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Abstract

Pretextual stops made by law enforcement officers—stops aimed at serving some purpose other than the official reason for the stop—have received renewed attention in the public discourse following several high-profile law enforcement confrontations with people of color. Naturally, the conversations about pretextual stops have centered around their most horrid iteration: discriminatory stops made by bad cops. These stops are damaging to both motorists and officers, and conversations about them are undeniably important. But there is more to pretextual stops than the nefarious purposes attributed to them.

As a former police officer who regularly made pretextual stops for reasons entirely unrelated to race, I’d like to tell the rest of the story (as Paul Harvey would say). Whatever we as a society might decide about pretextual stops, the fact that cops regularly put pretext to use for good should be part of the conversation. To that end, this Essay offers a “boots on the ground” perspective. It aims to share how pretextual stops are used for good, and to shift the focus from how we can eliminate an officer’s discretion to make pretextual stops, to a candid evaluation of which laws are really worth having (and enforcing) and what else we might do to ameliorate the valid concerns that they raise.

I begin in Part I by outlining the doctrine of, and principal concerns with, pretextual stops. I complicate the issue in Part II by discussing the legitimate uses to which police officers regularly put pretextual stops. In Part III, I turn to a few thoughts about how to separate the bad from the good, refocusing the discussion as a question of what laws we want the police to enforce and how we might foster trust between the police and the policed.

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