Racial Profiling: The Law, Police and Community Attitudes and Responses

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1 Racial Profiling: The Law, Police and Community Attitudes and Responses BACKGROUND Racial profiling and/or the perception that racial profiling is occurring is one of the most important issues currently facing law enforcement. While this certainly is not a new issue, there have been accusations of it throughout our nation s history; it probably is the single law enforcement issue that has received the most media coverage and citizen involvement during the last two years. It is an issue that is not simply going to go away on its own. It is an issue that police agencies must address in order to maintain credibility with the citizens that they serve. This paper will explore the issue and offer some solutions in addressing the problems. DEFINITION The logical starting point for a discussion about racial profiling is to define what it is and what it isn t. The most basic definition of racial profiling is: the unlawful police practice of using race, color, or ethnic background, as the reason for conducting a traffic stop on an individual. 1 It is not racial profiling every time a police officer stops a 1

2 minority individual. It is only racial profiling if the reason for the stop is the individual s race, color, or ethnic background. DOES IT ACTUALLY OCCUR? The next question that must be answered is: Does racial profiling actually occur? There are many people in law enforcement that do not believe that racial profiling ever occurs, or at least occurs so infrequently, that it is not a significant problem for law enforcement to address. There are others who believe that racial profiling is a proper activity for law enforcement to participate in. Just prior to his dismissal, Carl Williams, the former director of the New Jersey State Police, defended profiling by indicating that it was proper to stop more minorities because they were the most likely group to be involved in drug trafficking. 2 Profiling has been used successfully for identifying plane hijackers, serial killers, serial rapists, and arsonists. 3 The National Association of Police Organizations has announced its opposition to a federal bill, the Traffic Stops Statistics Act, which would require police agencies to collect racial identification data from all traffic stops that officers made. The organization declared that there was no need to collect the data, indicating that there is no problem with racial profiling occurring. 4 There are many more examples of individuals in law enforcement who do not believe there is a problem with racial profiling. While I believe these individuals are sincere in their beliefs, I believe they are ignoring, or are not aware of, the overwhelming empirical statistical data that proves profiling does currently exist in law enforcement in 2

3 the United States. There are two studies that have been widely cited to prove that racial profiling currently exists. The first, and most comprehensive study to date, was conducted during 1993 on interstate highway I-95 in New Jersey. The study was conducted by John Lamberth, a Temple University professor and statistician. Lamberth was hired by attorneys for a group of African-American men who were suing the New Jersey State Police. The goal of the study was to determine if the State Police stop, investigate, and arrest black travelers at rates significantly disproportionate to the percentage of blacks in the traveling population, so as to suggest the existence of an official or de facto policy of targeting blacks for investigation and arrest. 5 The results of the study showed that 73.2% of individuals stopped and arrested were African-American. While only 13.5% of all vehicles on I-95 had an African-American driver or passenger, these vehicles accounted for approximately 35% of the total traffic stops by the State Police. 6 Lamberth s conclusion was that the race of the driver was a decisive factor in determining if the vehicle would be stopped. 7 The second study was also conducted by Lamberth. This study occurred on a section of I-95 in Maryland. In this study Lamberth s analysis showed that while 17.5% of African-Americans were responsible for traffic violations, the total traffic stops conducted consisted of 72% African-American, and only 28% non-african-american. 8 In Michigan, in December of 1999, an EPIC/MRI poll was released which showed that while African-Americans were stopped by the Michigan State Police about as frequently as Whites were, African-American drivers were more than twice as likely to be ticketed than Whites. 9 3

4 A Gallup Poll was also released in December of This poll showed that 59% of all adults believe that racial profiling by police officers does occur. 77% of African- Americans believe that profiling is widespread. 72% of African-Americans aged reported that they had been stopped because of their race. 10 The only logical conclusion that one could make from these studies and polls is that racial profiling does occur. ANECDOTAL EVIDENCE In researching this paper I discussed the issue of profiling with five (5) African- American police officers that I work with or that I know with other Michigan police agencies (the officers did not want to be identified in any way). I specifically wanted to know what their experiences were, not on-duty, but off-duty as an apparent civilian. All five of the officers told me that they believe they had been stopped at least one time because of their race during the last five years. I will detail the statement of one of the five. While all of their experiences were similar; I found this officer s experiences to be the most compelling. This officer is in his late thirties. He has been a sworn and highly successful officer for over fifteen years. He resides in a Detroit suburb. He also teaches at a regional police academy. This officer related that on over ten occasions during a three-year period when he worked a four p.m. to midnight shift, he was followed and stopped in one particular Detroit suburb while on his way home. The officer stated that he was absolutely certain that he did not commit any traffic violation because he was aware of the reputation of the police agency there for stopping African-Americans, and that he took precautions in order to avoid being stopped 4

5 there. Ironically, each time that he was stopped was by officers that he knew from having trained them at the police academy or having worked with them in a mutual aid capacity. Immediately upon recognition he was waved on from the stops and told, Sorry - you re all set. Sometimes the officers would engage in a friendly conversation with him. This officer (and the other four officers in their incidents) chose not to confront the individual officers or to complain to the officer s supervisors about the actions. When I questioned the officer about why he didn t complain, he told me, That s just the way things are; it wasn t worth making an issue about it. While I in no way fault the officers for not taking action, and I understand their logic, I am concerned about the level of this apparent activity. I speculate that if more African-American officers would complain about their off-duty encounters, this issue would receive greater attention from ranking police officials. My initial belief was that there is a very small percentage of police officers that take part in profiling activities of any type. While admittedly my random sample was small, the fact that all of them had been stopped is a troubling disclosure. I can only compare this to my own experience (as a White male) and state that as an admittedly chronic speeder; I have not been stopped during the past five years. In researching this paper, I also attended a community meeting on racial profiling. The meeting occurred on February 5, 2000, at Perry Elementary School in Ypsilanti. The meeting was sponsored by the N.A.A.C.P. I listened to eight African- American citizens who shared their individual experiences with what they believed to be incidents where they were victims of racial profiling. The individuals ranged from college students to a man in his sixties. While it was apparent to me as a police officer 5

6 that there were some incidents that they were recounting where it was obviously correct and justified for the police officer to have stopped them, it was just as obvious to me that several of the stops lacked justification and it did appear that race was the motivating factor behind the stop. While it is impossible to reach any accurate statistical conclusions from these individual accounts, it is clear that a large segment of the community believes that racial profiling does exist and that African-Americans are much more likely to be stopped than Whites. FACTORS THAT CONTRIBUTE TO PROFILING To assume that the only reason behind profiling is racists beliefs of individual officers or of society as a whole would be an oversimplification and an incorrect conclusion. I see four additional primary factors that contribute to the practice of profiling. The first factor that contributes to a profiling mentality is the erroneous law enforcement belief that African-Americans should be stopped more frequently than Whites because African-Americans are disproportionately greater involved in drug trafficking and in crime in general than Whites. Studies of the hit rate (for drugs during searches) have shown that the rates are virtually identical for traffic stops involving African-Americans and Whites. A United States Customs Agency hit rate report showed a 6% hit rate for both groups although African-Americans were subjected to the disproportionate rate of 44% of the searches. 11 6

7 The second factor is that police training courses such as Highway Drug Interdiction often focuses on minorities as the targets of searches. While race is usually not mentioned (at least officially) as a factor, several of the other indicators that officers are trained to look for as indicators of criminal activity may disproportionately apply to minorities, not because of criminal involvement, but because of economic factors. For example, officers are trained to stop vehicles for minor equipment violations. African- Americans may have a disproportionately high number of equipment violations due to the economic restrains of maintaining a vehicle. The third factor is the effect of a recent United States Supreme Court ruling: Whren v. United States. 12 The issue in Whren was the use of pretext stops. Pretext stops are traffic stops in which the police officer stops a vehicle for a minor violation (typically one which officers would not or would rarely stop a car for) in order to run a check on the driver or to attempt to search the vehicle. The facts in Whren, were that two plain clothes Washington D.C. officers conducted a traffic stop on the defendant for speeding. This was an unusual activity for the undercover officers to perform. In fact, their departmental regulations prohibited undercover officers from conducting traffic stops. The officers admitted that the primary reason that they stopped the defendant s car was because they believed he was involved in drug sales and they wanted to search his vehicle. A search of the vehicle did locate drugs. The United States Supreme Court ruled that the subjective intent of the police officer did not matter as long as there was a legitimate reason for conducting the traffic stop. This ruling, in effect, allows police officers to make pretext stops. Some officers may abuse this discretion in making stops that would not normally be made in order to 7

8 attempt to discover criminal activity even though there is no legitimate reasonable suspicion to indicate that such activity is occurring. This is one of the areas that many segments of the community are most concerned with. There is a feeling among many people that this type of behavior is not good, aggressive police work, but rather it is harassment of people based on their race. The Court did caution that it might allow challenges to the use of race as a basis for making stops under the Equal Protection Clause of the Fourteenth Amendment. The Court stated: We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminating application of laws is the Equal Protection Clause, not the Fourth Amendment analysis. 13 A final factor is the use of productivity systems in police agencies. There are several different types of productivity systems used by police agencies. In general, these are systems that are designed to measure the work output of each individual officer. I worked under a productivity system in the Ann Arbor Police Department for several years. That system monitored several activities that patrol officers engaged in. The system was used as a factor for determining who would receive special positions (such as detective training) and it was used for promotions. Performing well on the productivity system was important for officers who wanted to advance their careers. The system kept statistics on, among other things, the number of traffic stops made, citations issued, arrests made, and field-interview cards obtained. Many officers had the belief that stopping a car being driven by, and containing, young minority males would yield the biggest gains for their personal statistics under the 8

9 productivity system. This belief, like the belief that African-Americans are disproportionately involved in drug trafficking, became a self-perpetuating activity. Officers were stopping more minority males, therefore there was a better chance that they would have a traffic warrant on them. A stop that yielded a traffic ticket and an arrest or two, was like hitting a jackpot under the productivity system. These types of productivity systems inadvertently led to profiling activities by many officers. WHY DOES IT MATTER? The simple answer to the question of Why does it matter if racial profiling is occurring? is that it is both morally and ethically wrong. But there are several reasons that go beyond it just being the wrong thing to do. First, it is an actionable constitutional violation. The 4 th Amendment of the United States Constitution prohibits unreasonable searches and seizures. 14 Several courts have allowed civil actions against police officers and their supervisors for profiling activities. A recent United States district court ruling affirmed that making traffic stops on the basis of race has been clearly established as an unconstitutional activity. The court allowed a civil lawsuit to go forward against Maryland State Police officers and their supervisors. Interestingly, the court ruled that even though the supervisors did not at any time directly participate in making profile stops, just the fact that there was strong statistical evidence indicating disproportionate traffic enforcement and searches of minorities was sufficient to have given the supervisors notice that their troopers were committing constitutional violations. The court ruled that the supervisors therefore had a 9

10 duty to take action to end these constitutional violations. Their failure to act was actionable against them. 15 Racial profiling activities could also rise to the level of criminal offenses by the officers involved in it. There are several state statutes and/or state common law that cover offenses such as malfeasance of duty. I believe that there are prosecutor s offices that would charge individual police officers with these types of criminal offenses if the facts of the individual incidents would support the charges. Perhaps the most compelling reason for police agencies to end these practices though is the effect that racial profiling has on the relationship between the police and the communities that they serve. For the past several years most police agencies have stressed community policing as the model of policing that they are operating under, or are attempting to operate under. Community policing is a model in which the police and the community form a partnership in order to work together to both reduce crime and to improve living conditions for the citizens of the community. These police agencies have stressed the concept that the police are part of the community that they serve. By becoming more involved in the community, the police hope that the community will trust them more and work with them in solving the problems of the community. Racial profiling activities by members of these police agencies causes irreparable harm to community policing. Years of positive police community interactions can be destroyed by racial profiling activities. Police agencies cannot hope to achieve any level of community support if any segment of the community is being treated unfairly by the police agency. It is clearly in the best interests of police agencies to take immediate actions to end any racial profiling by members of their agency. 10

11 LEGISLATIVE RESPONSES Many civil rights groups and individuals have called for police agencies to develop policies that would prohibit profiling and to begin collecting traffic stop data that would list the race of the driver of all vehicles that the agency stopped. There have already been some limited legislative responses to the issue. In April of 1999, a federal bill, was introduced in the United States House of Representatives. 16 This bill would require the Attorney General to conduct a nationwide study of traffic stops by police officers to determine: the race, gender, ethnicity, and approximate age of the driver; the reason for the stop, information on any search that was conducted, and information on any enforcement action that was taken. The bill has not been passed by the full House as of this writing. There have also been legislative actions at the local level. For example, in February of 2000, the Ann Arbor City Council passed a resolution mandating the Ann Arbor Police Department to begin collecting information similar to that required in HR 1443 for all traffic stops that their police officers made after July 1, This resolution also mandated obtaining information identifying the individual officer making each stop and identifying the gender, age, race, and ethnicity of the officer making the stop. Several other communities are considering resolutions that would require their police agencies to begin collecting traffic stop data

12 POLICE RESPONSES There was a strong initial resistance to requiring police agencies to report racial data on traffic stops by many police organizations and individuals. Farmington Hills Chief of Police William Dwyer, who is a leader in the Michigan Chiefs of Police organization, expressed a concern about how the statistics would be interpreted and who would interpret the statistics. Dwyer warned that data collection could lead to inaccurate interpretations of racism if the statistics were misinterpreted. 19 Dwyer, and several other law enforcement leaders, are concerned that the media and the general public will misinterpret the statistics by comparing the racial information on the traffic stops to the racial make-up of the jurisdiction where the stops occur; instead of comparing the stop data to the racial make-up on drivers on the roadways that the agency is enforcing. For example, the statistics from a small predominately White suburb that borders the City of Detroit, a with a predominately African-American population, would very likely show that the agency made a disproportionate number of stops on African-Americans as compared to the number of African-American residents of that city. The raw data would not reflect that the actual number of African-American drivers on the streets of this suburb were probably much greater than White drivers, because of the large African- American driving population traveling through this suburb to and from their residences in Detroit. There have been a limited number of studies made to determine the accurate racial data of the driving populations in specific jurisdictions. One of the problems with collecting racial data is that while it is relatively inexpensive to obtain the raw racial data on drivers, it is much more expensive to conduct accurate traffic studies that would 12

13 provide factual information on the race of the actual driving population in a specific jurisdiction. Some agencies have begun collecting racial data on traffic stops in Michigan. On January 1, 2000, the Michigan State Police and the City of Dearborn Police Department began collecting data. 20 On July 1 st the City of Ann Arbor Police Department also began collecting data. The actual mechanics of the collection methods for all three agencies are similar. The agencies are obtaining information from all traffic stops that their officers make. This information is either obtained from the officers daily reports or from a separate computer data form that the officers must complete on each stop that they make. The information that each agency obtains does have some minor variations. For example, Dearborn, with a large Middle-Eastern population, has a specific category to capture if the driver should be in that classification, while the State Police and Ann Arbor forms do not capture that information they would only capture the driver as being White. 21 Another issue that is closely related to profiling is the issue of consent searches. A consent search is defined as a search made by law enforcement officers after receiving permission from an individual. This is a search where the officer lacked sufficient probable cause and/or exigent circumstances, or where an arrest or warrant was not involved to conduct a search. Many individuals and organizations have complained that minorities are unfairly and disproportionately targeted for these searches. Police agencies have taken affirmative steps to address this issue. For example, in August of 1999, the Michigan State Police issued a policy order that prohibited their officers from conducting consent searches, except when their 13

14 observations and questioning indicate a need to do so based upon an articulable reason. 22 In July of 2000, the Ann Arbor Police Department published a policy that states, Officers shall not request an individual to consent to a search of his/her person and/or vehicle unless the officer(s) can articulate a reasonable suspicion that the search would reveal evidence of a crime. 23 These policy changes were designed to address complaints that officers routinely conduct fishing expeditions in searching minorities with no factual reasons to support the search. It is not enough though for the agencies to become aware of the existence of profiling activities; these police agencies must take affirmative actions to eliminate these activities when they are discovered. One of the most effective ways to eliminate these behaviors is through the use of internal administrative discipline. Police attorney Carl Milazzo, in addressing the International Association of Chiefs of Police conference in 1999 stated that, Officers are more likely to be deterred from misconduct by the prospect of losing days off without pay or their job, than losing a case because of a motion to suppress, or a class action lawsuit against the entire agency where the agency settles the suit without bothering to contest the merits. 24 Police agencies must also develop policies that prohibit racial profiling and they must provide training to their officers on those policies. Police agencies also need to provide current on-going legal training to their officers. I am personally aware of police agencies in Michigan that have not provided their officers with any type of legal update training for more than fifteen years. 14

15 While it is too early to make accurate evaluations about the effectiveness of these policies, the initial results in Ann Arbor have shown a reduction in the number of race related complaints. There are many actions that police administrators must immediately take to eliminate the problem or the perception that racial profiling is occurring in their individual agencies. Police administrators cannot simply ignore this problem and assume that it will go away it will not. CONCLUSIONS Racial profiling continues to be an important issue that police agencies must act on. Several agencies have taken steps to address the concerns with the issue. The collection of racial data from traffic stops and policies prohibiting searches without an articulable suspicion of criminal activity, are two important steps forward that some agencies have taken. Police agencies must continue to address the concerns of the community about racial profiling if the agencies truly hope to attain their goals of forming a partnership with the community under community policing programs. 15

16 Sources 1 Michigan Civil Rights Commission. Position Statement on Racial Profiling. Lansing, MI: Racial Profiling on Our Nation s Highways. American Civil Liberties Union Special Report, 3, (1999). 3 Turvey, Criminal Profiling: An Introduction to Behavioral Evidence Analysis, Academic Press, San Diego (1999). 4 Jackson, Robert L., Push Against Bias in Traffic Stops Arrested. Los Angeles Times 1 June 1998: A5. 5 Booker, Chris. Driving While Black A Modern Variant of an Historical Problem: Traveling While Black. African American Male Research 3.2 (1999) : Lamberth, Dr. John, Revised Statistical Analysis of the Incidence of Police Stops and Arrests of Black Drivers/Travelers on the New Jersey Turnpike Between Exits or Interchanges 1 and 3 from the Years 1988 Through , State V. Pedro Soto, 734 A.2d 350 (N.J. Super. Ct. Law. Div Id. at Id. at 5 table 1. 9 Arellano, Amber. Blacks Are Ticketed More Often, Poll Says. Detroit Free Press 7 February Arellano, Amber. Whites, Blacks Say Stops Based On Race, Poll Says. Detroit Free Press 13 December Harris, Professor David. Driving While Black Community Meeting. Perry Elementary School, Ypsilanti, Michigan. 5 February Professor Harris is a law professor at the University of Toledo College of Law in Toledo, Ohio. 12 Whren v. United States, 517 U.S. 806 (1996). 13 Id. at United States Constitution, Bill of Rights, Fourth Amendment. 15 Maryland State Conference of NAACP Branches v. Department of Md. State Police, D. Md., Civil No. CCB , (1999). 16

17 16 Traffic Stops Statistics Act of 1999, H.R. 1443, 106 Cong. (1999). 17 City of Ann Arbor City Council. Resolution Supporting and Providing Guidelines For the Collection of Data to Inform Community Concerns About Racial Profiling. Ann Arbor: Forrest, Captain Edward, City of Lansing Police Department, Personal Interview, 13 Sept Arellano, Amber. Tracking of Race Resisted by Police. Detroit Free Press 14 April Shepardson, David. Cops Will Log Race of Drivers. Detroit News 10 December Id. 22 Michigan State Police. Consent Search Policy. Lansing, Michigan: Ann Arbor Police Department. Non-discrimination Policy. Ann Arbor, Michigan: Milazzo, Carl. Race Relations in Police Operations: A Legal and Ethical Perspective. International Association of Chiefs of Police Conference, Charlotte, North Carolina, 30 October