Legal Issues in the Use
of Race in
Criminal Investigations and Prosecutions
FEDERAL BUREAU OF INVESTIGATION
OFFICE OF THE GENERAL COUNSEL
LEGAL INSTRUCTION UNIT PRESENTATION
AT 106th IACP CONFERENCE OCTOBER 31- NOVEMBER 1, 1999
[Presented by Special Agent Mike Brooks]
A. Importance of issues of race to the modern police administrator.
B. Requirement that the administrator have a clear understanding of the legal boundaries to using race in criminal investigations and prosecutions before making the more important policy decisions involving such use.
II. What are the questions which must be answered?
A. Has the U.S. Constitution been interpreted to permit the use of race in criminal investigations and prosecutions?
B. Have the courts in my state ruled on the issue of using race in criminal investigations and prosecutions?
III. Constitutional Issues.
A. Use of race as the sole justification for an investigative action.
1. Violates the Fourteenth Amendment Equal Protection Clause. Washington v. Davis 426 U.S. 229 (1976)
2. The subjective intent of the officer (acting on the basis of a racial consideration to execute a Fourth Amendment search or seizure) will not violate the requirements of the Fourth Amendment if that officer possesses the requisite warrant, exception, and/or probable cause/reasonable suspicion necessary to execute the search or seizure. United States v. Whren 517 U.S. 806 (1996). However, race alone will never give the probable cause/reasonable suspicion necessary to make a Fourth Amendment search or seizure reasonable. United States v. Brignoni-Ponce 422 U.S. 873 (1975).
3. What about targeting a particular group for investigation solely because of their race based upon a victim/witness description of the subject? Brown v. City of Oneonta, 195 F.3d 111, 1999 U.S. App. LEXIS 26994 (2nd Cir. 1999); reh. in banc denied, 2000 U.S. App. LEXIS 33207, 2000 WL 1855047 (2nd Cir. Dec. 18, 2000). New York police obtained a list of all black male students at a predominantly white campus after a woman claimed she had been assaulted by a young black male and police dogs tracked the subject's scent in the direction of the campus.
4. A violation of the Fourteenth Amendment Equal Protection Clause has never been interpreted as requiring the use of the exclusionary rule.
B. Use of race as a factor in justifying an investigative action.
1. The Supreme Court has never ruled on the issue of whether a law enforcement officer can use race as a factor, among other factors, in taking an investigative action.
In light of the decision in Whren it seems unlikely that the court would hold such an action to constitute a Fourth Amendment violation. The only issue remaining is whether such use violates the Fourteenth Amendment Equal Protection Clause. The Supreme Court has turned down the opportunity to rule on this by allowing Circuit Court decisions, that it does not violate the Fourteenth Amendment, to stand.
2. Several Federal Circuits have addressed the issue, usually in matters involving law enforcement profiles used to identify possible targets for further investigation. All have permitted the use of race as a factor in making an investigative decision.
a. Sixth Circuit:
United States v. Travis 62 F.3d 170 (1995); cert. denied 116 S.Ct. 738.
United States v. Avery 137 F.3d 343 (1997). Includes holding that merely following someone, or approaching an individual for a voluntary conversation, to determine if there is a reasonable suspicion to stop that person is a violation of the Fourteenth Amendment if the decision to follow or approach is based solely on the subject's race.
b. Eighth Circuit:
United States v. Condelee 915 F.2d 1206 (1990).
c. Ninth Circuit:
United States v. Kim 25 F.3d 1426 (1994); cert. denied 115 S.Ct. 607.
3. State decisions contrary:
a. State v. Patterson 270 N.J. Super. 550, 637 A.2d 593 (1993).
b. City of St. Paul v. Uber 450 N.W. 2d 623 (1990).
C. Use of race as a factor in justifying a prosecutive action.
1. Violates the Fourteenth Amendment Equal Protection Clause.
2. Proof standards required for a defendant to prevail in such a claim. United States v. Armstrong 116 S.Ct. 1480 (1996)
a. Requires that the defendant show that the prosecution is bringing the case for a reason forbidden by the Constitution (discriminatory intent). The presumption is in favor of the prosecutor.
b. The defendant must allege and present proof that a prosecutorial policy has a discriminatory impact. This is accomplished by proof that similarly situated others of a different race were not prosecuted. This proof is required before the defendant may seek discovery from the government to prove discrimination.
3. What is the sanction if the defendant could meet this proof requirement?
IV. Conclusions / Recommendations.
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