ROOTED IN ONE of the most abominable facets of the nation’s past, racial profiling remains a risk today for drivers of color. At the same time, the havoc caused by motorists distracted by smartphones, a triumph of ingenuity and engineering, presents a uniquely modern hazard on streets and highways.
Efforts to grapple with those two perils are now on a collision course in the Legislature.
There is fresh momentum on Beacon Hill this session to curb cellphone use by drivers. Gov. Charlie Baker kicked things off by filing a bill in January to ban hand-held use of cellphones while behind the wheel.
Cellphone use that distracts drivers is now a factor in as many as one-quarter of all automobile accidents, according to AAA Massachusetts. The push to ban handheld use of cellphones comes almost a decade after lawmakers banned texting while driving, in 2010. Concern has only grown since then about drivers preoccupied by their phones. But so has worry over racial profiling of drivers by police and the risks it can carry. Several high-profile cases in which a black driver wound up killed by a police officer following what began as a simple traffic stop have underscored that concern and become part of the narrative fueling the Black Lives Matters movement.
Racial profiling worries were one of the reasons why the House narrowly rejected a 2006 bill to give police primary enforcement over the state’s seat belt law. Primary enforcement means the police are allowed to stop a motorist solely for a seat belt infraction. The current law only allows police to cite drivers not wearing a seat belt if they are stopped for another reason.
More than a dozen years later, Baker has stepped into that morass with a road safety bill that would grant police primary enforcement over seat belt violations, and ban the use of handheld cell phones by drivers, granting police primary enforcement over that issue as well. The leading legislative voice raising racial profiling concerns in the past, former state representative Byron Rushing, won’t be part of the formal debate this session. The veteran black lawmaker was ousted from his Boston House seat by voters last fall. But state leaders, including the governor, see a nexus between the automotive safety proposals and racial profiling.
“I fully expect the Legislature and the administration to come up with some kind of a way of dealing with that issue to make sure that’s not a concern for people. But that should not be enough of a concern to keep us from making sure we send a message that texting and driving in Massachusetts is dangerous,” Baker said after a recent rally in the State House for road safety bills. “That’s really the issue that’s been holding this up. Let’s just get it addressed and incorporated into the legislation,” he said about racial profiling concerns.
Just how Beacon Hill leaders might do that, however, is an open question.
A CLOSE CALL
In May 2006, lawmakers were on the brink of sending then-Gov. Mitt Romney a bill to grant police primary enforcement over seat belt requirements. The House had narrowly given initial approval to the bill and it was back before the chamber for a final vote. If it had passed, the measure would have moved to the Senate where it was more popular.
Instead, although then-Speaker Sal DiMasi and 75 of his House colleagues backed the measure, the vote flipped and a bipartisan group of 80 voted against it. Some, but not all, of the opposition stemmed from concerns that police could use a seat belt violation as a pretext to engage in racial profiling.
In the years since, understandably, the hazards linked to cellphone use by drivers have become a top focus of road safety legislation.
In 2006, the iPhone had not yet been unveiled to the public. Today, smartphones are everywhere, with sales worldwide topping 1.5 billion in 2017.
In 2010, lawmakers granted police primary enforcement over a new ban on driver’s sending text messages, but police have complained that it is difficult to distinguish between a driver illegally texting and a driver using some other, legal – though still potentially distracting – function on a cellphone.
The National Highway Traffic Safety Association found that distracted driving overall, which can include talking on a phone, texting, or other behaviors like fiddling with the radio, killed 3,450 people in 2016.
“Cellphone distraction is a factor in nearly 26 percent of all crashes now, killing an average of nine people each and every day,” said Mary Maguire, director of public and legislative affairs for AAA Massachusetts, at the State House rally urging legislative action on Beacon Hill.
The Governor’s Highway Safety Association recently reported that pedestrian traffic deaths had climbed to an estimated 6,227 in 2018, the highest number since 1990. While the upsurge in pedestrian deaths coincided with growing popularity of cellphones, the highway association said there is not enough evidence to establish a “definitive link” between those two trends.
At the same time, public attention has raised an alarm about the dangers that black people in particular can face when questioned by police, including during traffic stops. The 2015 murder of Walter Scott by a police officer in South Carolina was one of the most harrowing examples of how a minor infraction by a black motorist can turn deadly. Scott was ostensibly pulled over for a broken tail light and then shot in the back as he was running away from the officer who stopped him.
The Stanford Open Policing Project, which analyzes data available from police traffic stops, found that police around the country stop black drivers at higher rates than white or Hispanic drivers, and ticket, search, and arrest black and Hispanic drivers at a higher rate than whites, who are more likely to receive a warning instead. Data crunched by The Guardian indicate that, in 2015 and 2016, blacks in the US, along with Hispanics and Native Americans, were killed by police at a far greater rate than whites and Asians.
To Rushing, the former Boston state rep, most of those concerned with curbing distracted driving simply overlook the danger of policing motivated by racial bias or animus. “Most of the advocates have been duped,” said Rushing, who lost his seat to a fellow Democrat in last year’s primary. “It is fucking dangerous. You see, white people generally don’t think it’s dangerous to have racial profiling. That’s the ongoing argument I have with advocates.”
THE DATA DEBATE
One way to prevent racial profiling, according to Rushing and others, is to make police collect data on the race of everyone they stop.
The Senate took that approach last session in a bill that would have banned drivers from using handheld cellphones except in emergencies. The legislation, which wasn’t taken up in the House, included an amendment requiring police to report the race, age, gender, and English proficiency of every driver pulled over, along with the reason for the stop and whether the car was searched.
“When traffic stops occur, some portion of those are going to involve implicit bias creeping in,” said Sen. Sonia Chang-Diaz, a Jamaica Plain Democrat, who filed the amendment and said everyone, including herself, carries implicit bias.
But Sen. Will Brownsberger, a Belmont Democrat who was Senate chairman of the Judiciary Committee last session, sees flaws with that type of data collection based on each officer’s reported observations.
“The problem with data systems is that there’s lots of opportunities to manipulate them and lots of ambiguities and doubt to interpret what’s going on,” Brownsberger said. “I do not see this bill as changing the profiling risks greatly. That’s my view. And I’m all for doing other things to reduce profiling, but I think that it’s not necessarily the case that these things are deeply intertwined.”
Rep. William Straus, the House chairman of the Transportation Committee, has a similar view. “I think that racial profiling is certainly a legitimate and real issue that can be discussed. And there are a number of different views as to how to deal with this,” Straus said. “I don’t think that it should be the requirement for passage of this.”
As was the case when the House in 2006 defeated the seat-belt proposal, the divisions over the issue of racial profiling and road safety have some novel contours.
Larry Ellison, who is president of the Massachusetts Association of Minority Law Enforcement Officers, said people are often surprised to learn that he doesn’t think banning handheld cellphones from drivers would exacerbate racial profiling.
“If someone’s going to racially profile someone there are numerous laws on the books where you can stop someone,” Ellison said. “I could stop you for a red light; I could stop you for having fuzzy dice hanging from your mirror – that’s a violation; I could stop you for your tail light not being clean, for a brake light out.”
Ellison’s opinion is also informed by his own experiences. He has been hit two times by another motorist distracted by a cellphone, and one such crash was so bad that he needed surgery and was out of work for several years.
“Because I’ve been a victim of it twice, I get it,” Ellison said.
Collecting data on every stop would give public officials valuable insight into whether there is any racial disparity in who police officers pull over, said Rahsaan Hall, director of the racial justice program at the ACLU of Massachusetts.
“Road safety has to mean safety for all, and that means dealing with racial disparities, and so for reforms to be called common sense they have to include collecting data about who gets stopped, because you can’t manage what you don’t measure,” said Hall.
There is a place on traffic citation sheets for police to record their impression of the offending driver’s race, but there are not general requirements for police in Massachusetts to mark down the race of everyone stopped. One major exception is the State Police, who are required to document their observations of the race of every motorist stopped. State Police spokesman David Procopio said that data is regularly reviewed by supervisors.
DRIVING CONSENSUS?
Senate President Karen Spilka said the profiling issue needs to be part of the equation in considering new road safety legislation. “There are concerns that the road safety bill could impact racial profiling, so clearly we would need to address this,” said Spilka, who voted for primary enforcement of the seat belt law in 2006.
Rushing, who served on House Speaker Robert DeLeo’s leadership team, said the speaker shares his view that distracted driving legislation should also address racial profiling, but DeLeo stopped short of saying that during a recent brief interview.
“I appreciate the importance of public safety especially, and driving, but I also want to make sure that all voices are heard before anything is decided upon,” said DeLeo. DeLeo bucked the speaker in 2006 and voted against the primary enforcement bill. DeLeo’s office said he plans to confer with Springfield Rep. Carlos González, the new chairman of the Black and Latino Legislative Caucus, on the new legislation filed this year.
The Black and Latino caucus has highlighted as a priority passage of a bill filed by Reps. Chynah Tyler of Boston and Bud Williams of Springfield, both Democrats, that would require police to record the race of all drivers and pedestrians who are stopped.
Williams said Rushing’s absence will be felt in the coming debate on the issue. “It’s a big loss,” he said of Rushing’s exit from the House.
Rushing lost his seat to Jon Santiago, a Latino emergency room physician who bicycles regularly in the city and whose perspective underscores the competing crosscurrents at play with the issue.
“I look at this as a public safety issue, as a biker who’s been hit on Tremont Street, as a physician who takes care of these patients,” Santiago said. “First and foremost, the most important thing to me is making sure people are safe on the roads.” That said, Santiago would prefer that police be required to collect data on the racial makeup of the people they stop.
While advances in technology have wrapped drivers and passengers in ever safer vehicles, pedestrians and cyclists who use the same roadways remain as vulnerable as ever and have been part of the toll taken by distracted driving.
Galen Mook, the executive director of MassBike, said there should be better data collection on a range of roadway incidents, but he does not want the safety measures the governor proposed to be waylaid over the concerns raised by Rushing and others.
“I just don’t want that to be what stops a public safety issue,” Mook said.
Rep. Russell Holmes, a black lawmaker from Mattapan, said there should be a way to enact new safety measures while also protecting against racial profiling.
“We want more folks to be buckled up. We want more safe roads. But of course we want to make sure we put in a provision so that folks aren’t just using this as a way to get into someone’s car,” Holmes said of concerns about racial profiling by law enforcement.