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Developments in Racial Profiling Litigation
"A Tale of Two Cities"

by Donald R. Zoufal *

While the Dickens' tale talks in terms of "the best of times [and] . . . the worst of times," for two suburban Chicago municipalities besieged by racial profiling allegations only the latter prophecy has come to fruition over the last year. The Village of Mount Prospect and the City of Highland Park were targeted with litigation alleging racial profiling that garnered both local and national attention. Without evidence of a single incident of discriminatory treatment ever being adduced at a trial (or even in deposition), one municipality was subjected to a $1,179,000 verdict, a temporary restraining order, and a U.S. Justice Department investigation. The second municipality paid approximately $200,000 for the preparation of an independent counsel's report and then entered into a consent decree.

Both municipalities are small middle- to upper-middle-class suburbs with relatively small minority populations. Both have relatively small police departments. The challenge to the policing policies of both these municipalities came, in the initial instance, not from the community, but from the police themselves. Discontented employees - not dissatisfied citizens - opened the door to profiling liability.

SETTING THE SCENE

Before examining this modern "tale of two cities," it is important to look at the overall legal context of the litigation phenomenon of racial profiling. A helpful tool in conducting that analysis is reviewing legal developments particularly in light of the objectives of institutional litigants like the ACLU. Reviewing the action agenda of those organizations, especially against the backdrop of developing case law and legislation, provides municipal legal advisors some ability to understand the future direction of litigation directed against their clients.

In June 1999 the ACLU published a special report entitled "Driving While Black," which outlined arguments and a program for action, addressing what it perceived as increasing issues of discriminatory tactics of law enforcement. The report is largely focused on the disparate impact of narcotics enforcement on minority populations, a continuing area of interest for the ACLU. The report was extremely critical of narcotics enforcement efforts, particularly those in major urban centers where, the ACLU claimed, poor and minority neighborhoods were targeted for enforcement.

An attempt to address this disparity in conviction rates was made directly in the case of United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480 (1996). There, the criminal defendants sought to attack their federal firearms and drug charges (for crack cocaine) as selective prosecution based on race. The Supreme Court rejected their claims because the criminal defendants could make no showing that similarly situated defendants of another race were disparately treated.

Seeking to further limit law enforcement tactics in narcotics enforcement, the ACLU sought to prohibit law enforcement from using traffic stops for minor violations as a basis for conducting narcotics investigations and searches. This initiative failed in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769 (1996), when the Supreme Court upheld the validity of a traffic stop based on probable cause even when the subjective interest of the officers might have been to find narcotics rather than simply to enforce traffic laws. The ACLU contended that such stops, which it characterized as "pretextual," "'invite discriminatory enforcement,'" and afford police "virtually unlimited authority to stop and search any vehicle they want." ACLU, Special Report, June 1999 at p. 7.

In response to the discretionary law enforcement tactics permitted generally by Armstrong and more particularly in Whren, the ACLU has been involved in litigation designed to show that policing activity (particularly drug interdiction efforts on the nation's interstates) is driven by impermissible race-based profiles. In Chavez v. Illinois State Police, 27 F.Supp.2d 1053 (N.D. Ill. 1998), the ACLU brought a claim alleging that Illinois state troopers had a practice of stopping, detaining, and searching Hispanics and African-Americans based on their race and ethnicity. In granting summary judgment for the defendants, the district court relied on the Armstrong decision. It concluded that even if plaintiffs could show that a disproportionate number of minorities were stopped for traffic violations, they could not prove the claim of discriminatory treatment absent a showing that similarly situated non-minority drivers were treated differently. Since no record was kept concerning stops where no citations were issued or searches conducted, the court found that plaintiffs could not meet their burden.

In an attempt to gain the information regarding "similarly situated persons" required by Armstrong and to attack the discretionary enforcement practices permitted by the Whren decision, the ACLU has developed an action agenda. Much of that agenda revolves around obtaining legislative and court assistance in requiring law enforcement agencies to gather statistical information about all persons who are stopped and searched (or not searched) and the basis for those police actions. The agenda expands the focus from law enforcement activities specifically targeting narcotics trafficking on interstates to all traffic enforcement and general law enforcement practices.

Over the past year this agenda has been advanced through court decisions and legislative action in several states. The states of Connecticut, North Carolina, Washington and Missouri all have recently enacted statutes requiring some or all of their law enforcement agencies to collect data. Essentially the same result was achieved in December, 1999, when the State of New Jersey agreed to the entry of a consent decree with respect to the practices of its state police. United States v. New Jersey, No. 99-5970 (MCL) (D.N.J. December 30, 1999). See also, "Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling" (April 20, 1999); and New Jersey v. Soto, 324 N.J. Super. 66, 734 A.2d 350 (1996) (this was the case which provided the impetus for the subsequent New Jersey General's review of racial profiling and ultimately the consent decree).

Recent federal district court decisions in New York and California have allowed claims of racial profiling to proceed even in the absence of allegations of similarly situated persons being disparately treated. See Rodriguez v. California Highway Patrol, 89 F.Supp. 2d 1131 (N.D. Cal. 2000); National Congress for Puerto Rican Rights v. New York City, 75 F.Supp.2d 154 (S.D.N.Y. 1999). The result of such relaxed pleading standards is to place increased discovery burdens on municipalities. See, e.g., National Congress for Puerto Rican Rights v. New York City, 191 F.R.D. 52 (S.D.N.Y. 1999) (requiring disclosure of NYPD statistical analyses of personnel information and arrests by Street Crime Unit officers). These cases also suggest that profiling claims will likely be on the increase even in the absence of statistical information.

The importance of this "setting the scene" is for municipal legal advisors to understand that the ultimate objective for groups like the ACLU lays well beyond the issue of remediating discriminatory activity in street stops by police. The ultimate objective is directed to a larger challenge to the criminal justice system. This portends a process of successive litigation where one piece of litigation builds on the success (and information gathered as a result) of its predecessor.

THE TALE OF TWO CITIES

In addition to these frontal assaults launched by organizations like the ACLU, Illinois has seen two cases recently where the attack has come from a different direction: legal challenges arising not from citizen complaints but from employment suits. Thus, this "tale of two cities." Examining these two cases, particularly in the larger context of other legal developments in the area, as well as the action agenda of groups like the ACLU, should provide municipal practitioners with some ability to gauge and limit future municipal liability.

Martinez v. Village of Mount Prospect

In Martinez, the Village was sued by a Hispanic police trainee who claimed discrimination based on his national origin. Over defense objections at trial, the plaintiff along with other present and former officers and trainees testified that command personnel had told them to target Hispanics for traffic stops. The court also allowed introduction of evidence which showed a "high percentage of traffic tickets received by Hispanic drivers as compared to their number in the community." 92 F.Supp 2d at 781. The court concluded that this evidence of bias in enforcement supported plaintiff's claim of hostile work environment by showing a widespread custom of discrimination against Hispanics. Id.; citing, Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (statements of a supervisor, instructing a subordinate to target minorities, relevant to perception of hostile work environment).

The statistical evidence adduced at trial in support of plaintiff's claims consisted of ethnicity assessments made by the plaintiff after a review of arrest reports produced in discovery. The statistics were then compared to 1990 census data. No "expert" testimony was presented by either party. The "statistical" evidence was augmented by anecdotal evidence provided by the plaintiff and present and former employees.

At the end of trial, verdicts were entered against the municipality and three of the individual defendants. The verdicts included a $500,000 punitive award against one individual defendant and $250,000 in punitive awards against each of two others. The court subsequently entered a temporary restraining order against the Village, prohibiting it from "directing, suggesting, ordering or otherwise communicating that any police officer should focus, concentrate, target, profile or modify law enforcement efforts in any way on the sole basis of the national origin of any person." Id. at 782. At the conclusion of the trial, the court also took the unusual step of writing the U.S. Justice Department and requesting that it institute a civil rights investigation.

Subsequent to the verdict the Village settled with the plaintiff for $400,000. Two lawsuits by other employees making similar allegations were simultaneously settled for $100,000 each, with an additional $300,000 paid to plaintiffs' counsel. While no permanent injunctive relief was ordered by the court, the Village announced a series of policy initiatives designed to address racial profiling. They included: requiring officers to note the race of all drivers they stop; creation of a computer database to track racial and ethnic data of persons stopped by the police; and creation of a human rights review board to review profiling complaints. The Village also indicated an intent to more aggressively recruit minority applicants.

The court lauded the efforts of the Village but opined that additional steps were necessary. Id. at 784-5. The judge advised that simply hiring more minorities would not be effective absent diversity training for all officers and supportive services to ensure that minorities succeeded in their job assignments. He further advised that proactive monitoring of data would be critical to addressing racial profiling.

Since settling the case, the Village remains under investigation by the U.S. Justice Department. A class-action lawsuit has also recently been filed by persons purporting to represent victims of racial profiling in Mount Prospect. Romero v. Mount Prospect, No. 00 C 0861 (N.D. Ill., Zagel, J.). The Village is currently in the process of implementing its data collection program. The ACLU has recently sought that information under the Illinois Freedom of Information Act. All officers have received diversity training, and the department's officer evaluation system has been changed.

Ledford v. Highland Park

The experience of the City of Highland Park with allegations of racial profiling, like that of Mount Prospect, initially arose out of an employment action, Watt v. Highland Park Police Department, No. 98 C 8123 (N.D. Ill., Gottschall, J.). The plaintiffs in Watt initially alleged a host of retaliatory actions directed against officers for union activities. (The City has had a rather turbulent relationship with the officers who are represented by Teamsters Local 714.) The original complaint contained no allegations of racial profiling. In November 1999 an amended complaint was filed containing, inter alia, allegations of racial profiling. Those allegations of discrimination gained media attention leading to community meetings and subsequent community complaints of racial profiling activities.

To address public concerns, the City retained a former U.S. Attorney to conduct an independent investigation of the City to ascertain whether or not the police were engaged in racial profiling and what steps, if any, were warranted to address public concerns. The 345-page report took five months to prepare at a cost of approximately $200,000.

The independent counsel's investigation concluded that there was not a widespread practice of racial profiling or discriminatory conduct and that no such practice was taught or encouraged by the department or its command staff. The report did conclude, however, that at least one officer and possibly others was likely involved in profiling Hispanics for traffic stops. It also concluded that the command staff was "remiss in not directly addressing the subject of racial profiling giving clear direction to all officers. . . [and] ensuring compliance with those directions. . . " Independent Counsel's Report at p. 177.

The report made a number of recommendations which the independent counsel felt might be applicable to "all suburban police departments." Those included:

1) issuance of a general order prohibiting profiling activities in specific and discriminatory practices in general;

2) sensitivity training for officers;

3) creation of a preprinted card to be issued whenever an officer makes a stop (vehicular or pedestrian) with instructions and a "hot line" number for lodging a citizen's complaint;

4) amendment of traffic citation forms to require recording of the "apparent race" of the person cited, together with recordkeeping concerning every stop or frisk conducted, the age, race and gender of persons stopped, whether a search was conducted, and whether consent was given;

5) statistical analysis of all stops and review on a quarterly basis to determine whether or not racial profiling is occurring;

6) use of in-car video to record all traffic stops; and

7) enhanced community outreach.

The report also included recommendations to increase efforts toward minority recruitment in hiring and a specific recommendation for an internal human relations program for the department, as well as recommendations on promotional and disciplinary issues.

On July 12, 2000, less than two months after completion of the independent counsel's report which had found no evidence of a department policy of racial profiling, the City agreed to the entry of a consent decree with a plaintiff class represented by the ACLU. The class-action complaint, as well as the agreed consent decree, were filed simultaneously. In a joint press release by the City and the ACLU, the parties characterized the agreement as "a model for police departments across the country." The consent decree, which will not be finalized until a hearing is held in September of this year, contains all the recommendations of the independent counsel (except those related to employment issues) plus some interesting additions.

For example, in conjunction with the independent counsel's recommendations for data collection on individual stops, the consent decree requires enumeration of the basis for any non-consensual search or for the employment of drug detection dogs. Moreover, while race or ethnicity of individuals is required to be noted on the form, the officer is precluded from asking the individual's race. In addition to use of in-car video, the consent decree requires that the department "implement an effective program for reviewing documentation of incidents and any associated video and audio recordings." To give teeth to the requirement of providing citizens with written notice of their right to file a complaint, the decree also requires the development of processes for tracing and analyzing all civilian complaints.

Perhaps most daunting of all is the requirement placed in the consent decree that the City develop "statistical benchmarks" by which compliance with the terms of the consent decree can and will be measured. Those benchmarks are not identified in the decree itself. The decree is also silent as to how such benchmarks would be developed. Deciding that a certain statistical level constitutes evidence of discrimination is exactly the position rejected in Armstrong. It certainly poses a difficult legal and political task for city attorneys and officials.

The decree itself is designed to last five years with the possibility of termination after three years if compliance is shown. During that time period the ACLU is entitled to inspect all reports of incidents involving all stops, detentions, or searches, all computerized data of those stops, all analysis protocols, and all citizen complaints of discriminatory treatment. Inspection by the ACLU is to occur on a quarterly basis. In essence the ACLU will be able to monitor the basic police operations of Highland Park for the next three to five years.

Claims of racial profiling expose municipalities to multidimensional liability. While generally thought of only as liability issues for private citizens, these claims are now used as powerful evidence to buttress employment claims. Moreover, the mere allegation of racial profiling generates enormous internal and external legal and political pressures for resolution. Such resolution is neither easy to craft nor free of potential future liability.

Examining the lengths to which Mount Prospect and Highland Park have gone simply to settle cases where no discriminatory conduct toward a citizen was ever proved demonstrates the power of this litigation. The perception of racism and discrimination in law enforcement is clearly on the minds of both police administrators and the judiciary across the land. The dissent of Justice Stevens in the recent case of Illinois v. Wardlow, ___ U.S. ___, 120 S.Ct. 673 (2000), observes that in minority communities public concerns and fears about police conduct are "known to the police officers themselves and are validated by law enforcement investigations into their own practices. Accordingly, the evidence supporting the reasonableness of these beliefs is too pervasive to be dismissed…" ___ U.S. at ___, 120 S.Ct. at 680-81.

Lessons drawn from this "tale of two cities" provide legal advisors with some tools to help protect their municipal clients. The development of written policies specifically prohibiting discriminatory enforcement tactics and generally regulating the conduct of employees, both toward the public and toward one another, are essential to any defense against racial profiling claims. A strong statement condemning all forms and acts of discrimination is essential. Diversity training, enhanced minority recruitment, and community outreach programs are also important elements of a comprehensive approach to dealing with the issue.

One of the morals of this "tale of two cities" is that a holistic approach must be taken to address the issue of racial profiling. Not only enforcement techniques, but employment practices, training, discipline, and community relations must be considered. Municipalities must review their entire policing operation.

The more difficult questions arise in the context of supervision and implementation of department orders prohibiting discriminatory enforcement and conduct. The ALCU and organizations like it advance the position that this can best be accomplished through data collection and monitoring statistical benchmarks. Whether this is the most effective means of monitoring conduct or simply a ticket to protracted litigation remains to be seen.

Certainly statistical information about enforcement actions, to the extent it is kept, will be freely discoverable and used by other plaintiffs. In this regard, consideration of the experience of the Maryland State Police is instructive. In the settlement of a 1993 class-action lawsuit brought by the ACLU, Wilkins v. Maryland State Police, No. CCB-93-468, the state was required to maintain records of motorist searches to permit monitoring for patterns of discrimination. Armed with the discovery based on statistics maintained as a result of that case, the NAACP filed a similar suit which has survived summary judgment. See Maryland Conference of the NAACP v. Maryland Department of Police, 72 F.Supp.2d 560 (D. Md. 1999). This type of successive litigation should certainly give pause to a jurisdiction before entering into a consent decree or establishing a process of data collection.

To the extent that a municipality is either inclined or compelled to enter into a process of data collection, careful consideration must be given to the collection plan. Not surprisingly, the demographics of a geographic area selected for enforcement in any given municipality may greatly affect the demographics of the persons stopped. Therefore any collection plan should be careful to capture deployment data. Perhaps as important as capturing the "where" of deployment data is capturing the "why." Oftentimes the efforts of law enforcement are based on crime patterns or activity, or individual or community requests for service.

Understanding the "why" of a deployment of enhanced law enforcement assets in a particular geographic area, which might result in disproportionately higher stop or search rates for certain racial or ethnic groups, is certainly relevant to analyzing racial profiling claims. Not surprisingly, most plaintiff-formulated plans for data collection make no provision for capturing the information as to "why" such deployment decisions are made. Without this data municipalities will be hard pressed to provide race neutral explanations in response to other data collected.

What is clear is that communities faced with racial profiling litigation will need to develop ways to ensure that both the reality and the public perceptions of bias in enforcement are being addressed and remedied. In both words and deeds communities need to ensure that enforcement decisions are based not on questions of race or ethnicity but on law enforcement necessity. While both the Village of Mount Prospect and the City of Highland Park have embarked on bold programs to address racial profiling, it remains to be seen whether they will suffer the same fate as the Maryland State Police with successive litigation. Certainly the resolution of allegations of racial profiling against these municipalities will be used to leverage other municipalities as well as courts and legislatures to mandate the collection of data which groups like the ACLU seek.

* * *

I am certain that at the conclusion of the immediate litigation processes which addressed the racial profiling allegations against them, the officials of both Highland Park and Mount Prospect felt a bit like Sydney Carton on the scaffold at the end of the Dickens' tale, when he declaimed, "'It is a far, far better thing that I do, than I have ever done; it is a far, far better rest that I go to, than I have ever known." Of course, we all know what happened next . . .

__________________________________________________

* Donald R. Zoufal is Deputy Commissioner for police and security of the Chicago Dept. of Aviation. He formerly served as Chief Legal Counsel for the Illinois Dep't of Corrections, as Chief Asst. Corporation Counsel for the City of Chicago, and as General Counsel of the Chicago Police Dept. Contact: dzoufal@ohare.com

The author gratefully acknowledges assistance given by Aimee B. Anderson, Assistant Corporation Counsel in Chicago, and by Jim Sotos of Hervas, Sotos, Condon and Bersani, in Itasca, IL.

This article was presented at the 65th Annual Conference of the International Municipal Lawyers Association in San Francisco, California, August 27-30, 2000.

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