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Va. lawmakers pass bill to reduce traffic stops, outlaw some marijuana searches

Critics say the new policies would damage officers’ ability to proactively fight crime and keep Virginia’s roadways safe


House of Delegates members walk past the south portico at the Virginia State Capitol in Richmond, Va., Wednesday, April 22, 2020.

Bob Brown/Richmond Times-Dispatch via AP, Pool

By Peter Dujardin
Daily Press (Newport News, Va.)

RICHMOND — A bill that proponents contend will reduce police targeting of Black drivers with unwarranted traffic stops and vehicle searches has passed the General Assembly and is on the way to the governor for consideration.

The legislation bars police from stopping drivers for a wide range of vehicle equipment offenses -- everything from tinted windows to faulty brake lights to loud mufflers to objects dangling from the rear view mirrors. The measure says the cops can’t pull drivers over for having expired vehicle inspection stickers -- unless they’re at least three months past due -- or for outdated registration tags.

It says police can’t stop cars for driving without headlights at night -- though the legislation’s sponsor told the Daily Press Friday that he wasn’t aware of that aspect of the bill until a reporter asked him about it. He said he would look into whether it should be removed.

In another big policy shift, the bill would block police from searching vehicles on the basis that a police officer says he smells marijuana coming from the car.

Reformers have long contended that the practice is open to abuse -- with a built-in incentive for officers to lie about smelling an odor -- and can perpetuate racial disparities in the justice system.

“This might be the most significant reform of the state’s criminal justice system in decades,” said Arlington Public Defender Brad Haywood, executive director of Justice Forward Virginia, a coalition pushing for reform. “This is a big step forward for racial justice in Virginia.”

But law enforcement groups contend will not only damage community policing efforts and officers’ ability to proactively detect and fight crime, but also make Virginia’s roadways less safe.

“Do they not care about public safety at all?” asked York-Poquoson Sheriff J.D. “Danny” Diggs. “It’s gone beyond being anti-police now. Now they’re anti-public safety and the safety of the citizens.”

Working brake lights, he said, are crucial to preventing accidents.

“And no headlights?” Diggs asked. “No headlights are one of the top indicators of a drunk driver ...The smell of marijuana? They don’t care about people driving impaired, maybe getting ready to kill someone? That’s a significant problem in states where marijuana is legal.”

Diggs and Dana Schrad, executive director of the Virginia Association of Chiefs of Police, say lawmakers should repeal laws it doesn’t like rather than move away from enforcement.

If the bill becomes law, Schrad said, “Virginia will end up with more crashes and more fatalities.”

Will court cases decline?

Ron Smith, a local defense attorney, said lots of court cases arise from searches based on the smell of marijuana.

Even with Cannabis moving to a civil-type infraction at low drug levels, he said, police have still been using the smell of pot as a way to search cars.

The legislation, he said, could lead to a “significant” reduction in local court cases.

“It’s not gonna be very busy in the courtroom, I can tell you that,” Smith said. “The number of cases is going to drop dramatically.” He said he was talking to a local prosecutor a few days ago, “and he was like, ‘We’re not going to have much to do, are we?’”

The bill, sponsored by Del. Patrick A. Hope, D-Arlington, passed both houses of the General Assembly on party line votes in recent weeks, with all Democrats in favor and all Republicans opposed. It’s now on the desk of Gov. Ralph Northam, who must decide later this week whether to sign it into law -- or send it back to the legislature with suggested changes.

“Governor Northam is committed to comprehensive criminal justice reform, and looks forward to reviewing this legislation,” said Alena Yarmosky, a spokeswoman for Northam.

The current special session of the General Assembly -- which came after the in-custody death of George Floyd and its aftermath -- has had a focus on criminal justice.

Democratic Virginia lawmakers gave used the national moment -- as well as their recent majority control of both houses -- to accomplish changes they’ve wanted for years.

Racial justice disparities?

Haywood, of Justice Forward Virginia, said the data shows that there’s a “wide racial disparity” in vehicle equipment stops. “

There isn’t that same kind of profound disparity with respect to moving violations, such as speeding, he said. But with equipment violations, he said, “if you’re black, you’re much more likely to be pulled over.”

In fact, he said, “pre-textual policing” -- using minor infractions as a basis to pull someone over to investigate them further -- “is probably the primary source of racial disparities in the criminal justice system.”

Claire Gastanaga, the executive director of the ACLU of Virginia, said a study has shown that Black Virginians are 3.4 times more likely to be arrested on marijuana possession charge than white people. That’s the case, experts say, even though studiesshow that the races use the drug at similar rates.

Smith, the Hampton attorney, said he’s handled many cases of officers pulling people over because one of the two light bulbs illuminating their license plates is missing, or something dangling from their rear view mirror.

“If you get stopped for a dangling object, you don’t have to be very wise to know that the officer didn’t care about the dangling object,” he said. “The real reason is that he thinks something else is up ... So he finds something like a dangling object and then he stops you -- and then he says he smelled marijuana. It’s a free search warrant.”

“But I will say this,” Smith added. “Those stops, sometimes, lead to bigger things.”

When police and sheriff’s deputies make traffic stops -- for any reason -- they nearly always run the person’s name through the National Crime Information Center database, or “NCIC.” That tells officers if the person has an outstanding warrant for his arrest anywhere in the country.

Up to now, when officers find other evidence of other crimes -- such as drugs or illegal handguns -- in the car during the traffic stop, that crime came be prosecuted in addition to the vehicle infraction.

Listening sessions for change

Hope, the bill’s sponsor, said that after the decision was made to focus the legislative session on policing reforms, “we did a lot of listening.”

“And this came out a lot in not just our hearings, but also in a lot of different webinars in stakeholder groups that we did,” he said. “And I heard from, mostly from communities, people of color, that being pulled over by law enforcement was more than just an anxious event. It was very fearful for them.”

“That can escalate to something that can be very dangerous,” Hope said. “And I should also add that it’s not just a danger just for the person behind the wheel. It’s also dangerous for law enforcement to pull someone over on the side of a highway.”

The result of the discussion was legislation that cuts back on the vehicle equipment violations that people can be pulled over for.

Under the bill as passed by the General Assembly, police could no longer pull people over for the following reasons, among others:

* Driving without headlights at night.

* Having non-working -- or missing -- main brake lights, third “high-mounted” brake lights or missing license plate lights.

* Having tinted windows or objects hanging from their rear view mirrors that obstruct a driver’s view.

* Having expired registrations and vehicle safety inspection stickers unless they are more than three months past their expiration dates.

* Having loud or non-working muffler systems on cars, motorcycles, scooters, or mopeds.

* Using a cell phone -- even if it’s not handheld -- with a learner’s permit.

* Smoking in a car with a juvenile inside.

The bill further bars police wouldn’t be able to stop pedestrians who are not walking at crosswalks -- jaywalking -- or who are “carelessly or maliciously interfering with the orderly passage of vehicles.”

Those laws would remain on the books, and drivers could still be charged with such violating all of those laws -- but only as secondary violations. In other words, they would have to be pulled over for another violation first, such as speeding or ignoring a traffic signal.

Bill faces criticism

The bill includes a provision that says that if police break the rules on stopping drivers, they can’t use any evidence they find in the stop to prosecute another crime.

“If I was to stop a car for no headlights or something, and there’s a dead body in the backseat, that’s just too bad -- ‘Oh well’,” Diggs said. “They just don’t care about the detection of crime anymore.”

He also said that being able to stop cars for minor violations can lead to good interactions between the citizens and police.

“Don’t you think it’s a positive contact when a police officer stops you and says, ‘Hey, did you know your tail lights are out?’ I just wanted to let you know.”

He also questioned the proposal that officers can’t stop cars and motorcycles for violating noisy muffler rules, which Diggs says is a common complaint in residential areas. “They don’t care about noise in your neighborhood?” he said.

Diggs disputed the notion that police target Black citizens for stops. “That’s one of the biggest lies out there,” he said. “When you ride around at night in your car, see if you can determine the race ... of the person in front of you.”

Smith, on the other hand, said he thought race was “a factor” in such stops that also depend on the neighborhood, the car and other reasons.

“I don’t think they drive around Farmington (an upscale mostly Black subdivision in Hampton) and stop Black people for having one light out on their plate,” he said. But they’ll go to lower income areas, such as near Hampton’s Shell Road, and do exactly that, he said.

Mistaken reference to headlights?

When a reporter asked Hope about the provision in the bill barring police from stopping people driving at night with their headlights off, the lawmaker said he was unaware of anything in his bill about headlights.

After looking at that part of the bill referencing headlights, he said that the inclusion of that passage could have been inadvertent on the part of the bill’s drafters in the Office of Legislative Services.

“Headlights was never something that I had focused on, and at no time did I mention headlights in any discussion,” he said.

“I sleep well at night with the other things that are in there,” he said. “The brake lights -- I’m not concerned about that as a safety issue ... But I can certainly see how headlights could be of concern. I’ll go back and take a second look at that and maybe there’s something we can do.”

He said he would talk to the bill’s drafters, and that the governor could also ask that the line be removed as part of any suggestions he makes about the bill.

Gastanaga, of the ACLU, said her organization wants the bill to pass. “We want to get police out of the business of hectoring people” on low-level violations in order “to them on something else.”

“Having the police decide that they think somebody’s suspicious, so they’re going to pull them over for, you know, a Puerto Rican flag dangling from their mirror, and then trying to use that to bootstrap into a broader investigation, that’s what we’re trying to stop,” she said.

“We’re trying to limit the interactions of police with black and brown communities in Virginia who have been subjected to over policing on a routine basis.”

Smith said that if Northam signs the bill into law, policing in Virginia will have to change.

“I think they’ll have to evolve into a different type of crime-solving,” he said, where a lot fewer cases will begin with traffic stops. “They’ll have to concentrate on bigger things,” he said. “They’ll have to evolve into a different kind of crime detection.”

©2020 the Daily Press (Newport News, Va.)