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Floyd Weatherspoon
Permission Pending: Floyd Weatherspoon , Ending Racial Profiling of African-Americans in the Selective Enforcement of Laws: in Search of Viable Remedies, 65 University of Pittsburgh Law Review 721 (Summer, 2004)(footnote omitted)
In theory, the American justice system is designed to ensure that each American's basic constitutional rights are preserved and protected. Most Americans, including African-Americans, believe that the justice system protects the constitutional rights of all Americans. However, the extent of this protection is viewed differently by whites and African-Americans. Indeed, African-Americans feel that their constitutional rights have been marginalized by the very systems in place to protect their rights.
The Constitution guarantees equal protection under the law, the right to travel, the right to vote, and the right to privacy. But for African-*723 Americans, these rights are merely a mirage of what white Americans receive and take for granted. Their constitutional rights are especially abridged in the enforcement of laws related to travel. Too often, race is the determinative factor used by law enforcement officers to justify a stop and search of African-Americans. Even though the Constitution prohibits such conduct by law enforcement agencies, these practices have become the norm, not the exception.
The American justice system has permitted, and in some cases sanctioned, the use of the immutable characteristic of race as the motivating factor in the enforcement of public laws. Such actions or inactions on the part of individuals entrusted with the enforcement of public laws have served as a detriment to the idea that all Americans have inalienable rights. In other words, in their zeal to enforce public laws, governmental officials have selected African-Americans and other minorities solely on the basis of their *724 race to stop, arrest, charge, prosecute, and incarcerate. This practice has been described as driving while black and racial profiling. Racial profiling involves the pre-disposition that minorities are engaged in criminal activities, which results in minorities being stopped and searched without probable cause.
*725 There is substantial evidence that racial profiling exists. Moreover, there is substantial jurisprudence written on racial profiling. What is lacking is jurisprudence on how Congress, state and federal law enforcement agencies, the courts, and the minority community can eliminate and remedy racial profiling by law enforcement officials. Therefore, this article focuses on how to eliminate and remedy such conduct.
Unfortunately, racial profiling of African-Americans appears to be ingrained in the minds of many law enforcement officers and has become a part of their standard operating procedures. A frontal attack must occur at all levels of government, the judiciary, by private citizens, and various community and civil rights organizations.
This article identifies various initiatives taken by all levels of the government, civil rights and community organizations, law enforcement organizations, and individual citizens to address the issue of racial profiling. The article also reviews the judiciary's response to this practice. In addition, this article presents a number of possibilities and considerations to address the issue, as well as an evaluation of the effectiveness of recently implemented programs. There is no one paradigm that will completely eradicate the practice of racial profiling. A holistic approach to remedying racial profiling has to be developed to address such infectious conduct by law enforcement officials.
*726 Part II of the article describes initiatives by the Executive Branch, Congress, and the U.S. Justice Department to address the issue of racial profiling and the effectiveness of certain programs. Part III describes state and local initiatives. Part IV outlines various legal actions that individual citizens may take when confronted by law enforcement officials who engage in racial profiling. Part V outlines various initiatives adopted by communities and organizations. Clearly, these remedies are not an exhaustive list of possible corrective actions, but only the beginning of a dialogue on how to end and prevent racial profiling by law enforcement organizations.
II. Federal Initiatives to End Racial Profiling
A. Presidential Initiatives
To have a meaningful plan at the federal level to address the issue of racial profiling, the directive must come from the highest position in the executive office-the President. In 1999, President Clinton called racial profiling morally indefensible and issued a directive to federal law enforcement agencies to collect and report data on the race, ethnicity, and gender of individuals stopped, questioned, and searched. Similarly, President Bush raised the issue of racial profiling in his speech to Congress on February 27, 2001. Further, President Bush directed the U.S. Attorney General to develop specific recommendations on how to end racial profiling.
*727 In a news conference on March 1, 2001, Attorney General Ashcroft announced two initiatives to fulfill the President's directive. First, the Attorney General announced that he would work with members of Congress for passage of legislation to address the President's directive. Second, the Attorney General stated that he would issue a directive requiring his office to explore the extent of racial profiling in federal law enforcement agencies and provide guidance to address such conduct. Unfortunately, the Attorney General and Congress have failed to pass any federal legislation prohibiting racial profiling.
In response to the second directive, the Justice Department conducted a study on the extent of racial profiling by law enforcement agencies. Recommendations were presented to President Bush on eliminating racial profiling by federal law enforcement officials. President Bush accepted the recommendations and directed that the policy guidance be distributed to law enforcement agencies. On June 17, 2003, the Department of Justice issued a policy guide entitled: Guidance Regarding the Use of Race By Federal Law Enforcement Agencies [hereinafter Guidance Policy] to prohibit racial *728 profiling by federal law enforcement officials. The policy was distributed to major law enforcement agencies.
The Guidance Policy prohibits racial profiling in traffic stops and during investigations of criminal activities where no trustworthy evidence related to race has been presented. The Guidance Policy states in part:
Racial profiling at its core concerns the invidious use of race or ethnicity as a criterion in conducting stops, searches and other law enforcement investigative procedures. It is premised on the erroneous assumption that any particular individual of one race or ethnicity is more likely to engage in misconduct than any particular individual or another race or ethnicity.
The Guidance Policy acknowledges that acts of racial profiling violate the constitutional rights of individuals who are selectively stopped on the basis of their race or ethnicity. Moreover, the Guidance Policy provides guidance on when law enforcement activities, such as stops and investigations, are permissible acts of racial profiling. The Guidance Policy permits the use of race by law enforcement when it relates to national security. Without further clarifications and guidelines, this broad exception may result in a continuation of racial and ethnic profiling.
The Guidance Policy is an excellent tool for law enforcement officials to follow in performing their day-to-day traffic duties. However, the Department of Justice's Guidance Policy fails to provide mandatory guidelines which set forth uniform standards for federal law enforcement officials to follow. More definitive guidelines and standards would have a greater impact on eliminating racial profiling by federal law enforcement officials, as well as establishing a model for state and local enforcement agencies.
B. Congressional Legislation: Racial Profiling Act of 2001
Congress has attempted to pass federal legislation to address the issue of racial profiling; however, these attempts have been futile. Representative John Conyers, Jr. first introduced the Traffic Stops Statistics Act in 1997. The purpose of the Act was to end the use of racial profiling based on stereotypical biases, particularly directed at African-American and Hispanic motorists. The Act passed the House of Representatives but the Senate Judiciary Committee failed to vote on it. Representative Conyers again proposed similar legislation in 1999. In 2001, Representative Conyers, for the third time, proposed federal legislation to end racial profiling [hereinafter The End Racial Profiling Act of 2001]. The Senate proposed similar legislation; however, the sponsors failed to garner sufficient support for passage. Representative Conyers testified that since he first proposed this legislation in 1997, the pervasive nature of racial profiling has gone from anecdote and theory to well documented fact.
The End Racial Profiling Act of 2001 would have banned racial profiling and required federal, state, and local enforcement agencies to develop and implement programs to eliminate the use of racial profiling in the enforcement of local and state laws. As an incentive to comply with the Act, federal funds would have been barred from state and local enforcement agencies for non-compliance.
*730 All attempts by Representative Conyers and other sponsors of federal legislation to ban racial profiling have failed. If the issue of racial profiling continues to be prevalent in our country, Congress will inevitably promulgate some modified version of Representative Conyers' proposal to collect data on traffic stops. It appears that the events of September 11th have derailed Congress's motivation to pass federal legislation banning racial profiling. Congress has a responsibility to protect the rights of all citizens, even in the midst of acts of terrorism. Without federal legislation banning such conduct, African-American citizens are without federal protection from racial profiling. It is imperative that Congress make the passage of racial profiling legislation a priority. Whether it is an act of Congress, a state statute, or a local ordinance, such laws must include certain provisions to ensure that the data collected is correct, validated, and credible.
C. Racial Profiling Education and Awareness Act of 2002
In addition to collecting statistical data on police traffic stops, legislators have proposed educational and awareness programs on preventing racial profiling by law enforcement officers. The Racial Profiling Education and Awareness Act of 2002 would have authorized the U.S. Attorney General to carry out a racial profiling education and awareness program within the Department of Justice and to assist state and local law enforcement agencies in implementing such programs. The proposed Act would have acknowledged that racial and ethnic profiling exists and has not been an effective tool to uncover criminal activity, in part because those who have been profiled were law-abiding citizens. By acknowledging that racial profiling exists, state and local enforcement agencies can focus on how to address the issue, rather than taking a defensive position that their organization does not engage in racial profiling.
The Act was designed to foster a relationship with local communities and law enforcement agencies. It encouraged education programs to bridge the *731 gap with trust and respect. This in turn would have allowed an open dialogue on issues of policing and racial profiling. The Act also provided funding for implementing internal training programs designed to combat racial profiling.
Promulgation of this legislation would have complemented the End Racial Profiling Act of 2001 by providing training to state and local law enforcement officers on how to correct and prevent the profiling of African-Americans. The legislation would have provided funds to further enhance community programs designed to address the issue of racial profiling, especially in those areas where traffic stop statistics indicate that particular racial or ethnic groups are disproportionately stopped by law enforcement officers. The passage of the Racial Profiling Education Awareness Act of 2002, without the End Racial Profiling Act of 2001, would have been ineffective in addressing racial profiling. Educating law enforcement officers about racial profiling is a positive means of heightening their awareness of the issue; however, federal legislation, such as the Racial Profiling Act of 2001, would make racial profiling illegal with serious consequences. It would have been the impetus for law enforcement officials to cease such conduct. Unfortunately, Congress has failed to pass either Act.
D. U.S. Justice Department, Civil Rights Division
The U.S. Justice Department is in a unique position to address the issue of racial profiling by public entities. A number of federal laws give the Justice Department authority to proceed with litigation to combat racial profiling. For example, the Violent Crime Control and Law Enforcement Act of 1994 provides a mechanism for the Justice Department to bring pattern or practice cases against law enforcement organizations who engage in racial profiling. In addition, the Justice Department may pursue an investigation of racial profiling under Title VI of the Civil Rights Act of 1964 and the Omnibus Crime Control and Safe Streets Act of 1968.
1. The Violent Crime Control and Law Enforcement Act of 1994
The Violent Crime Control and Law Enforcement Act of 1994 [hereinafter the Law Enforcement Act] gives the U.S. Justice Department authority to seek declaratory and equitable relief to remedy a pattern or practice of conduct by law enforcement officers that deprives individuals of their rights under the Constitution. Pursuant to the Law Enforcement Act, the Justice Department may initiate an investigation of management practices within a police department when complaints have been filed alleging a violation of a citizen's constitutional rights. If the Justice Department is unable to reach an agreement with the municipality, the Justice Department may proceed with an action in federal court against the police department.
*733 The Justice Department has filed five lawsuits under this Act. In 1994, the Justice Department filed a pattern or practice suit against the City of Steubenville, Ohio Police Department. On September 3, 1997, the City of Steubenville and the Justice Department entered into a consent decree. Among the ninety-nine stipulations, the city agreed that it would maintain race and gender data on all persons involved in a stop, search, or seizure. The second case pursued by the Justice Department was filed in 1997 against the City of Pittsburgh, Pennsylvania. In the third case, the City of Columbus, Ohio was sued in 1999 for police misconduct including racial profiling. After a number of reforms by the Columbus Police Department, the Justice Department asked the court to dismiss the action. The most notable case filed by the Justice Department was in 1999 involving the New Jersey State Police. The Justice Department alleged that the State of New Jersey and its Police Department engaged in a pattern or practice of conduct by troopers of the New Jersey State Police that deprives persons of rights . . . under the Constitution. In 1999, the parties reached an agreement which resulted in *734 a consent decree requiring the State of New Jersey and its police departments to implement a number of policies to combat racial profiling. The fifth case was brought against the City of Los Angeles in 2000. The lawsuit alleged that the City's Police Department engaged in a pattern of civil-rights abuses, including racial profiling. The Justice Department reached an agreement with the City of Los Angeles in 2001.
The Justice Department's use of the Law Enforcement Act has been a viable tool to address racial profiling by major law enforcement organizations around the country. The five suits brought by the Justice Department under the Law Enforcement Act resulted in police departments implementing comprehensive plans and programs to address patterns and practices of police abuse, including racial profiling. The Justice Department has used this federal statute effectively, but sparingly, to address an issue that appears to be widespread throughout many other law enforcement organizations around the country. Additional resources, such as budgets and staff, should be made available to the Justice Department's Special Litigation Section to expand their efforts for further enforcement of this statute.
2. Omnibus Crime Control and Safe Streets Act of 1968
The Omnibus Crime Control and Safe Streets Act of 1968 [hereinafter the Crime Control Act] was promulgated to aid State and local governments in strengthening and improving their systems of criminal justice by providing financial and technical assistance . . . . The Crime Control Act prohibits state and local governments, who receive federal funds, from discriminating in programs or activities funded in whole or part by the federal government. The Civil Rights Division of the U.S. Justice Department is responsible for enforcing this statute. In addition to granting the Justice Department authority to bring a civil action, the Crime Control Act also allows individuals to pursue a private right of action.
The Law Enforcement Assistance Administration (LEAA) was created to administer the funding and awarding of grants to state and local governments under the Crime Control Act. The LEAA also has authority to process complaints that allege discrimination on the part of recipients of funds awarded by LEAA. For those states and municipalities that permit law enforcement officials to engage in racial profiling, federal funds should be denied.
3. Title VI of the Civil Rights Act
Acts of racial profiling by state and local law enforcement agencies, which receive federal funds, may be adjudicated under Title VI of the Civil Rights Act of 1964. This statute was promulgated to prohibit organizations, who receive federal funds, from discriminating on the basis of race, color, or national origin. Racial profiling typically involves these three bases of discrimination, e.g. African-American men and Latino men. The Justice Department coordinates enforcement of Title VI among all federal agencies that provide financial assistance to state and local governments. Under Title VI, the primary remedy given when the recipient engages in discriminatory conduct is the termination of federal funds.
The Justice Department has also issued implementing regulations that establish a private cause of action based on Title VI. Further, the United States Supreme Court in Alexander v. Choate and Guardians Ass'n v. Civil Service Commission of New York City recognized a cause of action under Title VI and upheld the regulations when federal recipients engaged in discrimination. Thus, a private citizen can sue state and local enforcement agencies to obtain either injunctive relief or monetary damages for intentional discrimination. The Supreme Court in Alexander v. Sandoval prohibited *737 a private right of action under the regulations where only disparate impact discrimination is alleged. The Court did not find that the regulations were void; therefore, federal agencies should be able to pursue both disparate impact and intentional discrimination claims against state and local enforcement agencies who engage in racial profiling.
Even though the Supreme Court has recognized a cause of action under Title VI and the regulations, it is difficult for a plaintiff to prove intentional discrimination under the statute. Plaintiffs have had some success with their claims of intentional discrimination in the racial profiling context. For example, in Rodriguez v. California Highway Patrol, the plaintiffs were able to establish a prima facie case that policies of the California Highway Patrol and the Bureau of Narcotics Enforcement had intentionally violated Title VI and violated Title VI regulations. Similarly, in Wilson v. Department of *738 Public Safety, the court granted the plaintiff's motion to proceed with a Title VI claim because the plaintiff adequately alleged that the state trooper made a traffic stop because of his race.
A review of traffic stop data which indicates that African-Americans are disproportionately stopped by governmental officials, may support a claim of intentional discrimination. The plaintiff may seek both damages and equitable relief for intentional discrimination. The Justice Department could seek remedies under both theories of discrimination; intentional and disparate impact.
III. State and Local Initiatives
A number of states and local communities have taken a proactive approach to addressing the issue of racial profiling by promulgating statutes, ordinances, and policies prohibiting such conduct by law enforcement officers. Although the federal government's effort to promulgate legislation to require the collection of traffic stop data has lingered on for more than five years, states and local authorities have aggressively proceeded to enact such laws.
The focus of racial profiling legislation has been directed at state police, e.g. troopers. However, racial profiling of minorities is not limited to state police. Law enforcement officials in municipalities, towns, and villages also participate in racial profiling. Thus, state racial profiling legislation should be broad enough to cover municipal officers, as well as state police.
A. Local Ordinances
A growing number of municipalities have passed local ordinances prohibiting racial profiling by law enforcement officials. For example, in 2001, Cincinnati passed one of the first and most aggressive local ordinances outlawing all forms of racial profiling. Cincinnati police are required to record the race, color, ethnicity, gender, and age of individual motorists stopped by the police. Failure to comply with the ordinance could result in the termination of employment.
A few cities have either passed or considered local ordinances criminalizing racial profiling. Those cities conclude that individuals who engage in racial profiling are engaged in a crime against the public; thus such conduct is a criminal offense and should be punished. Similar initiatives have resulted in several states passing legislation which makes racial profiling a crime. For example, in New Jersey, a violation of the state's racial profiling law is a third-degree offense that could result in three to five years imprisonment. Criminalizing racial profiling is the next logical step that states and municipalities should take to end such conduct. If cities and states are serious about ending racial profiling, criminal sanctions may be needed to punish those who continue to intentionally engage in racial profiling. When an officer's intention is to violate the constitutional rights of citizens, criminal penalties are justified. In addition, law enforcement officers found guilty of engaging in racial profiling should permanently be removed from their positions, as individuals with criminal records normally are disqualified from *740 serving in law enforcement positions. A combination of being charged with a crime and being removed from employment would serve as a deterrent to unlawful and unethical behavior by those law enforcement officers who intentionally violate the law.
B. State Legislation
A majority of states have passed legislation either prohibiting racial profiling and/or requiring law enforcement agencies to collect racial data on traffic stops. Inconsistencies exist among the states regarding what data should be recorded at traffic stops; however, their goals of determining if racial profiling occurs and how to correct it are similar. For example, the Governor of Wisconsin issued an executive order prohibiting state law enforcement agencies from using any form of racial profiling to determine who will be stopped or searched. The executive order also [r]equires all enforcement agencies in the State of Wisconsin to enact a policy prohibiting the practice of racial profiling. Prior to issuing the executive order, the Governor of Wisconsin created the Governor's Task Force on Racial Profiling to study racial profiling during traffic stops in Wisconsin. The Task Force also recommended training, community input, and the collection of data on traffic stops in communities. The study makes a number of recommendations on how to prevent racial profiling when officers are conducting stops.
*741 The State of Missouri has an extensive racial profiling statute which requires the recording of racial data and the reason why the motorist was stopped. All law enforcement agencies are also required to provide the data to the State Attorney General's Office to ensure that law enforcement agencies across the state comply with the statute. Additionally, there is a provision which allows the Governor to withhold state funds from law enforcement agencies who fail to comply with the statute.
Other states have enacted legislation similar to Missouri and Wisconsin. For example, in North Carolina, the Traffic Enforcement Statistics SC 76 was signed by the Governor on April 22, 1999. On August 10, 2000, Massachusetts enacted a law requiring the collection of data on stopped motorists. A bill was introduced in the Ohio legislature that would require law enforcement agencies to collect racial, ethnic, and gender data on all traffic stops. In Texas, the criminal code prohibits the use of evidence that may be admitted in a criminal trial if that evidence was obtained illegally, e.g. racial profiling.
The highways in New Jersey have become synonymous with racial profiling. In 1994, seventeen defendants convinced a state judge that their arrest by the New Jersey State Police was racially motivated. In State v. Pedro Soto, the court held:
*742 [W]here objective evidence establishes that a police agency has embarked upon an officially sanctioned or de facto policy of targeting minorities for investigation and arrest any evidence seized will be suppressed to deter future insolence in office by those charged with enforcement of the law and to maintain judicial integrity.
Four years later in 1998, New Jersey was again faced with even more egregious allegations of racial profiling when three African-American men and one Hispanic man were fired upon eleven times after being stopped for an alleged traffic violation. The four men were traveling to North Carolina to try out for a basketball team. After an investigation of the shooting and other allegations of racial profiling, the Attorney General of New Jersey conducted an investigation which revealed that racial profiling was indeed being practiced by state law enforcement officials. The issue of racial profiling was ultimately resolved when the U.S. Justice Department entered into a consent decree with New Jersey. Even with a comprehensive agreement between the Justice Department and New Jersey, there is evidence that racial profiling continues to occur in the state.
Other states, which are serious about eradicating the practice of racial profiling, must take a proactive approach to address the issue in their state. Moreover, states should avoid the protracted internal and external investigations, lawsuits, negative press, and citizen distrust of state public *743 officials by aggressively studying racial profiling and implementing safeguards to prevent and correct such behavior.
C. Collection of Data
A number of municipalities and states are collecting statistical data on motorists who are stopped, detained, and searched by law enforcement officers. Cities such as Columbus, Sacramento, and Los Angeles have begun to collect and analyze such data. Similarly, in Florida, the highway patrol volunteered to collect race and gender statistics on every motorist with whom troopers come in contact while performing their duties.
In addition to collecting data on traffic stops by race, organizations should implement plans to determine whether the data is statistically valid, whether *744 the data will be used to support disciplinary actions, and how the data will be evaluated. Failure to anticipate these issues prior to passing such legislation will leave the data open to criticism and attacks.
In recording such data, it is also crucial to identify the law enforcement officer recording it and to give individuals who are stopped a copy of the form indicating why they were stopped. The requirement of identifying the officer making the stop and recording the data has caused tension between law enforcement agencies and the Fraternal Order of Police. Nevertheless, states and municipalities continue to collect traffic stop data which includes the name of the law enforcement officer making the stop. When implementing such procedures that require the collection of traffic stop data, law enforcement agencies should ensure that the new policies and procedures do not violate the collective bargaining agreement.
Without identifying the individual recording the data, it would be difficult to determine whether the respective officer has disproportionately stopped any particular racial group. The mere fact that a particular officer has *745 disproportionately stopped a racial or ethnic group should not result in automatic disciplinary action. Further, training and development may be the appropriate remedy.
Individuals who are stopped should be requested to verify not only their name and address, but also their race and gender. Further, a copy of the form should be given to the motorist to ensure that the officer has properly identified the motorist's race and ethnicity. This would address the issue of whether the officer is recording the personal data correctly. Because there are concerns that African-American and Hispanic males are the targets of such stops, the data should reflect the race and gender of the individuals. Such a policy was implemented by the Village of Mount Prospect. After litigation and a settlement agreement between two police officers who were allegedly instructed to target Hispanic drivers for traffic stops, the Village of Mount Prospect proposed the following policies and procedures to address the issue of racial profiling:
the Village has promised to enact a formal policy banning racial profiling, has eliminated ticket quotas for its officers, and will require officers to note the race of all drivers they stop. Additionally, the Village will create a computer database to track the racial and ethnic information collected by officers making traffic stops and aggressively recruit minorities for its police force. Finally, the Village will create a human rights review board, made up of a village manager, a resident, and a clergy member, to monitor racial profiling complaints as well as the information generated by the other reform efforts.
Many other cities have developed similar policies and procedures to eradicate racial profiling in the enforcement of traffic laws. It is imperative that city officials understand that the collection of traffic-stop data is not the only answer to ending racial profiling. If the data reveals that racial profiling is practiced by officers, the data should be used to develop policies, internal *746 procedures, training programs, and community partnerships to remedy such practices.
Cities and states that have already collected data on traffic stops should closely review it to determine whether law enforcement officials are engaging in unlawful conduct. For example, the New York State Attorney General reviewed 175,000 UF-250 forms that were completed by the New York Police Department (NYPD). The review covered a period from January 1998 through March 1999 and showed that African Americans and Hispanics were disproportionately stopped and frisked by NYPD officers. The study also revealed that a sample of the forms did not state facts sufficient to meet the legal definition of reasonable suspicion. These numbers clearly showed disparity in the enforcement of stop and frisk laws by the NYPD. In response to the study, the Attorney General stated that the next step was to identify possible reforms; in other words, remedies to address the issue of racial profiling.
*747 Other cities and states which have collected data on traffic stops report that African-Americans and other minorities are disproportionately stopped by law enforcement officials; however, the reports stop short of concluding that such disparities are the result of racial profiling. The data, though not conclusive, illustrates that law enforcement officials have engaged in racial profiling.
*748 Understandably, for liability reasons, cities and states will not acknowledge that the data proves that law enforcement officials are engaged in racial profiling. However, where the evidence clearly supports that minorities are disproportionately stopped and searched, the cities and states should develop a plan to address why the disparity has occurred and how it should be addressed.
D. Training and Development
In addition to collecting statistical data on motorist stops and passing ordinances and legislation that prohibit racial profiling, such laws should also include a provision mandating racial profiling training for law enforcement officers involved in the enforcement of traffic laws. Law enforcement officers should also receive sensitivity training on how their stereotypical biases regarding minorities, particularly African-Americans, may cause them to engage in racial profiling. Some local enforcement agencies have taken the initiative to develop training programs to prevent officers from engaging in racial profiling. Simultaneously, greater emphasis must be placed on recruiting and training new law enforcement officers. Officers must be *749 trained on how to enforce laws in a respectful non-discriminatory manner. Officer recruitment may require new testing devices to eliminate applicants who are predisposed to developing racist tendencies. State and local governments should seek federal funds to assist with new training programs and initiatives.
IV. Individual Citizen Response
A. Citizen Complaints
African-Americans, as well as other disenfranchised groups, should file complaints against individual police officers and governmental entities when they believe they were stopped without probable cause and suspect that their race was the motivating factor for the stop. Individual citizens must take on the role of a Rosa Parks when traveling the highway, the airport, or when shopping at the local mall. This entails filing a complaint with the local police department, contacting the newspaper, notifying the local civil rights *750 organization, and the U.S. Justice Department. Minorities cannot solely rely on the courts and Congress to address this highly political issue.
B. Civil Suits Under 1983
African-Americans who are victims of racial profiling can pursue legal action under 42 U.S.C. 1983 on the basis that the state law enforcement officer's conduct violated the Fourth Amendment and the Equal Protection Clause (Fourteenth Amendment) of the United States Constitution. The analysis for a Fourth and Fourteenth Amendment violation under 1983 are quite different. Under the Fourth Amendment, a traffic stop must only be reasonable. For example, did the officer observe a traffic violation or was there reasonable suspicion of a violation? However, reaching a reasonable suspicion should be based on individualized suspicion and not on stereotypical biases or profiles directed at African-American citizens. Because this standard is a fairly easy standard to meet, law enforcement officers may engage in racial profiling without violating the Fourth Amendment.
*751 The U.S. Supreme Court has held that the practice of racial profiling violates the Equal Protection Clause of the Constitution. For a Fourteenth Amendment claim, the plaintiff must present evidence that the law enforcement official was motivated by race. To prevail under 1983, the plaintiff must prove that their constitutional rights have been violated. Without a violation of a constitutional right, there can be no violation of 1983. In proceeding under 1983, the plaintiff has to prove that the articulated reasons for the stop were pretextual and that the stop was motivated by race. To prove pretext, the plaintiff has the difficult burden of proving that the law enforcement officer would not have stopped the plaintiff but for their race.
The difficulty of prevailing in a 1983 case where racial profiling is alleged is illustrated in Flowers v. Fiore. In Flowers, an African-American motorist was mistakenly stopped, handcuffed, and his car was searched while police officers pointed their guns at him. A resident had called the police after he received threatening telephone calls that someone was sending two African-American men over with a gun. Flowers was merely driving his car in the neighborhood. In dismissing all the claims against the city and the officers, the court held that [t]hey had good reason to believe that Flowers *752 was armed and dangerous . . . . The court further indicated that it was an unfortunate incident and that [u]nder such circumstances, any citizen would be understandably upset and entitled to both a good explanation and an apology.
As the court stated in United States v. Saucedo, the alleged victim has the burden of presenting direct, circumstantial, or statistical evidence that he [or she] was a target of racial profiling. In determining whether there is an Equal Protection violation, the officer's subjective motivations may be explored. Further, in Von Herbert v. City of St. Clair Shores, the court stated that [m]ere speculation that police operatives had selected a suspect because of racial bias is inadequate to support a racial profiling charge.
Individuals may also pursue other civil rights actions similar to 1983; however, courts are often unwilling to permit additional claims if a 1983 claim has been brought. For example, in White v. Williams, the plaintiff alleged that the defendants had not only violated 1983, but also 1981, *753 1985, and 1986. In dismissing the 1981 complaint, the court in White stated that, [a]lthough Section 1981 is a federal civil rights statute it is more appropriately analyzed in terms of a tort remedy.
C. Class Action
The procedural device of class action can be an effective tool to address the issue of racial profiling. Under Federal Rule of Civil Procedure 23, a class action can be certified by a federal court to enable a class of motorists to sue a municipality that engages in or permits racial profiling by law enforcement officers. For example, in Wilson v. Tinicum Township, the court certified two classes and two sub-classes:
*754 Class I: Injunctive classes certified pursuant to Fed. R. Civ. P. 23(b)(2) consisting of (a) all individuals who travel or will travel I-95 through Tinicum Township and (b) all African American and Hispanic individuals who travel or will travel I-95 through Tinicum Township. Class II: Damage classes certified pursuant Fed. R. Civ. P. 23(b)(3) consisting of (a) all individuals traveling I-95 who have been stopped or subjected to searches and seizures by the defendants since November 18, 1990 as a result of defendants alleged customs and policies of stopping travelers on I-95 for pretextual traffic violations with the intent of coercing consent or improperly searching the stopped vehicles for drugs and (b) all African American and Hispanic individuals traveling on I-95 since November 18, 1990 who have been stopped or subjected to searches or seizures as a result of defendants' alleged policy or custom of stopping and searching minority individuals on I-95 because of their minority status.
In Wilson, four African-Americans returning from a church celebration were stopped along I-95 by officers of Tinicum Township. The individuals were lined up on the shoulder of the road and searched by a police dog. The police officer admitted that the motorists were stopped because they were young, black, and in a high drug-traffic area, driving a nice car. Plaintiffs provided sufficient evidence to justify the certification of a class action involving African-American and Hispanic individuals who had been stopped and subjected to searches as a result of policy. The following year, the case was settled for monetary damages. A consent decree was also signed which included language that the police would not stop, detain, search or arrest any person due to race, ethnic identity or without probable cause. More recently, in Daniels v. City of New York, plaintiffs sought class certification under Rule 23 when they alleged that a unit of the NYPD known as the Street Crime Unit (SCU) had repeatedly conducted stops and frisks of African-American and Latino men between the ages of twenty-three and thirty-seven years old who resided in the Bronx, Brooklyn, Manhattan, and the City of Rochester. In certifying the class, the court stated in part:
*755 The classes of persons which plaintiffs here propose are challenging the same alleged illegal conduct of the defendants namely, the unconstitutional policy of stopping, detaining, and searching cars and their occupants without cause or proper consent. In addition, the minority classes which plaintiffs propose allege that they have been targeted for special attention in implementing the alleged unconstitutional policy. The claims plaintiffs assert, therefore, involve a common central issue: whether the defendants engaged in violations of the proposed class member's rights under the Fourth and Fourteenth Amendments of the United State Constitution and the laws of the Commonwealth of Pennsylvania.
Based on the court's analysis of Rule 23 in Wilson and Daniels, plaintiffs may successfully proceed with a class action suit against a municipality for racial profiling. Once a class action has been certified by the court, defendants are more likely to seek resolution of the dispute in lieu of a full trial. Class action settlements not only benefit the plaintiffs, but other minorities who may be impacted by discriminatory practices in the future.
V. Community and Organization Initiatives
A. Community Initiative Response
In addition to campaigning for state and local laws to collect data on traffic stops, community organizations and local enforcement agencies can begin to address the issue of racial profiling by working together to identify solutions. Community groups can lobby for state and federal laws prohibiting racial profiling of motorists. This may entail organizing an advisory council, a community relations commission, and other boards to specifically address how to end racial profiling. Enacting various state laws and local ordinances cannot eliminate many centuries of conflicts between law enforcement and the African-American community, particularly African-American males and the police. In order to remedy such conflicts, there must be an on-going and meaningful dialogue on racial profiling between various racial and ethnic groups and the police.
Where city officials and law enforcement agencies fail to adequately address racial issues facing the African-American community, organizations have engaged in boycotts against white businesses. This occurred in Cincinnati when the Black United Front (BUF) contacted groups who had planned to have their conventions in Cincinnati. BUF asked the groups to move their convention to another city because of the unresolved racial issues in the city, especially racial profiling. The use of boycotting white businesses is not a new approach to pressing political leaders to end patterns and practices of racial discrimination. However, leaders of such boycotts may face litigation if they pursue this method of attacking racial profiling.
*757 B. Civil Rights Organizations
Civil rights organizations have historically fought in and out of court for the civil rights of minorities. In particular, the National Association for the Advancement of Colored People (NAACP) and the American Civil Liberties Union (ACLU) have led the fight to end racial profiling. Courts have held that such organizations have standing to bring litigation to protect minorities from racial profiling by law enforcement agencies. The NAACP has been successful in pursuing class action suits against municipalities who engage in racially discriminatory stops, as well as implementing negotiation agreements to prohibit racial profiling.
The ACLU has taken a national and aggressive position in combating racial profiling. The ACLU has pursued a number of cases in federal court against municipalities, which have resulted in large monetary awards and settlements. The ACLU Chapter in California has also established a telephone hot-line to gather data from individuals who are routinely stopped by law enforcement officers.
*758 Along with the ACLU and the NAACP, a number of other civil rights organizations in California formed the Racial Justice Coalition to promote the passage of a bill requiring law enforcement agencies to collect data on the race and ethnicity of motorists stopped by officers. Civil rights organizations around the country should join forces to promote laws to collect similar data in their respective cities and states. Once data is collected and it appears that law enforcement officials have engaged in racial profiling, civil rights organizations should begin to campaign for city and state officials to take corrective action.
Additionally, civil rights organizations may need to provide financial assistance for individuals to bring civil suits against local enforcement agencies. Without financial support, African-Americans may not be able to vindicate violations of their civil rights.
The National Organization of Black Law Enforcement Executives (NOBLE) has been instrumental in providing training for law enforcement agencies on recognizing and preventing racial profiling. In addition, *759 NOBLE has conducted a national study on collecting and analyzing racial profiling data.
C. State and Local Bar Association Initiatives
State and local bar associations, as well as other legal associations, can play a major role in addressing the issue of racial profiling in their locales. Indeed, state and local organizations can use its membership to leverage state legislatures into enacting statutes outlawing such conduct. For example in 1999, the Columbus Bar Association, in Ohio, appointed a Racial Profiling Task Force to examine the issue of racial profiling in central Ohio. The Task Force made the following recommendations to law enforcement agencies:
[1] Voluntarily institute a system of data collection and analysis of all traffic stops; [2] install video and audio equipment on all police cruisers; [3] establish sensitivity training for all police officers regarding racial profiling concerns; [4] simplify the process by which citizens may file complaints of racial profiling; and [5] strengthen community outreach to publicize the rejection of racial profiling tactics and avenues available for filing complaints.
Other bar associations such as Delaware have implemented a variety of initiatives to combat racial profiling in their state. In addition, the American Bar Association has expressed support of federal legislation prohibiting racial profiling.
D. Local Enforcement Organizations
In the midst of allegations of racism, lawsuits, and pending legislation, local police departments must develop and implement internal policies and programs to end the practice of racial profiling. Recently, the Police *760 Commissioner of New York City issued an order entitled Department Policy Regarding Racial Profiling. The policy defines racial profiling, prohibits such conduct, and mandates that officers have a legitimate reason for stopping and searching motorists. Similarly, the St. Louis Board of Police Commissioners adopted language in their police manual prohibiting the use of racial profiling in stopping motorists. Likewise, police departments across the country have committed to ending racial profiling by issuing directives, collecting data, and conducting studies on traffic stops and arrests.
Often, African-American motorists who are stopped by law enforcement officers are treated in a disrespectful manner and with a lack of cultural sensitivity, which results in the perception that they were stopped because of racial profiling. Law enforcement officers who have little or no contact with African-Americans and other minorities may fail to understand how to effectively communicate with individuals from different backgrounds and cultures. To address this issue, law enforcement agencies should include sensitivity and respectfulconduct in their training program. For example, the Floridian Police Chief's Association issued a Sample Professional Traffic Stops Policy and Procedure which outlines, in part, procedures for greeting motorists in a professional manner and how to defuse tension during the stops. The sample also includes a complaint processing system for handling racial profiling complaints in a timely manner. Every law enforcement agency should have a complaint processing system which permits motorists *761 to file a complaint when they believe they were stopped because of their race. The investigation and resolution of the complaint may avoid protracted litigation. Similar processes have been developed by other law enforcement organizations to prevent incidents of racial profiling.
In a joint effort to end racial profiling in Ohio, top law enforcement agencies signed a pledge to prohibit any form of racial profiling by their respective organizations. Even though such pledges have no enforcement provisions, this constitutes a good faith effort to recognize the commitment to eliminating racial profiling. Clearly, future efforts and enforcement mechanics will be needed by each agency to fully eradicate the continued use of racial profiling.
VI. Conclusion
Racial profiling by law enforcement officials in this country is an everyday occurrence. African-Americans are the primary victims of racial profiling, as some law enforcement officers perceive that all African-American citizens are engaged in crime and lawlessness. Thus, such individuals are stopped, searched, and arrested without sufficient probable cause to justify law enforcement action. These stereotypical biases are racist assumptions which breed resentment and hostility between African-Americans and law enforcement officers. Without viable remedies to end racial profiling, race relations in this country, especially between African-Americans and law enforcement officers, will continue to deteriorate.
. © 2003, Floyd D. Weatherspoon, Professor of Law, Capital University Law School (Columbus, Ohio). B.S., North Carolina A&T State University, 1974; J.D., Howard University Law School, 1977.
