of them are structured carefully around a place where its author would like a fact to be stronger. But what I'm left with is not 'I think this is wrong', but rather, 'I think it hasn't been demonstrated that this is the story.' This is the first book I've read about either of its topics, so, while I haven't finished feeling as though there might be counterfactuals to sentences like, 'A United States without cars would have been a society without police as a mode of governing everyone', I surely don't know enough to run them.* And there are lots of bits of the argument I'm entirely convinced by. When do you need state police? When people become mobile.

So, excessively long summary: from 1910 to 1925 there was a thirty-fivefold increase in drivership in the United States, from five hundred thousand to eight million registered. “Even drivers seemed surprised by how fast they could go, judging by the number of accidents that occurred from failure to slow down when turning corners,” writes Seo. Perhaps understandably, with this surge of vehicles into cities not designed for them, traffic accidents became a scourge. During America's involvement in World War One, the war itself killed only half as many Americans as traffic did. Although it seems obvious looking back that a large part of the traffic problem was a problem of novelty, infrastructure not fit for purpose, safety systems and procedures not yet in existence, discussion of the problem at the time concerned individual morality, and it was not necessarily obvious that law enforcement was a desirable or good solution. Early American strategies for lowering the road toll involved education, calling upon people's civic-mindedness and courtesy, and in one case, actually putting up a sign saying 'You are on your honour. Fresno County has no speed cops. Drive so they will not be needed.' But traffic laws continued to be broken happily by people who refered to themselves as 'law-abiding'. Exhortations to refrain from speeding on the grounds that it was discourteous and harmful to the community worked – for about half an hour. This during Prohibition, when the problem of how to get people to refrain from acts which are mala prohibita, wrong not innately but because they are illegal, was a hot topic. In the Prohibition case, the eventual solution was to do away with the laws against alcohol; America could not do away with traffic, and the alternative seemed to be to devote considerable resources into enforcement. The central figure in the professionalisation of American police, August Vollmer, described traffic as “the police problem of today.”

In another example of things which, to my surprise, had to be invented, traffic tickets were not widespread before the nineteen thirties. Before that, drivers in violation of the traffic code were arrested and brought before a magistrate, just as though they'd committed another type of crime, and if they didn't plead guilty they had a full trial. Not everyone had to be hauled to court instantly. In New York in 1910, photo I.D.s were issued to “persons of good character”, exempting them from immediate arrest and allowing them to appear in court whenever they wished inside of 48 hours. The first experiments in ticketing, short-circuiting this procedure and allowing fines to be paid at police stations, didn't begin until the 1920s.

The number of traffic violations remained great enough that police found it impractical even to serve tickets in every case. Traffic officers were given an initially-controversial and never well-defined discretionary power to issue warnings instead of tickets when they felt like doing so. The police officer became judge and jury in matters which could not be brought before a real judge and jury because of the inconvenience to all concerned. This in turn required that police be more professional, more consistently-trained – even more attractive-looking, as one of a number of ways to present the police department in a good light and minimize argument on the street. (Prior to this, I was surprised to learn, it was rare for anybody who society held to be respectable to engage with the police at all. It hadn't mattered whether police looked respectable when none of the people they were dealing with did, or rather, when none of them were in a position to complain about it). Blue uniforms resulted from the need to know, at a distance, whether the man loudly hailing you down from the side of the road had a right to do so.

The large new highway patrol, initially given limited powers, tended to be given the authority to arrest, and guns to carry, as a logical approach to the problem of criminals using highways. If you have all these officers just sitting there, wouldn't you use them? If you're stopping a vehicle anyway, why wouldn't you check to see if it was or contained stolen goods, or drugs, or alcohol?

The material above is covered in the book's first two chapters, and this point segues into the next four, which tell the story of the legality of the traffic stop, tracing key cases in the Supreme Court's application of the Fourth Amendment, which prohibits unreasonable search and seizure. The general question of interpretation, at least at first, being: what is a car? Is it private like houses are, able to be invaded only with great apparent need? But cars move. A car acting suspiciously enough to make an officer wish to search it isn't going to hang about waiting for a warrant, it's going to be in the next juristiction by then. This had never been a problem with houses, or with suspects travelling on public vehicles with regular schedules.** Is a car public? They feel private. They're specifically advertised as being like mobile living rooms. Are some bits of a car public, then?

Prohibition -- and, much later, the War on Drugs -- would make search and seizure rights of ongoing relevance: there was a lot to search for. The first main case to take this up was Carroll, in which the car of a probable whisky-smuggler was stopped on an occasion when it was not known to contain whisky. The police searched it and found, indeed, whisky bottles. Could that evidence be used, despite the search's dubious legality? Answer: yes. The court judged that the search could be accepted given “Reasonable and probable cause for believing,” where previously the standard for warrantless search had been knowledge. Previously, questioning and search could only follow arrest; this case defined the traffic stop as a new category.

From Carroll, the book moves to Terry, which essentially does the same thing for non-car-related searches, defining the stop-and-frisk as something other than an arrest. This is the main point where I said, 'Wait a second,' and flicked back and forth determining that, in fact Terry does not refer to Carroll as precedent, but only uses language reminiscent of it in establishing a reasonableness standard. Perhaps to someone who knows more than I do the extent of similarity is enough to make it clear that of course it's fair to write 'Terry cited Carrol', but I think this is mild weaselling, and the fact that a reasonableness standard arose in a non-car-related case weakens the book's story that it was Cars All The Way.

The book moves on through further cases hich I won't summarise, through the Due Process Revolution, in which the definition of 'reasonable and probable cause for believing' was sharply curtailed, and then on through its gradual extention outwards again in dozens of highly specific determinations, substantive rights (you shall never be searched in your house) giving way to procedural rights (if the jacket is on the back seat of your car, it counts as a container and can be searched, but if you're wearing it, it doesn't...) with police growing very well versed in what they needed to say in order to retroactively give themselves reasonable and probable cause, and judges having a problematic tendency to sign off on anything the police did as reasonable because they're, well, the police. Today, minor traffic violations can justify a car stop, which can lead to a full car search, which can lead to arrest for any number of other offences. The requirement that police not bother you unless they have specific reasons for thinking they ought to has been slowly eroded away. This process has been most damaging to members of minority groups facing discrimination, whose versions of 'being arbitrarily stopped by the police' have always been the worst; but even if policing were equal, the book raises a wider question about whether it's desirable, whether, even in an idealised version of the current American compromise between freedom from state intrusion and security, more has been lost than needs to be.





*I'd like to know more about how cars and police developed together in other places, such as Europe. (And New Zealand. 'Nonfiction about the place where I actually live' has been on my list of reading intentions for ages, but my non-fiction reading is slow, and the front of the intention queue has a good rate of turnover, so the back hasn't yet moved forward).

**There is apparently no record of a person on horseback being searched. Whether this means the getaway horse wasn't much made use of, or that it worked really well, this book does not relate.