Fifth Circuit Criticizes Pretextual Stops After Cops Kill A Man Because His Kid Threw A Candy Cane Out Of A Car Window

The Fifth Circuit is often the worst circuit when it comes to protecting constitutional rights. Every so often, it will make the right call, but most often it’s willing to let the government expand its power at the expense of the citizens it’s supposed to be serving. It does this often enough even the Supreme Court — which has spent decades making qualified immunity case law worse — feels compelled to reject rulings and send them back for a do-over.

But, once in a while, it does the right thing. Unfortunately, doing the right thing means cops behaving at their absolute worst results in a denial of qualified immunity. This recent decision [PDF] by the Fifth Circuit Appeals Court not only strips immunity from a Texas police officer, but it opens with a pretty scathing take on pretextual stops, which may signal the court will be less willing to grant as much leeway to officers who abuse this privilege to violate rights.

The decision opens with a few paragraphs about the history of pretextual stops and how they’re used to harass minorities and, with alarming frequency, result in their injury or death.

In 1996, the Supreme Court approved the use of pretextual stops in Whren v. United States. Since then, pretextual stops have become a cornerstone of law enforcement practice. Police officers follow a suspicious person until they identify a traffic violation to make a lawful stop, even though the officer intends to use the stop to investigate a hunch that, by itself, would not amount to reasonable suspicion or probable cause. Often pulled over for minor traffic violations, these stops create grounds for violent—and often deadly—encounters that disproportionately harm people of color.

This is not the court offering its opinion on pretextual stops or the harm they create. It’s backed by data.

When Whren was decided, the Court did not have what we have now—twenty-five years of data on the effects of pretextual stops. Indeed, the Whren Court differentiated pretextual stops from “extreme practices” like the use of deadly force. Today, traffic stops and the use of deadly force are too often one and the same—with Black and Latino drivers overrepresented among those killed—and have been sanctioned by numerous counties and major police departments.

The court notes that some law enforcement agencies and the governments that oversee them have restricted the use of pretextual stops, the practice is still standard operating procedure in much of the country. In lieu of probable cause or reasonable suspicion to engage in the true purpose of the stop, any minor traffic infraction — whether real or perceived — can be used to initiate a stop. And once the stop is initiated, law enforcement tends to engage in escalation, the sort of thing that can turn a failure to signal into drivers being beaten or killed by police officers.

And such is the case here, as the Fifth Circuit notes in this particularly devastating set of sentences.

The potential liability attending a policy of pretextual stops aside, their empirical consequences are clear: they lead to the unnecessary and tragic ending of human life. Here, a child threw a candy cane out the window. Twenty-five minutes later, the driver, her father, was dead.

We often use the phrase “innocently enough,” as in, “It started innocently enough.” But that phrase means nothing to cops, who haven’t seen anything momentarily inexplicable that can’t be viewed as suspicious.

On February 1, 2017, Tavis Crane was driving in Arlington, Texas with three passengers: Dwight Jefferson, Valencia Johnson, who was pregnant with Crane’s child, and Z.C., Crane’s two-year-old daughter. While Crane was stopped at a traffic light at approximately 11:38 p.m., Officer Elsie Bowden pulled up behind him. After the light turned green, Crane pulled away from the intersection and Bowden saw an object being tossed from the passenger’s side. She claims that she thought the object might be a crack pipe and called for backup; Roper responded.

This mistake could have been corrected long before Officer Roper killed Travis Crane in front of his pregnant wife and his two-year-daughter. But Officer Bowden is almost as much to blame for this tragedy, despite recognizing her error immediately after the stop commenced.

Bowden then noticed an object fall on the ground behind her, outside the window by Z.C. She recognized the object as the red top of a large plastic Christmas candy cane and realized the object thrown from the car was the candy cane’s clear bottom half. Bowden laughed about the misunderstanding and handed the red piece back to Z.C. But she did not send the family on. Rather, she returned to her vehicle and ran a warrant check, which found that Crane had warrants for several misdemeanors and a possible felony probation violation.

Everything escalated from there. First, there was the question about the misdemeanor warrants, which even the court finds Tavis Crane may not have been aware of. The alleged felony warrant was never verified. Instead, Officer Bowden called for backup. Officer Roper took it upon himself to treat Tavis Crane as a possible felon, despite never having received any other information from the officer who performed the stop (Bowden) or his on-board computer.

Roper escalated.

Roper opened the door, unholstered his pistol, and ordered everyone to put their “f—ing hands up.” Crane, Jefferson, and Valencia Johnson all put their hands up. He initially pointed his pistol at Jefferson before entering the car, climbing over Valencia Johnson, and pointing his gun at Crane.

According to the passengers, Roper put his arm around Crane’s neck. Roper contends that he grabbed the hood of Crane’s sweatshirt. All three officers continued to order Crane to open the door and turn the car off. Officer Johnson circled behind Crane’s car to move next to Bowden as she shouted “Tavis don’t do it.” The car engine began to rev, and the car shook as the brake lights turned on and off sporadically. Bowden reached for Roper in the back seat, and told Roper three times to “get out” of the car. Roper
remained in the car. […]

The passengers contend that when Crane, with Roper’s gun pointed at him, moved his hand to turn off the car in compliance with Roper’s order, Roper shot him, his head fell backwards, the engine revved and the car lurched backward, striking Bowden—by now behind the car—before moving forward and running over Bowden again and speeding off.

Officer Roper’s testimony does not jibe with what was observed by others. He claimed he did not shoot Crane until after the car moved and struck Officer Bowden. He followed his shooting of Crane by chasing down the now-mobile car, removing the keys from the ignition, and “shouting and cursing” at the person he had just killed.

The lower court decided the evidence on hand — which included dash cam video that did not capture the entire encounter — aligned more closely with Roper’s testimony. The Fifth Circuit says this conclusion is wrong while pointing out the flaws in the lower court’s logic.

The district court found that the gear could change and the car could move only with the conscious intention of Crane. But that conclusion ignores the other plausible explanation that the gears were shifted during the struggle between Crane and Roper, as Crane attempted to comply with Roper, and that the chokehold caused Crane to press down on the accelerator as an attempt to relieve the stress on his neck, as opposed to attempting to flee.

When essential facts remain in dispute (and the rights violation is clearly established), it’s far too early to come down on the side of the defendants.

And the violation is clearly established, even in the cop-friendly Fifth. Officer Roper’s assertions simply aren’t plausible and they cannot defeat examination of circuit precedent.

Accepting the facts as the passengers allege, Crane was shot while unarmed with Roper’s arm around his neck. Roper first argues that he had a reasonable fear that Crane might have a weapon. But from his position, Roper could see if Crane was reaching for a gun, as could the other officers outside the vehicle, yet none of them—including Roper—reported a suspicion of a weapon. Roper could not have reasonably suspected that Crane had a weapon.

And it’s still disputed whether or not Crane’s car posed a threat to officers. Evidence in dispute could go either way, but the Fifth says it’s entirely plausible the car posed no threat until after Officer Roper — deploying unlawful force in response to the threat posed at the moment — killed the driver and inadvertently turned a stopped car into a mobile one.

However, accepting the facts as Crane alleges, Roper shot Crane while the car was still in park and before the car began to move. As Roper was not at imminent risk of being expelled from a parked car, the vehicle did not in this sense pose a serious threat. Roper also asserts that Bowden and Officer Johnson were in danger, but at the time Roper shot Crane, Bowden and Officer Johnson were standing to the side of Crane’s car, not behind it, unlikely to be hit by the car. Ultimately, the car was not a threat until it began to move, which did not occur until Roper shot Crane.

Adding to the unlikelihood of an immunity defense is Officer Roper’s immediate escalation upon his arrival on the scene. In contrast to the rest of the officers, Roper acted hastily and violently when the situation did not call for either of these responses. He was the worst cop present and he turned a minor traffic stop into a completely preventable tragedy.

Officer Bowden demonstrated an admirable attempt to negotiate with Crane. Roper, on the other hand, shot Crane less than one minute after he drew his pistol and entered Crane’s backseat aside a pregnant woman and a two-year-old. Not only was the option to get out of the car—as opposed to shooting Crane—plainly available, but Bowden, reached into the backseat to touch Roper, repeatedly urging Roper to “get out” of the car, reflecting the sound view that they could not use deadly force to keep Crane from fleeing. But Roper remained in the car, shooting Crane just seconds later.

One officer handled this pretextual stop reasonably. Or, at least, almost. Officer Bowden should have told Tavis Crane he was free to go the moment she discovered the supposed “crack pipe” was just part of a plastic candy cane. She didn’t. Instead, she continued to run a warrant search and called for backup. And those actions resulted in a person being killed by a wholly unreasonable police officer who arrived on scene and needlessly escalated a routine stop into a homicide. Both officers could have prevented this tragedy. Officer Bowden, at least, attempted to do just that. But her unnecessary delay ended someone’s life. And that’s why pretextual stops continue to pose a threat to drivers everywhere.