2000 Conference materials
Legal Officers Section
International Assn. of Chiefs of Police


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CURRENT LEGAL ISSUES IN RACIAL PROFILING

2000 UPDATE

Legal Officers Section
Annual Conference
International Association of Chiefs of Police
November 12, 2000

Aimee B. Anderson
Senior Counsel
City of Chicago Law Department
30 N. LaSalle, Suite 1040
Chicago, Illinois 60602
(312) 742-0260
E-mail: Aanderson@cityofchicago.org

Carl Milazzo
Former Police Attorney
Fayetteville Police Department
E-mail: cmilazzo@hotmail.com



Table of Contents
I. Case Law
A. Federal
B. State
II. Legislation
A. Federal
B. State
III. Additional Resources
IV. Future Trends
V. Recommendations
VI. Additional Sources


I. Case Law

A. Federal

1. Supreme Court

     a. U.S. v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581 (1989) use of a drug courier profile permissible when articulating basis for reasonable suspicion, but race or ethnicity was not used in this case.

     b. U.S. v. Whren, 517 U.S. 806, 116 S.Ct. 1769 (1996) Fourth Amendment permits investigative stop based on objective justification, regardless of officers alleged subjective intent. Fourteenth Amendment is the proper vehicle for challenging selective enforcement.

     c. U.S. v. Armstrong, 517 U.S 465, 116 S.Ct. 1480 (1996) statistics used to defeat a Fourteenth Amendment selective prosecution claim based on race.

2. Circuits

     a. U.S. v. Travis, 62 F.3d 170 (6th Cir. 1995), cert. denied 116 S.Ct. 738 (1996) race a permissible factor to justify reasonable suspicion during airport interdiction, based on facts known to officer.

     b. U.S. v. Avery, 137 F.3d 343 (6th Cir. 1997) following Travis.

     c. Brown v. City of Oneonta, 195 F.3d 111 (2d Cir. 1999) race and gender a permissible factor when it is part of suspect description.

     d. U.S. v. Montero-Camarga (9th Cir. 2000), cert. denied by Sanchez v. Guillen (2000 WL 979662) after rehearing en banc, vehicle stop based on U turn, driving in tandem, and displaying Mexicali license plate was justified by reasonable suspicion, but Hispanic appearance could not be considered because of large number of Hispanics in the area, distinguishing prior dictum from U.S. Supreme Court in U.S. v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574 (1975) by citing current demographic research.

     e. Price v. Kramer, 200 F.3d 1237 (9th Cir. 2000).

3. Districts

     a. Chavez v. Illinois State Police, 27 F.Supp.2d 1053 (N.D. Ill. 1998) see attached article by the ISP defense counsel.

     b. Gerald v. Oklahoma Department of Public Safety, et. al., CIV 676R (W.D. Oklahoma)(1999)(pending).

     c. National Congress for Puerto Rican Rights v. New York City, 75 F.Supp.2d 154 (S.D.N.Y. 1999) unlike Chavez, Armstrong was not used as authority to grant a motion to dismiss, but instead discovery allowed into the stop and arrest statistics of the NYPD Street Crimes Unit.

     d. Maryland Conference of the NAACP v. Maryland Department of Police, 72 F.Supp.2d 560 (D. Md. 1999) litigation based on statistics kept after a 1993 settlement.

     e. Rodriguez v. California Highway Patrol, 89 F.Supp. 2d 1131 (N.D. Cal. 2000) claims survived motion to dismiss to allow discovery.

     f. Farm Labor Organizing Committee v. Ohio State Highway Patrol, F.Supp.2d 723 (N.D.Ohio 2000).

     g. Mount Prospect and Highland Park See Zoufal, Developments in Racial Profiling Litigation, presented at IMLA, August 2000, at <www.aele.org/zoufal.html>.


B. State

     1. Commonwealth v. Gonsalves, 429 Mass. 658, 711 N.E.2d 108 (1999) Mass Supreme Court refuses to adopt Mimms and Wilson, holding that the state constitution requires reasonable suspicion to order occupants out of vehicles to prevent racial profiling.

     2. New Jersey v. Soto, 324 N.J. Super. 66, 734 A.2d 350 (1996) led to New Jersey Atttorney General investigation and ultimate consent decree.

     3. Derricott v. Maryland, 327 Md. 582, 611 A.2d 592 (1992) a valid profile should be based on empirical support and not anecdotal experience.

II. Legislation

A. Federal

     1. Clinton Executive Directive

     2. HR 1443 Traffic Stops Statistics Study Act

B. States Passing Traffic Stop Statistics Legislation

     1. California voluntary collection, but mandatory diversity training.

     2. Connecticut agencies must adopt written policy.

     3. Kansas age and residency are included in the statistical reporting.

     4. North Carolina applies only to state agencies, NIJ funded study of data.

     5. Massachusetts includes gender in the definition, see link to website below.

     6. Missouri see link below to website for good model policy. (www.mopca.com/)

     7. Rhode Island oversight board must include a statistics professor, requires a written policy, states that data cannot be used in legal or administrative proceeding to establish inference of discrimination except by court order.

     8. Tennessee voluntary reporting, funding "within existing resources," and expires on July 1, 2002.

     9. Washington applies only to state.

     10. Kentucky (Executive Order) can only apply to state.


III. Additional Resources


A. AELE <www.aele.org>

     1. Milazzo, Race Relations: A Legal and Ethical Perspective, 1999

     2. Zoufal, Developments in Racial Profiling Litigation, 2000 (Attached)

     3. All legislation, either linked or reproduced

     4. All recent cases as they become available

     5. Model Policy

B. Police Chief Magazine Articles

     1. September 2000, Anderson, Profiling Claims Based on Equal Protection: Decisions Signal Move Away from High Plaintiffs' Burden

     2. July 2000, Margolis and Watts, Proactive Defense Strategies Can Minimize Risk


C. Websites

     1. Missouri Chiefs Policy - <www.mopca.com/>.

     2. Massachusetts Chiefs of Police Association Action Plan to Combat Racial Profiling - <www.masschiefs.org/hottopics/hot_racial.html#action>.

     3. ACLU <www.aclu.org>.

IV. Future Trends

A. Statistical Collection

    1. Weak Methodology this is what we should expect from legislation that resulted from political compromise, which required only enough statistical compilation to draw inferences, and without reliance on rigorous academic analysis.

     2. Proactive Methodology you don't get to do this if you do not keep your own statistics and have a professional statistical analysis done. Use a qualified researcher to help construct a testable hypothesis. Municipal policing is different from the Highway Patrol, and cannot be subject to similar analysis. Consider additional relevant factors like:

     a. reported race of suspect as opposed to self-initiated officer activity

     b. race of victim

     c. race of suspect known to the officer at the time of the stop and reason for uncertainty (night time, tinted windows, white rear seat occupants, etc.)

     d. citizen complaints as a percentage of total contacts

     e. citizen complaints alleging discrimination

     f. relevant social or cultural pathologies that affect crime rates on a local basis, including education, teen pregnancy rates, single parent homes, etc.

     g. consider geographic divisions within the same city

     h. interracial and intraracial crime rates


B. Public Debate

1. Ignorant and Political

     a) ACLU hired a PR firm to produce a a series of professionally designed ads focusing on "issues of fairness in our justice system." <www.aclu.org/features/f060200a.html>.

     b) Profiling Decoys

     Decoys Hit Streets to Seek Out Racial Profiling Black Minn. Group Plans to Tape Traffic Stops Aug. 11, 2000 (APBNews.com)

2. Proactive and Objective

     a) Letter published in The Baltimore Sun Editorial page July 29, 2000 Racism isn't in the Profile of the Maryland State Police July 25, 2000 (see end of this document)

     b) PERF Subject to Debate, September 2000, "From the President"

     Before the community or government, for that matter will be able to address this serious national issue, we must have a clear, well articulated definition of "racial profiling." Only then will we be able to not only make a determination of whether or not racial profiling exists in our community, but what needs to be done to correct it. Additionally, the law enforcement community needs to ferret out and identify the reasons, no matter how complex, that explain the disproportionate number of stops and arrests of members of the minority community. Ultimately, only a deeper understanding of the issues and facts will yield solutions, and we must find solutions. The issue of "racial profiling" is not going away. (Emphasis Added).

     c) PERF Subject to Debate, July 2000, "Becoming More Assertive About Good Research," by Dr. Gloria Laycock. (Advocating more initiative by police management in both using and inviting academic research of department practices).

     d) "Police Interactions With Racial and Ethnic Minorities: Resolving the Contradictions Between Allegations and Evidence," Samuel Walker, with a response by Richard Myers, PERF 2000. (Examining social science evidence that police do not engage in systematic discrimination against racial and ethnic minorities).


V. Recommendations

A. Training Diversity and Sensitivity or Ethics and Law?

     Although more popular today than ever before, diversity training is no panacea. Diversity training and sensitivity training is valuable for law enforcement, but there is a time and a place for good diversity training to be effective. It does not belong in a knee jerk reaction to unfounded claims of racial profiling or it will cause officers to resent minorities more instead of less. If an officer is truly stopping minorities solely based on race, than there is either an integrity problem or legal ignorance. Diversity training neither solves, nor prevents either problem. Ignorance of the law is more properly prevented and corrected with good legal training. Integrity problems are more properly prevented with good ethics training and corrected with progressive discipline. Years from now, leaders may still be discussing race relations, wondering why all the diversity training from the 90's did not work.

B. Empirical Analysis of Local Criminality

     Litigation and legislative initiatives to influence police treatment of minorities will not subside. If police treatment is legal and ethical, then there must be a better way to counter the burgeoning trend of poorly constructed and analyzed statistical studies. Departments will have to defend against disparate treatment claims in both a judicial and legislative setting where good research is important. Depending on the local community, a valid academic analysis my also help enlighten public debate. In addition, where there is an identifiable systemic disparate treatment attributable to the police, a more effective and timely response will be guided by empirical analysis rather than anecdotal inferences.

C. Public Education by Law Enforcement Professionals

     1. Diversity Training About Police, as Well as For Police

     The police subculture has been well documented, and needs to be explained to the public as well as to officers. Just as there is a great benefit to teaching officers about the various subcultures they will interact with, there remains an untapped benefit of educating those same cultures about the police world. There are reasons why officers become so risk conscious, distrustful, and forceful in their language. Minority subcultures need more exposure to these explanations from the police. They also need suggestions on how to appropriately respond during police interactions to reduce the potential for misunderstanding or unnecessarily escalating tension. Unfortunately, there is too much negative reinforcement from different influential sources and the police need to become more proactive in reaching those communities and the general public.


2. Impact of Racial Bias Against the Police, as Well as By Police

     There is no counterbalance to the constant barrage of alleged racism by rank and file police officers in America. There is no public recognition or discussion of the impact of racial bias against the police. Time after time, officers who are the subject of unfounded claims of racism are compelled to endure more diversity training, complete with offensive stereotypes which blatantly contradict the reality they live in. The public policy being constructed today in reliance on racially motivated or politically inspired advocacy has the potential to create unintended and destructive consequences. Only proactive police management can offset the effects of irresponsible public leadership by introducing a more balanced discussion of the barriers to improving race relations with the police. Many police executives are given the opportunity to appear before legislative bodies, the news media, community groups and professional organizations. These appearances tend to be one-sided and lack a balanced discussion of the true nature of obstacles confronting police executives who are sincerely trying to improve race relations.


VI. Additional sources

     1. Anderson, "Profiling Claims Based on Equal Protection: Decisions Signal Move Away From High Plaintiff's Burden," Police Chief, September 2000.

     2. Margolis, Watts, and Johnston, "Proactive Defense Strategies Can Minimize Risk," Police Chief, July 2000.

     3. Zoufal, "Developments in Racial Profiling Litigation: 'A Tale of Two Cities,' published at <www.aele.org/zoufal.html>.
~~~~~~~~~~~~~~~~~~~~~~~~~~
(Letter to The Baltimore Sun by the Superintendent of the Maryland State Police)

     In his opinion article published in "The Sun" on July 20, 2000, Mr. Robert Wilkins questioned the concern of Governor Parris N. Glendening, Lt. Governor Kathleen Kennedy Townsend and the Maryland State Police about racial profiling. Let me assure Mr. Wilkins and the people of Maryland that Governor Glendening and Lt. Governor Townsend are not tolerating this injustice in the State Police or anywhere else in state government.

     Governor Glendening and Lt. Governor Townsend were elected three years after the traffic stop Mr. Wilkins was involved in and shortly after the settlement agreement with him was reached. Both Governor Glendening and Lt. Governor Townsend have a deep and well-documented commitment to issues involving fairness and justice.

     Racial profiling is not tolerated in the Maryland State Police. A clear, strong policy prohibiting this practice is in place. Every sworn member of the Department has been trained in the latest Fourth Amendment and Constitutional law and procedures. In addition to what was required in the settlement agreement, every employee has also received diversity training. We continue to examine new training that we hope to incorporate into our curriculum in the near future.
We have worked hard to increase diversity within the Department. I believe that a police department must be a demographic reflection of the communities it serves. I have ensured proportionate diversity throughout our rank and file and our command staff. Minorities comprise 29 percent of the sworn troopers in the Maryland State Police.

     During this past General Assembly session, I testified along with the Maryland Chiefs of Police, the Maryland Sheriffs' Association and the Fraternal Order of Police support of racial profiling legislation that failed to pass. Governor Glendening will personally introduce racial profiling legislation in the next session and I will be there in support.

     What Mr. Wilkins failed to clarify is that his concern and the concern of the ACLU has been narrowed to the JFK Highway Barracks, one of 23 Maryland State Police installations. This is a diverse barracks where the compliment of African American troopers has ranged from 27 to 37 percent of the troopers. Three of the last four commanders are African Americans. With the support of our troopers, I had cameras installed in all patrol cars at this barracks last year to record each traffic stop. I just recently asked for a minimum of $250,000 in federal funds for additional cameras to put in patrol cars at other barracks.

     Troopers at the JFK Highway Barracks patrol I-95 from the Baltimore City to the Delaware state line, a well-documented portion of the East Coast drug pipeline. Within the past five and one-half years, troopers at the JFK Highway Barracks have recovered more than 1,550 pounds of marijuana, cocaine, crack and heroin that had a street value of more than $22 million. They arrested 1,590 drug criminals while recovering 104 guns. Troopers recovered $2.8 million in cash and 124 vehicles connected with the drug trade.

     In 1997, the El Paso Intelligence Center, an agency of the Drug Enforcement Administration, recognized the Maryland State Police for recovering more crack cocaine during traffic stops than any other police department in the country. Most of that crack cocaine was recovered by troopers from the JFK Highway Barracks. Obviously, there is a strong need for us to continue our quest to keep our state drug free.

     Also what Mr. Wilkins did not make clear is the number of people stopped on I-95. From June 1996 through March 1998, troopers at the JFK Highway Barracks stopped 32,727 white drivers and 14,048 African American drivers. Less than one percent of the white drivers and less than one percent of the African American drivers were asked for consent to search their vehicles.
The cases made by our troopers during traffic stops undergo strict judicial scrutiny and are overwhelmingly successful. I am confident requests for searches are being based not on the race of the driver, but on reasonable suspicion developed during each individual traffic stop.
Maryland state troopers clearly know they cannot stop someone simply because of the color of their skin. Our troopers know I will not tolerate any hint of racial profiling within the Maryland State Police. They know they cannot request to search a vehicle just because the driver is a minority. They know that each time they search a vehicle, their actions will be scrutinized in excruciating detail by not only defense attorneys, but also by those who continue to accuse the men and women of this Department of stopping and searching individuals only because of their race.

     Each day, I am impressed by the dedication of our troopers who, knowing the potential threat of untrue allegations, still risk their lives to stop the flow of drugs into Maryland. There is a sad irony in the litigation pending against the Maryland State Police. Some of the troopers being sued by the ACLU are members of the NAACP.

     The suit filed by the ACLU, which they are attempting to certify as a class action, originally involved 18 plaintiffs who claim to have been inappropriately dealt with by troopers from 1993 through 1999. During that period, 181,304,141 vehicles traveled on the interstate patrolled by the JFK Highway Barracks, only 266,522 of which were stopped by troopers and issued a traffic citation or warning.

     Absent from the published article are the true stories of troopers like TFC. Eddie Plank, who was shot and killed by drug couriers on Rt. 13 in October, 1995. Early the next year, a drug courier on that same highway attempted to run over Sgt. Mike Lewis. Then, in 1996, TFC. Michael Hughes was ambushed and shot near his home as a result of a drug criminal conspiracy that involved more than 20 people. The intended target was his brother, TFC. David Hughes, who had previously stopped a drug dealer on I-95. As the trial date neared, the drug dealer wanted TFC. Hughes murdered. This is a risky business, but one our troopers willingly face every day.

     Upholding the Constitutional rights of all our citizens must be of paramount importance for our state troopers and I believe it is. I expect them to be law enforcement professionals who enforce our laws equally and fairly. They do so with great dedication.