We are disappointed in the SJC’s ruling today that pretextual traffic stops are permissible. The opinion expresses concern about the problem of racial profiling and “driving while black.” But in deciding the issues, it emphasizes the difficulties faced by judges asked to decide that a stop was pretextual. In contrast, the opinion gives short shrift to the real world difficulties faced by people who are subjected to pretextual stops. Pretextual stops lead to not just inconvenience, but embarrassment, missed appointments, lost pay, lost jobs, and even lost lives. A judge’s supposed difficulty in deciding whether a stop was pretextual should not outweigh the difficulties of the people of the Commonwealth.

Indeed, the Court’s reasoning that they should not prohibit pretexutal stops because it is too difficult to discern a pretext flows from the fiction that there was some legitimate dispute about whether there was a pretext here. That is, whether the police were intentionally circumventing the constitution to pursue a criminal investigation. There was no “difficulty” in determining pretext in this case. The prosecution conceded that the stop was a pretext. So this case was not about a “risk” that the police “might” misuse a stop as a pretext. They did.

The Court invites defense lawyers to more vigorously litigate equal protection claims instead. We have litigated and we will litigate those claims. But those claims have been repeatedly cut off at the knees by courts (including the SJC) erecting impossibly high burdens to discovery regarding the history of traffic stops. Worse, there is often no discovery to be had, because as Justice Budd points out, police are not required to keep the records that would permit us to mount these challenges. In fact, they have not been required to keep this data for the last seventeen years. Chief Justice Ireland pointed out many of these problems more than a decade ago.

At a minimum, we call on the legislature to require the collection of data regarding traffic stops. Given the modern equipment in most police cruisers, such as mobile data terminals and license plate scanners, it should not be difficult to do so.

We believe this decision will someday be abandoned and we are committed to make that day come sooner rather than later.