Racial Profiling in the USA

Racial Profiling in the USA

Reginald Shuford, American Civil Liberties Union

The organization for which I work, the American Civil Liberties Union Foundation, is one of the oldest organizations of its kind in America. Its overarching concern is the protection of constitutional rights and civil liberties for all Americans against government infringement. Its legal department consists of a number of areas of concentration, including the Lesbian and Gay Rights Project, the Drug Policy Litigation Project, the Women’s Rights Project, the Immigrants’ Rights Project, the Reproductive Freedom Project, and the National Legal Department, the department in which I work, which focuses on first amendment free speech and technology issues and race and poverty issues. The work that I do concerns racial profiling.

Today, I will address three primary issues related to my racial profiling work:

1. What is racial profiling by law enforcement and how is it manifested in the U.S.?
2. How is racial profiling challenged?
3. What obstacles are there to challenging racial profiling in the U.S.?

What is racial profiling?

The phenomenon of racial profiling has recently become better known—but it has long been a part of U.S. culture, as experienced by and as known to African Americans since the days of slavery, when monitoring of the movements of blacks and freed slaves was the norm. But this phenomenon has only recently been acknowledged in the past several years outside of the African-American community.

One component of racial profiling today is a strong, well-funded effort to eradicate drugs. Starting in the 1980s, the “War on Drugs” also became associated with racial profiling. Those conducting the War on Drugs began to believe that it required a focus on African Americans and Hispanics—as being more likely than any other “demographic” to be carrying drugs. This erroneous assumption has been examined in detail—and shown to be wrong. African Americans do not transport or use drugs more than anyone else—they use them much the same as other people.

But when things get rough (i.e., as evidenced by the commencement of the War on Drugs), the people that bear the brunt of this are those who are disenfranchised, those who are less able to defend themselves. And in the US that is Blacks and Hispanics.

A big reason why the phenomenon of racial profiling has become a much more familiar concept in America is because of Robert Wilkins. In the early 1990s, Robert Wilkins was stopped for speeding by the Maryland State Police. Robert and a few of his relatives were driving through Maryland on the way back from his grandfather’s funeral in Chicago. Robert lived and worked in Washington, D.C. But the interaction did not stop at the exchange of a ticket. The police asked to search his car. Most people would probably agree out of a desire to have the situation end as quickly as possible and because of a misbelief that they had no right not to consent. But Robert Wilkins was different than most. As a Harvard-educated lawyer and public defender, he knew his rights and refused to submit to a search. But the police carried out the search anyway. Robert and his family had to stand in the rain and watch and be humiliated as drivers passed them by. Nothing was found. Robert Wilkins felt his and his relatives’ rights had been violated. He decided to sue, and brought a suit with the assistance of the ACLU. A class action suit was launched and this brought a lot of publicity to the practice of racial profiling. Robert learned during the course of his lawsuit that he had been stopped pursuant to an explicit race-based “drug courier profile” created in the early 1990s in service of Maryland’s effort in fighting the War on Drugs. Part of the settlement of Robert’s case required the Maryland State Police to collect and maintain data. That data demonstrated that while black motorists were roughly 15% of the motorists who were speeding on Interstate 95 in Maryland, blacks, constituted 73% of those stopped and searched.

In 1999, the Oxford American Dictionary (OAD) provided a definition of racial profiling for the first time. “Racial profiling: an alleged police policy of stopping and searching vehicles driven by people from particular racial groups.” To have a definition in a prestigious publication such as the OAD is a good thing. But the definition is closer to a definition for “driving while Black or Brown” than for racial profiling.

Racial profiling is broader than just driving. Other examples: flying while black or brown, walking while black or brown (i.e., “Why are you in this neighborhood? You couldn’t possibly afford to live here”), shopping while black or brown (being followed in a store or ignored altogether), hailing a cab while black or brown, dining while black or brown (tip automatically added to the bill of a black patron, under the theory that blacks are poor tippers), riding (as in a bike, in a particular neighborhood) while black or brown, running (as in jogging and exercising) while black or brown. Indeed, the phenomenon of racial profiling is so broad-based and pervasive that another phrase has been coined: breathing while black or brown.

Other commentators have offered a definition for racial profiling, too. For example, Randall Kennedy of Harvard Law School has described it as “using race as a factor in deciding whom to place under suspicion and/or surveillance. Racial profiling occurs whenever police routinely use race as a negative signal that, along with an accumulation of other signals, causes an officer to react with suspicion. A young black man selected for questioning by police while getting out of an airplane or driving a car is being made to pay a type of racial tax for the war against drugs that whites and other groups escape.”

I will focus my remarks today on challenges to the practice of driving while black or brown, although the legal analysis is likely to be the same or quite similar for challenging other times of racial profiling, too.

How is racial profiling challenged?

a. Litigation;
b. Legislative lobbying—for anti-profiling and data collection legislation;
c. Public education—the essential goal is to communicate that racial profiling is immoral, illegal and inefficient.

In 1999, 81% of the American public believed that racial profiling was wrong. In the context of the war on terror, 67% now believe that racial profiling is legitimate in the wake of 9/11.

Litigation: One provision that is relied upon is the 14th Amendment, which says: “No state shall deny to any person within its jurisdiction the equal protection of the laws”. This is known as the “equal protection clause”. The second provision used is the 4th amendment—“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Lastly, Title VI of the Civil Rights Act of 1964 disallows recipients of federal financial assistance to discriminate on the basis of race, color, or national origin.

Proof
Both the equal protection clause of the 14th amendment and Title VI require that the litigant prove intentional discrimination, which is no easy feat. There are a number of ways that this can be done:
(1) One way is through an admission of such a (racial profiling) policy by a law enforcement agency. A number of police chiefs have admitted in US states to racial profiling by their officers.
(2) Written policies. Another is to identify express policies which call for racial profiling by police officers (e.g., Maryland State Police).
(3) Statistics: admissible evidence. In collecting statistics in a case of “driving while black”, for example, the goal should be to discover (a) the racial composition of the group of people who actually do violate traffic laws and are therefore subject to being stopped and (b) the racial composition of those who are stopped and/or searched.

Relief
· In civil cases:
o Injunctive relief (i.e., training, monitoring, data collection, all designed to ensure that the abuse does not take place in the future.)
o Damages.
· In criminal cases, a motion to suppress any evidence.

What are the obstacles to challenging racial profiling?

1. Judicial hostility (deference of the judiciary to law enforcements, especially post 9/11);
2. Data collection (when voluntarily undertaken or legislatively or judicially ordered, that’s fine. Otherwise, there tends to be some resistance to it, and it can be quite costly.)
3. High standard of proof that is required to prove racial intent. Also, there is a somewhat high standard required for standing to seek injunctive relief.
4. Weakened protections under the 4th and 14th amendments. Deference given to law enforcers.
5. High costs associated with private litigation.

Q&A

Reginald Shuford's presentation generated much interest among participants at the meeting. The following are among the questions asked and answers submitted.

Q: "Intent" is one of the areas where the U.S. is very backward. Europe is far ahead—it is not necessary in most cases to prove “intent”—but only to demonstrate the discriminatory effect of the action. Has litigation challenging racial profiling been a success?

RS: Depends on what you mean by success. In alerting people to the fact and pernicious effect of racial profiling yes—among the public there is more awareness and disapproval of the phenomenon. In terms of the courts, much less of a success. Although we have won almost 100% at the motion-to-dismiss stage, at the proof stage we have been somewhat less successful. Fortunately, many of these cases have been settled, resulted in impressive consent decrees containing broad-based injunctive relief and in significant monetary awards.

Q: Statistical evidence: How do you get it if the government does not already have it?

RS: Other sources. For example, the Boston Globe did a study on the basis of tickets which carried racial information—and which could be used to launch a case. Faced with charges of or evidence demonstrating racial profiling, governments will want to collect the data themselves to prove the charges wrong.

Fixed survey: Count all the people going by in cars, their race and whether they are breaking a traffic law (e.g., speeding) and therefore may be appropriately stopped.
Rolling survey: Or drive at the speed limit and monitor those breaking the speed limit as a baseline. Have handy an expert/professional statistician, preferably at the onset of the litigation. Courts are much more likely to believe a professional statistician.

Q: Police officers in Russia also stop people while they are walking. Police do not keep statistics, say they do not have the information and do not have the resources to collect information. How can they be forced?

RS: If the courts in the U.S. order you to do something you better do it. Also, legislation. Public pressure.

Q: Provision of services. Can people who provide services to Blacks and Hispanics encounter problems?

RS: Yes, but this tends not to be a function of governments. Rather, it tends more to be an issue of private incidents of bias or violence.

Q: How can you get someone to seek a remedy if they are likely to run into a wall at every turn?

RS: Depends on the jurisdiction. In the U.S. you would turn to police or other agencies.

Q: We have seen that racial profiling is common in Russia. We have seen that there are 3 approaches to this applied in the U.S., none of these are illegal in Russia, they are all used, they could be used more. We have seen that in the US it depends on a very simple and vague provision, the Equal Protection Clause of the 14th amendment. In a way, the laws are more precise here. We have seen that one approach is to find admissions—such as that of the police quoted by Nadejda Demeter concerning Roma/Gypsies. Written policies. Statistics: if it can be collected by a group of volunteer students, we have those in Russia; if you need a professional statistician in court, we have some of those in Russia also. There are major problems in the US also, but they have been overcome. Cost etc.

RS: In many respects, those of us who believe in equality want to believe that race or ethnicity is a social construct rather than something innate. But this conflicts with a society where people are targeted for their race. This has led to a conflict in the human rights movement in the US—whether “making a big deal” about race is playing along with racist tendencies in society. What is significant is not the ethnicity of the person stopped but how he is perceived by the officer (i.e., what motivated the officer to stop the person in the first place).

Q: Is racial profiling performed only by government agencies or by regular people as well?

RS: The government is made up of ordinary people. Private sector and private individuals too are likely to use racial profiling. But there is something even more malevolent about the government doing it because of its role, its size, and its power.

Q: The significance of collecting statistical data is huge. It can be applied in Russia also. An evangelical church was brought to court to be closed down. The defendant went to the registry office to ask about the number of divorces in the area. For the area as a whole it was 85%. For members of the church it was 0%. A psychiatrist was employed to give evidence—and the court ruled in favour of the church on the basis of statistical evidence.

We welcome your comments