Constitutional Law

Police Prank Doesn't Jibe With The 4th Amendment

Generations of distrust sown by systemic racism cannot be undone by ice cream.

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traffic stop pulled over by police for speedingRemember this video? It was supposed to be a cute public relations prank — cop pulls over drivers to give them ice cream on a hot day — designed to build up a community’s trust in the police and generally improve the perception of police after way, way too many interactions between African Americans and police resulted in dead black bodies.

Let’s ignore for a quick second the trepidation in the unsuspecting motorist’s eyes — you know she has seen the hauntingly similar video of Philando Castile that recently went viral. There is another, giant problem with the stunt… it is probably illegal. Orin Kerr explains:

But here’s the catch: A lot of these stops are unconstitutional. When the police pull over a car, that’s a Fourth Amendment “seizure” of the driver, any passengers, and everything inside. To justify that seizure, the police need at least some cause either that a driver committed a traffic violation or that a person in the car is involved in a crime or wanted in connection with a serious crime. If the police have that cause, they can stop the car regardless of whether they want to write a ticket, investigate a crime or give the driver an ice cream cone. But the police can’t pull over the car without any cause, even if they want to do something nice, such as give the driver a gift.

Certainly we can all acknowledge the good intentions behind the program, but generations of distrust sown by systemic racism cannot be undone by ice cream. I mean ice cream is great, top notch even, but cookies ‘n cream isn’t a strong enough balm to heal this wound.

The driver in this particular video seems to take the prank fairly well in the end. Perhaps recognizing that something has to be done to change the nature of police interactions with African Americans in this country, and this is a mildly charming baby step towards that goal.

But, here’s a thought, a better first step to improving police/community relations is something that doesn’t involve trampling over constitutional rights.

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No, the police can’t pull over drivers to give them gifts [Volokh Conspiracy]

Kathryn Rubino is an editor at Above the Law. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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