IL and DWB, driving while black

There was no lawful basis for defendant’s stop – it was a case of DWB, driving while black, something that needs to be confronted. Reversed. People v. Carpenter, 2024 IL App (1st) 220970, 2024 Ill. App. LEXIS 749 (Mar. 29, 2024):

[*P4] Driving While Black: A Matter of Public Safety and Racial Justice

[*P5] Appellate courts deal with the issues and the record before them. On rare occasions, however, a far-reaching but unexamined and unbriefed concern emerges so affecting the integrity and perception of fairness that we invoke our discretion to raise it on our own, in Latin, sua sponte. See Hormel v. Helvering, 312 U.S. 552, 557 (1941) (“Rules of practice and procedure are devised to promote the ends of justice, not to defeat them. A rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with this policy. Orderly rules of procedure do not require sacrifice of the rules of fundamental justice.”) Here, fundamental justice calls for us to raise a concern vital to public safety although it has no role in our resolution on the merits.

[*P6] What is known as “driving while Black” (DWB) is a pernicious reality that corrodes trust in law enforcement and the legal system. DWB involves police using “stereotypical thinking and hunches” and “dubious investigative techniques” in traffic stops. Commonwealth v. Feyenord, 833 N.E.2d 590, 604 (Mass. 2005) (Greany, J., concurring). Numerous studies have extensively documented the unsettling reality of DWB. See Emma Pierson et al., A Large-Scale Analysis of Racial Disparities in Police Stops Across the United States, 4 Nature Hum. Behav. 736 (2020), [] (analyzing nearly 100 million stops across nation between 2011 and 2018 and finding Black drivers were less likely to be stopped after sunset when “veil of darkness” masked race); Ill. Dep’t of Transp., Illinois Traffic and Pedestrian Stop Study 2022 Annual Report: Pedestrian Stop Analysis 18-19 (2023),–part-i-executive-summary-pedestrian-6-30-23.pdf [] (racial profiling possible factor in traffic stops); see also Pascal Sabino, Cops Rarely Pull Over Drivers In Their Own Neighborhoods, Data Shows. Motorists In Black Neighborhoods Aren’t So Lucky, Block Club Chi. (Oct. 27, 2021), [] (mapping all 327,224 traffic stops by Chicago police in 2020 and finding “tremendous bulk of drivers” stopped in neighborhoods on the South and West sides and “few drivers” stopped in mostly white neighborhoods on North Side).

[*P7] The General Assembly has responded, precluding stops on the then-lawful basis offered by the officer in this case. See Pub. Act 103-32, § 5 (eff. Jan. 1, 2024) (adding 625 ILCS 5/12-503(c-5)) (directing, “[n]o motor vehicle, or driver or passenger of such vehicle, shall be stopped or searched by any law enforcement officer solely on the basis of a violation or suspected violation of [the material obstruction] subsection”).

[*P8] Much of the evidence presented to the trial court consisted of body-camera footage that two of the arresting officers recorded. Although DWB does not enter our legal analysis and decision, the record compels our posing a question—would this stop have proceeded as it did had Carpenter been white?

[*P9] Asking the question stimulates dialogue on racial justice and public safety. See generally Press Release, Ill. Supreme Court, Supreme Court Releases Statement on Racial Justice, Next Steps for Judicial Branch (June 22, 2020), []. It also reinforces the judiciary’s commitment to upholding the principles of justice and reinforcing public trust in the legal system. See, e.g., State v. Clinton-Aimable, 2020 VT 30, ¶ 37, 212 Vt. 107, 232 A.3d 1092 (Reiber, C.J., concurring) (“Although not specifically presented or addressed, an underlying question in this appeal is the extent to which defendant’s race played a role in the decisions by police to stop and search him and his car.”); United States v. Mendenhall, 446 U.S. 544, 558 (1980) (observing, under fourth amendment, race is “not irrelevant” though not “decisive” either); United States v. Smith, 794 F.3d 681, 688 (7th Cir. 2015) (same).

[*P10] Addressing the specter of DWB is crucial to the dismantling of this systemic injustice. Several essential indicators of DWB are laid bare by the evidence, including (i) minor infractions as a pretext for investigating unrelated suspicions; (ii) stereotypes or assumptions about race based on police conduct or statements during the stop; (iii) prolonged detention inconsistent with the nature of the stop; (iv) a search without proper justification, usually based on stereotypes rather than reasonable suspicion, (v) unequal enforcement, such as pulling over a person of color, for a violation seldom of consequence in a white neighborhood; (vi) targeting neighborhoods or areas predominately populated by people of color; and (vii) use of disrespectful behavior, aggression, or excessive force by police. Individually or together, the elements do not indicate or imply racial bias, and most police officers strive to act properly and respectfully. Nevertheless, the more indicators, the more likely the stop was for DWB.

[*P11] Judges ensure that the law is fairly and consistently applied to all. The dissent’s critique that “this issue [(DWB)] was never raised by Carpenter” repudiates the long-standing appellate court commitment to upholding the rule of law by exercising its authority. Infra ¶ 50. Relatedly, despite our discussing DWB generally and not on the merits, the dissent curiously treats our observations as an adjudication. Infra ¶ 50 (citing Singleton v. Wulff 428 U.S. 106 (1976), which reproached appellate court for reaching merits of issue not presented by parties). In our view, abstaining from saying anything about DWB, which our dissenting colleague urges us to do, condones the officer’s actions here and continues to normalize a practice that exposure, not silence, will eliminate.

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