Monday, May 16, 2011

DWB: Driving While Black

Everyone has heard of DUI or DWI. But have you heard of DWB? Driving While Black appears no where in any law book I've ever read. I've never read it in a case, either. And I am sure it's not in any Chicago Police Department training manuals. But, it's a condition as real as cancer.

Everyone (even non-lawyers) seems to know instinctively that the police should have a reason to pull you over while you're driving. Speeding. Running a red light. Busted brake lights. Incomplete stop at a stop sign. Feeling a bank robbery. Our own sense of right and wrong tells us that the cops can't just pull us over willy nilly. But they do it. All the time.

Driving around with contraband (drugs and guns) in your car is what we call Riding Dirty. This act is, of course, illegal. In some cases an unloaded gun locked in a box might be ok. But I am talking about a pistol in the glove box, under the driver's seat, or in the console. That's always illegal. And of course, drugs are bad too.

I can't count how many cases I've handled that began from a traffic stop for Driving While Black. It's a bunch. That's all I know. I have seen with my own eyes on several occasions the police curb a vehicle and immediately pull out the people in the car and perform a full custodial search of them. And then rifle through the car. I've actually pulled over and watched this from a distance.

When I was new to this business, I was told this stuff happens all the time. I didn't believe it. Until I saw it. But I thought the first time was maybe isolated. Then I saw it again. And again. Ok, you got me. It goes on. I don't even really notice it anymore.

Should the person pulled over not be riding dirty, he gets to drive away. No harm, no foul. 

Without a doubt, this is almost always constitutionally flagrant. I think EVERYONE knows it happens but our local criminal justice system (often the judges included) looks the other way. As a defense attorney this is a cause for rapid aging. Do you know how frustrating it is to have both the law and the truth on your side, but it not make one iota of a difference in a courtroom? At times it makes me want to chew my own teeth.

Silently our police, prosecutors, and most judges must believe the ends justify the means. If some kid with a gun in his car gets pulled over and searched illegally, well....4th Amendment,'s a gun off the street. And what we want are arrests and a full prison system, right?

The police need to make our streets safer. Removing guns and drugs is a huge part of the solution. I don't like guns or drugs. Make them all evaporate as far as I am concerned. But there's this whole 4th Amendment thing that sometimes stands in the way (or at least it should). I think police see it as an annoyance rather than as a reason to pause. And the willingness to break the law and follow it up with blatant perjury, makes it seem like the 4th Amendment is, at times, a joke.

If the police can pull over a car simply because some black people are in it, then the 4th Amendment is a joke.  Being black isn't suspicious. Being black in a black neighborhood really isn't suspicious. Being black in a black neighborhood and driving a car with big, shiny rims really, really, really isn't suspicious.

Illinois case law has held that an officer's mere hunch or suspicion isn't really probable cause to do anything. Obviously the police know this because black men in the hood can't seem to ever not run red lights. Or not drive cars that were built to smell like marijuana factories. Running a red light or riding like Cheech & Chong is surely grounds to pull over a car. I have no problem with that, when it's true.

No where in the original text of the 4th Amendment does it read that it's a right that doesn't apply equally to all. And I can't think of any jurisprudence that's held that a white person's 4th Amendment rights are superior to minorities. Yay for the Constitution and some wise judges.

But the reality is in our bad neighborhoods the 4th Amendment is really a gift the police can bestow on those they deem worthy and only at a time convenient to the officers. In my neighborhood, I never see the cops throwing people on the hoods of squad cars or up against walls. Thus, to my eyes it appears my 4th Amendment rights are WAY better than some of my client's.

Is this right? What pisses me off about parts of our Constitution is how brilliant it is as a document but at the same time absolutely meaningless in the streets. There's a battle going on and I am on the losing team. The government, in secret, believes that some police functions trump personal rights, like the 4th Amendment. And I am sure some citizens have no problem with the scenarios I've described here. For them, perhaps the ends do justify the means.

We on the losing team seem to think personal rights actually mean something and should apply universally. I remember being incredibly idealistic once upon a time. But being in this business has caused me to grow increasingly cynical. However, I still want justice to prevail and I fight my ass off to bring it to my clients.

At times when some folks need the protections of the Constitution the most, it's as evasive as a winning Lotto number. They look to their lawyers. They tell us they know what the police did was wrong. And we the lawyers also know that the police were wrong. We file motions. We conduct hearings. Cops lie. We lose. [Side note: not suggesting all cops lie all the time.]

Then the times comes when we have to look that client in the eyes and say "I did everything I could. Now we have to cut a deal." And in the back of my mind I am saying I am sorry you're black. And I am really sorry you're soon headed downstate for a while.

On days like this, I leave court feeling a little deflated. I go home. I slowly take off my suit. I sit down. I look at my dog and tell him about my day. He listens. Then we go running. I feel better.

The very next morning I put on a different suit and I go back to court to try this again. And somehow, despite everything that's stacked up against me, I manage to believe in my cases. Every time I have to litigate, I go into it thinking that justice is there, and that I just have to grab it for my client.

Sometimes justice is there. And I manage to grab it. The client's case is instantly flushed out of the court system by a favorable ruling. I get hugged. My hand gets enthusiastically shaken. I am even thanked. It feels amazing. The 4th Amendment has a pulse. My work is vindicated. I am reminded again why I do the job.

If ever so briefly.


  1. My 4th Amendment loving heart dies a little inside every time I read a post or story like this. I honestly think I would break things in the courtroom, so you are my hero for getting through days like that, where you can't do anything but try to make them the best deal you can. Seriously. Imagine how much worse it would be if they didn't have you?

  2. Great blog and very recognizable. I work at a law firm in The Netherlands and we constantly have to cope with the fact that the police here actually has the right to pull over any vehicle at any time to check wether the driver has a license. It needs no explaining that most of these checks are done not with the intent to check the license... I know a couple of people of moroccan decent that had to buy a different (lesser) car because they were very frequently getting pulled over. Add to this the fact that police can at any time stop a person to check if they have their identification papers on their person and you get an idea of how law enforcement here operates.

    I marvel at the rights that the american constitution gives its people but it saddens me greatly to see stories like this. The price we as a people are paying for our 'safety' is getting higher and higher.

    It's great to, as lawyers, provide a counterbalance to this movement. You are doing great work. Keep it up!

  3. I just have to comment after reading this.....I am white and lived in the "ghetto" in Lansing,Mi and got pulled over three times for driving while white. One of the times we even got drug dogs too! To make matters even better, we weere all spiffed up on our way to a wedding.(we being my spouse and I) every time as soon as we told them our address they were friendly as can be and sent us on our way without even going to their cars. Recently while talking with a former police officer in my new neighborhood in the suburbs I was informed that it was because I was driving and if the woman is driving the man has warrants, race is not an issue. My question is if they aren't ever going back to their cars to check, how do they know he doesn't have a warrant? I guess to them, being white is proof enough. It saddened me greatly to get that response from the former officer and I went away from that conversation with even less respect for our officers. Sad times these are when we are afraid of those who should be protecting us.

  4. I feel your pain. I'm an assistant public defender and see these kinds of stops, and the willing and freely-given consent to search that follows, practically every day. Only the (occasional) video or the honest (or ignorant of law) cop allows me to win a motion to suppress now and then. Then, there are the judges who give rulings they have to know are dead wrong and clearly so, knowing my client will be locked up for close to a year before the order reversing the denial comes down. The ends justifies the means, especially for the judiciary.

  5. These things happen and we have to go through this. Never disappoint yourself and keep going with hope that everything will be OK.


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