II.
Legal Foundations of Race Bias Claims in Police Operations
A. Fourth Amendment
- Unreasonable Search or Seizure
1. Reasonable Suspicion to Stop
a. Pretext Stops - U.S.
v. Whren
{1}
A pretextual stop is where an officer uses a legitimate basis for stopping
a car (usually a minor traffic violation) to perform another function not
otherwise supported by the facts. Most pretextual stops involve an underlying
motivation to search for drugs, and seem to involve minority motorists
more than white motorists. The United States Supreme Court decided in Whren
that pretext stops are constitutional, but they be more detrimental than
beneficial to effective police operations.
The Court ruled consistently with historical interpretations of the Fourth Amendment, deciding that an officer's subjective intention is irrelevant in determining whether there is objective factual justification for a vehicle stop. Despite the constitutionality of the practice, motorists understand that they are being stopped for a different reason than the one provided and are angered by the inference needed to make the stop. The resulting anger could escalate hostility and risk greater physical danger for both the officer and motorist. The anger continues after the stop and is shared within the motorist's peer group. As more anecdotal stories circulate about such stops, the long-term effect on race relations must be balanced against the short-term effect on drug enforcement. Police managers may legitimately weigh race relations as more important than the potential arrest of a drug user or street level dealer.
A further negative effect that many officers may not appreciate is that if a stop is based on reasonable suspicion of drug trafficking, then a frisk of the occupants and passenger compartment of the vehicle may be justified. {2} During a frisk, contraband discovered in plain view may be seized and may provide probable cause for a search or an arrest. {3} However, an officer conducting a pretextual stop for a minor traffic violation will rarely be able to justify sufficient danger to frisk based on the traffic violation and any contraband discovered in plain view during the frisk will likely be excluded as evidence. For example, a driver with an expired inspection sticker may be lawfully stopped, but is certainly not dangerous enough to justify a frisk as opposed to a driver who is stopped with reasonable suspicion for engaging in drug trafficking. Thus, pretextual stops may decrease rather than increase the quality of resulting drug cases because the factual support is more vulnerable to suppression than if the officer simply articulated the factual basis for believing the driver was engaged in a drug offense at the time of the stop.
Officers who do not understand reasonable suspicion, or who have inadequate training and supervision in what constitutes reasonable suspicion tend to unnecessarily substitute the easier, but less competent traffic violation to justify a stop. By correctly interpreting the Fourth Amendment, the Court appeared to give a legal victory to law enforcement, but the decision may be creating temptation for officers to rely on a weaker legal basis to justify otherwise legal stops. This problem has a solution: competent legal training and oversight.
b.
Profiling
Probably nothing has caused more controversy than the use of profiles
to justify reasonable suspicion to stop a vehicle. Criminal profiling has
a legitimate and successful history when applied to serial killers, rapists,
hijackers, child molesters and arsonists. {4} Ironically,
some criminal profiles show a racial relationship between white males and
serial killers, rapists, and child molesters. However, the racial component
of profiling appears to be objectionable only when minorities are identified
as likely to be engaged in drug trafficking. In both cases, arrest and
conviction statistics provide an empirical basis for inclusion in a profile,
but in reality police do not conduct thousands of stops every day across
America to investigate serial killers, rapists, or child molesters. It
may be the sheer number of stops highlighting the distinction and causing
a political backlash.
The Supreme Court had an
opportunity to consider drug courier profiles in U.S. v. Sokolow, {5}
and contrary to popular belief, did not invalidate the use of such profiles.
Instead, the Court focused on the legal requirement for an investigative
detention - reasonable suspicion based upon articulable facts and the reasonable
inferences a trained and experienced officer is entitled to draw from those
facts. {6} The dispositive question is whether the profile
is rationally related to the suspected crime so that reliance on the profile
is reasonable under the Fourth Amendment. To the extent that the profile
does little more than combine the common experience of law enforcement
officers in evaluating observed behavior, then use of the profile does
not diminish the reasonableness of the decision to detain. {7}
The Court stated, "A court sitting to determine the existence of reasonable
suspicion must require the agent to articulate the factors leading to that
conclusion, but the fact that these factors may be set forth in a 'profile'
does not somehow detract from their evidentiary significance as seen by
a trained agent." {8}
The DEA agents who stopped Sokolow articulated six facts to justify the
detention. {9} Importantly, none of the cited facts involved
Sokolow's race or ethnic background. Therefore, the Court did not expressly
rule on the inclusion of race or ethnic origin in a profile. However, some
state and federal appellate courts have addressed that very issue.
c.
Application of Sokolow by Lower Courts - Race as a Factor
In U.S. v. Travis {10} the court considered a drug
courier profile stop where the agents expressly admitted to considering
race as a factor, but not the only factor, to justify the detention. The
court stated:
The figures introduced by
the agents clearly show
that the agents choose to encounter African-Americans
and Hispanics in numbers far in excess of what probability
would predict. The justification offered by the agents is
that they are not proceeding entirely on the basis of race.
Rather, they proceed on intelligence, experience and
instinct. Since their intelligence information indicates
that the Crips and the Bloods are a large factor in the
inter-city drug traffic and these gangs are primarily using
African-Americans and Hispanic females as couriers, the
agents select African-Americans and Hispanics (mostly
female) for surveillance [P]olice investigations which
have a disproportionate impact on minorities are held not
to offend the Constitution unless the targeting is based
solely on race. Furthermore, even if a prima facie equal
protection violation is established, effective drug
interdiction is recognized as a compelling government
interest that defeats the claim. {11} (emphasis
added).
Contrast the result in Travis with what the New Jersey Supreme court stated in State v. Patterson , {12} "[A]n individual's race cannot be considered at all when conclusions are reached or assumed as to a 'profile' suggesting criminal activity." Consider also the response of the Minnesota Court of Appeals to an officer with 18 months of experience stopping a car driven by a white male in a black neighborhood known for prostitution at 2:15 a.m. when the vehicle registration came back to a mostly white suburb 20 miles away: "Once we clear away the smoke from this case, it is clear that the stop of the appellant, which only took place after his probable residence was ascertained, is premised on the belief that after midnight, Caucasion males from the suburbs are only in the Summit University area for no good, and no good is all the Summit University area has to offer." {13}
Finally, the Maryland Supreme Court identified a troublesome application of "profiles" without empirical support. In Derricott v. State {14} the driver allegedly fit a drug courier "profile" because he was a young black male wearing expensive jewelry who was driving a sports car, wearing a beeper and possessed telephone numbers. In response to the State's assertion that the defendant fit a "statistically based profile, " the court noted
the State has not disclosed
any underlying statistics or data
to explain why the combination of circumstances at issue
here produces reasonable suspicion. No attempt was made
to explain how this profile was formulated, or even whether
empirical evidence which might lead to its development exists
[T]he officer did not attempt to offer his own experience or
training as support for the conclusion that the characteristics
of the local profile were related to the activities of a drug
courier. A 'profile' suggests that others, based upon their
experience or collected empirical data, have made those
conclusions.
Needless to say, officers using the term "profile" may not understand that it is a term of art requiring more than just personal experience.
It is not unusual for federal courts, and some state courts to agree with the analysis in Travis that race can be a relevant factor in making an investigatory stop, but race alone is never sufficient to justify a stop. {15} Although this legal rule may come as a surprise given the current public discourse, the law remains unsettled because of the number of different state courts and federal circuits governing police throughout the country.
2.
Probable Cause to Arrest
Regardless of the legitimacy of a given profile, all one can provide
is a reasonable suspicion to stop and investigate in most cases. Unless
the officer can corroborate more than just the concurrence of observed
facts with the profile, the detained subject will have to be released.
As the recent spate of proposed legislation to require record-keeping indicates,
there is little documentation of stops that do not result in an arrest.
B.
Fourteenth Amendment - Equal Protection
1. Recognition
in Whren of an Equal Protection Claim
While ruling
that pretextual stops do not violate the Fourth Amendment, the Supreme
Court stated in Whren, "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. Subjective intentions play no role in ordinary, probable
cause Fourth Amendment analysis." {16} Subjective
intentions, however, may play a role in equal protection challenges to
selective enforcement. The problem, of course is proof. The Court's language
suggests that it will entertain a challenge to the use of race in selectively
enforcing the law, and will analyze such a challenge under the Equal Protection
Clause of the Fourteenth Amendment. The Court did just that in a selective
prosecution claim the same year it decided Whren.
2.
Selective Prosecution for Crack Cocaine in Federal Court - US. v. Armstrong {17}
The Court may have provided valuable insight into how it may consider the
use of race as a basis for enforcement or prosecution. The standard for
determining whether selective prosecution causes a disparate impact on
a racial group requires the defendant to produce some evidence that similarly
situated defendants of other races could have been prosecuted, but were
not.{18} The majority opinion is worth quoting at length,
to show how the Court views politically correct presumptions that contradict
objective factual evidence:
The Court of Appeals reached
its decision in part because
it started 'with the presumption that people of all races
commit all types of crimes - not with the premise that
any type of crime is the exclusive province of any
particular racial or ethnic group' [citations omitted].
It cited no authority for this proposition, which seems
contradicted by the most recent statistics of the United
States Sentencing Commission. Those statistics show:
More than 90% of the persons sentenced in 1994 for crack
cocaine trafficking were black93.4% of convicted
LSD dealers were whiteand 91% of those convicted
for pornography or prostitution were white. Presumptions
at war with presumably reliable statistics have no proper
place in the analysis of this issue. {19}
The Court seems comfortable
stating the obvious, that there is a racial disparity in the commission
of various types of crime. However, another obvious point is that Supreme
Court Justices are appointed for life, while police executives are not.
Whether or not recognizing the obvious racial distinctions in criminal
behavior is useful for crafting enforcement strategies may be risky, as
will be shown below.
3.
Equal Protection Challenge to Drug Profile Stop - The Problem With Proof
The same federal court that decided Travis in 1995 ruled on an equal
protection challenge in 1997. {20} The federal Sixth
Circuit Court of Appeals ruled that the defendant was required to prove
that he was approached based solely because of his race. Although the defendant
provided statistical evidence of the percentage of blacks stopped at the
airport where he was detained, the statistics did not include the percentage
of blacks travelling by air through that airport or how passengers were
chosen in "on-view" cases where passenger lists were used. The
court clearly stated, "A person cannot become the target of a police
investigation solely on the basis of skin color. Such law enforcement practice
is forbidden." {21} Yet in a footnote, the court
added, "The court's holding today does not proscribe the use of race
when it logically must be employed and does not result in an unfair application
of the laws." {22} The court's opinion also impliedly
addresses the dissent from Travis I in explaining the difference between
a Fourth Amendment challenge to the reasonableness of seizure, and a Fourteenth
Amendment Equal Protection claim, "surveillance cannot be challenged
under the Fourth Amendment because it does not involve a seizure. The Fourteenth
Amendment, however, prohibits agents from engaging in investigative surveillance
of an individual based solely on impermissible factors such as race."
{23}
III.
Forums for Challenge
A. Criminal
1. Motion to Suppress
As explained
above, officers who are not well trained in what constitutes reasonable
suspicion jeopardize the evidence they ultimately discover during a legal
pretext stop by frisking or searching people they suspect of drug activity,
but have only expressed facts sufficient to justify a minor traffic infraction.
In addition, an Equal Protection challenge will be available for claims
of selective enforcement and selective prosecution.
2.
Discovery of Impeachment Evidence - Kyles v. Whitley {24}
Unknown by many officers, and under-appreciated by many police executives,
the Supreme Court literally opened the floodgates to using police personnel
files to provide evidence of racial bias, untruthfulness, or criminal conduct
to impeach an officer who testifies in court. Officers disciplined for
racial discrimination may be forever impeached with that evidence when
they testify against a minority defendant. Not every allegation in an officer's
personnel file is impeachment evidence, but sustained complaints of racial
bias or untruthfulness must be disclosed to the defense by the prosecutor
during discovery so the officer may be impeached on cross-examination.
All witnesses in a trial may be impeached, but ironically, in a criminal
prosecution police witnesses may be the only testifying witnesses who work
in an environment where investigating and punishing racial bias or untruthfulness
is important enough to document. In addition, police must testify in court
repeatedly as a job requirement, as opposed to other types of witnesses.
Therefore, police managers should become less tolerant and less willing
to retain an officer who is disciplined for being untruthful or demonstrating
bias. Improperly managed, a department can become crippled over time by
retaining officers who can no longer effectively testify in court regarding
the cases they investigate.
B.
Civil
1. Money Damages
As police
know better than anyone, a citizen may file a civil suit and seek damages
alleging their constitutional rights have been violated. It is no secret
that government entities are not eager to defend equal protection claims
of discriminatory law enforcement through expensive and time-consuming
litigation. Although settlement creates an implied admission of wrongdoing
in the eyes of the public, government entities may still take the position
that settlement is a small price to pay to maintain perceived racial harmony
or to somehow show good faith by financially acknowledging the validity
of the complaint.
2.
Injunction
A growing trend in civil litigation against racially discriminatory
law enforcement is to seek an injunction prohibiting allegedly discriminatory
practices. {25} Government entities may enter into a
consent judgment agreeing to refrain from legally authorized law enforcement
practices in an attempt to improve race relations, rather than to contest
the merits of the allegations. The long-term effect of such unduly restrictive
agreements will eventually expose the present misapplication of law needed
to avoid current litigation.
C. Political
1. Legislatively Mandated Record-keeping
Perhaps as a response to the inability to factually support Equal Protection
claims, many state legislatures and Congress are considering mandatory
record-keeping on vehicle stops.{26} In June, 1999 President
Clinton did not wait for Congress to act and ordered federal law enforcement
agencies to collect race and gender information on people they arrest.
2.
States May Give Greater Protection Than Required by the U.S. Constitution
Another growing trend in American law is that some states interpret
state constitutions to provide greater individual protection to citizens
than the basic minimum required by the U.S. Constitution, even where the
language of the state constitution is identical to the U.S. Constitution.
In addition, state legislatures may create greater rights for citizens
by statute, holding law enforcement to a higher standard than what is required
by the Constitution.
D.
Internal Administrative Discipline
Either not acknowledged in the current political debate, or discredited
as a concept, internal administrative discipline and termination of officers
demonstrating racial bias does occur and is an immediately effective method
of redress. 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 in court 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.
IV.
Training Challenges For Police Managers
A. Overcoming
Resistance and Increased Hostility by Officers
1. Resentment at Unjust Presumptions
Officers are
justifiably resentful at the adversarial stereotyping of police as dishonest,
racist and corrupt. It is impermissible for officers to generalize about
a racial group, but racial groups may freely and publicly stereotype police,
with government and political support. Therefore, any attempt at broaching
the subject of race relations with police will often be met with cynicism
and silent repudiation prior to the training.
2.
Can't Win Attitude
Many officers believe that there is no viable solution to the problem
as long as nobody can speak truthfully. Nobody seems to ask officers how
to solve problems plaguing minority communities where they police everyday,
but everyone seems to be an expert on how the police should treat minorities
better. Officers as well as many others in society will not speak openly
about race problems, no matter how obvious they appear to be for fear that
only the liberal, anti-discrimination dogma is acceptable. Those who work
in public service are particularly susceptible to adverse personnel actions
for expressing views on race and crime that may be true, but politically
unacceptable. Therefore, any training or policy approach will have to overcome
the sense of hopelessness many officers feel.
B.
Training Officers On What They Can Do, Instead of What They Cannot Do
Training officers on facts may be more effective than just training
them on the law. Ideally the best training will integrate both law and
factual examples on how to apply the law. For example, in Tactics for
Criminal Patrol {27} the author devotes an entire
chapter on drug profiling and vehicle stops entitled, "Looking for
Mr. Wrong" describing how drug traffickers beat profiles by hiring
couriers from all races, nationalities and ethnic groups. The chapter examines
a number of reliable "curiosity ticklers" (none of which include
race) that officers can observe before conducting a stop. Using case law
in training to show what facts courts rely on to justify reasonable suspicion
and probable cause gives an officer something to use in the field, as opposed
to a lecture on changing their attitude about minorities.
C.
Encouraging Development of Race Neutral Procedures
Departments can internally solicit ideas giving officers a voice in
developing procedures that may reduce the number of complaints. Since there
is some self-interest in this practice, it may be a way to overcome the
hopelessness fostered by a "can't win" attitude. Some ideas adopted
by Departments include:
1.
Starting Accident Investigations in Alphabetical Order
When arriving at the scene of an accident, an officer will first check
to see if there are any injuries. Before starting the investigation, the
officer could determine the names of the drivers involved, and begin taking
statements in alphabetical order to counter the claim that the white officer
went to ask the white driver what happened first and made the black driver
wait. This procedure should apply equally to all accidents, regardless
of the race of the drivers or the officers. It is much easier to explain
this procedure if a complaint is made, and it provides the officers some
level of comfort that a race neutral explanation will be more likely to
defuse an incorrect perception.
2.
Document Every Traffic Stop and Require Written Warnings
Although more time consuming, eliminating verbal warnings and requiring
only written warnings for every traffic stop not resulting in an arrest
or citation provide an immediate reason to the motorist for why they were
stopped, and prevents an officer from providing a more valid reason after
a complaint is received. Officers who think they are doing a motorist a
favor with a verbal warning cannot anticipate which driver will later complain
about discriminatory enforcement.
3.
Video Traffic Stops
Admittedly, this is expensive. However, it is becoming more popular
and has a better chance of funding in states that are considering legislation
to require record-keeping of traffic stops. Governing bodies may consider
the cost of in-car video as a risk management investment to maintain quality
control and eliminate perception and credibility contests during complaints.
4.
Consider Recording Information For Academic or Criminal Analysis
There is no reason why a Department cannot record information on traffic
stops without legislative compulsion. An advantage of this is that the
Department decides what information is collected in addition to just race,
and can see that the results are not misused for political reasons. Working
in conjunction with a local university may assure a more rigorous and credible
research methodology and statistical analysis than politically compelled
studies are known for.
One major concern of many in law enforcement is that if mandatory record-keeping
is imposed, it will only confirm what we already know: that certain minorities
get stopped, arrested and convicted more often for certain crimes. Our
concern is that the result will then be attributed solely to racist law
enforcement instead of also considering social and environmental factors
like the cultural pathology prevalent within that racial group. Departments
can proactively and cooperatively collect such information for objective
academic analysis that may address more than just police practices, which
could help provide more realistic and practical solutions.
D.
Resist Implementing Overly Restrictive Policies as an Over Reaction
Although some police executives may wish to stay silent on the subject
of race and crime for fear of reprisal, there is no benefit to running
scared in the other direction either. Some managers may fall into the trap
of reacting too far by implementing procedures that do nothing to reduce
the perception of discriminatory enforcement, but instead hinder officers
by restricting them even further than what is legally allowed.
1.
Requiring Probable Cause to ask for Consent to Search
The Supreme Court has never required factual justification before asking
for consent. Voluntariness is the constitutional standard, and consent
may be obtained whether an individual is seized under the Fourth Amendment
or free to leave. Requiring officers to articulate probable cause before
asking for consent is essentially meaningless, because if an officer had
probable cause, then a search or arrest would already be justified. Such
a policy simply eliminates consent searches without reducing claims of
discriminatory enforcement.
2.
Prohibiting Traffic Enforcement in Minority Neighborhoods
Another overreaction would be to remove officers from or decrease patrol
presence in minority neighborhoods with the mistaken belief that less contact
with minorities will provide fewer opportunities for complaints. Such a
solution is simply unrealistic considering the reality of criminal activity
and calls for service prevalent in most communities. Withdrawal of police
services creates a problem of discriminatory enforcement where one may
not have previously existed if race is used as a basis for denying the
same level of service as provided to other areas within the jurisdiction.
E.
Public Education
With the public emphasis on training officers about social subcultures,
it is easy to overlook the need for educating the public about the police
subculture as well. If the public had a better understanding about what
police work is really like, they may not be as likely to assign their own
stereotypical conclusions about what they see or hear. The following ideas
go beyond the usual ride-along or citizen police academy program, because
although both programs can be valuable in educating the public, they are
also more limited in the number of people reached and the length of time
the message stays in circulation. Policing is mysterious to most of the
general public, and they are easily misled by television, movies, news
media, lawyers and self-appointed experts in the community. We should have
some collective obligation to immediately counter such perceptions when
they are expressed and work proactively to direct some reality into the
perceptions.
1.
Brochures
Some departments have developed brochures explaining police practices
that have the potential to cause confusion or distrust. These brochures
can explain what a driver should do if stopped and what to expect from
the officer. The brochure can be in a question and answer format, and can
be printed in more than one language. These brochures can be handed out
during driver training classes, checkpoints, traffic stops, left in the
lobby of the police department and other public buildings, and reprinted
as a public service in printed news media. An internally produced brochure
is unique in that it is not edited by an outside media source, but instead
by police professionals who actually know what they are talking about.
The public may have more confidence following advice given by the police
in a brochure instead of some of the untested and foolish advice circulated
by others.
2.
Local Access Department Television Shows
Another method of directly reaching the public without outside editorializing
is through a department produced television show. Many departments now
have access to editing and distribution support through a local cable provider.
These shows can be very time consuming to produce and seem deceptively
easy to copy. However, they are worth the effort and some of the ideas
printed in the brochure can be demonstrated either from in-car video footage,
real video filmed during patrol, or a re-enactment. In addition to the
numerous other community policing benefits, this type of medium can enhance
officer and citizen safety by educating the public on how and why police
will react during a stop.
3. Websites
Probably more departments have websites than cable television shows.
Needless to say, this type of medium may have a more limited type of audience,
but it is also a way of incorporating the best features of both the brochure
and the television show with an interactive body of official information
and guidance. Caution should be used here, and a department should not
rely on this method exclusively to save recurring printing costs or labor
intensive television producing because some of the most volatile populations
are simply not going to be technologically or economically advanced enough
to get their information about police from the Internet. However, other
secondary producers like television and newspaper outlets may use your
site for researching more accurate information, especially if the information
becomes public knowledge.
4.
Public Speaking
Police managers often do not realize how often their own officers and
command staff have an opportunity to engage in public speaking, from community
watch groups, to school groups, to curious bystanders at the crime scene
tape. There should be some speaking themes constantly reinforced throughout
the department, stressing the importance of finding every opportunity to
include explanations about what police do and why, consistent with what
is already in the brochure. Just as you may anticipate what questions you
will be asked in various public settings, you need not wait to insert unsolicited
comments about the reality of police work. You should stress that the damage
done by irresponsible speculation is not just to the police image, but
to the very citizens who inadvertently rely on bad advice and make bad
decisions precipitating an unnecessarily negative police encounter.
F.
Cultivate Relationships With Leaders In Minority Communities
It is difficult to manage a police department without being annoyed
by self-appointed "leaders" of a community that they truly do
not lead. It sometimes seems that the louder and more antagonistic these
"leaders" become, the more public recognition they get from mainstream
media and politicians, creating a self-fulfilling prophecy. Police are
unique in the public sector because they have a more pervasive and inside
view of the various communities they serve. This unique perspective enables
police to more easily identify the true leaders who can influence a community's
perceptions. These hidden leaders often appear in the churches and established
businesses within a community and can sometimes carry more respect and
influence within the community than the blowhards featured by the mainstream
media. Police executives need to keep an open and continuous dialogue with
the true leaders of a community, especially when certain self-appointed
leaders continue to antagonize and treat any overture from police as an
opportunity to negotiate or bargain away some method of law enforcement.
This option may be quite difficult
during a time of crisis, but eventually it will have to happen. It is obviously
better to plan for and work on these relationships before there is public
crisis. Having an established relationship during a time of crisis allows
a more effective and immediate means of communication within a given community
than mainstream media can do. Rumor control during a time of crisis can
reduce the potential for dangerous encounters between police and citizens
based on misunderstandings or even malicious attempts at spreading inaccurate
information.
V.
Conclusion
Policing traditionally requires managing conflict, and race relations
can cause some of the most uncomfortable conflict one can face. A responsible
manager should find ways to manage the potential conflict. An effective
manager should not wait for politically imposed solutions that aggravate
the conflict, but should instead persist in developing solutions based
on law, facts, and ethics. The following summary should be considered when
developing training or policy:
1. Although federal case law
tends to recognize the factual relationship between the commission of certain
types of crimes and various racial classifications, some states appear
less willing to adopt the federal standard. From a management perspective,
the deterioration of race relations may outweigh the potential impact on
drug offenses.
2. Don't look at race relations
as a black and white issue, or your officers may begin to see themselves
as adversarial to blacks. All races are equally interested in race relations.
With our geographic diversity, certain racial or ethnic groups are more
predominant in particular communities, yet the perceptions of discriminatory
enforcement may be similar.
3. Training should integrate
ethics, law, and facts, using substantial amounts of case law as teaching
material. Although diversity training is popular with employers, it is
rarely the most effective method of changing institutional culture within
a law enforcement agency. Legal, factual and ethical integration of training
is more effective because it is more practical and less likely to meet
resistance.
4. Discriminatory enforcement
complaints will continue regardless of the amount of training and supervision
officers receive because perceptions are not always the same, correct or
rational. However, good training and supervision should help eliminate
inadvertent bias and intentional discrimination. Recognize the limitations
of any attempt at improving and maintaining race relations, but do not
use them as an excuse for inaction.
Endnotes
1. 517 U.S. 806, 116 S.Ct. 1769 (1996).
2. State v.
Butler, 331 N.C. 227, 234, 415 S.E.2d 719, 723 (1992) ("In concluding
that defendant, as a person reasonaby suspected of involvement in drug
traffic, might be armed [the officer] was entitled to formulate 'common
sense conclusions' about the 'modes or patterns of operation of certain
kinds of lawbreakers'").
3. Michigan
v. Long, 463 U.S. 1032, 103 S.Ct. 3469 (1983).
4. Turvey,
Criminal Profiling: An Introduction to Behavioral Evidence Analysis, Academic
Press, San Diego (1999).
5. 490 U.S.
1, 109 S.Ct. 1581 (1989)
6. For a more
thorough analysis of the Supreme Court's treatment of drug courier stops,
see Lafave, Search and Seizure, 3rd Ed., §9.4(e).
7. See §
3.6 Constitutional Rights of the Accused, 3d Ed., Clark, Boardman, Callaghan,
9-96.
8. 490 U.S.
at 10, 109 S.Ct. at 1587.
9. (1) he paid
$2,100 for two airplane tickets from a roll of $20 bills; (2) he traveled
under a name that did not match the telephone number for the name under
which he travelled; (3) his original destination was Miami, a source city
for drugs; (4) he stayed in Miami for 48 hours, even though a round trip
from Honolulu to Miami takes 20 hours; (5) he appeared nervous during his
trip; (6) he checked no luggage.
10. 837 F.Supp.
1386 (E.D. Ky. 1993) (known as Travis I), aff'd 62 F.3d 170 (6th Cir. 1995),
cert. denied 116 S.Ct. 738 (1996) (known as Travis II).
11. 837 F.Supp.
at 1392; see also U.S. v. Condelee, 915 F.2d 1206 (8th Cir. 1990)(DEA agent
with 17 years of experience detained a black female deplaning in Kansas
City after arriving from Los Angeles because he knew two Los Angeles street
gangs were using "sharply dressed black female couriers" and
lawfully obtained her admission that drugs were in her purse because he
had reasonable suspicion.)
12. 270 N.J.
Super. 550, 637 S.2d 593, 598 (Law Div. 1993), aff'd 270 N.J. Super. 562,
637 A.2d 599 (App. Div. 1994).
13. City of
St. Paul v. Uber, 450 N.W.2d 623 (Minn. App. 1990); see also U.S. v. Ruiz,
961 F.Supp. 1524 (D.Utah 1997) (race or ethnic background not a proper
factor in determining reasonable suspicion or probable cause unless it
matches the description of an offender or fits facts relevant to a specific
person, place, or circumstance of offense).
14. 327 Md.
582, 611 A.2d 592 (1992).
15. See U.S.
v. Kim, 25 F.3d 1426, cert. denied, 513 S.Ct. 1030, 115 S.Ct. 607; Brown
v. City of Oneonta, 911 F.Supp. 580 (N.D.N.Y. 1996), reconsidered in part
916 F.Supp. 176, rev'd in part & appeal dismissed in part, 106 F.3d
1125; Ewen v. State, 518 So.2d 1285, rev. denied 528 So.2d 1181 (Fla. App.
4th Dist. 1987) (white male in black neighborhood parked across crack house
at night and black male known to officers as drug dealer leaned into car
window, in officer's experience white male in that neighborhood at night
meant a drug buy). See also Johnson, "A Menace to Society": The
Use of Criminal Profiles and Its Effects on Black Males, 38 How.L.J. 629,
652 (1995)(opposing, but recognizing that "race remains a legitimate
factor to be used in drug courier profile cases.").
16. 116 S.Ct.1769,
1774 (1996).
17. 517 U.S.
465, 116 S.Ct.1480 (1996).
20. U.S. v.
Avery, 137 F.3d 343 (6th Cir. 1997).
25. "Marked
for Humiliation," ABA Journal, Feb. 1999, p. 46. See also, Gerald
v. Oklahoma Department of Public Safety, et. al., CIV 676R (W.D. Oklahoma)(pending).
26. Effective
January 1, 2000 North Carolina G.S. 114-10 will require state law enforcement
agencies to record the race of drivers stopped, among other information.
Since North Carolina does not allow a driver's race to be identified on
a driver's license, it is worth watching how the Highway Patrol develops
a procedure for compliance.
27. Subtitled
Vehicle Stops, Drug Discovery, and Officer Survival, Remsburg, Charles,
Calibre Press, Northbrook, IL (1997).
For Further Reading:
D'Souza, Dinesh: The End of Racism
Taylor, Jared: Paved With Good Intentions
Wicker, Tom: Tragic Failure