Why did American police end up in cars? And how did policing the nation’s roads become so racially unjust? In Policing the Open Road: How Cars Transformed American Freedom, legal historian Sarah Seo uses motor vehicle search and ...

Why did American police end up in cars? And how did policing the nation’s roads become so racially unjust? In Policing the Open Road: How Cars Transformed American Freedom, legal historian Sarah Seo uses motor vehicle search and seizure cases to show how the rise of the automobile dramatically expanded the role of police in American society. But what began as simple traffic law enforcement evolved into a crime-control strategy that disproportionately targeted black motorists.

The arc of this change, as Seo persuasively shows, can be seen in microcosm in the case of United States v. Robinson. On the night of April 23, 1968, DC police officer Richard Jenks signaled for Willie Robinson Jr. to pull over in his 1965 Cadillac. (Jenks remembered him from a previous stop, during which Robinson had presented false identification.) During the April 23 arrest and search, Jenks reached into Robinson’s coat pocket and pulled out a crumpled pack of cigarettes that felt strange. It contained fourteen capsules of heroin.

Later, Robinson’s lawyer sought to exclude the narcotics from evidence in the case against him. He argued that Jenks’s decision to reach into Robinson’s pocket violated his client’s rights against unreasonable search and seizure. The prosecutor countered by claiming that the dangers faced by officers during routine traffic stops justified the invasive search, and he sought to prove it by bringing in an alleged expert on “clandestine weaponry,” Charles Newhouser, to testify.

On the witness stand, Newhouser—who worked for the International Association of Chiefs of Police—announced that he had concealed 25 deadly weapons on his person and brought them into the courtroom. Newhouser then proceeded to remove each one, including a scalpel attached to his glasses, a needle with a poison sac hidden under his shirt collar, and—in an obvious reference to Robinson’s case—a .22-caliber pistol concealed in a king-size pack of cigarettes.

Despite the fantastically improbable prospect that motorists could use such weapons against traffic cops, Newhouser’s cartoonish demonstration convinced the trial judge of the prosecutor’s argument. And in 1973 the Supreme Court concurred, suggesting that the Fourth Amendment should not prevent police officers from protecting themselves during traffic stops. If an officer deemed it necessary to his safety to search a motorist’s pockets or packages, it would now be constitutional.

In this case and many others that Seo discusses, we see how police used the dangers of America’s roads to justify their growing oversight of motorists—and how, consequently, the judiciary intervened to authorize this unprecedented expansion of policing.

It wasn’t guaranteed that the police would end up monitoring the nation’s roads, or even that they would drive automobiles themselves. Although drivers today take for granted the presence of police cruisers with flashing red and blue lights, Seo shows that this was a contingent historical outcome. In fact, the police cruiser as we know it was not popularized until after World War II. During the early years of the automobile, officers drove unmarked cars, rode bicycles, and sometimes even commandeered citizens’ cars to pursue criminals.

The change from officers walking the beat to squads of police cruisers was not immediate. As in the Robinson case, the judges and public officials who effected this transformation did so to remedy the dangers faced by both traffic cops and motorists on the open road. According to Seo, the racial disparities in the traffic law enforcement regime developed well after police began patrolling the nation’s highways.

Seo argues that these lawmakers did not “intend” to facilitate the “systematic policing of minorities.” Rather, early traffic law enforcement necessitated—for the first time in the nation’s history—that police direct their attention to the so-called “respectable class of citizens who were the automobile’s early adopters.” Before this, police only policed the “margins of society.” Now they policed everyone.

It is certainly true that the colonization of the United States’ roads by the automobile resulted in “mass chaos that threatened everyone’s safety.” But should we take the public safety concerns of early 20th-century police officials and jurists at face value?

There is no doubt that the automobile required police to expand their purview to anyone who might commit a traffic violation; still, the white and well-off drivers of Seo’s “respectable class” never became targets of criminal law enforcement. Moreover, American police controlled the mobility of African Americans, immigrants, and others long before automobility.

Should the automobile be subject to the protections of private rights, like the home? Or should it be subject to public regulation, like a pedestrian?

Perhaps the automobile did not simply expand policing, as Seo maintains, but also helped consolidate the existing racial imperatives of American policing.

Motor vehicles challenged classical legal thought, which neatly divided the world into private and public spheres. Should the automobile be subject to the protections of private rights, like the home? Or should it be subject to public regulation, like a pedestrian? Judges ultimately decided that cars existed somewhere in between.

At its heart, Policing the Open Road is about what Seo terms the “Automotive Fourth Amendment.” She argues that as judges adapted the Fourth Amendment’s protections against unreasonable search and seizure to cases involving automobiles, they gradually empowered police officers to decide for themselves just where private rights would end and public rights would begin.

Seo’s analysis of the motor vehicle cases that created the “Automotive Fourth Amendment” joins other recent work in offering an important revisionist history of the due process revolution. Historians have long celebrated the 1960s Supreme Court decisions that instituted new national rules of criminal procedure to safeguard the rights of defendants. Miranda rights—the rights to remain silent and to avoid self-incrimination, which police explain to suspects during an arrest—are a classic example.

Seo argues that this modern history of expanding due process began earlier, in the 1920s, when both state and federal courts began hearing Fourth Amendment cases involving automobiles during national Prohibition. The new rules that these decisions produced dictated “how the police should police,” thereby theoretically protecting the criminally accused from abuse. But this new “thicket of procedures” also created opportunities for police officers to “exercise their power in discretionary, even discriminatory, ways.”

Policing the Open Road convincingly demonstrates how judges’ empowering police discretion compounded racial inequalities, especially those centered on the automobile. By the dawn of the drug wars, the newfound discretionary authority of police officers had grown into a “full-fledged crime-control strategy.” This strategy essentially criminalized “driving while black” by empowering officers to use the pretext of a minor traffic violation to pull over motorists on a mere suspicion of a more serious crime.

And yet, race drops out of the first half of Seo’s book. Her account of the rupture in American policing caused by automobiles leaves open the question why this “democratization of policing” became such a potent vehicle for racial profiling.

Considering how automobility changed policing is valuable. But what if, instead, we attended to how the racial elements of American policing remained constant, even after the advent of automobiles?

We might do so by questioning how “safety”—for motorists and for officers—has been employed in shaping the traffic law enforcement regime. For example, Seo notes that, despite the witness’s 25 concealed weapons, the Robinson decision was reached without compelling evidence that police officers are specifically endangered in traffic stops. This observation has been confirmed by research on the topic.

Conversely, traffic law enforcement has failed to fully protect motorists. Gregory H. Shill argues that the “radical under-enforcement” of speeding ensures that driving remains a “public health catastrophe.” Other public safety justifications for intensive policing also falter under scrutiny. Although Philadelphia and New York City instituted racially disproportionate stop-and-frisk programs—ostensibly to protect residents from gun violence—officers are far more likely to find drugs than weapons in such stops, and typically find nothing at all.

So whose safety has animated the intensive policing of pedestrians and motorists on our nation’s roads? Although the expansion discussed by Seo was often justified through appeals to public safety, the court cases that made this transformation possible invariably involved transportation of contraband, like drugs and alcohol. This suggests we should turn our attention to the intertwined history of race and mobility in the American police tradition.

More than just a threat to public safety, the automobile has a unique, feared capacity to conceal and transport contraband. It is for this reason that automobiles conjure long-held perceptions of racial threat among political elites. The political culture of American police institutions, as historian Sally Hadden and others have shown, was forged long before the advent of the automobile, through the policing of perceived threats posed by the mobility of racial others. In the South, for example, “slave patrols” brutally restricted the mobility of enslaved Africans. In this context, an enslaved person herself became a kind of contraband if she escaped.

In his social history of early American automobile life, Cotten Seiler attends to these “ever-present racial prerogatives of mobility.” He argues that racial theories were foundational not only to policing but also to the development of modern “systems of maritime and rail transport.” And even as policing constrained racial others, it “forcibly compelled” mobility to facilitate colonization, industrialization, and global commerce. The early years of automobile use show how this new global industry cooperated with policing to produce racial inequality.

During the first years of the automobile, driving—as Seiler, like Seo, notes—was marketed as a privilege of whiteness. However, according to Seiler, the documentary record contains little “widespread awareness” of this fact among contemporaries. Seo likewise found that her historical interlocutors “rarely mentioned race.” But Seiler contends that this hardly suggests historians should have little to say about race, policing, and automobiles during this period.

The coincidence of national Prohibition with early automobile policing sheds light on the intersection of race, policing, and automobiles. “Powerful anti-immigrant hostility,” historian Lisa McGirr has argued, fueled the white Protestant movement against alcohol. As European immigration to the United States increased during the early 20th century, “anti-liquor crusaders railed against a ‘foreign invasion of undeveloped races’” that they associated with dangerous alcohol use.

These racist sentiments put their stamp on the Prohibition enforcement apparatus. Yet Seo’s work does not consider this. Despite her description of how Prohibition enforcement converged with early automobile policing, Policing the Open Road refrains from consideration of how nativism may have affected the early formation of the traffic law enforcement regime.

To fully reckon with racial injustices today, we must attend to how continuities of racism, surveillance, and violence have affected the political development of American policing.

A peculiar episode in the history of Prohibition enforcement from Philadelphia demonstrates the promise of further research in this area. During the Progressive-era war on crime, elite reformers throughout the nation bemoaned police corruption, which they associated with urban immigrant communities. These reformers, according to historian Robert Fogelson, adopted a “military analogy” for the reform of urban police departments that barely concealed their disdain for foreigners.

In Philadelphia this military analogy became reality when newly elected mayor Freeland Kendrick appointed decorated marine general Smedley Butler as the top cop in 1924. Butler had gotten his start as a marine in Cuba during the Spanish-American War. In 1915, during the early years of the American occupation of Haiti, he became the first head of the Haitian national police, which he disparagingly called a “nigger police force.” One of its central tasks was to supervise laborers involuntarily conscripted to construct a national road system, which Butler understood to be “vital to effective military control.” These imperialist missions would shape Butler’s approach to Prohibition enforcement in Philadelphia.

After making his first public appearance in Philadelphia wearing a “personally designed blue paramilitary uniform” outfitted with a cape, Butler quickly set about implementing policies to “smash crime and vice.” From his experience in Haiti, he understood the importance of police control over the city’s transportation network. The escalating traffic chaos presented opportunities for bandits and rumrunners.

So Butler introduced squad cars. He also erected “twenty-one traffic gates at entrances to the city” in a bid to keep out “undesirables,” and installed proto–traffic lights throughout the city in an effort to bring order to the roads. All of these measures supported his militaristic campaigns against the illegal consumption and distribution of alcohol, which included the widespread seizure of vehicles alleged to have been used to transport alcohol. The “style and rhetoric” Butler deployed in Philadelphia, as his biographer Hans Schmidt notes, suggest he considered his task similar to “the cleaning-up of a Caribbean protectorate.”

Butler’s brief tenure in Philadelphia shows how conceptions of racial difference that characterized the shared culture of police and military officials may have shaped the development of the traffic law enforcement regime. Butler understood both missions through “common-sense” American concepts of race and crime, which have influenced the political culture of police across geographic and historical scales.

The sense of siege experienced by African American communities during the War on Drugs—epitomized, as Seo shows, by the danger of “driving while black”—reflects the spirit of the war against alcohol waged on Philadelphia’s streets during the 1920s. To fully reckon with racial injustices today, we must attend to how such continuities of racism, surveillance, and violence have affected the political development of American policing.

This article was commissioned by Caitlin Zaloom.

Featured image: Photograph by Matteo Modica / Unsplash