Wednesday, August 23, 2017

Racial Profiling

Racial Profiling, September 11th and the Media: a Critical Race Theory Analysis

Leonard M. Baynes, Racial Profiling, September 11th and the Media: a Critical Race Theory Analysis, 2 Virginia Sports and Entertainment Law Journal 1 (Winter 2002)(407 Footnotes Omitted)

 

“With law enforcement agencies focused on the threat from Middle Easterners, intelligence officials believe that the ‘next face of this is not going to be an Arab face, but possibly Indonesian, Filipino, a Malaysian face or even African,’ one senior official said. ‘They understand the security profile we are operating on.”’


Introduction

For many Americans, the world was turned upside down by the terrorist attacks of September 11, 2001. In the period leading up to the attacks, the United States had become smug and complacent in international affairs, and the American public was withdrawn from world affairs. The news media only provided minimal coverage of foreign news, and President George W. Bush became president, even though he famously floundered in response to a series of questions about foreign leaders.

Before September 11th, the United States was not accustomed to having wars fought on its own soil and having civilians put in jeopardy. Americans had been taught that the United States' distance from the war-zone battlefields and the Pacific and Atlantic Oceans naturally protected the country. Unfortunately, that belief was elementary and wrong. The terrorist attacks on September 11th represented the first time a foreign adversary attacked the United States mainland since the War of 1812. The most recent attack on American soil had occurred at Hawaii's Pearl Harbor during World War II. Until September 11th, these events seemed far away, involving our then-distant possession of Hawaii and targeting our military forces, not civilians. American confidence was bolstered by the fact that the United States had “won” the Cold War without being attacked on our shores.

On September 11th, Americans were confronted with how terrorism had gone global. The United States fights today's wars with advanced technologies such as precision bombs, yet the terrorists who attacked the United States used conventional methods in unconventional ways. In doing so they overcame American military superiority. They enrolled in American flight schools to train themselves, and used American planes as guided missiles. It was as if the terrorists were trying to cripple the United States in one fell swoop. One plane attempted to take out the United States militarily by attacking the Pentagon; two planes destroyed the World Trade Center Towers in an attempt to cripple the United States' financial capability. If not for Todd Beamer and others on Flight 93, the hijackers might have taken out the United States' seat of government; it is speculated that the plane that crashed in rural Pennsylvania was headed either for the White House or the United States Capitol.

The United States has become much less complacent since September 11th. Americans were outraged with the terrorist attacks, and that outrage was magnified by the fact that Osama bin Laden, the alleged mastermind of the attacks, is not a traditional adversary--he is not the leader of another superpower or even another country. Although he has reportedly operated from bases in Afghanistan, he allegedly has a vast network that transverses state Bin Laden attacked the United States on a shoestring budget. It is estimated that the entire September 11th plot, including flight lessons, cost as little as $200,000. Finally, bin Laden and the other nineteen alleged hijackers all had brown skin. Their dark complexions are impacting U.S. foreign policy, U.S domestic policy including racial profiling, and the media's influence on the public.

This Article explores, from a critical race theory perspective, the impact that the media have had on our society since the September 11th attacks. Part I explains critical race theory with respect to racial profiling in the United States.

Parts II and III explore racial profiling prior to September 11th and related media coverage.

Part IV applies critical race theory to pre-September 11th racial profiling. Part V examines how pre-September 11th racial profiling patterns enabled nineteen hijackers to escape detection. Part VI further examines the impact of September 11th on the racial profiling practices introduced in Part I, and how public discourse about the phenomenon has changed. Further, in contrast to the Article's review of pre-September 11th racial profiling media coverage,

Part VII examines the media's impact on racial profiling practices after September 11th.

Part VIII reviews narrative accounts of individuals alleged to have engaged terrorist acts since September 11th, and Part IX examines the media coverage of post-September 11th terrorists. The Article concludes that the media have a powerful influence in shaping public opinion in the aftermath of September 11th.


I. A Critical Race Theory Approach

The United States has made substantial progress in race relations. Many doors that were previously closed are now presumably open to people, irrespective of race. In the early and mid-part of the 20th Century, segregation, discrimination and openly verbalized expressions of prejudice were perfectly acceptable. Since the Civil Rights Movement, American norms have shifted to embrace the ideal of a colorblind society. Survey results show that the vast majority of white Americans believe in equal and non-discriminatory treatment towards people of color in education, employment and housing. The country has adopted the rhetoric of Dr. Martin Luther King's message to Americans to judge each other by “the content of our character not by the color of our skin.” These changing norms have had a very powerful effect on American society, but they are only norms. Have all Americans really internalized them? Probably not.

In The Id, The Ego, and Equal Protection: Reckoning with Unconscious Racism, Professor Charles R. Lawrence III explores unconscious racism. He posited that American society reaches certain negative stereotypes about African Americans while teaching whites that it is socially unacceptable to hold racist thoughts. Like many repressed thoughts and feelings, these negative stereotypes manifest themselves in many ways. For example, when addressing a group of Republican operatives, Nancy Reagan said that she wished her husband Ronald Reagan could be there to “see all these beautiful white people.” When challenged by the media on this issue, Reagan's Illinois campaign manager defended Mrs. Reagan by explaining, “she was talking to her husband about the white snow and that's how she got mixed up.”

For those who have not internalized the norm of colorblindness, “the norm functions as an external constraint, shaping their behavior to the extent they feel observed by those assumed to uphold the norm.” Norms are inefficacious when the behavior is unobserved. For example, a prejudiced woman interested in hiring a child-care provider may exclude all applicants that she believes are African American (based on residential address on the applicant's resume, stereotypical name, or the timbre of the applicant's voice suggesting certain stereotypical cadences). Since this woman is acting in a singular fashion before even meeting any of the applicants, she may be more likely to discriminate because she is unlikely to be discovered. However, the same woman, while serving on a work-related team to hire a subordinate, will be more cautious in discriminating; she would fear exposure as not adhering to the norm.

Norms are also inefficacious when the person who engages in the norm-breaking behavior can find a second acceptable norm to justify the breaking of the first norm. For example, with the color-blind norm, institutions espouse the rhetoric of equality, but often couple it with a requirement of an institutionally self-defined norm of merit so that a potential employee not meeting the merit standard will not be hired. The standards for merit may be set in a way that conceals violations of the colorblindness norm rather than legitimately ensuring competent performance on the job. The prejudiced woman may construct the standards of merit in a way that precludes African Americans. She will be able to stress these standards in her decision not to hire African American applicants, thus avoiding being labeled a racist. When criticized for having too few employees of color, her employer can respond, “we are not discriminating; we just can't find any qualified applicants of color.” Analogously, in our post-September 11th world, the United States has tried to adhere to its colorblind nondiscriminatory rhetoric, but this Article will show that, in some ways, the events of September 11th have allowed the norm of colorblindness to be surpassed by the norm of national security.

Race is variable and shaped by societal forces. Michael Omni and Harold Winant have written “Race is indeed a pre-eminently sociohistorical concept. Racial categories and the meaning of race are given concrete expression by the specific social relations and historical context in which they are embedded. Racial meanings have varied tremendously over time and between different societies.” In the United States, society has rigidly enforced a black/white paradigm with African Americans on the bottom and whites on top. Historically, the United States has followed the principle of hypo-descent, or, the “one-drop” rule--if a person has any African American ancestor, regardless of any white heritage, society categorizes that person's race as black, regardless of his or her appearance. In addition to black-white race integration issues, in the late nineteenth and early twentieth centuries, race concepts of what was considered white began to change due to influence from other groups. Initially, in the United States, the term “white” encompassed only those of Anglo-Saxon ancestry. With the immigration of many people from Ireland and southern and eastern Europe, the notion of “whiteness” grudgingly expanded to include these immigrants.

In the article If It's Not Black Anymore, Why Does Darkness Cast A Longer Discriminatory Shadow than Lightness? An Investigation and Analysis of the Color Hierarchy, I posit that the black-white paradigm in the United States is transforming gradually into a dark-light paradigm. With an increase in the number of Latinos and biracial Americans, the United States' social construction of race is shifting from the exclusive provinces of black-white to the newer realm of dark-light. The article predicts that society will ultimately lump most people of color in the middle of the pyramid irrespective of race, while “unmixed” African Americans will probably stay at the bottom. People of color with lighter complexions will face discrimination of a lesser magnitude than both unmixed blacks and dark-skinned people.

Also, I reported the results of a Western New England College Survey. Seventy percent of whites surveyed said that whites discriminated more against darker-skinned African Americans than lighter-skinned African Americans. Forty-one percent of the whites surveyed also thought that whites treated darker-skinned Latinos worse than lighter-skinned ones. As immigration from Latin America and interracial marriages increase, the U.S. population will truly span from white to black, with every variation in between these two classifications. While America's recognition of racial compositions that fall “in between” white and black categories could appear to be progressive, unfortunately, because of national security concerns, social construction of race in the United States is slipping into a “white-against-everyone-else” paradigm. All people of color will be lumped together and will be suspected of being terrorists, but national origin, religion, biracial background, and appearance may soften the profile. Evidence of this is the recent government pronouncement that law enforcement believes that the next terrorist is not going to be an Arab, but an Asian or African. In addition, the racial profiling of people of color is more likely to occur because of the racial ambiguity of many of the individuals so far apprehended. How can one determine whether a person is Middle Eastern, Southeast Asian, Latino or African American? Many African Americans, for instance, have physical features similar to some alleged terrorists. Finally, this “white-against-everyone-else” paradigm is evidenced by increase in hate crimes against Arab Americans, and those people average Americans cannot distinguish from Arab Americans, like Southeast Asians and Latinos.

In the aftermath of September 11th, hostility and violence have increased towards Arab Americans and those people that average Americans have trouble distinguishing from Arab Americans, like Southeast Asians and Latinos. Since September 11th, more than 700 incidents of hate crimes against Sikhs and Muslims have occurred. President Bush has condemned these hate crimes and preached tolerance. However, a great deal of hostility and anxiety towards these groups exist in the United States.

Racial profiling all people of color makes it easier for authorities to get away with profiling because they will not have to discern the differences between and among different racial groups in the United States. The situation will be even worse if profiling is rationalized as necessary for national security; the colorblind norm could then be trumped by the national security norm. Further, it is very easy for a member of a minority group in the United States, in one fell swoop, to go from a “model minority” to public enemy number one.


II. Racial Profiling Prior to September 11th

Racial profiling is a practice of some law enforcement officers. Generally, police officers stop motorists of certain racial and ethnic backgrounds because the officers believe that members of those groups are more likely to commit certain crimes. In a 1999 Gallup poll, eighty-one percent of respondents said that they disapproved of racial profiling. Prior to September 11th, there were allegations that racial profiling took place in New Jersey and Maryland. The allegation was that primarily African American and Latino drivers were singled out on New Jersey and Maryland interstate highways for illegal searches; the ‘offense‘ is euphemistically known as “driving while black or brown.” The New Jersey State police released statistics that showed that even though African Americans comprised only sixteen percent of the drivers on the road, they constituted twenty-five percent of those stopped, and minorities generally constituted forty percent of those stopped. From 1994 to 1999, in central and southern New Jersey, African Americans and Latinos constituted over seventy percent of the drivers whose cars were searched during traffic stops. The Orlando Sentinel analyzed videotapes of the traffic stops of over 1,000 drivers and discovered that African Americans and Latinos constituted almost seventy percent of the traffic stops and eighty percent of the vehicle searches. On a stretch of Interstate 95, northeast of Baltimore, African American drivers accounted for seventeen percent of drivers, but comprised seventy percent of those stopped by police.

Of course, a person's race may be a legitimate factor to consider when attempting to identify a suspected perpetrator from a witness account. The statistics released in both New Jersey and Maryland, however, suggest that law enforcement used race as the sole factor in stopping this vastly disproportionate number of minority drivers. Race should never be the sole factor, especially in those circumstances where there is no witness identification.

The case of Brown v. City of Oneonta may be instructive. In rural, upstate New York, a seventy-seven year old white woman was attacked and could not identify the assailant because she had only seen the attacker's hand and forearm, which were black. She thought that the assailant was young based on the speed with which he crossed her room, and she said that the assailant had cut himself on his hand with a knife as they struggled. The police immediately contacted the nearby State University of New York at Oneonta, asked for a list of all black male students, and then proceeded to interview all the African American students on the list. When this search produced no suspects, the police questioned all non-white persons on the streets and inspected their hands for cuts. Although the authorities questioned more than two hundred individuals, they failed to apprehend any suspects.

The Brown court noted that a description of race and gender alone would rarely provide a reasonable suspicion justifying a police search or seizure. However, the court held that the determination of who would be questioned was based on “the legitimate classification” of a physical description given by the victim of a crime. The court affirmed the dismissal of the plaintiff's equal protection claims noting that “attempting to question every person fitting a general description--may well have a disparate impact on small minority groups in towns such as Oneonta.” The court found that, “[w]ithout additional evidence of discriminatory animus, the disparate impact of an investigation . . . is insufficient to sustain an equal protection claim.” The court acknowledged that the stop of one African American woman might “indicate the [law enforcement officers] considered race more strongly than other parts of the victim's description.” Nevertheless, the court dismissed this fact, rationalizing the stop as being just a “single incident.” Finally, the court warned, “[l]aw enforcement officials should always be cognizant of the impressions they leave on a community, lest distrust of law enforcement undermine its effectiveness.”

The Brown opinion supports the theory that society will adhere to the norm of colorblindness unless a superceding norm like safety, security, or law enforcement exists to “trump” the colorblind norm. Even though the Brown court acknowledged that the law enforcement actions at issue created a bad impression in the community, it was an insufficient basis to find that the equal protection clause was violated.

The police actions revealed in Brown were outrageous and ineffective. They made every African American male in the town a suspect. The authorities justified their approach based on the fact that small numbers of African Americans were affected. Still, the authorities never found the offender. Given the fact that the police also questioned a woman in this sweep, it appears that race was a more salient consideration than gender and age. Contrary to the court's statement, it does not seem likely that if the situation was reversed, i.e., that if a small number of whites lived near a larger black community, all whites would be questioned though one white person allegedly committed a crime. If that situation occurred, the police would probably look for additional criteria to narrow the field of suspects. As the court noted, the police tactics would have a negative effect on community relations.

A couple of months ago, CNN reported that Los Angeles Airport had been evacuated because the security screeners had inadvertently let an unscreened passenger pass through to the airline terminals. The reporter said that authorities would never be able to identify the unscreened passenger because he was white and looked like the majority of the other business travelers. As a result, authorities took the extreme measure of closing down the airport because they would have difficulty in identifying the unscreened white passenger. The authorities did not question every white passenger, suspecting that they slipped through security in an attempt to cause terrorism. In fact, the commentators were not blaming the unscreened white passenger for entering the terminal without clearance. Instead, they blamed the security screeners who tend to be low-wage workers and members of minority groups.

When racial profiling occurs, it allows law enforcement to take the easy way out, lumping all individuals of a particular race together to try to find a few perpetrators. It allows the government to inconvenience many members of a minority group for the benefit of law enforcement objectives in ways that might never be done to members of the majority.

In 1998, the United States Customs Agency changed its criteria for detaining passengers believed to be carrying contraband. The Agency had received much criticism from African American women who were disproportionately required to undergo very invasive body searches. The Agency eliminated racial and gender profiles. Instead, it implemented a “passenger analysis” system, which went beyond race and gender, and analyzed criteria rationally related to finding illegal contraband. These criteria included point of embarkation and itinerary, evidencing frequency of travel to, and length of time spent, in certain places. As a result of these new criteria, the Customs Bureau conducted seventy percent fewer searches, yet increased its yield of illegal contraband by twenty-five percent.


III. The Media Coverage of Racial Profiling Prior to September 11th

In 1992, the Boston Globe published an article entitled Guilty . . . of Being Black; Black Men Say Success Doesn't Save Them from Being Suspected, Harassed, and Detained. In the article, several prominent African American professional men described how law enforcement authorities had racially profiled them. The list included such notables as Harvard law professor Charles Ogletree, then-Associate Attorney General of the United States Wayne Budd, then-Celtic draft pick Dee Brown, Executive Producer of Channel 5 Karl Nurse, and the executive producer of the film “Eyes on the Prize,” Henry Hampton.

Primetime Live broadcasted a segment devoted to “driving while black.” In the segment, four young African American men drove a late model Mercedes Benz equipped with a hidden camera. The young men were either college students or recent college graduates, and a family member owned the luxury car. The police allegedly stopped the car because the driver failed to signal a lane change. The hidden camera showed how the police asked the young men to leave the car while the police did a full search. A hidden microphone overheard the police state that they thought illegal drugs were contained in a carry-on case located in the trunk. The four men were eventually released after no illegal substances were found in the car. Primetime Live then went back to the intersection and showed that most drivers failed to signal when changing lanes at the same intersection. This evidence suggested that law enforcement detained the four African Americans on pretext, and that the search went beyond what was required for a traffic stop.

These examples show that before September 11th, the media wanted to demonstrate that racial profiling was both pervasive and ineffective. Even so, this coverage was often sporadic and failed to fully counteract other news coverage contributing to the creation of racial stereotypes.


IV. A Critical Race Analysis of Profiling Prior to September 11th

Prior to September 11th, the news media and society presumed that perpetrators who were racially identified (or “racialized”) as white were inherently good, and that something bad had happened to cause them to do wrong. The media asked: Was there bad parenting? Was he involved with the wrong crowd? Was he using medication that may have contributed to his behavior? In contrast, for those racialized as being of African descent, the news media and society presumed that these individuals were generally bad, ignoring the possibility of mitigating factors when examining negative behavior. Further, for those who have olive-colored complexions and are of Middle Eastern ancestry, before September 11th, the news media and society stereotyped them in one of two ways: either negatively, as possible Middle Eastern terrorists and religious fanatics, or positively, as royal family members or oil millionaires.

An illustrative example is that of Zacarius Moussaoui, the only person allegedly linked to the September 11th attacks who was apprehended prior to the execution of the attacks. Moussaoui is a French citizen of Moroccan ethnicity. He probably was racially profiled because of his African appearance. This racial profiling may help explain why he was the only person detained in advance of September 11th. He was detained on an immigration violation in August of 2001, and it has been reported that he was apprehended because he wanted to learn how to fly jetliners without learning to land. Moussaoui first attended flight school in Norman, Oklahoma; the instructors told him that he had no aptitude for flying. In Oklahoma, he was described as abrupt and argumentative, and he refused to pay the full $4,995 fee in advance, instead paying $2,500 in cash. He then moved on to the Pan American Flight school in Minnesota where he spent time on a flight simulator for a Boeing 747. Believing that this training might be used in a hijacking, an official at the flight academy tipped off the FBI in advance. The employees at the flight school felt that the FBI was slow to respond. After four to six telephone calls failed to produce an agent willing to help, the caller felt compelled to warn that a Boeing 747 could be used as a bomb.

Moussaoui was arrested on August 16, 2001 for an immigration violation. The Washington Post described why the Minnesota flight school was suspicious of Moussaoui--Moussaoui paid the school's $6,300 fee in cash, he was woefully lacking in flight skills, and he was evasive and belligerent when asked about his background. In one example, when an employee noted Moussaoui's place of birth and greeted him in French, Moussaoui refused to respond, stating that he was from the Middle East rather than France. Moussaoui wanted to fly a 747 but had little experience in doing so. The news media also reported that he only wanted to learn to steer an aircraft--not learn to take off or land. However, according to his flight instructor, Clancy Prevost, Moussaoui never said any of these things. According to Prevost, he became suspicious when Moussaoui “flushed” when asked whether he was a Muslim.

Even more fascinating than Moussaoui's specific case, is the information surrounding the nineteen hijackers responsible for the September 11th attacks. Specifically, more than sufficient grounds existed to believe that the hijackers were planning to use their flight training for terrorist activities, unrelated to the hijackers' ethnic background. The nineteen hijackers were alleged, undercover sleeper agents, attempting to blend into American society until September 11, 2001. However, they got into trouble while living in the United States; for example, both Mohamed Atta and Marwan Yusef Mohammed al-Shehhi were thrown out of Jones Flying Service School for unprofessional behavior and instructors complained about their attitude.

For Moussaoui, there was no countervailing positive stereotype to overcome his blackness. The media negatively stereotyped people of African descent as bad actors. This dynamic made it easy for those who encountered Moussaoui to suspect him of wrongdoing. His bad attitude was enough for people to be suspicious that he was a possible terrorist. Although not expressly a part of the media's coverage, one might wonder whether Moussaoui's paying cash for his flying lessons raised questions in the minds of the flight school as to the source of his funding. In contrast, the nineteen hijackers benefited from the “oil millionaire” stereotype and, thus, their source of funds was not questioned. This contrast shows why racial profiling is ineffective--it allowed detainment of one possible culprit who seemed to be only tangentially involved in the hijacking, while nineteen key players were able to escape detection and cause considerable harm.


V. How the September 11th Hijackers Escaped Detection

Although the September 11th hijackers had engaged in behavior similar to Moussaoui's, none of them were detained before the attacks. Upon examining the suspicious behavior they engaged in, and the way they were perceived, it appears that each of these men escaped detection because a positive stereotype counteracted the negative stereotype that could have been applied to them. Despite the common profiling of Arabs as religious fanatics and terrorists, the more positive image of the wealthy or royal Arab balanced against this negative stereotype, preventing flags from being raised about the activities of these men.

A. Mohamed al-Amir Awad al-Sayed Atta

The FBI believes that Mohamed Atta was aboard the first plane to crash into the World Trade Center. He was an Egyptian citizen who had been in the United States taking flying lessons at the Huffman Flight School in Florida. One of Atta's fellow students in flight school thought that he was from a royal family. The owner of the school described Atta as having a bad attitude. When Atta applied for a government loan, he threatened a Department of Agriculture official and praised Osama bin Laden. The official said, “I didn't know who Osama bin Laden was. . . . He could have been a character in ‘Star Wars' for all I knew.” In early 2001, Atta was stopped by a deputy sheriff while driving, probably because he did not have a proper United States driver's license. He was ordered to appear in court on May 28, 2001, and because he failed to appear, a bench warrant was issued for his arrest. No effort was ever made to find him. In fact, police subsequently stopped Atta for speeding in Delray Beach, but because the two police departments' computers did not interface. The officers released Atta--despite the fact he was a “wanted man.”

B. Saeed Alghamdi

Saeed Alghamdi is alleged to have been one of the hijackers on United Airlines Flight 93, which crashed into a Pennsylvania field. He is believed to be a Saudi Arabian citizen. The travel agent who sold Alghamdi and fellow hijacker Marwan Yusef Mohammed al-Shehhi their one-way tickets from Newark, New Jersey, stated that they “paid cash and didn't wait for the change.” The FBI believed that Alghamdi used the social security number of a Vermont woman who had been dead for thirty years and the address of a Florida Air Force base that had no record of him staying there. Nevertheless, he was never arrested or accused of criminal activity.

While residing in Florida, Alghamdi had a heated argument with two of his downstairs neighbors. He banged on the neighbor's door to retrieve a towel. The neighbor said that she slammed the door, locked it, and activated her burglar alarm. She said Alghamdi was polite the next few times she saw him.

C. Marwan Yusef Mohammed al-Shehhi

Marwan Al-Shehhi was Mohamed Atta's cousin, raised in the United Arab Emirates and trained at the same aviation school in Florida. FBI officials believe he was aboard the plane that crashed into the World Trade Center towers. In one instance before September 11th, after drinking heavily, Atta, al-Shehhi, and a third man got into an altercation at a bar in Florida. At the bar, Atta claimed that he was a pilot for American Airlines. The altercation arose when the waitress serving the men asked them to pay their bill. The men considered the request an insult, believing it was an insinuation that they could not afford to pay.

D. Ziad Jarrahi

Ziad Jarrahi was raised in Lebanon, the son of a wealthy bank manager who frequently flew to the United States. The FBI suspects that Jarrahi was aboard the plane that crashed in Pennsylvania. The FBI also believes that on September 11th Jarrahi met with three other alleged hijackers, Saeed Alghamdi, Ahmed Alhaznawi, and Ahmed Alnami, and flew from Florida to Newark to hijack United Airlines Flight 93. Even though the FBI alleges that he carried a knife and box cutter, he was still able to slip through security at Newark Airport.

E. Khalid Almihdhar and Nawaf Alhazmi

Khalid Almihdhar and Nawaf Alhazmi were the hijackers who crashed American Airlines Flight 77 into the Pentagon in Washington, D.C. These men used their real names to obtain bank accounts and driver's licenses. Although the CIA had linked Almihdhar to one of the suspected bombers of the USS Cole, the State Department issued him a new visa when his expired. Almihdhar and Alhazmi met frequently with five of the other nineteen hijackers. In December 1999, U.S. Intelligence intercepted conversations on a Yemeni phone that mentioned the names Almihdhar and Alhazmi and linked them to al Qaeda. In January 2000, they attended an al Qaeda meeting in Kuala Lumpur, Malaysia. Malaysian authorities reported this meeting to the CIA with photos and full names. Since the CIA did not tell the State Department to put either man on a “watch list,” both returned to the United States without incident on January 15, 2000.

Flight instructor Rick Garza reported that he gave both men about six classes on the ground before taking them up in the air. He said that “[t]hey were only interested in flying big jets,” and he did not think that they had the “aptitude” for flying. In fact, he referred to them as “Dumb and Dumber.” Alhazmi failed to graduate from two flight schools in California. In April 2001, Alhazmi was pulled over for speeding in Oklahoma. The state trooper ran Alhazmi's driver's license through the computer but found no evidence of wrongdoing. The trooper issued two tickets totaling $138 and let Alhazmi go.

Later, the FBI's Arizona and Minnesota field offices warned of suspicious activities by Middle Eastern men at flight schools. The CIA failed to follow up information regarding a meeting of al Qaeda operatives in Kuala Lumpur, which included two of the alleged September 11th hijackers. Still, nine of the nineteen hijackers were pulled aside for special airport security screenings on the morning of September 11th. Two of the hijackers were singled out for problems with their identification, while the others' bags were searched for explosives and unauthorized weapons as a result of a computerized screening process. On September 11th, an unidentified man called police because he had gotten into a screaming match with three agitated Arab men over a Logan Airport parking space. It is believed that the three men were some of the hijackers.

The nineteen hijackers might also have been discovered by their financial transactions. A suspected al Qaeda middleman in the Persian Gulf transferred $325,000 into the bank accounts of the nineteen alleged hijackers without raising any red flags at the banks. The hijackers may have escaped detention because many of the transactions were below $10,000. By receiving wire transfers directly into commercial bank accounts, they were able to avoid the banks' reporting requirements. Some of the alleged hijackers used fake social security numbers when opening their accounts, but the banks never questioned or scrutinized those numbers. If the banks had realized that the accounts had been opened with phony social security numbers, they would have been required to file reports of suspicious activity to Federal regulators.


VI. Racial Profiling and September 11th

Prior to September 11th, most people acknowledged that racial profiling was wrong if it took place, but public discourse denied its occurrence. Attorney General John Ashcroft said that “[t]here should be no loopholes or safe harbors for racial profiling. Official discrimination of this sort is wrong and unconstitutional no matter what the context.” Since September 11th, public sentiment has changed concerning racial profiling--at least when it comes to Arab Americans. In a recent Gallup Poll, fifty-eight percent of the respondents said that they supported “requiring Arabs, including those who are United States citizens, to undergo special, more intensive security checks before boarding planes in the United States.” Many commentators also changed their minds and were more hesitant about prohibiting racial profiling. Some commentators now suggest that racial profiling is a legitimate police tactic. Some have said that random checking is “neither efficient nor effective.” Instead, they advocate a “focused system of profiling passengers who are deemed likelier to pose risk, using screeners trained to scrutinize travelers and their behavior.”

Since September 11th, the Middle Eastern terrorist stereotype has completely overpowered the oil millionaire stereotype. As a result, Arabs have been “darkened” in the mind of American public. In fact, since many white Americans often are unable to distinguish between people of color of different racial and ethnic ancestries, this terrorist stereotype has even expanded to include Southeast Asians of Indian and Pakistani ethnicity. Therefore, these groups have metamorphosed from so-called oil millionaires and model minorities into being Arab terrorists.

Airline officials and law enforcement officials have racially profiled some African American men as possible Middle Eastern terrorists. A federal investigation of possible terrorist cells in the Pacific Northwest is focused on a group of African American converts to Islam. Federal authorities charged six individuals in Portland, Oregon with conspiring to join al Qaeda and the Taliban, despite the fact that none of the six had ever traveled to Afghanistan. Five of the six individuals are American-born African Americans. In addition, law enforcement officials have stated that they believe that the next al Qaeda terrorists are likely to come from Africa or Asia. Some African American men have reported that they believe that they are being profiled as Middle Eastern terrorists. Abdullah Abu Kusomo, an African American man, reported that he “is almost always searched when he travels” because of his name.

The recent link between the drug trade and terrorism provides other opportunities for law enforcement authorities to profile African Americans. Almost one-third (twelve of twenty-eight) of the groups designated as terrorist organizations by the United States Department of State allegedly traffic in illegal drugs. The drug money reportedly funds terrorist organizations. Attorney General John Ashcroft stated: “[f]ollowing extraordinary collaboration and information-sharing between agencies, this list has been developed, and what it reveals is shocking.” Ashcroft indicated that al Qaeda was on this list. Moreover, the link between terrorism and the drug trade is being etched in the public mind. The White House Office of National Drug Control Policy issued a series of advertisements that link illicit drugs to terrorism. This link between terrorism and drug use is worrisome because the war on drugs has often been a war against poor people and African Americans. African Americans are a small minority of illegal drug users, but a large majority of people sentenced for drug offenses.

Since September 11th, racial profiling has been the subject of jokes. For instance, shortly after September 11th, the Doonesbury comic strip ran a series of strips highlighting America's anxiety about racial profiling of Arab Americans. In one strip, the title character Mike Doonesbury is seated in an airplane next to an Arab American passenger. While waiting for takeoff, the Arab American passenger talks on his cell phone “praising Allah,” stating that he “used the cash sent,” and discussing his car rental and motel. Doonesbury “profiles” the Arab American passenger and panics. Once he learns that his fellow passenger is actually just a guy who sells palm pilots from Tacoma, Washington, Doonesbury relaxes. In another strip, an African American passenger on the same plane asks Doonesbury: “Hey, buddy. What's the story on the guy you're sitting with?” Doonesbury responds: “He's a salesman from Tacoma. He's flying home to see his mother.” The African American passenger responds: “Oh . . . that's a relief! Well, not exactly a relief, just . . . well you know.” Doonesbury responds to the African American passenger: “Okay, so this must be weird for you.” The African American passenger finally responds: “Yeah, I don't need this kind of irony in my life.” Saturday Night Live ran a weekend update segment in which cast member Tracy Morgan, who is black, pleaded to the police to “Shake me down! Shake me down!”

Some of the humor is designed to defuse a difficult issue, but some of it is designed to suggest that racial profiling is acceptable and that African Americans no longer have to worry about it. People of African descent must to be wary of these blandishments for several reasons. First, profiling of people of African descent has now probably expanded to include crimes of terror. Zacarius Moussaoui has more of an African appearance than the nineteen alleged perpetrators, and he was the only person apprehended prior to the September 11th attacks, even though there were significant bad acts by the nineteen alleged perpetrators to make others suspicious. Second, since September 11th, the first persons captured for suspected terrorist plots in the United States are members of racial groups that have a long been the targets of racial profiling--a Puerto Rican, Jose Padilla, and a person of African descent, Richard Reid.

American citizens have been deputized to help ferret out future terrorist activities. Since September 11th, the United States has constantly been on alert. The Director of Homeland Security developed a color coding system to alert Americans to dangers and the nation has been at code yellow for high risk ever since. Americans have received unspecified warnings of possible attacks. Americans have been told that the next attack could be on the United States coasts, that tractor-trailer trucks could be involved, and that terrorists might rent apartments for the purpose of conducting terrorist attacks. Further, Americans were told that the July 4th holiday might precipitate more attacks. Yet, the authorities have not told Americans when, where, or how a future attack is supposed to take place. The purpose of the warnings is to put us on alert so that the public can help identify suspicious individuals or circumstances. Notwithstanding the vagueness of these warnings, all Americans are supposed to remain vigilant and on guard.

The deputizing of the American public will lead to further racial profiling. Since the American public generally believes that those with dark skin are more likely to be violent than whites, they are likely to look upon anyone with non-white skin as a possible terrorist.

Some have argued that, since all of the September 11th hijackers were Arabs, racial profiling of this group would aid in the finding of future terrorists. However, more than three million Arab-Americans live in the United States. If all 1,200 persons detainees were terrorists and they were the only terrorists, then less than a fraction of one percent of Arab Americans are terrorists while the other ninety-nine percent of all Arab Americans are not terrorists. But of the 1,200 suspected al Qaeda sympathizers rounded up by the FBI after September 11th, all but seventy-four were released. Of the seventy-four, thirty-eight are likely to be deported for immigration violations and criminal offenses not related to terrorism. By using race as the sole criteria, law enforcement officials detained many innocent people, and so far have failed to find many so-called sleeper agents.

According to the guidelines of the Transportation Security Administration, detailed searches are conducted at random. The random screenings take place at the security checkpoint and, later, at the gate. An additional level of scrutiny is geared specifically to the passenger's actions. For example, did the passenger buy a one-way ticket? Did the passenger pay for her ticket in cash? Did the passenger change her itinerary within seventy-two hours of flight? Law enforcement officials say that profiling of individuals based on their race or country of origin is prohibited. But Hussein Ibish, spokesman for the American-Arab Anti-Discrimination Committee, has said that he believes ethnic profiling is taking place. He said that he has asked the Federal government to collect statistics on the number of Arabs being searched under its current policy, and it has declined.

Unlike the case with profiling of African Americans, many white Americans are now willing to admit that they engage in racial profiling of Arab Americans. Since we are all deputized, some profiling is taking place by average everyday citizens. In Newsweek's My Turn column, author Lori Hope reported that, while her plane was waiting on the tarmac for take off, she noticed a suspicious-looking man. She described the man as “olive-skinned, black-haired, and clean shaven, with a blanket covering his legs and feet.” She reported that she thought his use of a blanket “was strange because I felt so warm. No one else was using a blanket.” Ms. Hope then reported the “suspicious-looking” man to the flight attendants. The head flight attendant told the author that the suspicious passenger was removed from the plane, that “he seemed depressed, but also very nervous.” Finally the head flight attendant told her: “You did the right thing. Once we're in the air, it's too late.” Understandably, Americans are frightened and anxious about future terrorist activities, but there are lots of reasons the “suspicious-looking” man may have needed a blanket. One might ask whether she would have done the same thing if a white man had his legs covered with a blanket?

Airline personnel, not working in a law enforcement capacity, are also profiling passengers. On Christmas Day, an Arab American secret service agent, Walied Shater, was scheduled to fly from Baltimore to Dallas for his assignment protecting President Bush. As a federal agent carrying a gun, Shater completed the required E2 form, necessary for him to carry a gun onto the plane. However, the secret service agent's original flight was canceled. Unable to find a blank E2 form, the gate agent crossed out the flight and seat number from the canceled flight and inserted those for the rebooked flight. While Shater was asked to leave the plane for additional security clearance, the flight attendant discovered a book entitled “The Crusades Through Arab Eyes” that Shater left in his seat. The flight attendants told the pilot that they were “concerned” about the passenger and his book with “Arabic-style print.” The pilot found the E2 form incomplete and illegible. He went to talk to the passenger who allegedly made “loud [and] abusive comments.” The pilot telephoned airline security to have the secret service agent removed from the plane. The pilot said in a statement: “With the lives of the . . . passengers and crew [at stake], I . . . edge[d] toward the side of safety.”

The government is also profiling individuals of Middle Eastern ancestry. In November 2001, the Department of Justice started to interview “more than 5,000 people nationwide--the majority Middle Eastern men ages eighteen to thirty-three years old who came here within the last two years on nonimmigrant visas in search of information on terrorist organizations such as al Qaeda.” In March of 2002, the Justice Department decided to interview 3,000 additional men, ages eighteen to forty-six, who also entered the United States on nonimmigrant visas, between October 2001 and February 2002, from countries with an al Qaeda presence. Although the Justice Department said that these men were not suspected of crimes, they “might, either wittingly or unwittingly, be in the same circles, communities, or social groups as those engaged in terrorist activities.” The local United States Attorney sent letters to these individuals that stated:

Your name was brought to our attention because, among other things, you came to Michigan on a visa from a country where there are groups that support, advocate, or finance international terrorism. We have no reason to believe that you are, in any way, associated with terrorist activities. Nevertheless, you may know something that could be helpful in our efforts.

The interviews are described as voluntary, but an Immigration and Naturalization Service memorandum suggests that some of those interviewed might be kept in custody without bond if the “investigators [develop] an interest in them.” Some police departments refused to assist the Department of Justice in this endeavor because they believed that it was illegal racial profiling. However, seventy-nine percent of the American public approved this program. Some commentators have been equivocal concerning whether the policy is illegal racial profiling.


VII. How the Media Coverage of September 11th Affected Racial Profiling

The attacks on the World Trade Center were aired live on network television. One to two months after the September 11th attacks, eleven percent of New Yorkers reported symptoms of post-traumatic stress disorder, which was almost three times the national average. A study found that the occurrence of post-traumatic stress disorder was highest in those that watched the most television and was even higher than for those who lost a family member, friend, or co-worker. The coverage profoundly affected all Americans. One must ask “why” ? Was it because broadcasters repeatedly replayed the image of the planes hitting the towers and the towers collapsing? Was it because most broadcast and cable companies dropped advertising and entertainment programs and substituted non-stop news coverage of the terrorist attacks? It was because the coverage was live, unpackaged and unfiltered. The major networks--ABC, CBS, and NBC--were without commercial interruption for almost ninety hours. The September 11th television coverage surpassed the coverage of the Kennedy Assassination by about twenty hours. In addition, many of the specialized cable networks like MTV, VH1, TNN, FX, Fox, and ESPN also aired news feed from their network affiliates.

The effect of the attacks and the news coverage was profound. Many citizens of the United States and the world, not solely the people directly affected by the attacks, felt the fear and panic. Americans were fearful of attack from any direction. There were an unprecedented number of false bomb threats to government buildings and landmarks. Many facilities were repeatedly evacuated right after the September 11th attack. Americans may always have had these false bomb threats, but now they were televised live. Moreover, the government was taking each one very seriously. In addition, several people were killed and many others injured by the still unsolved anthrax attacks that followed the airplane attacks.

Images from New York, the posters of missing persons and makeshift memorials, saddened the American people. Family members appeared on television hoping that their loved ones would be found alive. The death toll was announced many times daily. And countless people experienced it all through television as if they were there. The events of September 11th demonstrate the power of the television and related medium.

In FCC v. Pacifica, the Supreme Court noted that radio and television broadcasting were different than other media because of their omnipresence and their intrusive quality. The Court observed that, without warning, the broadcast audience might be trapped into seeing or hearing an unwanted message before the audience member realizes what she is seeing or hearing. The broadcast coverage of September 11th was the ultimate illustration of the rationale of Pacifica.

When the United States first proceeded against the Taliban regime in Afghanistan in an effort to find and capture bin Laden, the government restricted the American media from the war zone. The news media had to rely exclusively on film footage from Al Jazeera, which is an independent, twenty-four hour, Arab satellite television station. Many newscasters apologized to viewers for pictures and interviews that might appear to be slanted against the United States. In addition, Al Jazeera broadcast taped interviews of bin Laden. For instance, bin Laden appeared on Al Jazeera denouncing the United States' military campaign in Afghanistan as “unjust” and “ferocious.”

Bin Laden's use of the media was novel. It was the first time that an American adversary had such personal and intimate access to American television screens. He specifically articulated his side of the story. The leaders of our foreign adversaries in past conflicts were largely unseen on American television. Bin Laden, however, the man allegedly responsible for killing over three thousand Americans, was on television speaking directly to an American audience. National Security Advisor Condoleezza Rice asked that the major television networks refrain from broadcasting tapes of bin Laden, because the Bush administration was concerned that he might be sending encoded messages to sleeper agents around the world.

The power of Al Jazeera highlights the global impact of broadcast television. Political leaders now realize that foreign news broadcasts shape opinions across international boundaries. To deal with this new global reality, the Bush administration first attempted to force the Government of Qatar, which funds Al Jazeera, to control its content. Secretary of State Colin Powell met with the Emir of Qatar and to express concern about the “inflammatory rhetoric” used on Al Jazeera. When this tactic failed, the Bush administration had several senior officials--Powell, National Security Advisor, Condoleezza Rice, and Defense Secretary Donald Rumsfeld-- appear as guests on Al Jazeera talk shows. In addition, the Bush administration arranged for Christopher Ross, former ambassador to Syria and fluent in Arabic, to appear on Al Jazeera. Ambassador Ross had two hours of live airtime to respond to bin Laden, and told the audience that “[t]he terrorists are falsifying facts and history.” The White House invited Al Jazeera to cover an event at the White House where the Red Cross praised American children for raising money for to aid children in Afghanistan. The Bush administration also created an office to better disseminate positive information about the United States to the Arab world.

The attacks of September 11th demonstrate the importance and influence of the media. One result of post-September 11th media is that people of color are now vulnerable to being profiled in a broader scope. Now a black man may no longer be just the “savage Black Brute;” he may be a possible Middle Eastern Terrorist. Media frequently broadcast negative stereotypes of African Americans and other minorities. These stereotypical images lead the majorities of the American public to have negative views of African Americans and other minorities.

The Report of President Clinton's Initiative on Race indicated that 52.8% of the population associated violence with African Americans, 42.8% found violence as an attribute of Latinos, 21.3% found violence an attribute of Asian Americans, whereas only 18.8% of the population associated whites with violence. A study by the Annenberg School of Communication at the University of Pennsylvania showed that even though black-on-white and brown-on-white crime constitutes a very small proportion of crimes committed, Philadelphia broadcasters were most likely to report and highlight black-on-white crimes. Another study reported that even though crime rates declined drastically in the 1990s, the national broadcasters' coverage of crime increased 721%.

Other studies show that African American suspects are more likely than whites to have their photographs broadcast on the news and are more likely to be shown as suspects, i.e., handcuffed, escorted by police, or with a “mug shot” displayed. Whites are usually not shown in police restraints, and either no photograph is shown or a photography-studio-quality photograph is shown, like a high school yearbook photograph. Distorted images like these convey the message that African Americans and Latinos are to be feared. Since September 11th, it may seem as though the media have conveyed the message that all people from the Middle East are terrorists and that almost all people of color should be feared.


VIII. Terrorism After September 11th

All but seventy-four of the Middle Eastern individuals who were detained after September 11th have been released. Despite the heightened sense of security and the deputizing of the American public, the first alleged terrorists apprehended in the mainland U.S. before they could carry out their plans are men of African or Latino descent. Richard Reid, of African descent, is the alleged “Shoe Bomber” who attempted to blow up an airplane destined for the United States with explosives concealed in his shoes. Jose Padilla, of Latino descent, was arrested for allegedly conspiring to build and detonate a radioactive “dirty bomb.” Neither of these men is of Arab ethnicity, although they both are alleged to be Islamic extremists. Despite the jokes about racial profiling, law enforcement officials seem to be most successful in singling out and detaining those from groups with which they have had a long experience of profiling.

Since September 11th, two other individuals have been identified as terrorists, John Walker Lindh and Charles Bishop. Lindh is a white American man who was discovered fighting for the Taliban in Afghanistan. He was apprehended and prosecuted for conspiracy to kill his fellow Americans, to commit terrorism, and to support terrorists. Bishop was a mixed-race American teenager who flew a small plane into a Florida office building. Although, like Lindh, Bishop sympathized with bin Laden, no one was aware of his sympathy until after his terrorist act, in which he took only one life--his own. It is worth noting that, under different circumstances, Bishop might have done much more harm.

A. Terrorist Activities and Related Persons

1. Richard Reid

Richard Reid is a twenty-eight year old British citizen, the son of a mixed-race Jamaican man and a white British woman. When first apprehended, the authorities racially misidentified him. They thought that his British passport was “bogus” and that he appeared to be of “Middle Eastern descent.” His racial ambiguity seems to have cut two ways. First, his coloration and hair texture probably led some people to believe that he was not of African descent, and was instead Middle Eastern, which may have led to his initial detention. On the other hand, Reid's British citizenship and British accent “whitened” him, and almost allowed him to get away with his attempt.

Reid's plans to board a flight from Paris to Miami scheduled for December 21, 2001 were foiled because security officials investigated him and delayed his departure. He missed his flight when his “unkept appearance” and the fact that “he had no bags” caused the authorities to subject him to extensive questioning. Authorities probably thought that he was Middle Eastern, but he fit a legitimate, non-racial profile because he was not checking any luggage. The next day security officials reportedly recognized him and let him pass unimpeded to the waiting airplane. The officials probably realized he was the British citizen that they had questioned earlier and felt that they did not need to do a second comprehensive check.

On an American Airlines flight from Paris to Miami, Reid allegedly attempted to light a fuse protruding from his shoe. The flight attendants and passengers spotted Reid acting strangely and then suddenly holding a match to his feet. Passengers and crewmembers stopped him before he could light the fuse. Given his complexion and hair texture, the other passengers probably more readily noticed his activities. Allegedly, when the flight attendant confronted him, he bit her. The passengers on the plane grabbed Reid, took away his shoes, tied him with belts, sedated him with Valium, and watched him until the plane landed. The plane was diverted to Boston, where Reid is currently incarcerated.

2. Jose Padilla

Jose Padilla, a.k.a. Abdullah al Muhajir, is a thirty-one-year-old Puerto Rican man who currently is being held indefinitely by the federal government for allegedly having taken part in a conspiracy to manufacture a “dirty bomb.” He was born in Brooklyn, New York to Catholic natives of Puerto Rico. On May 8, 2002, law enforcement officials apprehended Padilla because they said that he was involved in a plot to explode a radioactive dirty bomb. United States officials say they have “no proof that al Qaeda has yet developed a radioactive dirty bomb.” In addition, they do not know of any other conspirators in the bombing plot in the Unites States. The United States first held Padilla as a material witness for one month. He was transferred to military custody on President Bush's orders and is being held indefinitely as a “military combatant.” No plans exist to charge Padilla with a crime in criminal or military court. It is believed that al Qaeda leaders tapped Padilla for the dirty bomb plot because he had a U.S. passport and would be able to travel freely throughout the United States.

3. John Walker Lindh

John Walker Lindh has been called “the American Taliban.” He is a white American citizen who fought with the Taliban in Afghanistan and was captured by American soldiers. He faced charges that he conspired to kill his fellow Americans, supported terrorists, and knew three months prior to September 11th that Osama bin Laden would send suicide squads to the United States. He personally met with Osama bin Laden and trained at al Qaeda camps in Afghanistan. When Lindh was first captured in Afghanistan, the authorities were uncertain of his racial and national identity. By speaking English, it probably became more obvious that Lindh was a white American. When John Walker Lindh was indicted in January, Attorney General John Ashcroft said that Lindh's case was a “critical case in the nation's fight against terrorism.” In addition, Attorney General Ashcroft described Lindh as a “fanatical follower of the Taliban [who] never wavered in his allegiance to terrorism.”

4. Charles Bishop

Bishop was the fifteen-year-old boy who flew a small plane into an office building in Tampa, Florida. Before he took off, he left a handwritten note expressing sympathy for Osama bin Laden. Bishop arrived at the airfield and was handed his scheduled flight lessons and a key to the airplane loaded with forty gallons of fuel. He was supposed to wait for the flight instructor to finish another lesson. Before anyone noticed, Bishop flew the plane without waiting for the flight instructor to join him. The plane flew over restricted airspace of U.S. Central command, which directs military actions in Afghanistan, and flew 1,000 feet above Southwest flight 2229 with 114 passengers and five crewmembers on board. North American Aerospace Defense Command sent two F-15s from Homestead Air Reserve Base to intercept. The pilot of a Coast Guard helicopter used hand signals to try to get Bishop to land, but Bishop failed to respond. Twelve minutes after takeoff, Bishop's plane struck the twenty-eighth floor of a forty-two-story office building scattering office furniture in a law office. Just an hour earlier an attorney had been at his desk in that corner office.

B. Evaluation of Terrorist Attacks and Related Persons

As an observer, it is interesting to consider the race and ethnicity of those currently incarcerated for crimes committed pursuant to the war on terrorism. Richard Reid almost got away with his plan because his biracial background and British citizenship probably whitened him enough to get him on the plane. The first person captured in advance of an alleged plot is Jose Padilla who is of Latino ancestry. Both Bishop and Lindh were able to actively participate in terrorist activities because they were either white or appeared white, and were therefore not considered suspects. The use of racial profiling as a police technique always raises the question of whether the authorities have apprehended the right individuals. As Professors Gross and Livingston have said, “[t]here is no serious crime that is committed by all, or most, or even a large fraction of the members of any racial group.” Howard University Law Professor Frank Wu has written that “[r]acial profiling operates inexorably towards its extreme.” Professor Wu postulates as more efforts are directed exclusively at one racial community, wrongdoers from other communities will escape detection. Given the fact that, national security concerns currently trump color blindness, ineffective racial profiling is likely to continue.

IX. Media Coverage of Post-September 11th Perpetrators

The media coverage after September 11th was generally consistent with prior coverage. When faced with a white perpetrator, the media asked for explanations for why the perpetrator went wrong, searching for justifications for the perpetrator's behavior. If the perpetrator was of African or Latino descent, the individuals often were described as “inherently evil.” The media generally has failed to consider any extenuating circumstances to explain the wrongdoing of an African American or Latino suspect. Since September 11th, the only apparent change has been that the coverage of Arab Americans has shifted to focus almost exclusively on the moral depravity of the “jihad,” or “Holy War.” As with the coverage of African Americans, there is currently no mitigating factor that is considered or evaluated in the coverage of an Arab American perpetrator.

This Section analyzes the media coverage of the four men involved in post-September 11th terrorist activities, as well as the media coverage of Zacarius Moussaoui, because most of the media attention surrounding his case occurred after September 11th. The media coverage of all of these men has been complicated by racial ambiguity, as each of these individuals was racially misidentified. It was first thought that Charles Bishop was white, and media coverage was sympathetic. When it was discovered that he was one-half Syrian, his coverage became less favorable. John Walker Lindh was probably initially thought to be Afghan. This belief was reinforced by initial images of him with a darkened face, beard, and long dark hair. When he cut his hair and washed his face, it became clear that he was a white American, at which point his coverage and treatment became much more favorable. Although Reid and Moussaoui are of African descent, they are citizens of Great Britain and France respectively. To make matters even more complicated, Richard Reid is biracial. In terms of the color hierarchy, both Reid and Moussaoui have been somewhat whitened due to their citizenship in countries that are strong U.S. allies. However, their Islamic faith has been portrayed as somewhat fanatical. Lastly, Jose Padilla, who is an American citizen of Puerto Rican ancestry, has been racialized in the most usual way, as a “street thug.”

A. Charles Bishop

The initial coverage of Bishop's attack in Tampa, like most coverage of those who are racialized as “white,” focused on his personal story. The newspaper accounts asked how did this happen? Where did his parents go wrong in raising him? The news media described Bishop as a “troubled young man,” “a loner” from a broken family. He was estranged from his father. His parents tried to commit suicide during their teenage romance because they were unable to marry. He was an honor student who enjoyed classical music. His mother described him in a New York Post article as, “[caring] about the world his generation was inheriting and [taking] special interest in environmental-impact issues, animal rights and endangered-species laws,” and politics.”

Bishop also was described as patriotic. The media described him as “a former flag bearer at school assemblies who wanted to join the Air Force.” They discussed the boy's patriotic traits and quoted one teacher as saying, “I can picture him singing 'My Country 'Tis of Thee,' bellowing it out.” Other teachers were quoted as stating, “[h]e told me he wanted to join the United States Air Force because he wanted to do something good for his country. He was a good boy.” The media accounts discussed how other teachers said he managed a literary magazine, entered essay contests run by the Daughters of the American Revolution, and helped plan bake sales and food drives as a student council member. One account speculated that his conduct could be the result of a powerful acne medicine called Accutane that he was taking, which has been linked to depression and suicide. His mother's lawyer was quoted as stating, “As a result of taking the drug, Mr. Bishop became severely psychotic and lost touch with reality, consequently flying into the side of a building.”

For most of those who are racialized as white, the news media presume that white alleged perpetrators are good and that any wrongdoing must be the result of tragic external circumstances. Charles Bishop was a young man who caused significant property damage and could have caused significant loss of human life by his actions, yet the media initially sought to forgive his behavior only because he was racialized as “one of their own.”

Bishop's suicide note, praising bin Laden, however, raised questions about the media's assumptions about his background. It was soon discovered that Bishop's father's family was of Syrian decent. After her divorce, Bishop's mother changed his birth-given surname from “Bishara” to “Bishop.” It was also reported that she changed their surnames during the Gulf War because she feared an anti-Arab backlash. It was at that point that the news media speculated that Bishop's ethnicity might have had something to do with his behavior. One of his teachers discussed that she was strict about preventing discriminatory conduct towards any of her students based on their ethnic background. Bishop's grandfather acknowledged that he was of Arabic ancestry, but that his father had come to the United States in the first part of the Twentieth century and they, therefore, considered themselves to be Americans.

B. John Walker Lindh

Once the media ascertained that Lindh was white, it proceeded to seek explanations for what went wrong with him. A New York Times Editorial stated:

John Walker Lindh is my son's age. He made a mistake. But he is not a Kim Philby or an Aldrich Ames, men who consciously betrayed their countries. He is a young man who was searching for truth and walked into a virulent form of fundamentalist Islam. Staunch patriots want him executed. Lesser zealots want him imprisoned for life. And those of us not strangers to the confusion of youth view him as if he were our own son and wonder if justice has enough room for common sense.

As portrayed by the media, Lindh was from a broken home, his parents had been overly permissive in his upbringing, and he had attended an alternative high school in California where he had been able to shape his own studies. Commentators noted that the family sent him to a therapist when a family pet died. He dropped out of high school at age sixteen. He had a history of identifying with other racial and ethnic groups. In high school, he read the autobiography of Malcolm X, and he reportedly identified with the story. Lindh listened to rap music and once pretended to be African American in an e-mail. He converted to Islam, and adopted the Arabic name Suleyman. At seventeen, he decided to leave home and go to Yemen. Lindh briefly came back home to the United States, then traveled back to Pakistan where he attended an Islamic school. The school specialized in teaching the Koran and was known for providing soldiers to the Taliban in Afghanistan. President Bush even described Lindh as “some misguided Marin County hot-tubber” and as “a ‘poor fellow’ who was ‘misled.”’

When he was first captured, the media continuously showed Lindh's photograph with dirty long hair, a beard, and a dirty-almost-black face. Once he returned to the United States, Lindh sported a close-cropped haircut and was otherwise well scrubbed. At this point, he started to look like a suburban teenager, and his coverage became more sympathetic. Newsweek reported that to get a conviction of Lindh, the “prosecutors would at least have to show that [Walker] agreed with someone, somewhere and somehow, to kill Americans or aid al Qaeda. It now appears that the evidence on these counts . . . is somewhere between slim and none.” The story suggested that Lindh's confession was not clear-cut because the government's notes indicated that he was fighting for the Taliban and not al Qaeda. In addition, reports surfaced that the FBI apparently violated its own internal guidelines for interrogations by failing to have Lindh sign the statement or to have the confession recorded by video or audio tape.

The coup de grace and turning point for Lindh was the broadcast of his photograph while in military custody in Afghanistan. The photograph showed a naked, blindfolded, and bound Lindh. It was reported that he was kept in this condition for three days in a closed, metal shipping container. According to the media, Lindh was released from these conditions once he waived his rights to a lawyer and made a more damning confession; surgeons removed a bullet lodged in his leg only after he renounced his legal rights and signed the new confession. In court papers, Lindh's lawyers claimed that he pleaded with U.S. troops, “[p]lease don't kill me,” when they took him to a U.S. military base.

On July 15, 2002, in a surprise deal, Lindh pleaded guilty to two felony charges and agreed to serve twenty years in prison. Providing services to the Taliban was a felony because President Bush and former President Clinton, by executive order, had declared it a terrorist organization. Lindh admitted his guilt, saying “I provided services as a soldier to the Taliban last year and in the course of doing so, I carried a rifle and two grenades.” The New York Times described Walker Lindh's appearance: “Mr. Lindh appeared wan and gangly. His dark hair was cropped short, and he looked more like a teenager one might see at a suburban mall than the unkempt, wild-eyed and bearded Taliban soldier seen in news photographs taken shortly after his capture.” The prosecutors described the deal “an important victory for the people of the United States in the battle against terrorism,” and “a tough sentence and an appropriate punishment.”

Lindh's father, Frank Lindh, was quoted as saying “President Bush would be proud to have him as a son. He's a really good kid.” He also compared his son to Nelson Mandela. He said, “I told John when he came back from Afghanistan . . . that Nelson Mandela served 26 years in prison. He's a good man like John. I told John that he needed to be prepared for something along those lines.”

C. Comparison of the Media Coverage of Bishop and Lindh

In comparing the media coverage of Charles Bishop and John Walker Lindh, the ways in which media coverage was altered to mirror perceived changes in the individuals' racial identities is striking. Charles Bishop, who was first thought to be white, had the typical “what went wrong with his upbringing?” coverage until it was discovered that he was half-Syrian. At that time, his coverage became less favorable, and his ethnicity became sufficient explanation for his crime. In contrast, John Walker Lindh was initially described as the American Taliban who fought against the United States in Afghanistan. The media repeatedly showed a photograph of Lindh with long dark hair, a beard, and a face darkened by dirt. He was dubbed “The American Taliban,” and his darkened features made him appear to be something other than a white American. Once the media started showing pictures of Lindh with shortened hair and a clean face, it became clear that he was white. At that point, his coverage became more favorable. Some members of the media empathized with him and began to compare him to their children. The media coverage of Lindh's plea agreement was also very tame. There was hardly any controversy surrounding his plea agreement even though he was the first and most visible person to date to be sentenced. Given the nature of his offense, one would think more controversy and outrage might have resulted from his twenty-year sentence. Some would have argued that the sentence is too short or too long, or that Lindh should have been condemned to die. Because of the intense media interest in the events of September 11th, one might have expected that the coverage of Lindh's plea bargain would be more extensive. Apparently, the American public was not troubled by or interested in a plea bargain involving a young, white, middle-class American, who fought as a Taliban warrior.

D. Zacarius Moussaoui

The media continue to describe Zacarius Moussaoui as the alleged 20th hijacker, despite the fact that a different man, Ramzi bin al-Shibh, has publicly claimed that he was meant to be the 20th hijacker. Moussaoui now faces six counts of conspiracy (four of them carry the death penalty). When announcing Moussaoui's indictment, Attorney General John Ashcroft said: “[a]l Qaeda will now meet the justice it abhors and the judgment it fears.” He also called the indictment “a chronicle of evil.” Even though Moussaoui's life may be at stake, the media have portrayed the upcoming trial as one of public entertainment. The New York Daily News quoted Court TV as stating, “[a]ny camera coverage is better than no camera coverage . . . and full camera coverage is better for the American public.”

Rather than ask what went wrong during Zacarius Moussaoui's upbringing, the media portrayed him as angry, crazy, evil, foreign, stupid, and difficult. It was reported that the FBI found evidence that Moussaoui received $14,000 in cash from an al Qaeda operative who organized the September 11th attack, in Hamburg, Germany. After Moussaoui's detention for an immigration violation, France reportedly told United States authorities that he was a “known Islamic militant.” It was also reported that when he flew over the ruins of the World Trade Center, Moussaoui allegedly yelled “F--k you! F--k you, America!”

After meeting with Moussaoui for two hours, a court-appointed psychiatrist found that he did not appear to have a “major mental disease or defect” and “to a reasonable degree of medical certainty knowingly and voluntarily waive[d] his right to counsel.” Moussaoui fired his court-appointed lawyers and said to the court: “America, I'm ready to fight you . . . even with both hands tied behind my back.” In court, he reportedly “rolled his eyes” while his lawyers were speaking and distanced himself from them at the defense table. He said that he “would never contact his [court-appointed] lawyers” because he believed that they were “part of a plot against him.” He called his lawyers the “Death Team.” He reportedly requested a Muslim lawyer because he said that the court-appointed lawyers were not following his instructions. Moussaoui has been prevented from handpicking Charles Freeman, a Muslim, as his legal adviser. Instead, Judge Brinkema ordered the court-appointed lawyers to remain on stand-by in case they were needed, and encouraged Moussaoui to work with Muslim lawyer, Sadiq Reza, who teaches at New York Law School. Moussaoui has used Professor Reza as a go-between with his court-appointed lawyers. Moussaoui has called his court-appointed lawyers “blood suckers,” and has said that “[a]s protection [from] any pig disease there will be no more unsanitized contact with the affected horde of standby lawyers . . . .”

On July 18, 2002, after a new indictment was issued designed to allow Moussaoui to receive the death penalty, Judge Brinkema asked him how he would like to plead. At that time, Moussaoui tried to enter a “pure plea,” in which he acknowledged participation in a terrorist group since 1995. The judge described the defendant as “confused,” and told him only a plea of guilty or innocent was acceptable. Judge Brinkema announced that she would enter a plea of “not guilty” for him, despite Moussaoui's insistence that he fully understood the implications of his plea. Indeed, he acknowledged that he was a member of al Qaeda, had joined in terrorist attacks, and pledged loyalty to Osama bin Laden. The media reported that Moussaoui said, “I, Moussaoui Zacarius, in the interests to preserve life, enter with full conscience a plea of guilty, because I have knowledge and participated in al Qaeda.” At the same time, he contended that he was not directly involved in the September 11th terrorist plot. It has been reported that he described himself as a “slave to Allah,” and he has denounced the American justice system.

Both the New York Times and the New York Daily News quoted Moussaoui's court-appointed lawyers as saying: “have we figured out yet that he's insane?” The lawyers were described as laughing with disbelief as Moussaoui left the hearing. When questioned about a report that Chechen fighters had rejected Moussaoui's services, a member of the defense team mused, “[w]ho wants him around? He brought nothing to the table. He's trouble.” Moussaoui claimed that his court-appointed counsel were “trying to kill him to keep him from revealing” undisclosed secrets. He also accused Judge Brinkema of conspiracy with Federal government to execute him. He said that the letter “B” in the acronym “FBI” stood for “Brinkema.” He called her the “Death Judge.” Moussaoui accused Judge Brinkema of preparing him “for the gas chamber,” exclaiming to her: “[t]his is an outrageous prosecution . . . . This is a parody . . . .” He also reportedly prayed for the destruction of America and Israel.

Judge Brinkema gave Moussaoui one week to reconsider his guilty plea. On July 25, 2002 Moussaoui withdrew his guilty plea, stating: “[d]ictated by my obligation to my creator Allah, and to save my life, I withdraw my guilty plea.” He told the judge “you want to tie me, to link me to certain facts that will guarantee my death.” He maintained that, although he may have had some association with the September 11th hijackers, he had “nothing to do with the events of September 11th.”

From the outset, the media's depiction of Moussaoui has been very negative. He is described as bearded, wearing a green jumpsuit with the word “prisoner” written on the back. The New York Daily News described Moussaoui as a “diminutive French-born Moroccan frequently pip[ing] up with strange interjections in a strangled Inspector Clouseau accent that prompt[s] titters in the audience.” The New York Post noted Moussaoui's “ungrammatical English.” The New York Daily News has also portrayed Moussaoui as “a small, husky man with an unruly black beard.”

The descriptions of his behavior since he has been incarcerated have been even worse. The New York Daily News described Moussaoui as “wacky.” It reported that he “has filed numerous legal briefs that can only be described as nutty.” Also, it noted that most of Moussaoui's sixty motions to Judge Brinkema since June 14th “read like Saturday Night Live skits.” In contrast, the Washington Post has described his motions as “autobiographical tract[s] written in legalese . . . [that] . . . are sometimes rambling and discursive, yet with threads of logic and flashes of brilliance.” The New York Post detailed Moussaoui as a “bizarre-behaving French Moroccan.” He has been called “abrasive.” He also has been described as “fidget[ing] in his chair, strok[ing] his beard, and mumbl[ing] to himself.”

Moussaoui's mother blames radical fundamentalists for her son's situation. His brother, Abd Samar, claimed that, while living in London, Moussaoui became “racist and anti-white.” Moussaoui's mother reportedly last saw her son in 1996. She was denied a chance to visit her son in prison, and the New York Daily News reported, “[t]he FBI insisted an agent monitor the conversation.” His mother has been reported as saying that her son “is not prepared to defend himself.” She has said: “[m]y son is incapable of making decisions after months of imprisonment.” She has “asked the French government to send a lawyer to handle her son's case.” She reportedly wept when he entered the court for a hearing. It was reported that the United States tried to get Moussaoui's mother to cooperate with the prosecution.

Since his incarceration, it has been reported that “Moussaoui can't have batteries, or pencils, or any hot tea or coffee.” He has been held in solitary confinement, under severe security conditions. He cannot talk to other prisoners, all his phone conversations are taped and he must speak English with his lawyers--unless he uses an FBI translator. All visitors, including his court-appointed attorneys, must undergo FBI clearance. When prison officials found hardened food in his Alexandria, Virginia jail cell, they labeled it contraband because they believed it could be used as a weapon.”

Media coverage of Moussaoui highlights an aspect of his identity that intersects race, national origin, and religion. The media point out that he is a French citizen of Moroccan ancestry. Reporters probably raise his ancestry in a manner of explanation because most people think that French citizens are white, and Moussaoui's picture looks black. In addition, the media attention also highlights Moussaoui's North African ancestry to make the connection, albeit loosely, to the Middle East.

Despite the fact that Ramzi bin al-Shibh claims to be the “20th Hijacker,” reporters insist on calling Moussaoui the “20th Hijacker,” apparently having made their own judgment as to his guilt. Like the coverage of people of African descent, the media fail to present any evidence that would rationalize or explain his alleged criminal activity. The media have failed to give the whole picture of the Moussaoui situation. Although he has a master's degree from Southbank University in international business, there has been scant coverage of what Moussaoui did for employment or education before coming to the United States. When his education is mentioned, Southbank University is almost dismissed as a trade school. Judge Brinkema reportedly said that Moussaoui was “smart” because he has a master's degree. However, the media's focus on his “ungrammatical English” suggests his “foreignness” and his lack of intelligence or education.

The discussion of Moussaoui's upbringing has also been limited. When it is discussed, it is used to demonstrate that he is responsible for “derailing” his family's immigrant success story. Moreover, the explanation for this “derailment” is Moussaoui's association with radical fundamentalist Islam. There has been no discussion of whether he has any prior criminal history. The fact that his prior history has not been raised suggests that he has no prior criminal record. Instead, the media tie him to his involvement with al Qaeda. While this tie is probably justifiable, the media fails to provide specific details. In addition, reporters have failed to provide balanced coverage by asking whether his membership in al Qaeda and his Islamic faith are enough to establish his guilt in conspiring to the acts of September 11th. This question should be the basis for any discussion of Moussaoui because it is the same question the jury will have to decide.

Since the media cannot latch onto a dysfunctional family or criminal past, they instead portray Moussaoui as crazy and anti-American. They suggest that he is paranoid because he thinks the judge is in cahoots with the government. He calls his court-appointed lawyers the “Death Team” and fires them because he believes that they will not properly represent him. His lawyers laugh at him in open court. Media coverage seems to suggest that Moussaoui is intentionally making a mockery of the judicial proceedings by attempting to plead guilty and then reneging on that plea. After all, he is “wacky” and “erratic” and his pleadings read like “Saturday Night Live” skits.

Importantly, the media fail to emphasize incidents that might support some of Moussaoui's contentions. He was, for example, denied the assistance of the lawyer of his choosing, the Muslim Charles Freeman. And he is the only September 11th defendant whose indictment allows the death penalty. There has been only slight reference and brief mention of a family history of mental illness. Similarly, few attempts have been made to explain that Moussaoui is not a lawyer, that legal proceedings can be very complicated, and that a person who is not a lawyer might have difficulty with understanding the proceedings. Even if Moussaoui understood the nature of legal proceedings, he is a French citizen, and France has a different legal system than the United States.

The media portray Moussaoui's mother as powerless. She cannot visit him in prison unless her conversations are monitored. She is described to have been weeping when he appeared in court. She has to petition the French government in an attempt to help her son. In contrast, Lindh's father procured cracker-jack lawyers to represent his son and appeared on many television news programs making the case for his son. Moussaoui's mother is depicted as emotionally distant from her son since she has not seen him since 1996. However, no effort has been made to explore how commonplace that may be in many immigrant communities wherein relatives are overseas, and money is tight.

E. Richard Reid

The media have labeled Richard Reid, a mixed-race British citizen, the “shoe-bomber.” He has been charged with attempted murder and faces a maximum sentence of five life terms in prison. Reid allegedly wore silver and black boots packed with high-tech explosives that would have destroyed a jetliner with 197 people aboard. The bomb was specially constructed without wires or metal, allowing it to pass without detection through airport security. The metal detectors and scanning machines for checked luggage are not sophisticated enough to identify plastic explosives.

The media asked the question: how did “a onetime petty thief with no job and no fixed address somehow manage to find the resources for international travel and the know-how to make a sophisticated explosive that fooled even the stringent Paris airport security check?” Authorities speculated that Reid trained with al Qaeda and was following orders. Investigators are trying to link him to al Qaeda terror suspects based in Europe. European authorities speculated that Reid stayed at a house in Belgium and met with someone named “The Engineer.” It is believed that “The Engineer” is an expert in making explosives and designed and built the shoe bombs. Inside the boots, investigators found a strand of hair and palm prints that were not Reid's.

On December 20, 2001, Richard Reid wrote an e-mail to his mother stating “[w]hat I am doing is part of the ongoing war between Islam and disbelief, (and as such it is a duty upon me as a Muslim).” He also wrote:

The reason for me sending you [this will] is so you can see that I didn't do this act out of ignorance, nor did I just do it because I want to die, but rather because I see it as a duty upon me to help remove the oppressive American forces from the Muslim land and that this is the only way for us to do so as we do not have other means to fight them.” Reid's white mother, Lesley Hughes, issued a statement through her lawyer: “[a]s any mother would be, she is deeply shocked and concerned about the allegations made against her son, but has no further comment to make.” Richard Reid's African Caribbean father, Robin Reid, reportedly sold his story to a British tabloid. Robin Reid was in prison when his son was born and reportedly was a distant figure in his son's life. Robin Reid acknowledged his lack of involvement in his son's life, and specifically said, “[l]ook at the terrible childhood he had . . . . Look at the father he had. I have spent 18 years in total behind bars. That can't have helped, can it? Every time he needed me, I was nowhere to be found.” Although attending a reasonably well-regarded secondary school in London, Reid dropped out of school soon after his sixteenth birthday. From 1992 to 1996, Reid was in and out of jail. He was involved in petty crime such as muggings, robberies, and shoplifting.

The Washington Post described Richard Reid as “a London pickpocket and mugger” who was a “major-league hell-raiser.” The article noted:

[h]is record depicts an angry, combative inmate who got into so many fights he had to be transferred twice. When the same man walked out of prison in 1996, he seemed completely changed. He had a new name--he called himself Abdel Rahim--and a strong but quiet devotion to a new faith, Islam.

It was reported that Reid became attracted to a radical sect of Islam and traveled to Pakistan for training, before traveling to Israel, Egypt, and Turkey. In late December, Reid was in Paris at a cyber café sending e-mails. The owner remembers Reid as being “big” (Reid is six feet, four inches tall) and “a little bit dirty.” The Washington Post has described Reid as a “hulking, and unkempt man who weighs about 220 pounds.” The newspaper has also described him during one of his courtroom appearances as being “disheveled and clad in tan prison attire.”

Recently, the court decided Reid had been read his rights before he spoke to investigators after he was detained. At the time, Reid reportedly said “he decided to choose an American target after the United States began bombing the Taliban in Afghanistan.” He reportedly “[c]laimed to have chosen to attack an airplane because he believed an airplane attack, especially during the holiday season, would cause the American public to lose confidence in airline security and stop traveling, leading to a substantial loss of revenue which would, in turn, hurt the American economy.” At the time of his arrest, Reid also reportedly told federal agents that he would plead guilty “if you get the charges right.” Reid's lawyers contend that his alleged confession should not be admitted into evidence because he was under the influence of Valium administered by the passengers on the airplane to subdue him.

Reid has pleaded guilty to charges against him. His attorneys have explained Reid's guilty plea as an effort “to avoid publicity associated with a trial and the negative impact . . . upon his family.” Reid called the thwarted attack, “an act of war.” He said: “[b]asically, I got on the plane with the bomb . . . . Basically I got on, I tried to ignite it.” Reid attempted to get the allegations that he trained with al Qaeda removed from his indictment, but Chief Judge William G. Young rejected his request, and ordered that these charges be considered in Reid's sentencing. In response to the judge's decision, Reid stated: “yeah, I understand that and I don't care; I am a member of al Qaeda. I have pledged to Osama bin Laden, and I am an enemy of your country and I don't care. Simple and plain.”

Reid's media coverage highlights a perception of his identity that intersects race, national origin, biracial background, and religion. The media point out that he is a British citizen of biracial background. Like African American suspects, the media focus on Reid's prior record to suggest that he is bad. The stories focus on other criminal behavior by members of his family. For instance, his African-Caribbean father was imprisoned for eighteen years, and was, in fact, in prison when Reid was born. Unlike the typical coverage of African Americans, the media coverage of Reid suggests some explanation for his behavior--dysfunction in his family life because his father was emotionally unavailable to Reid. However, the stories only suggest dysfunction by his African-Caribbean father; no mention is made of his white mother's possible dysfunction. She was, after all, involved with a man who was imprisoned. In addition, his white mother was the one who raised Reid. The stories seem deferential to Reid's mother.

As noted, articles describe Reid as “a petty thief,” “a London Pickpocket and mugger,” or a “major league hell-raiser.” These depictions of Reid's criminal background seem much tamer than the usual descriptions of African American defendants who are often described as generally bad. These descriptions also seem tame given the significant direct evidence that Reid attempted to detonate a bomb on an airplane. Unlike other September 11th defendants, the media portrayed Reid's prison-conversion to Islam in a positive manner. The media described Reid as having “a strong but quiet devotion to a new faith, Islam.” It was only after this initial conversion that he fell into some radical sect. Reid, like Moussaoui, tried to plead guilty, but the media have not called Reid's actions “wacky” or “erratic.”

Reid's media coverage is somewhat atypical in comparison to other African American alleged perpetrators. It seems that the media are cognizant of his biracial heritage and, as a consequence, Reid's portrayal has been “whitened.” In addition, Reid is a citizen of Great Britain, which is perceived to be largely a white country, which has an intimate historical link to the United States. Great Britain is also one of the most reliable allies of the United States. Consequently, Reid is more advantaged on the racial hierarchy than Moussaoui. First, Reid is biracial and has a white mother. Second, Reid's direct African ancestors are from a more distant generation than Moussaoui's. Reid's father was from Jamaica, but Moussaoui's parents were from Morocco. Finally, Reid is a British citizen, and Great Britain is culturally more similar to the United States than France. As such, Reid's media portrayal is more “white” than Moussaoui.

Although Reid's media coverage may have been whitened, it has not prevented the media from relying on some old stereotypes. For instance, the media portrayed Reid as dumb. They called him an al Qaeda “B-team” member, suggesting that he is not as smart as the September 11th hijackers. He may not be smart, but he did get on the plane and almost accomplished his plan to blow it up. In addition, the media emphasize his physicality. Stories discuss that he is large, in that he is six feet, four inches tall. This description is only relevant so as to emphasize the “heroic” effort of the passengers who subdued him on the plane.

F. Jose Padilla

The media have portrayed Jose Padilla as a street thug, and a terrorist who deserves to be held and deprived of civil rights and civil liberties. The media have reported on his past criminal record and have made judgments about it. In 1983 he pleaded guilty to robbery and was given probation. Two years later, he was convicted of two counts of murder, aggravated battery, armed robbery and attempted armed robbery--he was sentenced to a juvenile detention facility for two and one-half years. In October 1991, Padilla was arrested for pulling a gun and firing it at a driver during a traffic dispute. He returned to jail and was released in 1992. He also completed a substance abuse program.

President Bush has said, “[t]his guy Padilla's a bad guy, and he is where he needs to be--detained.” President Bush also said, “[w]e have a man detained who is a threat to the country and that thanks to the vigilance of our intelligence gathering and law enforcement he is now off the streets, where he should be . . . .” Defense Secretary Donald Rumsfeld stated, “[o]ur interest is not in trying and punishing him. Our interest is in finding out what he knows.” Attorney General Ashcroft said “[t]he national security interests of the United States required that [Padilla] be detained by the Defense Department as an enemy combatant.” He described Padilla as an “al Qaeda operative [who] was planning future terrorist attacks on innocent American civilians in the United States.” By contrast, Padilla's lawyer points out “the evidence linking Padilla to the alleged ‘dirty bomb’ plot is weak at best.”

The New York Post reported that “Al Mujahir isn't some messed-up Marin County kid like John Walker Lindh. He's a hardened criminal named Jose Padilla who was born in Brooklyn and raised in Chicago. He converted to Islam in prison during a stay in a Florida prison.” The New York Post called him “a former Chicago street gangster and ex-con.” The New York Daily News reported that Padilla was supposedly fooled by an on-line parody about how to build an H-bomb. The reporter speculated that since “al Qaeda has been scattered by the United States bombing of Afghanistan, it is now relying on its 'B-team' of would-be terrorists like the alleged 'shoe-bomber' Richard Reid.

The media also reported on Padilla's family. They noted Padilla moved from Brooklyn to Chicago when he was four years old. His mother is reported to have had five children by two different men. His biological father died when he was young. Padilla's mother, Estella, has had no contact with Padilla since 1998. Reportedly, she worried that he joined a cult. After his detainment, his mother posted a note on the door to her home stating, “As for me and my house, we will serve the Lord.” A sister, Delma Padilla, has said that Padilla “was coming to the Unites States to visit his kids--not to plan a massive terrorist attack . . . .” Former neighbors indicated that they found it “hard to believe” that he was a terrorist. “He was obedient, respectful, he did his chores, watched television, he was just your average kid . . . .”

As discussed, Padilla is Puerto Rican; he comes from a racial and ethnic group that the media have historically stereotyped. Consequently, unlike Moussaoui and Reid, the media invoke the stereotype of a “brown brute.” The media portray Padilla as a hardcore street thug not entitled to constitutional protections. They compare him unfavorably to Lindh, who is just “messed up,” whereas Padilla is a “hardened criminal.” President Bush called Padilla a “bad guy.” Like other African Americans or Latinos, the media reported extensively on his past criminal background and made judgments about it. However, the media fail to explain how being a former street thug is related to being an international terrorist.

Padilla's family history is also discussed but not as a means to rationalize or explain his behavior as was done in the case of Walker Lindh or initially for Bishop--it is discussed as a means of showing his dysfunction. His biological father died when he was very young, and his mother had five children by two different men. His mother is portrayed as being distant and having very little contact with him. Padilla is also portrayed as being on al Qaeda's “B-team” thereby suggesting that he, like Reid, is stupid. He was supposedly fooled by an on-line parody on how to make a bomb. Unlike Lindh's father, Padilla's mother is portrayed as helpless. His mother left a note on the door of her home pleading that “her family be left alone.”

The media depictions of Charles Bishop, John Walker Lindh, Zacarius Moussaoui, Richard Reid, and Jose Padilla have varied in accordance with their perceived whiteness and darkness. To the extent an individual's identity was racially ambiguous, the coverage was tempered by his nation of origin and his biracial status. The coverage also varied based upon where these men fell on the spectrum of appearance, race, place of origin, and religion. Once it became clear that Lindh was white and, when the media thought that Bishop was white, they received the most favorable coverage. Reid's coverage seems tempered by the circumstances of his arrest and his alleged crime. His better-than-expected coverage is probably the result of his biracial background and British citizenship. Moussaoui's coverage is bad but not as bad as it could be. Again, his treatment by the media is probably the result of his status as a French citizen, but of Moroccan ancestry. Padilla, who is an American Puerto Rican, has suffered under the worst coverage because he conforms to a known American stereotype. These stereotypes and the media coverage related to them have an effect on how all people of color are viewed.


Conclusion

The events of September 11th raise many interesting issues as to racial profiling, the media, and society. First, due to national security concerns, the United States may be slipping into a “white-against-everyone-else” paradigm, where all people of color will be lumped together and will be suspected of being terrorists, tempered by national origin, biracial heritage, and religion. Recent government pronouncements indicate that the next terrorist is likely to not going to be an Arab face, but instead to be an Asian or African one. In addition, racial profiling of all people of color is more likely to occur because of the racial ambiguity and misidentification of the recently arrested post-September 11th perpetrators.

Racial profiling of all people of color will make it easier for authorities because they will not have to discern the differences between and among different racial groups in the United States. American citizens have been deputized to help ferret out future terrorist activities. This deputizing will lead to further racial profiling. Since the American public generally believes that those with dark skin are more likely to be violent than whites, they are likely to look upon anyone with non-white skin as a possible terrorist. Also, because the profiling will be justified on the ground of national security, the national security norm will trump the color-blind norm. Importantly, the first persons captured for allegedly planning or attempting to carry out additional terrorist attacks in the United States have been men of African or Latino descent--this phenomenon suggests that law enforcement officials may be too willing to rely on their traditional arsenal of racial profiles, while possibly overlooking dangerous perpetrators.

Second, racial profiling is directly related to the media depictions of people of color. For perpetrators who are racialized as white, the news media and society presume that they are inherently good and that something bad happened to cause them to do wrong; maybe they experienced bad parenting or even took an acne medication that caused serious psychological side-effects. For those racialized as being of African descent, however, the news media and society presume that they are generally bad with no mitigation for their behavior. Before September 11th, individuals with olive-complexions and those of Middle Eastern ancestry were stereotyped by the news media and society as a blend of two extremes--the positive stereotype of royal oil millionaire and the negative image of the fanatical terrorist. Since September 11th, the negative stereotype has all but completely overpowered the positive stereotype. At the moment, this segment of the population has been “darkened” in the American public's mind.

Finally, racial ambiguity and misidentification have implications in terms of the media depictions of the individual perpetrators and racial groups. As noted above, the coverage of each perpetrator changed over time to mirror changing perceptions of each man's “racialized identity.”

. Professor of Law, St. John's University School of Law, Jamaica, New York; B.S., New York University; J.D.-M.B.A., Columbia Universit

H. R. 3618 To Eliminate Racial Profiling

United States Library of Congress
HR 3618
112th CONGRESS, 1st Session

Introduced in House
December 8, 2011
H. R. 3618

To eliminate racial profiling  by law enforcement, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

December 8, 2011

Mr. Conyers (for himself, Mr. Ackerman, Ms. Brown of Florida, Mr. Cohen, Mr. Cummings, Mr. Davis of Illinois, Mr. Dingell, Mr. Ellison, Mr. Faleomavaega, Mr. Farr, Mr. Filner, Mr. Frank of Massachusetts, Mr. Grijalva, Mr. Gutierrez, Mr. Honda, Mr. Jackson of Illinois, Mr. Johnson of Georgia, Mr. Johnson of Illinois, Ms. Eddie Bernice Johnson of Texas, Ms. Jackson Lee of Texas, Ms. Lee of California, Mr. Lewis of Georgia, Ms. Zoe Lofgren of California, Mrs. McCarthy of New York, Ms. McCollum, Mr. George Miller of California, Ms. Norton, Mr. Payne, Mr. Price of North Carolina, Mr. Rangel, Ms. Richardson, Mr. Richmond, Mr. Rothman of New Jersey, Mr. Rush, Mr. Scott of Virginia, Mr. Serrano, Mr. Towns, and Mr. Watt) introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

To eliminate racial profiling by law enforcement, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title. This Act may be cited as the 'End racial profiling Act of 2011'.
(b) Table of Contents. The table of contents of this Act is as follows:
Sec 1 Short title; table of contents.
Sec 2 Definitions.

TITLE I PROHIBITION OF RACIAL PROFILING
Sec 101 Prohibition.
Sec 102 Enforcement.

TITLE II PROGRAMS TO ELIMINATE RACIAL PROFILING BY FEDERAL LAW ENFORCEMENT AGENCIES
Sec 201 Policies to eliminate racial profiling.

TITLE III PROGRAMS TO ELIMINATE RACIAL PROFILING BY STATE, LOCAL, AND INDIAN TRIBAL LAW ENFORCEMENT AGENCIES

Sec 301 Policies required for grants.
Sec 302 Involvement of Attorney General.
Sec 303 Data collection demonstration project.
Sec 304 Best practices development grants.

TITLE IV DATA COLLECTION
Sec 401 Attorney General to issue regulations.
Sec 402 Duties of the Bureau of Justice Statistics.
Sec 403 Limitations on publication of data.

TITLE V DEPARTMENT OF JUSTICE REGULATIONS AND REPORTS ON RACIAL PROFILING IN THE UNITED STATES
Sec 501 Attorney General to issue regulations and reports.

TITLE VI MISCELLANEOUS PROVISIONS
Sec 601 Severability.
Sec 602 Savings clause.


 

SEC. 2. DEFINITIONS.

In this Act:

(1) Covered program. The term 'covered program' means any program or activity funded in whole or in part with funds made available under-

(A) the Edward Byrne Memorial Justice Assistance Grant Program under part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3750 et seq.); and

(B) the 'Cops on the Beat' program under part Q of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796dd et seq.), except that no program, project, or other activity specified in section 1701(b)(13) of such part shall be a covered program under this paragraph.

(2) Governmental body. The term 'governmental body' means any department, agency, special purpose district, or other instrumentality of Federal, State, local, or Indian tribal government.

(3) Hit rate. The term 'hit rate' means the percentage of stops and searches in which a law enforcement officer finds drugs, a gun, or something else that leads to an arrest. The hit rate is calculated by dividing the total number of searches by the number of searches that yield contraband. The hit rate is complementary to the rate of false stops

(4) Indian tribe. The term 'Indian tribe' has the meaning given the term in section 102 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a)).

(5) Law enforcement agency. The term 'law enforcement agency' means any Federal, State, local, or Indian tribal public agency engaged in the prevention, detection, or investigation of violations of criminal, immigration, or customs laws.

(6) Law enforcement agent. The term 'law enforcement agent' means any Federal, State, local, or Indian tribal official responsible for enforcing criminal, immigration, or customs laws, including police officers and other agents of a law enforcement agency.

(7) racial profiling
.-

(A) Definition. The term 'racial profiling' means the practice of a law enforcement agent or agency relying, to any degree, on race, ethnicity, national origin, gender, or religion-

(i) in selecting which individual to subject to routine or spontaneous investigatory activities; or

(ii) in deciding upon the scope and substance of law enforcement activity following the initial investigatory activity.

(B) Exception. The term 'racial profiling' does not include a practice of a law enforcement agent or agency that relies on race, ethnicity, national origin, gender, or religion when there is trustworthy information, relevant to the locality and timeframe, that links a person of a particular race, ethnicity, national origin, gender, or religion to an identified criminal incident or scheme.

(8) Routine or spontaneous investigatory activities. The term 'routine or spontaneous investigatory activities' means the following activities by a law enforcement agent:

(A) Interviews.

(B) Traffic stops.

(C) Pedestrian stops.

(D) Frisks and other types of body searches.

(E) Consensual or nonconsensual searches of the persons, property, or possessions (including vehicles) of individuals using any form of public or private transportation, including motorists and pedestrians.

(F) Data collection and analysis, assessments, and predicated investigations.

(G) Inspections and interviews of entrants into the United States that are more extensive than those customarily carried out.

(H) Immigration-related workplace investigations.

(I) Such other types of law enforcement encounters about which statistical information is compiled for or by the Federal Bureau of Investigation or the Department of Justice Bureau of Justice Statistics.

(9) Reasonable request. The term 'reasonable request' means all requests for information, except for those that-

(A) are immaterial to the investigation;

(B) would result in the unnecessary disclosure of personal information; or

(C) would place a severe burden on the resources of the law enforcement agency given its size.

(10) State. The term 'State' means each of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, and any other territory or possession of the United States.

(11) Unit of local government. The term 'unit of local government' means-

(A) any city, county, township, town, borough, parish, village, or other general purpose political subdivision of a State;

(B) any law enforcement district or judicial enforcement district that-

(i) is established under applicable State law; and

(ii) has the authority to, in a manner independent of other State entities, establish a budget and impose taxes; or

(C) any Indian tribe that performs law enforcement functions, as determined by the Secretary of the Interior.


 

TITLE I PROHIBITION OF racial profiling

SEC. 101. PROHIBITION.

No law enforcement agent or law enforcement agency shall engage in racial profiling.

SEC. 102. ENFORCEMENT.

(a) Remedy. The United States, or an individual injured by racial profiling, may enforce this title in a civil action for declaratory or injunctive relief, filed either in a State court of general jurisdiction or in a district court of the United States.

(b) Parties. In any action brought under this title, relief may be obtained against-

(1) any governmental body that employed any law enforcement agent who engaged in racial profiling;

(2) any agent of such body who engaged in racial profiling; and

(3) any person with supervisory authority over such agent.

(c) Nature of Proof. Proof that the routine or spontaneous investigatory activities of law enforcement agents in a jurisdiction have had a disparate impact on racial, ethnic, or religious minorities shall constitute prima facie evidence of a violation of this title.

(d) Attorney's Fees. In any action or proceeding to enforce this title against any governmental body, the court may allow a prevailing plaintiff, other than the United States, reasonable attorney's fees as part of the costs, and may include expert fees as part of the attorney's fee.


TITLE II PROGRAMS TO ELIMINATE RACIAL PROFILING  BY FEDERAL LAW ENFORCEMENT AGENCIES

SEC. 201. POLICIES TO ELIMINATE racial profiling.


(a) In General. Federal law enforcement agencies shall-

(1) maintain adequate policies and procedures designed to eliminate racial profiling; and
(2) cease existing practices that permit racial profiling.

(b) Policies. The policies and procedures described in subsection (a)(1) shall include-

(1) a prohibition on racial profiling;
(2) training on racial profiling issues as part of Federal law enforcement training;
(3) the collection of data in accordance with the regulations issued by the Attorney General under section 401;
(4) procedures for receiving, investigating, and responding meaningfully to complaints alleging racial profiling by law enforcement agents; and
(5) any other policies and procedures the Attorney General determines to be necessary to eliminate racial profiling by Federal law enforcement agencies.


TITLE III PROGRAMS TO ELIMINATE RACIAL PROFILING BY STATE, LOCAL, AND INDIAN TRIBAL LAW ENFORCEMENT AGENCIES

SEC. 301. POLICIES REQUIRED FOR GRANTS.

(a) In General. An application by a State, a unit of local government, or a State, local, or Indian tribal law enforcement agency for funding under a covered program shall include a certification that such State, unit of local government, or law enforcement agency, and any law enforcement agency to which it will distribute funds-

(1) maintains adequate policies and procedures designed to eliminate racial profiling; and

(2) has eliminated any existing practices that permit or encourage racial profiling.

(b) Policies. The policies and procedures described in subsection (a)(1) shall include-

(1) a prohibition on racial profiling;
(2) training on racial profiling  issues as part of law enforcement training;
(3) the collection of data in accordance with the regulations issued by the Attorney General under section 401; and
(4) participation in an administrative complaint procedure or independent audit program that meets the requirements of section 302.

(c) Effective Date. This section shall take effect 12 months after the date of enactment of this Act.


SEC. 302. INVOLVEMENT OF ATTORNEY GENERAL.

(a) Regulations.

(1) In general. Not later than 6 months after the date of enactment of this Act and in consultation with stakeholders, including Federal, State, tribal, and local law enforcement agencies and community, professional, research, and civil rights organizations, the Attorney General shall issue regulations for the operation of administrative complaint procedures and independent audit programs to ensure that such procedures and programs provide an appropriate response to allegations of racial profiling
 by law enforcement agents or agencies.

(2) Guidelines. The regulations issued under paragraph (1) shall contain guidelines that ensure the fairness, effectiveness, and independence of the administrative complaint procedures and independent auditor programs.

(b) Noncompliance. If the Attorney General determines that the recipient of a grant from any covered program is not in compliance with the requirements of section 301 or the regulations issued under subsection (a), the Attorney General shall withhold, in whole or in part (at the discretion of the Attorney General), funds for 1 or more grants to the recipient under the covered program, until the recipient establishes compliance.

(c) Private Parties. The Attorney General shall provide notice and an opportunity for private parties to present evidence to the Attorney General that a recipient of a grant from any covered program is not in compliance with the requirements of this title.

SEC. 303. DATA COLLECTION DEMONSTRATION PROJECT.

(a) Competitive Awards.-

(1) In general. The Attorney General may, through competitive grants or contracts, carry out a 2-year demonstration project for the purpose of developing and implementing data collection programs on the hit rates for stops and searches by law enforcement agencies. The data collected shall be disaggregated by race, ethnicity, national origin, gender, and religion.

(2) Number of grants. The Attorney General shall provide not more than 5 grants or contracts under this section.

(3) Eligible grantees. Grants or contracts under this section shall be awarded to law enforcement agencies that serve communities where there is a significant concentration of racial or ethnic minorities and that are not already collecting data voluntarily.

(b) Required Activities. Activities carried out with a grant or contract under this section shall include-

(1) developing a data collection tool, compiling data related to hit rates, and reporting the compiled data to the Attorney General; and

(2) training of law enforcement personnel on data collection, particularly for data collection on hit rates for stops and searches.

(c) Evaluation. Not later than 3 years after the date of enactment of this Act, the Attorney General shall enter into a contract with an institution of higher education (as defined in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001)) to analyze the data collected by each of the law enforcement agencies funded under this section.

(d) Authorization of Appropriations. There are authorized to be appropriated to carry out activities under this section-

(1) $5,000,000, over a 2-year period, to carry out the demonstration program under subsection (a); and

(2) $500,000 to carry out the evaluation under subsection (c).


SEC. 304. BEST PRACTICES DEVELOPMENT GRANTS.

(a) Grant Authorization. The Attorney General, through the Bureau of Justice Assistance, may make grants to States, local law enforcement agencies, and units of local government to develop and implement best practice devices and systems to eliminate racial profiling
.

(b) Use of Funds. The funds provided under subsection (a) shall be used for programs that include the following purposes:

(1) The development and implementation of training to prevent racial profiling
 and to encourage more respectful interaction with the public.

(2) The acquisition and use of technology to facilitate the accurate collection and analysis of data related to racial profiling
.

(3) The development and acquisition of feedback systems and technologies that identify officers or units of officers engaged in, or at risk of engaging in, racial profiling
 or other misconduct.

(4) The establishment and maintenance of an administrative complaint procedure or independent auditor program that meets the requirements of section 302.

(c) Equitable Distribution. The Attorney General shall ensure that grants under this section are awarded in a manner that reserves an equitable share of funding for small and rural law enforcement agencies.

(d) Application. Each State, local law enforcement agency, or unit of local government desiring a grant under this section shall submit an application to the Attorney General at such time, in such manner, and accompanied by such information as the Attorney General may require.



TITLE IV DATA COLLECTION

SEC. 401. ATTORNEY GENERAL TO ISSUE REGULATIONS.

(a) Regulations. Not later than 6 months after the date of enactment of this Act, the Attorney General, in consultation with stakeholders, including Federal, State, and local law enforcement agencies and community, professional, research, and civil rights organizations, shall issue regulations for the collection and compilation of data under sections 201 and 301.

(b) Requirements. The regulations issued under subsection (a) shall-

(1) provide for the collection of data on all routine or spontaneous investigatory activities;

(2) provide that the data collected shall-

(A) be collected by race, ethnicity, national origin, gender, and religion, as perceived by the law enforcement officer;

(B) include the date, time, and location of such investigatory activities;

(C) include detail sufficient to permit an analysis of whether a law enforcement agency is engaging in racial profiling
; and

(D) not include personally identifiable information described in section 403;

(3) provide that a standardized form shall be made available to law enforcement agencies for the submission of collected data to the Department of Justice;

(4) provide that law enforcement agencies shall compile data on the standardized form made available under paragraph (3), and submit the form to the Civil Rights Division and the Department of Justice Bureau of Justice Statistics;

(5) provide that law enforcement agencies shall maintain all data collected under this Act for not less than 4 years;

(6) include guidelines for setting comparative benchmarks, consistent with best practices, against which collected data shall be measured; and

(7) provide for the protection of the privacy of individuals whose data is collected by-

(A) limiting the use and disclosure of the data collected under this Act to the purposes set forth in this Act;

(B) except as otherwise provided in this Act, limiting access to the data collected under this Act to those Federal, State, local, or tribal employees or agents who require such access in order to fulfill the purposes for the data set forth in this Act;

(C) requiring contractors or other non-governmental agents who are permitted access to the data collected under this Act to sign use agreements incorporating the use and disclosure restrictions set forth in subparagraph (A); and

(D) requiring the maintenance of adequate security measures to prevent unauthorized access to the data collected under this Act.


SEC. 402. DUTIES OF THE BUREAU OF JUSTICE STATISTICS.

(a) Analysis and Reports. The Department of Justice Bureau of Justice Statistics shall-

(1) analyze the data collected under sections 201 and 301 for any statistically significant disparities, including-

(A) disparities in the percentage of drivers or pedestrians stopped relative to the proportion of the population passing through the neighborhood;

(B) disparities in the hit rate; and

(C) disparities in the frequency of searches performed on minority drivers and the frequency of searches performed on non-minority drivers; and

(2) not later than 3 years after the date of enactment of this Act, and annually thereafter-

(A) prepare a report regarding the findings of the analysis conducted under paragraph (1);

(B) provide such report to Congress and the Attorney General; and

(C) make such report available to the public, including on a Web site of the Department of Justice.

(b) Publication of Data. The Department of Justice Bureau of Justice Statistics shall provide to Congress and make available to the public, together with each annual report described in subsection (a)(2), the data collected pursuant to this Act, excluding any personally identifiable information described in section 403.

SEC. 403. LIMITATIONS ON PUBLICATION OF DATA.

The name or identifying information of a law enforcement officer, complainant, or any other individual involved in any activity for which data is collected and compiled under this Act shall not be-

(1) released to the public;

(2) disclosed to any person, except for-

(A) such disclosures as are necessary to comply with this Act;

(B) disclosures of information regarding a particular person to that person; or

(C) disclosures pursuant to litigation; or

(3) subject to disclosure under section 552 of title 5, United States Code (commonly know as the Freedom of Information Act), except for disclosures of information regarding a particular person to that person.


TITLE V DEPARTMENT OF JUSTICE REGULATIONS AND REPORTS ON RACIAL PROFILING  IN THE UNITED STATES

SEC. 501. ATTORNEY GENERAL TO ISSUE REGULATIONS AND REPORTS.

(a) Regulations. In addition to the regulations required under sections 302 and 401, the Attorney General shall issue such other regulations as the Attorney General determines are necessary to implement this Act.

(b) Reports.-

(1) In general. Not later than 2 years after the date of enactment of this Act, and annually thereafter, the Attorney General shall submit to Congress a report on racial profiling
 by law enforcement agencies.

(2) Scope. Each report submitted under paragraph (1) shall include-

(A) a summary of data collected under sections 201(b)(3) and 301(b)(3) and from any other reliable source of information regarding racial profiling
 in the United States;

(B) a discussion of the findings in the most recent report prepared by the Department of Justice Bureau of Justice Statistics under section 401(b)(7);

(C) the status of the adoption and implementation of policies and procedures by Federal law enforcement agencies under section 201 and by the State and local law enforcement agencies under sections 301 and 302; and

(D) a description of any other policies and procedures that the Attorney General believes would facilitate the elimination of racial profiling

 


.

TITLE VI MISCELLANEOUS PROVISIONS

SEC. 601. SEVERABILITY.

If any provision of this Act, or the application of such a provision to any person or circumstance, is held to be unconstitutional, the remainder of this Act and the application of the remaining provisions of this Act to any person or circumstance shall not be affected thereby.

SEC. 602. SAVINGS CLAUSE.

Nothing in this Act shall be construed-

(1) to limit legal or administrative remedies under section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983), section 210401 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14141), the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3701 et seq.), or title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.);

(2) to affect any Federal, State, or tribal law that applies to an Indian tribe because of the political status of the tribe; or

(3) to waive the sovereign immunity of an Indian tribe without the consent of the tribe.

 2011 CONG US HR 3618

State Statutes on Racial Profiling

Selected Statutes on Racial Profiling
April 4, 2012


This information is based on data received through a search of westlaw' "all states statutes" full text database for the words "racial profiling". The search returned 93 documents from 22 states.  The review revealed the following results:

12 States had a Definition 11 States Specifically Prohibited 1 States exempt police from liability 2 States provide for remedy

Arkansas
Californi
a
Connecticut

Illinois
Kansas
Montana
Nebraska
Nevada
Oklahoma
Rhode Island
Texas
West Virginia

Arkansas
Connecticut
Kentucky
Montana
Nebraska
Nevada
Oklahoma
Rhode Island
Tennessee
Texas
West Virginia

West Virginia

Oklahoma
Rhode Island


State Defines Prohibits Specific Punishment Training Data

Collection

Report Other
Arkansas § 12-12-1401. § 12-12-1402

§ 12-12-1403

§ 12-12-1404

§ 14-14-1314

§ 12-12-1403 § 12-8-104

§ 6-11-105 (Dept of Educ.)

§ 12-12-1405 (hotline)

California § 13519.4 § 13519.4 § 13519.4
Connecticut § 54-1l § 54-1l
Florida 316.614 316.614 316.614 (requires adoption of policy by dept.)
Illinois 2715/10 715/40

5/11-212

5/11-212 2715/15 (Oversight board)
Kansas 22-4606 22-4610 22-4610 22-4610 (policies)
Kentucky § 15A.195 § 15A.195 § 15A.195(policies)
Louisiana 398.10
Massachusetts 2 (assure policies)
Minnesota 626.8471 13.871 626.8471 626.9517 (grants)
Mississippi 45-4-9
Missouri 590.050 590.650 590.653 (review board)
Montana 44-2-117 44-2-117 44-2-117 44-2-117 44-2-117
Nebraska 20-503 20-502 20-504 20-501 (intent)

20-504 (policy)

20-505 (forms)

20-506 (advisory committee)

Nevada 289.820
289.820
New Jersey 10:5-3 (intent)

2C:30-5

Oklahoma 34.3 34.3 34.3 (misdeameanor) 34.5 34.5.(complaint)

34.4

Rhode Island 31-21.2-3 31-21.2-3 31- 21.2-6 (damages/equitable relief) 31-21.2-6

31-21.1-4

31-21.2-7

31-21.2-7 31-21.1-2 (declaration)

31-21.2-2. Findings

31-21.2-8. Complaint

31-21.2-5. Law enforcement practices

31-21.1-5 policies

42-137-5 commission

Tennessee 45-6-22 4-7-119 4-7-119
Texas 3.05 2.131 96.641

1701.402

1701.253

2.134 2.133

2.135

Washington 43.101.410

43.43.490

43.101.410. 43.101.410

43.101.415

West Virginia 30-29-10

17G-1-1

30-29-10 17G-1-3 (exempt from Civil LiabiityI 17G-2-1

17G-2-3

17G-1-2

30-29-3

17G-2-2



Arkansas

  WEST'S ARKANSAS CODE ANNOTATED   TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS    SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS (CHAPTERS 6 TO 24)   CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS    SUBCHAPTER 14--TASK FORCE ON RACIAL PROFILING   § 12-12-1404. Training

Title 12. Law Enforcement, Emergency Management, and Military Affairs
§ 12-12-1404. Training

(a) Each law enforcement agency shall provide annual training to all officers that:

(1) Emphasizes the prohibition against racial profiling;

(2) Ensures that operating procedures adequately implement the prohibition against racial profiling and that the law enforcement agency's law enforcement personnel have copies of, understand, and follow the operating procedures;  and

(3) Includes foreign language instruction, if possible, to ensure adequate communication with residents of a community.

(b) The course or courses of instruction and the guidelines shall stress understanding and respect for racial, ethnic, national, religious, and cultural differences and development of effective and appropriate methods of carrying out law enforcement duties.

(c)(1) The Arkansas Commission on Law Enforcement Standards and Training shall adopt an initial training module concerning diversity and racial sensitivity for recruits and officers.

(2) The commission shall also adopt a training module for biennial recertification for all recruits and officers who have completed the initial training module.

(d)(1) By January 1, 2006, the commission shall promulgate rules that will set significant standards for all training required in this section.

(2) The commission may make additions, amendments, changes, or alterations to the rules in accordance with the Arkansas Administrative Procedure Act, § 25-15-201 et seq.

(3) The commission may review and recommend changes to the racial profiling policy of any law enforcement agency.

(4) Upon request, the racial profiling policy of any law enforcement agency shall be made available to the commission for the purpose described in subdivision (d)(3) of this section.

(5) The commission may establish a toll-free hotline and an email address to receive complaints concerning racial profiling.


A.C.A. § 12-12-1403   WEST'S ARKANSAS CODE ANNOTATED   TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS    SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS (CHAPTERS 6 TO 24)   CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS    SUBCHAPTER 14--TASK FORCE ON RACIAL PROFILING   § 12-12-1403. Policies


§ 12-12-1403. Policies

(a) The Department of Arkansas State Police, the Arkansas Highway Police Division of the Arkansas State Highway and Transportation Department, all county sheriffs' departments, municipal police departments, constables, and all other law enforcement agencies of this state shall adopt a written policy that:

(1) Prohibits racial profiling as defined in § 12-12-1401;

(2) Requires that law enforcement officers have reasonable suspicion prior to a stop, arrest, or detention;

(3) Defines reasonable suspicion to ensure that individuals are stopped for valid reasons and that race, ethnicity, national origin, or religion is not the basis for stops for violations for which nongroup members would not be stopped;

(4) Requires law enforcement officers to identify themselves by full name and jurisdiction and state the reason for the stop and when possible present written identification;

(5) Provides for a systematic review process by supervising personnel within a department or law enforcement agency for investigating allegations of racial profiling to determine whether any officers of the law enforcement agency have a pattern of stopping or searching persons, and if the review reveals a pattern, requires an investigation to determine whether a trend is present indicating that an officer may be using race, ethnicity, national origin, or religion as a basis for investigating other violations of criminal law;

(6) When a supervisor or other reviewer has detected a pattern of racial profiling, provides timely assistance, remediation, or discipline for individual law enforcement officers who have been found to be profiling by race, ethnicity, national origin, or religion;

(7) Ensures that supervisors will not retaliate against officers who report racial profiling by others;  and

(8) Provides standards for the use of in-car audio and visual equipment, including the duration for which the recordings are preserved.

(b)(1) Each law enforcement agency shall include a copy of the law enforcement agency's policy in the annual report that the law enforcement agency submits to the Division of Legislative Audit.

(2) The Division of Legislative Audit shall submit to the Attorney General the name of any law enforcement agency that fails to comply with subdivision (b)(1) of this section, and the Attorney General shall take such action as may be necessary to enforce this section.

(3) The Division of Legislative Audit shall forward to the Attorney General a copy of each law enforcement agency's policy received by the Division of Legislative Audit.  The Attorney General shall review each law enforcement agency's policy to ensure that the law enforcement agency's policy meets the standards required by law.

(c)(1) Each law enforcement agency may promote public awareness of the law enforcement agency's efforts to comply with the mandates of this section.

(2) In addition, each law enforcement agency shall make available for public inspection a copy of the law enforcement agency's policy.

A.C.A. § 12-12-1401   WEST'S ARKANSAS CODE ANNOTATED   TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS    SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS (CHAPTERS 6 TO 24)   CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS    SUBCHAPTER 14--TASK FORCE ON RACIAL PROFILING   § 12-12-1401. Definition.


§ 12-12-1401. Definition.

(a) As used in this subchapter, "racial profiling" means the practice of a law enforcement officer's relying to any degree on race, ethnicity, national origin, or religion in selecting which individuals to subject to routine investigatory activities or in deciding upon the scope and substance of law enforcement activity following the initial routine investigatory activity.

(b) "Racial profiling" does not include reliance on the criteria in combination with other identifying factors when the law enforcement officer is seeking to apprehend a specific suspect whose race, ethnicity, or national origin is part of the description of the suspect and the description is thought to be reliable and locally relevant.


(a) The Department of Arkansas State Police, the Arkansas Highway Police Division of the Arkansas State Highway and Transportation Department, all county sheriffs' departments, municipal police departments, constables, and all other law enforcement agencies of this state shall adopt a written policy that:

(1) Prohibits racial profiling as defined in § 12-12-1401;

(2) Requires that law enforcement officers have reasonable suspicion prior to a stop, arrest, or detention;

(3) Defines reasonable suspicion to ensure that individuals are stopped for valid reasons and that race, ethnicity, national origin, or religion is not the basis for stops for violations for which nongroup members would not be stopped;

(4) Requires law enforcement officers to identify themselves by full name and jurisdiction and state the reason for the stop and when possible present written identification;

(5) Provides for a systematic review process by supervising personnel within a department or law enforcement agency for investigating allegations of racial profiling to determine whether any officers of the law enforcement agency have a pattern of stopping or searching persons, and if the review reveals a pattern, requires an investigation to determine whether a trend is present indicating that an officer may be using race, ethnicity, national origin, or religion as a basis for investigating other violations of criminal law;

(6) When a supervisor or other reviewer has detected a pattern of racial profiling, provides timely assistance, remediation, or discipline for individual law enforcement officers who have been found to be profiling by race, ethnicity, national origin, or religion;

(7) Ensures that supervisors will not retaliate against officers who report racial profiling by others;  and

(8) Provides standards for the use of in-car audio and visual equipment, including the duration for which the recordings are preserved.

(b)(1) Each law enforcement agency shall include a copy of the law enforcement agency's policy in the annual report that the law enforcement agency submits to the Division of Legislative Audit.

(2) The Division of Legislative Audit shall submit to the Attorney General the name of any law enforcement agency that fails to comply with subdivision (b)(1) of this section, and the Attorney General shall take such action as may be necessary to enforce this section.

(3) The Division of Legislative Audit shall forward to the Attorney General a copy of each law enforcement agency's policy received by the Division of Legislative Audit.  The Attorney General shall review each law enforcement agency's policy to ensure that the law enforcement agency's policy meets the standards required by law.

(c)(1) Each law enforcement agency may promote public awareness of the law enforcement agency's efforts to comply with the mandates of this section.

(2) In addition, each law enforcement agency shall make available for public inspection a copy of the law enforcement agency's policy.

A.C.A. § 12-12-1402   WEST'S ARKANSAS CODE ANNOTATED   TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS    SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS (CHAPTERS 6 TO 24)   CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS    SUBCHAPTER 14--TASK FORCE ON RACIAL PROFILING   § 12-12-1402. Prohibition on racial profiling


(a) No member of the Department of Arkansas State Police, the Arkansas Highway Police Division of the Arkansas State Highway and Transportation Department, a county sheriff's department, or a municipal police department, constable, or any other law enforcement officer of this state shall engage in racial profiling.

(b) The statements of policy and definitions contained in this subchapter shall not be construed or interpreted to be contrary to the Arkansas Rules of Criminal Procedure or the United States Constitution or the Arkansas Constitution.

A.C.A. § 12-8-104   WEST'S ARKANSAS CODE ANNOTATED   TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS    SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS (CHAPTERS 6 TO 24)   CHAPTER 8. DEPARTMENT OF ARKANSAS STATE POLICE    SUBCHAPTER 1--GENERAL PROVISIONS    § 12-8-104. Director


(a)(1)(A) After conferring with the members of the Arkansas State Police Commission, the Governor shall appoint a Director of the Department of Arkansas State Police who shall be the executive and administrative head of the Department of Arkansas State Police and shall receive a salary as fixed by law.

(B) The Director of the Department of Arkansas State Police shall serve at the pleasure of the Governor.

(2) The Director of the Department of Arkansas State Police shall be of good moral character and a resident and a qualified elector of the State of Arkansas.

(3) In addition to all other qualifications contained in this section, the Director of the Department of Arkansas State Police, at the time of appointment to the position of Director of the Department of Arkansas State Police, shall either:

(A) Be a college graduate with at least a bachelor's degree in criminology, business administration, or a related field;

(B) Have graduated from a standard high school or vocational school and have eight (8) years' previous experience in law enforcement or a related field with considerable supervisory and administrative experience;  or

(C) Have at least ten (10) years' experience in law enforcement.

(b) The Director of the Department of Arkansas State Police shall determine the number of other officers and patrol personnel to be employed by the Department of Arkansas State Police, and they shall be paid salaries according to rank, not exceeding the salaries provided.

(c) The Director of the Department of Arkansas State Police shall promulgate such rules as are necessary for the efficient operation of the Department of Arkansas State Police and for the enforcement of such duties as are prescribed in this chapter.

(d) The Director of the Department of Arkansas State Police shall keep the books and records of the Department of Arkansas State Police, which shall be audited as the books and accounts of other state departments.

(e) An annual report to the Governor and a biannual report to the General Assembly showing the activities, number of arrests, amounts collected by the Department of Arkansas State Police, and disposition of all cases shall be made by the Director of the Department of Arkansas State Police.

(f)(1) The Director of the Department of Arkansas State Police shall have supervision and control for the purpose of discipline and proper management of all the members and employees of the Department of Arkansas State Police.

(2)(A) The Director of the Department of Arkansas State Police may designate that some or all employees of the Department of Arkansas State Police be trained pursuant to a memorandum of understanding between the State of Arkansas and the United States Department of Justice or the United States Department of Homeland Security concerning the enforcement of federal immigration laws on federal and interstate highways in the State of Arkansas.

(B) The amount spent for training employees of the Department of Arkansas State Police under the memorandum of understanding between the State of Arkansas and the United States Department of Justice or the United States Department of Homeland Security shall be paid in accordance with the provisions of § 12-8- 118.

(3)(A) Upon request of the Director of State Highways and Transportation, the Director of the Department of Arkansas State Police may designate certified law enforcement officers from the Arkansas Highway Police Division of the Arkansas State Highway and Transportation Department to be trained under the terms of the memorandum of understanding described in subdivision (f)(2) of this section.

(B) The amount spent for training certified law enforcement officers from the Arkansas Highway Police Division of the Arkansas State Highway and Transportation Department shall be borne by the Arkansas State Highway and Transportation Department.

(g) The Director of the Department of Arkansas State Police may establish such divisions within the ranks of the Department of Arkansas State Police as he or she may deem necessary and proper.

(h) Whenever in the Director of the Department of Arkansas State Police's discretion the action is necessary for the efficient operation of the Department of Arkansas State Police, the Director of the Department of Arkansas State Police may:

(1) Transfer, assign, and reassign from one (1) division to another division any member of the Department of Arkansas State Police or other employee of the Department of Arkansas State Police;  or

(2)(A) Subject to the approval of the commission, promote or demote in rank any member of the Department of Arkansas State Police.

(B) However, any demotion pursuant to subdivision (h)(2)(A) of this section shall be for nondisciplinary reasons.

(i) Due to the exacting and special duties of the Director of the Department of Arkansas State Police, he or she may draw an expense allowance in an amount not to exceed six hundred dollars ($600) per month.

(j)(1) Subject to the provisions of subsection (f) of this section, the Director of the Department of Arkansas State Police may negotiate the terms of a memorandum of understanding between the State of Arkansas and the United States Department of Justice or the United States Department of Homeland Security concerning the enforcement of federal immigration laws.

(2)(A) The memorandum of understanding described in subdivision (j)(1) of this section must be signed on behalf of the State of Arkansas by the Director of the Department of Arkansas State Police, the Governor, and the Director of Law Enforcement Standards and Training.

(B) Prior to the signing provided for by subdivision (j)(2)(A) of this section, the memorandum of understanding shall be reviewed by the Legislative Council.

(k) The Director of the Department of Arkansas State Police shall implement or assist other entities to develop and implement a public service campaign concerning racial profiling and may utilize brochures, flyers, or public service announcements.

A.C.A. § 14-14-1314   WEST'S ARKANSAS CODE ANNOTATED   TITLE 14. LOCAL GOVERNMENT    SUBTITLE 2. COUNTY GOVERNMENT (CHAPTERS 13 TO 35)   CHAPTER 14. COUNTY GOVERNMENT CODE    SUBCHAPTER 13--OFFICERS GENERALLY    § 14-14-1314. Constable training requirements--Uniform requirements


(a)(1)(A) For a constable to have access to information from the Arkansas Crime Information Center:

(i) He or she shall satisfactorily complete the constable certification course provided by the Arkansas Commission on Law Enforcement Standards and Training.

(ii) Each year after completing the certification course required under subdivision (a)(1)(A)(i) of this section, he or she shall satisfactorily complete sixteen (16) hours of training provided by the Arkansas Commission on Law Enforcement Standards and Training.

(B) For a constable to carry a firearm:

(i) He or she shall attend sixteen (16) hours of firearms training;  and

(ii) Each year after completing the training required under subdivision  (a)(1)(B)(i) of this section, he or she shall satisfy the firearm qualification standards for a law enforcement official.

(2) A constable holding office on July 31, 2007 is exempt from the requirements of subdivision (a)(1) of this section if the constable has completed:

(A) The Part-time Law Enforcement Officer II training or higher level training course;  and

(B) Mandatory racial profiling courses.

(b)(1) In the performance of his or her official duties, a constable shall wear a uniform consisting of:

(A) The following shirts:

(i) A long sleeve black shirt with black epaulets and black pocket flaps and a gray tie from October 1 until March 31;

(ii) A short sleeve black shirt with black epaulets and black pocket flaps from April 1 until September 30;  or

(iii) A white shirt on formal occasions at any time;

(B)(i) A constable identification patch on the left shoulder of the shirt and an American flag on the right shoulder.

(ii) The top of each patch shall be one inch (1<<SYM>>) down from the shoulder seam of the shirt;

(C) A name tag above the right pocket flap of the shirt;

(D) A six-point star, containing the words "Arkansas Constable" shall be on the left side of the shirt;

(E) The following pants:

(i) Tan pants;  or

(ii) Blue or black pants on formal occasions;  and

(F) A gray hat with a six-point star on the front containing the words  "Arkansas Constable".

(2) If a constable is engaged in search or rescue activities, he or she shall wear a uniform consisting of:

(A) A black shirt;

(B) Black pants;  and

(C) A black cap with a six-point star with the words "Arkansas Constable".

(c) In the performance of his or her official duties, a constable shall drive a motor vehicle that is:

(1) Fully equipped with emergency equipment;  and

(2) Clearly marked with a six-point star and the words "Arkansas Constable".

(d) The county may pay reasonable expenses associated with the requirements of this section.


A.C.A. § 6-11-105   WEST'S ARKANSAS CODE ANNOTATED   TITLE 6. EDUCATION    SUBTITLE 2. ELEMENTARY AND SECONDARY EDUCATION GENERALLY (CHAPTERS 10 TO 39)   CHAPTER 11. STATE BOARD OF EDUCATION    SUBCHAPTER 1--STATE BOARD OF EDUCATION--ORGANIZATION--POWERS--DUTIES    § 6-11-105. Powers and duties

(a) The State Board of Education shall:

(1) Have general supervision of the public schools of the state;

(2) Recommend courses of study for the public schools and teacher training institutions;

(3) Prescribe rules for the examination of pupils to detect contagious and infectious diseases and physical defects;

(4) Issue certificates based upon credentials presented by applicants for certificates to teach in the public schools of the state;

(5) Qualify and standardize public schools and prescribe requirements for accrediting and grading public schools;

(6) Supervise the operation of school district budgets;

(7) Supervise the purchase and distribution of textbooks;

(8) Take such other action as it may deem necessary to promote:

(A) The physical welfare of school children;

(B) The organization and efficiency of the public schools of the state; and

(C) Public education and awareness about racial profiling;

(9)(A) Perform all other functions that may now or hereafter be delegated to the state board by law.

(B) However, nothing in this act shall prohibit the state board and the Department of Education from issuing teachers' certificates upon the results of teachers' examinations as now provided by law;

(10) Eliminate unnecessary reports and paperwork by yearly identifying and compiling a list of all reports that are required from local school districts by the department or the state board for the school year;

(11) Adopt policies to ensure, except as allowed under subsection (b) of this section, that local school districts are not required by the state board or the department to:

(A) Provide information that is already available on a department student information management system or housed within the department;

(B) Provide the same written information more than one (1) time during a school year unless the information has changed during the school year;  or

(C) Complete forms for children with disabilities that are not necessary to ensure compliance with federal statutes and regulations, including, but not limited to, the Individuals with Disabilities Education Act, state mandates, and corresponding appropriations governing the provision of special education services to students with disabilities;  and

(12)(A) If the state board orders the takeover of a school district under authority granted under this title and also orders the removal of the school district board of directors, the state board may assume all authority of the school district board of directors as may be necessary for the day-to-day governance of the school district.

(B) The state board may designate the authority granted under this subdivision  (a)(12) to the Commissioner of Education.

(b) The state board may require information available on a department student information management system or require the same information twice if the state board can demonstrate a compelling need and can demonstrate there is not a more expeditious manner of getting the information.

(c) The state board may organize and, from time to time, change and alter the department into branches or sections as may be found necessary and desirable by the commissioner to perform all proper functions and to render maximum service relating to the operation and improvement of the general education programs of the state.

(d) The state board shall adopt rules and regulations for its meetings and proceedings as it deems advisable.

WEST'S ARKANSAS CODE ANNOTATED   TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS    SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS (CHAPTERS 6 TO 24)   CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS    SUBCHAPTER 14--TASK FORCE ON RACIAL PROFILING   § 12-12-1405. Racial profiling hotline


§ 12-12-1405. Racial profiling hotline

(a)(1) The Attorney General shall establish and publish procedures to receive complaints concerning racial profiling.

(2) The procedures shall include the operation of a toll-free hotline and may include procedures to receive written complaints through the mail, email, or facsimile.

(b) The Attorney General shall maintain statewide statistics on complaints received concerning racial profiling.

(c) The Attorney General annually shall report statewide statistics on complaints concerning racial profiling received under this section during a year no later than October 1 of the next year to the Legislative Council and the Task Force on Racial Profiling.

(d) If the Attorney General suspects that a violation of law has occurred, the Attorney General shall refer the matter to the appropriate prosecuting attorney or other appropriate legal authority.


CALIFORNIA

West's Ann.Cal.Penal Code § 13519.4   WEST'S ANNOTATED CALIFORNIA CODES   PENAL CODE   PART 4. PREVENTION OF CRIMES AND APPREHENSION OF CRIMINALS   TITLE 4. STANDARDS AND TRAINING OF LOCAL LAW ENFORCEMENT OFFICERS   CHAPTER 1. COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING   ARTICLE 2. FIELD SERVICES AND STANDARDS FOR RECRUITMENT AND TRAINING   § 13519.4. Racial and cultural diversity training; racial profiling


§ 13519.4. Racial and cultural diversity training; racial profiling

(a) The commission shall develop and disseminate guidelines and training for all law enforcement officers in California as described in subdivision (a) of Section 13510 and who adhere to the standards approved by the commission, on the racial and cultural differences among the residents of this state. The course or courses of instruction and the guidelines shall stress understanding and respect for racial and cultural differences, and development of effective, noncombative methods of carrying out law enforcement duties in a racially and culturally diverse environment.

(b) The course of basic training for law enforcement officers shall include adequate instruction on racial and cultural diversity in order to foster mutual respect and cooperation between law enforcement and members of all racial and cultural groups. In developing the training, the commission shall consult with appropriate groups and individuals having an interest and expertise in the field of cultural awareness and diversity.

(c) For the purposes of this section the following shall apply:

(1) "Disability," "gender," "nationality," "religion," and "sexual orientation" have the same meaning as in Section 422.55.

(2) "Culturally diverse" and "cultural diversity" include, but are not limited to, disability, gender, nationality, religion, and sexual orientation issues.

(3) "Racial" has the same meaning as "race or ethnicity" in Section 422.55.

(d) The Legislature finds and declares as follows:
                                            
(1) Racial profiling is a practice that presents a great danger to the fundamental principles of a democratic society. It is abhorrent and cannot be tolerated.

(2) Motorists who have been stopped by the police for no reason other than the color of their skin or their apparent nationality or ethnicity are the victims of discriminatory practices.

(3) It is the intent of the Legislature in enacting the changes to Section 13519.4 of the Penal Code made by the act that added this subdivision that more than additional training is required to address the pernicious practice of racial profiling and that enactment of this bill is in no way dispositive of the issue of how the state should deal with racial profiling.

(4) The working men and women in California law enforcement risk their lives every day. The people of California greatly appreciate the hard work and dedication of law enforcement officers in protecting public safety. The good name of these officers should not be tarnished by the actions of those few who commit discriminatory practices.

(e) "Racial profiling," for purposes of this section, is the practice of detaining a suspect based on a broad set of criteria which casts suspicion on an entire class of people without any individualized suspicion of the particular person being stopped.

(f) A law enforcement officer shall not engage in racial profiling.

(g) Every law enforcement officer in this state shall participate in expanded training as prescribed and certified by the Commission on Peace Officers Standards and Training.

(h) The curriculum shall utilize the Tools for Tolerance for Law Enforcement Professionals framework and shall include and examine the patterns, practices, and protocols that make up racial profiling. This training shall prescribe patterns, practices, and protocols that prevent racial profiling. In developing the training, the commission shall consult with appropriate groups and individuals having an interest and expertise in the field of racial profiling. The course of instruction shall include, but not be limited to, adequate consideration of each of the following subjects:

(1) Identification of key indices and perspectives that make up cultural differences among residents in a local community.

(2) Negative impact of biases, prejudices, and stereotyping on effective law enforcement, including examination of how historical perceptions of discriminatory enforcement practices have harmed police-community relations.

(3) The history and the role of the civil rights movement and struggles and their impact on law enforcement.

(4) Specific obligations of officers in preventing, reporting, and responding to discriminatory or biased practices by fellow officers.

(5) Perspectives of diverse, local constituency groups and experts on particular cultural and police-community relations issues in a local area.

(i) Once the initial basic training is completed, each law enforcement officer in California as described in subdivision (a) of Section 13510 who adheres to the standards approved by the commission shall be required to complete a refresher course every five years thereafter, or on a more frequent basis if deemed necessary, in order to keep current with changing racial and cultural trends.

(j) The Legislative Analyst shall conduct a study of the data being voluntarily collected by those jurisdictions that have instituted a program of data collection with regard to racial profiling, including, but not limited to, the California Highway Patrol, the City of San Jose, and the City of San Diego, both to ascertain the incidence of racial profiling and whether data collection serves to address and prevent such practices, as well as to assess the value and efficacy of the training herein prescribed with respect to preventing local profiling. The Legislative Analyst may prescribe the manner in which the data is to be submitted and may request that police agencies collecting such data submit it in the requested manner. The Legislative Analyst shall provide to the Legislature a report and recommendations with regard to racial profiling by July 1, 2002.


Connecticut


C.G.S.A. § 54-1l   CONNECTICUT GENERAL STATUTES ANNOTATED   TITLE 54. CRIMINAL PROCEDURE    CHAPTER 959. COURT JURISDICTION AND POWER    PART I. ARREST AND ARRAIGNMENT    § 54-1l. Short title: Alvin W. Penn Racial Profiling Prohibition Act


(a) This section and section 54-1m shall be known as the "Alvin W. Penn Racial Profiling Prohibition Act".

(b) For the purposes of this section, "racial profiling" means the detention, interdiction or other disparate treatment of an individual solely on the basis of the racial or ethnic status of such individual.

(c) No member of the Division of State Police within the Department of Emergency Services and Public Protection, a municipal police department or any other law enforcement agency shall engage in racial profiling.  The detention of an individual based on any noncriminal factor or combination of noncriminal factors is inconsistent with this policy.

(d) The race or ethnicity of an individual shall not be the sole factor in determining the existence of probable cause to place in custody or arrest an individual or in constituting a reasonable and articulable suspicion that an offense has been or is being committed so as to justify the detention of an individual or the investigatory stop of a motor vehicle.



Florida

West's F.S.A. § 316.614   WEST'S FLORIDA STATUTES ANNOTATED   TITLE XXIII. MOTOR VEHICLES (CHAPTERS 316-325)    CHAPTER 316. STATE UNIFORM TRAFFIC CONTROL    316.614. Safety belt usage


(1) This section may be cited as the "Florida Safety Belt Law."

(2) It is the policy of this state that enactment of this section is intended to be compatible with the continued support by the state for federal safety standards requiring automatic crash protection, and the enactment of this section should not be used in any manner to rescind or delay the implementation of the federal automatic crash protection system requirements of Federal Motor Safety Standard 208 as set forth in S4.1.2.1 thereof, as entered on July 17, 1984, for new cars.

(3) As used in this section:

(a) "Motor vehicle" means a motor vehicle as defined in s. 316.003 which is operated on the roadways, streets, and highways of this state. The term does not include:

1. A school bus.

2. A bus used for the transportation of persons for compensation.

3. A farm tractor or implement of husbandry.

4. A truck having a gross vehicle weight rating of more than 26,000 pounds.

5. A motorcycle, moped, or bicycle.

(b) "Safety belt" means a seat belt assembly that meets the requirements established under Federal Motor Vehicle Safety Standard No. 208, 49 C.F.R. s. 571.208.

(c) "Restrained by a safety belt" means being restricted by an appropriately adjusted safety belt which is properly fastened at all times when a motor vehicle is in motion.

(4) It is unlawful for any person:

(a) To operate a motor vehicle in this state unless each passenger and the operator of the vehicle under the age of 18 years are restrained by a safety belt or by a child restraint device pursuant to s. 316.613, if applicable; or

(b) To operate a motor vehicle in this state unless the person is restrained by a safety belt.

(5) It is unlawful for any person 18 years of age or older to be a passenger in the front seat of a motor vehicle unless such person is restrained by a safety belt when the vehicle is in motion.

(6)(a) Neither a person who is certified by a physician as having a medical condition that causes the use of a safety belt to be inappropriate or dangerous nor an employee of a newspaper home delivery service while in the course of his or her employment delivering newspapers on home delivery routes is required to be restrained by a safety belt.

(b) An employee of a solid waste or recyclable collection service is not required to be restrained by a safety belt while in the course of employment collecting solid waste or recyclables on designated routes.

(c) The requirements of this section do not apply to the living quarters of a recreational vehicle or a space within a truck body primarily intended for merchandise or property.

(d) The requirements of this section do not apply to motor vehicles that are not required to be equipped with safety belts under federal law.

(7) It is the intent of the Legislature that all state, county, and local law enforcement agencies, safety councils, and public school systems, in recognition of the fatalities and injuries attributed to unrestrained occupancy of motor vehicles, shall conduct a continuing safety and public awareness campaign as to the magnitude of the problem and adopt programs designed to encourage compliance with the safety belt usage requirements of this section.

(8) Any person who violates the provisions of this section commits a nonmoving violation, punishable as provided in chapter 318.

(9) By January 1, 2006, each law enforcement agency in this state shall adopt departmental policies to prohibit the practice of racial profiling. When a law enforcement officer issues a citation for a violation of this section, the law enforcement officer must record the race and ethnicity of the violator. All law enforcement agencies must maintain such information and forward the information to the department in a form and manner determined by the department. The department shall collect this information by jurisdiction and annually report the data to the Governor, the President of the Senate, and the Speaker of the House of Representatives. The report must show separate statewide totals for the state's county sheriffs and municipal law enforcement agencies, state law enforcement agencies, and state university law enforcement agencies.

(10) A violation of the provisions of this section shall not constitute negligence per se, nor shall such violation be used as prima facie evidence of negligence or be considered in mitigation of damages, but such violation may be considered as evidence of comparative negligence, in any civil action.


Illinois

20 ILCS 2715/1   WEST'S SMITH-HURD ILLINOIS COMPILED STATUTES ANNOTATED   CHAPTER 20. EXECUTIVE BRANCH   DEPARTMENT OF TRANSPORTATION   ACT 2715. RACIAL PROFILING PREVENTION AND DATA OVERSIGHT ACT   2715/1. Short title

§ 1.  Short title.  This Act may be cited as the Racial Profiling Prevention and Data Oversight Act.


20 ILCS 2715/10   WEST'S SMITH-HURD ILLINOIS COMPILED STATUTES ANNOTATED   CHAPTER 20. EXECUTIVE BRANCH   DEPARTMENT OF TRANSPORTATION   ACT 2715. RACIAL PROFILING PREVENTION AND DATA OVERSIGHT ACT   2715/10. Definitions


(a) "Oversight Board" means the Racial Profiling Prevention and Data Oversight Board established under this Act.

(b) "Department" means the Illinois Department of Transportation.

(c) "Traffic Stop Statistical Study Act" means Section 11-212 of the Illinois Vehicle Code.

20 ILCS 2715/15   WEST'S SMITH-HURD ILLINOIS COMPILED STATUTES ANNOTATED   CHAPTER 20. EXECUTIVE BRANCH   DEPARTMENT OF TRANSPORTATION   ACT 2715. RACIAL PROFILING PREVENTION AND DATA OVERSIGHT ACT   2715/15. Oversight Board


(a) There is created within the Department a Racial Profiling Prevention and Data Oversight Board, consisting of 15 members, which shall independently exercise its powers, duties, and responsibilities.  The Board shall have the authority to allow additional participation from various groups that the Board deems necessary for additional input.

(b) The membership of the Oversight Board shall consist of:

(1) 4 legislators appointed by the General Assembly leadership equally apportioned between the 2 houses and political parties;

(2) the Attorney General or his or her designee;

(3) the Secretary of the Illinois Department of Transportation or his or her designee;

(4) the Director of the Illinois State Police or his or her designee;

(5) 3 members of county or city law enforcement agencies, representing jurisdictions of varied size and geography, appointed by the Governor;

(6) 4 members of community organizations representing minority interests, appointed by the Governor;  and

(7) one member of the Illinois academic community with specific expertise in both statistical analysis and law enforcement, appointed by the Governor.

(c) All members shall serve 2 years and until their successors are appointed.  Members may be reappointed for an unlimited number of terms.  The Oversight Board shall meet at least quarterly.


20 ILCS 2715/20   WEST'S SMITH-HURD ILLINOIS COMPILED STATUTES ANNOTATED   CHAPTER 20. EXECUTIVE BRANCH   DEPARTMENT OF TRANSPORTATION   ACT 2715. RACIAL PROFILING PREVENTION AND DATA OVERSIGHT ACT   2715/20. Chairpersons


§ 20.  Chairpersons.  From the membership of the Board, the Governor shall designate the chair and vice chair, who shall serve at the discretion of the Governor.  Chairpersons shall serve in that capacity for a term not to exceed 2 years
20 ILCS 2715/25   WEST'S SMITH-HURD ILLINOIS COMPILED STATUTES ANNOTATED   CHAPTER 20. EXECUTIVE BRANCH   DEPARTMENT OF TRANSPORTATION   ACT 2715. RACIAL PROFILING PREVENTION AND DATA OVERSIGHT ACT   2715/25. Funding


§ 25.  Funding.  Funding to implement this Act shall be appropriated by the General Assembly to the Department.

20 ILCS 2715/30   WEST'S SMITH-HURD ILLINOIS COMPILED STATUTES ANNOTATED   CHAPTER 20. EXECUTIVE BRANCH   DEPARTMENT OF TRANSPORTATION   ACT 2715. RACIAL PROFILING PREVENTION AND DATA OVERSIGHT ACT   2715/30. Compensation


§ 30.  Compensation.  Members of the Oversight Board shall serve without compensation.  Members may be reimbursed by the Department for reasonable expenses incurred in connection with their duties.

20 ILCS 2715/35   WEST'S SMITH-HURD ILLINOIS COMPILED STATUTES ANNOTATED   CHAPTER 20. EXECUTIVE BRANCH   DEPARTMENT OF TRANSPORTATION   ACT 2715. RACIAL PROFILING PREVENTION AND DATA OVERSIGHT ACT   2715/35. Staffing


§ 35.  Staffing.  The Secretary of the Department shall employ or assign, in accordance with the provisions of the Illinois Personnel Code, the administrative, professional, clerical, and other personnel required and may organize his or her staff as may be appropriate to effectuate the purposes, powers, duties, and responsibilities contained in this Act.


20 ILCS 2715/40   WEST'S SMITH-HURD ILLINOIS COMPILED STATUTES ANNOTATED   CHAPTER 20. EXECUTIVE BRANCH   DEPARTMENT OF TRANSPORTATION   ACT 2715. RACIAL PROFILING PREVENTION AND DATA OVERSIGHT ACT   2715/40. Powers and Duties of the Oversight Board


(a) To operate purely as an advisory body.  Any changes to rules and policy promoted by the Oversight Board are only recommendations, which may be reported to the Governor, the Secretary of State, and the General Assembly or to appropriate law enforcement agencies.

(b) To coordinate the development, adoption, and implementation of plans and strategies to eliminate racial profiling in Illinois and to coordinate the development, adoption, and implementation of plans and strategies to create public awareness programs in minority communities, designed to educate individuals regarding racial profiling and their civil rights.

(c) To promulgate model policies for police agencies that are designed to protect individuals' civil rights related to police traffic enforcement and to recommend to law enforcement agencies model rules as may be necessary to effectuate training regarding data collection and mechanisms to engage those agencies who willfully fail to comply with the requirements of the Traffic Stop Statistical Study Act.

(d) To study and to issue reports and recommendations to the Governor, the Secretary of State, and the General Assembly regarding the following subjects by the following dates:

(1) no later than July 1, 2008, regarding strategies to improve the benchmark data available to identify the race, ethnicity, and geographical residence of the Illinois driving population, beginning on August 1, 2008, with the collection of race and ethnicity data on new and renewal applicants for driver's licenses.  This data shall be available for statistical benchmark comparison purposes only;

(2) no later than January 1, 2009, regarding data collection requirements with respect to additional race and ethnicity categories to be added to the traffic stop statistical study in order to improve data collection among unreported and under-reported minority populations.  The Board shall study, and recommend if required, at a minimum, data collection strategies, categories, and benchmarks for persons of Middle-Eastern origin.  The Board shall also study stops lasting over 30 minutes and define categorical reasons for the extended stops;

(3) no later than July 1, 2009, regarding technological solutions to aid in the identification, elimination, and prevention of racial profiling and to recommend funding sources for statewide implementation of the technological solutions;

(4) no later than January 1, 2010, regarding whether Illinois should continue the mandatory data collection required under this Act, as well as the best practices of data collection as related to the identification, elimination, and prevention of bias-based policing;  and

(5) on or before April 1 of each year, regarding the Oversight Board's activities during the previous fiscal year.

20 ILCS 2715/5   WEST'S SMITH-HURD ILLINOIS COMPILED STATUTES ANNOTATED   CHAPTER 20. EXECUTIVE BRANCH   DEPARTMENT OF TRANSPORTATION   ACT 2715. RACIAL PROFILING PREVENTION AND DATA OVERSIGHT ACT   2715/5. Legislative purpose


§ 5.  Legislative purpose.  The purpose of this Act is to identify and address bias-based policing through the monitoring, review, and improvement of the collection of racial profiling information collected under the Illinois Traffic Stop Statistical Study.  Through this data collection and review, a more accurate understanding of this problem can be obtained, thus allowing the concerns of the motoring public to be better addressed, resources such as specialized training to be provided, the honest efforts of Illinois' law enforcement professionals to be demonstrated, and the civil rights of all Illinois citizens to be protected.


20 ILCS 2715/99   WEST'S SMITH-HURD ILLINOIS COMPILED STATUTES ANNOTATED   CHAPTER 20. EXECUTIVE BRANCH   DEPARTMENT OF TRANSPORTATION   ACT 2715. RACIAL PROFILING PREVENTION AND DATA OVERSIGHT ACT   2715/99. Effective date


§ 99.  Effective date.  This Act takes effect January 1, 2007, except that the Racial Profiling Prevention and Data Oversight Act takes effect January 1, 2008.
625 ILCS 5/11-212   WEST'S SMITH-HURD ILLINOIS COMPILED STATUTES ANNOTATED   CHAPTER 625. VEHICLES   ACT 5. ILLINOIS VEHICLE CODE   CHAPTER 11. RULES OF THE ROAD   ARTICLE II. OBEDIENCE TO AND EFFECT OF TRAFFIC LAWS   5/11-212. Traffic stop statistical study


(a) Whenever a State or local law enforcement officer issues a uniform traffic citation or warning citation for an alleged violation of the Illinois Vehicle Code, [FN1] he or she shall record at least the following:

(1) the name, address, gender, and the officer's subjective determination of the race of the person stopped; the person's race shall be selected from the following list: American Indian or Alaska Native, Asian, Black or African American, Hispanic or Latino, Native Hawaiian or Other Pacific Islander, or White;

(2) the alleged traffic violation that led to the stop of the motorist;

(3) the make and year of the vehicle stopped;

(4) the date and time of the stop, beginning when the vehicle was stopped and ending when the driver is free to leave or taken into physical custody;

(5) the location of the traffic stop;

(5.5) whether or not a consent search contemporaneous to the stop was requested of the vehicle, driver, passenger, or passengers; and, if so, whether consent was given or denied;

(6) whether or not a search contemporaneous to the stop was conducted of the vehicle, driver, passenger, or passengers; and, if so, whether it was with consent or by other means;

(6.5) whether or not contraband was found during a search; and, if so, the type and amount of contraband seized; and

(7) the name and badge number of the issuing officer.

(b) Whenever a State or local law enforcement officer stops a motorist for an alleged violation of the Illinois Vehicle Code and does not issue a uniform traffic citation or warning citation for an alleged violation of the Illinois Vehicle Code, he or she shall complete a uniform stop card, which includes field contact cards, or any other existing form currently used by law enforcement containing information required pursuant to this Act, that records at least the following:

(1) the name, address, gender, and the officer's subjective determination of the race of the person stopped; the person's race shall be selected from the following list: American Indian or Alaska Native, Asian, Black or African American, Hispanic or Latino, Native Hawaiian or Other Pacific Islander, or White;

(2) the reason that led to the stop of the motorist;

(3) the make and year of the vehicle stopped;

(4) the date and time of the stop, beginning when the vehicle was stopped and ending when the driver is free to leave or taken into physical custody;

(5) the location of the traffic stop;

(5.5) whether or not a consent search contemporaneous to the stop was requested of the vehicle, driver, passenger, or passengers; and, if so, whether consent was given or denied;

(6) whether or not a search contemporaneous to the stop was conducted of the vehicle, driver, passenger, or passengers; and, if so, whether it was with consent or by other means;

(6.5) whether or not contraband was found during a search; and, if so, the type and amount of contraband seized; and


(7) the name and badge number of the issuing officer.

(c) The Illinois Department of Transportation shall provide a standardized law enforcement data compilation form on its website.

(d) Every law enforcement agency shall, by March 1 with regard to data collected during July through December of the previous calendar year and by August 1 with regard to data collected during January through June of the current calendar year, compile the data described in subsections (a) and (b) on the standardized law enforcement data compilation form provided by the Illinois Department of Transportation and transmit the data to the Department.

(e) The Illinois Department of Transportation shall analyze the data provided by law enforcement agencies required by this Section and submit a report of the previous year's findings to the Governor, the General Assembly, the Racial Profiling Prevention and Data Oversight Board, and each law enforcement agency no later than July 1 of each year. The Illinois Department of Transportation may contract with an outside entity for the analysis of the data provided. In analyzing the data collected under this Section, the analyzing entity shall scrutinize the data for evidence of statistically significant aberrations. The following list, which is illustrative, and not exclusive, contains examples of areas in which statistically significant aberrations may be found:

(1) The percentage of minority drivers or passengers being stopped in a given area is substantially higher than the proportion of the overall population in or traveling through the area that the minority constitutes.

(2) A substantial number of false stops including stops not resulting in the issuance of a traffic ticket or the making of an arrest.

(3) A disparity between the proportion of citations issued to minorities and proportion of minorities in the population.

(4) A disparity among the officers of the same law enforcement agency with regard to the number of minority drivers or passengers being stopped in a given area.

(5) A disparity between the frequency of searches performed on minority drivers and the frequency of searches performed on non-minority drivers.

(f) Any law enforcement officer identification information or driver identification information that is compiled by any law enforcement agency or the Illinois Department of Transportation pursuant to this Act for the purposes of fulfilling the requirements of this Section shall be confidential and exempt from public inspection and copying, as provided under Section 7 of the Freedom of Information Act, [FN2] and the information shall not be transmitted to anyone except as needed to comply with this Section. This Section shall not exempt those materials that, prior to the effective date of this amendatory Act of the 93rd General Assembly, were available under the Freedom of Information Act. [FN3] This subsection (f) shall not preclude law enforcement agencies from reviewing data to perform internal reviews.

(g) Funding to implement this Section shall come from federal highway safety funds available to Illinois, as directed by the Governor.

(h) The Illinois Department of Transportation, in consultation with law enforcement agencies, officials, and organizations, including Illinois chiefs of police, the Department of State Police, the Illinois Sheriffs Association, and the Chicago Police Department, and community groups and other experts, shall undertake a study to determine the best use of technology to collect, compile, and analyze the traffic stop statistical study data required by this Section. The Department shall report its findings and recommendations to the Governor and the General Assembly by March 1, 2004.

(h-5) For purposes of this Section:

(1) "American Indian or Alaska Native" means a person having origins in any of the original peoples of North and South America, including Central America, and who maintains tribal affiliation or community attachment.

(2) "Asian" means a person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent, including, but not limited to, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam.

(3) "Black or African American" means a person having origins in any of the black racial groups of Africa. Terms such as "Haitian" or "Negro" can be used in addition to "Black or African American".

(4) "Hispanic or Latino" means a person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin, regardless of race.

(5) "Native Hawaiian or Other Pacific Islander" means a person having origins in any of the original peoples of Hawaii, Guam, Samoa, or other Pacific Islands.

(6) "White" means a person having origins in any of the original peoples of Europe, the Middle East, or North Africa.

(i) This Section is repealed on July 1, 2015.

 

625 ILCS 5/11-212   WEST'S SMITH-HURD ILLINOIS COMPILED STATUTES ANNOTATED   CHAPTER 625. VEHICLES   ACT 5. ILLINOIS VEHICLE CODE   CHAPTER 11. RULES OF THE ROAD   ARTICLE II. OBEDIENCE TO AND EFFECT OF TRAFFIC LAWS   5/11-212. Traffic stop statistical study


(a) Whenever a State or local law enforcement officer issues a uniform traffic citation or warning citation for an alleged violation of the Illinois Vehicle Code, [FN1] he or she shall record at least the following:

(1) the name, address, gender, and the officer's subjective determination of the race of the person stopped; the person's race shall be selected from the following list: American Indian or Alaska Native, Asian, Black or African American, Hispanic or Latino, Native Hawaiian or Other Pacific Islander, or White;

(2) the alleged traffic violation that led to the stop of the motorist;

(3) the make and year of the vehicle stopped;

(4) the date and time of the stop, beginning when the vehicle was stopped and ending when the driver is free to leave or taken into physical custody;

(5) the location of the traffic stop;

(5.5) whether or not a consent search contemporaneous to the stop was requested of the vehicle, driver, passenger, or passengers; and, if so, whether consent was given or denied;

(6) whether or not a search contemporaneous to the stop was conducted of the vehicle, driver, passenger, or passengers; and, if so, whether it was with consent or by other means;

(6.2) whether or not a police dog performed a sniff of the vehicle; and, if so, whether or not the dog alerted to the presence of contraband; and, if so, whether or not an officer searched the vehicle; and, if so, whether or not contraband was discovered; and, if so, the type and amount of contraband;

(6.5) whether or not contraband was found during a search; and, if so, the type and amount of contraband seized; and

(7) the name and badge number of the issuing officer.

(b) Whenever a State or local law enforcement officer stops a motorist for an alleged violation of the Illinois Vehicle Code and does not issue a uniform traffic citation or warning citation for an alleged violation of the Illinois Vehicle Code, he or she shall complete a uniform stop card, which includes field contact cards, or any other existing form currently used by law enforcement containing information required pursuant to this Act, that records at least the following:

(1) the name, address, gender, and the officer's subjective determination of the race of the person stopped; the person's race shall be selected from the following list: American Indian or Alaska Native, Asian, Black or African American, Hispanic or Latino, Native Hawaiian or Other Pacific Islander, or White;

(2) the reason that led to the stop of the motorist;

(3) the make and year of the vehicle stopped;

(4) the date and time of the stop, beginning when the vehicle was stopped and ending when the driver is free to leave or taken into physical custody;

(5) the location of the traffic stop;

(5.5) whether or not a consent search contemporaneous to the stop was requested of the vehicle, driver, passenger, or passengers; and, if so, whether consent was given or denied;

(6) whether or not a search contemporaneous to the stop was conducted of the vehicle, driver, passenger, or passengers; and, if so, whether it was with consent or by other means;

(6.2) whether or not a police dog performed a sniff of the vehicle; and, if so, whether or not the dog alerted to the presence of contraband; and, if so, whether or not an officer searched the vehicle; and, if so, whether or not contraband was discovered; and, if so, the type and amount of contraband;

(6.5) whether or not contraband was found during a search; and, if so, the type and amount of contraband seized; and

(7) the name and badge number of the issuing officer.

(c) The Illinois Department of Transportation shall provide a standardized law enforcement data compilation form on its website.

(d) Every law enforcement agency shall, by March 1 with regard to data collected during July through December of the previous calendar year and by August 1 with regard to data collected during January through June of the current calendar year, compile the data described in subsections (a) and (b) on the standardized law enforcement data compilation form provided by the Illinois Department of Transportation and transmit the data to the Department.

(e) The Illinois Department of Transportation shall analyze the data provided by law enforcement agencies required by this Section and submit a report of the previous year's findings to the Governor, the General Assembly, the Racial Profiling Prevention and Data Oversight Board, and each law enforcement agency no later than July 1 of each year. The Illinois Department of Transportation may contract with an outside entity for the analysis of the data provided. In analyzing the data collected under this Section, the analyzing entity shall scrutinize the data for evidence of statistically significant aberrations. The following list, which is illustrative, and not exclusive, contains examples of areas in which statistically significant aberrations may be found:

(1) The percentage of minority drivers or passengers being stopped in a given area is substantially higher than the proportion of the overall population in or traveling through the area that the minority constitutes.

(2) A substantial number of false stops including stops not resulting in the issuance of a traffic ticket or the making of an arrest.

(3) A disparity between the proportion of citations issued to minorities and proportion of minorities in the population.

(4) A disparity among the officers of the same law enforcement agency with regard to the number of minority drivers or passengers being stopped in a given area.

(5) A disparity between the frequency of searches performed on minority drivers and the frequency of searches performed on non-minority drivers.

(f) Any law enforcement officer identification information or driver identification information that is compiled by any law enforcement agency or the Illinois Department of Transportation pursuant to this Act for the purposes of fulfilling the requirements of this Section shall be confidential and exempt from public inspection and copying, as provided under Section 7 of the Freedom of Information Act, [FN2] and the information shall not be transmitted to anyone except as needed to comply with this Section. This Section shall not exempt those materials that, prior to the effective date of this amendatory Act of the 93rd General Assembly, were available under the Freedom of Information Act. [FN3] This subsection (f) shall not preclude law enforcement agencies from reviewing data to perform internal reviews.

(g) Funding to implement this Section shall come from federal highway safety funds available to Illinois, as directed by the Governor.

(h) The Illinois Department of Transportation, in consultation with law enforcement agencies, officials, and organizations, including Illinois chiefs of police, the Department of State Police, the Illinois Sheriffs Association, and the Chicago Police Department, and community groups and other experts, shall undertake a study to determine the best use of technology to collect, compile, and analyze the traffic stop statistical study data required by this Section. The Department shall report its findings and recommendations to the Governor and the General Assembly by March 1, 2004.

(h-5) For purposes of this Section:

(1) "American Indian or Alaska Native" means a person having origins in any of the original peoples of North and South America, including Central America, and who maintains tribal affiliation or community attachment.

(2) "Asian" means a person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent, including, but not limited to, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam.

(3) "Black or African American" means a person having origins in any of the black racial groups of Africa. Terms such as "Haitian" or "Negro" can be used in addition to "Black or African American".

(4) "Hispanic or Latino" means a person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin, regardless of race.

(5) "Native Hawaiian or Other Pacific Islander" means a person having origins in any of the original peoples of Hawaii, Guam, Samoa, or other Pacific Islands.

(6) "White" means a person having origins in any of the original peoples of Europe, the Middle East, or North Africa.

(i) This Section is repealed on July 1, 2015.



KANSAS

K.S.A. 22-4606   WEST'S KANSAS STATUTES ANNOTATED   CHAPTER 22. CRIMINAL PROCEDURE   ARTICLE 46. GENERAL PROVISIONS   22-4606. Racial and other profiling;  definitions


As used in this act:

(a) "Governmental unit" means the state, or any county, city or other political subdivision thereof, or any department, division, board or other agency of any of the foregoing, , except governmental unit shall not include the board of education of any school district employing school security officers.

(b) "Law enforcement agency" means the governmental unit employing the law enforcement officer.

(c) "Law enforcement officer" has the meaning ascribed thereto in K.S.A. 74- 5602, and amendments thereto, except law enforcement officer shall not include school security officers designated as school law enforcement officers pursuant to K.S.A. 72-8222, and amendments thereto.

(d) "Racial or other biased-based policing" means the unreasonable use of race, ethnicity, national origin, gender or religion by a law enforcement officer in deciding to initiate an enforcement action. It is not racial or other biased-based policing when race, ethnicity, national origin, gender or religion is used in combination with other identifying factors as part of a specific individual description to initiate an enforcement action.

(e) "Enforcement action" means any law enforcement act, as described in K.S.A. 22-4609, and amendments thereto, during a nonconsensual contact with an individual or individuals.

(f) "Collection of data" means that information collected by Kansas law enforcement officers after each traffic stop.

K.S.A. 22-4607   WEST'S KANSAS STATUTES ANNOTATED   CHAPTER 22. CRIMINAL PROCEDURE   ARTICLE 46. GENERAL PROVISIONS   22-4607. Expired July 1, 2011


Former 22-4607, relating to the purpose, membership and reports of and administrative support for the racial profiling task force, expired pursuant to its own terms on July 1, 2011 and was derived from Laws 2005, ch. 159, § 2;  Laws 2006, ch. 179, § 1;  Laws 2009, ch. 126, § 1.
K.S.A. 22-4608   WEST'S KANSAS STATUTES ANNOTATED   CHAPTER 22. CRIMINAL PROCEDURE   ARTICLE 46. GENERAL PROVISIONS   22-4608. Repealed by Laws 2011, ch. 94, § 7, eff. May 26, 2011


Repealed § 22-4608, making it unlawful for law enforcement to engage in racial profiling, was derived from Laws 2005, ch. 159, § 3.

See, now, 22-4609

K.S.A. 22-4610   WEST'S KANSAS STATUTES ANNOTATED   CHAPTER 22. CRIMINAL PROCEDURE   ARTICLE 46. GENERAL PROVISIONS   22-4610. Same;  policies preempting profiling, requirements;  annual reports of complaints


(a) All law enforcement agencies in this state shall adopt a detailed, written policy to preempt racial or other biased-based policing.  Each agency's policy shall include the definition of racial or other biased-based policing found in K.S.A. 22-4606, and amendments thereto.

(b) Policies adopted pursuant to this section shall be implemented by all Kansas law enforcement agencies within one year after the effective date of this act.  The policies and data collection procedures shall be available for public inspection during normal business hours.

(c) The policies adopted pursuant to this section shall include, but not be limited to, the following:

(1) A detailed written policy that prohibits racial or other biased-based policing and that clearly defines acts constituting racial or other biased-based policing using language that has been recommended by the attorney general.

(2)(A) The agency policies shall require annual racial or other biased-based policing training which shall include, but not be limited to, training relevant to racial or other biased-based policing.  Distance learning training technology shall be allowed for racial or other biased-based policing training.

(B) Law enforcement agencies may appoint an advisory body of not less than five persons composed of representatives of law enforcement, community leaders and educational leaders to recommend and review appropriate training curricula.

(3)(A) For law enforcement agencies of cities or counties that have exercised the option to establish community advisory boards pursuant to K.S.A. 22- 4611b, and amendments thereto, use of such community advisory boards which include participants who reflect the racial and ethnic community, to advise and assist in policy development, education and community outreach and communications related to racial or other biased-based policing by law enforcement officers and agencies.

(B) Community advisory boards shall receive training on fair and impartial policing and comprehensive plans for law enforcement agencies.

(4) Policies for discipline of law enforcement officers who engage in racial or other biased-based policing.

(5) A provision that, if the investigation of a complaint of racial or other biased-based policing reveals the officer was in direct violation of the law enforcement agency's written policies regarding racial or other biased-based policing, the employing law enforcement agency shall take appropriate action consistent with applicable laws, rules and regulations, resolutions, ordinances or policies, including demerits, suspension or removal of the officer from the agency.

(6) Provisions for community outreach and communications efforts to inform the public of the individual's right to file with the law enforcement agency or the office of the attorney general complaints regarding racial or other biased-based policing, which outreach and communications to the community shall include ongoing efforts to notify the public of the law enforcement agency's complaint process.

(7) Procedures for individuals to file complaints of racial or other biased-based policing with the agency, which, if appropriate, may provide for use of current procedures for addressing such complaints.

(d)(1) Each law enforcement agency shall compile an annual report for the period of July 1 to June 30 and shall submit the report on or before July 31 to the office of the attorney general for review.  Annual reports filed pursuant to this subsection shall be open public records and shall be posted on the official website of the attorney general.

(2) The annual report shall include:

(A) The number of racial or other biased-based policing complaints received;

(B) the date each racial or other biased-based policing complaint is filed;

(C) action taken in response to each racial or other biased-based policing complaint;

(D) the disposition of each racial or other biased-based policing complaint;

(E) the date each racial or other biased-based policing complaint is closed;

(F) whether or not all agency law enforcement officers not exempted by Kansas commission on peace officers' standards and training received the training required in subsection (c)(2)(A);

(G) whether the agency has a policy prohibiting racial or other biased-based policing;

(H) whether the agency policy mandates specific discipline for sustained complaints of racial or other biased-based policing;

(I) whether the agency has a community advisory board;  and

(J) whether the agency has a racial or other biased-based policing comprehensive plan or if it collects traffic or pedestrian stop data.

 

K.S.A. 22-4611   WEST'S KANSAS STATUTES ANNOTATED   CHAPTER 22. CRIMINAL PROCEDURE   ARTICLE 46. GENERAL PROVISIONS   22-4611. Same;  complaints, procedure;  civil action


(a) Any person who believes such person has been subjected to racial or other biased-based policing by a law enforcement officer or agency may file a complaint with the law enforcement agency. The complainant may also file a complaint with the office of the attorney general. The office of the attorney general shall review and, if necessary, investigate the complaint and may find there is insufficient evidence of racial or other biased-based policing or may forward the complaint for further review and possible action to the Kansas commission on peace officers' standards and training. The commission shall review and, if necessary, further investigate the complaint. The commission may take action on the officer's certification or other corrective action as allowed by its governing statutes and rules and regulations. The commission shall consult with the head of the law enforcement agency before taking final action regarding discipline of any law enforcement officer or other disposition of the complaint.

(b) Within 10 days of receiving a complaint, the office of the attorney general shall provide notification that such complaint has been filed to the accused officer and to the head of the accused officer's law enforcement agency, including a copy of all complaint documentation submitted by the complainant.

(c) Upon disposition of a complaint as provided for in subsection (a) the complainant shall have a civil cause of action in the district court against the law enforcement officer or law enforcement agency, or both, and shall be entitled to recover damages if it is determined by the court that such officer or agency engaged in racial or other biased-based policing. The court may allow the prevailing party reasonable attorney fees and court costs.

CREDIT(S)

Laws 2005, ch. 159, § 6; Laws 2011, ch. 94, § 4, eff. May 26, 2011.

HISTORICAL AND STATUTORY NOTES

Laws 2011, ch. 94, § 4, rewrote subsec. (a); inserted subsec. (b); redesignated former subsec. (b) as subsec. (c); in subsec. (c), in the first sentence, substituted "officer and agency" for "persons or agency"; and substituted "racial or other biased-based policing" for "racial profiling" throughout the section. Prior to amendment, subsec. (a) read:

"(a) Any person who believes such person has been subjected to racial profiling by a law enforcement officer or agency may file a complaint with the law enforcement agency. The complainant may also file a complaint with the Kansas human rights commission. The commission shall review and, if necessary, investigate the complaint. The commission's designee shall consult with the head of the law enforcement agency before making final recommendations regarding discipline of any law enforcement officer or other disposition of the complaint."



KENTUCKY

KRS § 15A.195   BALDWIN'S KENTUCKY REVISED STATUTES ANNOTATED   TITLE III. EXECUTIVE BRANCH   CHAPTER 15A. JUSTICE AND PUBLIC SAFETY CABINET   15A.195 Prohibition against racial profiling;  model policy;  local law enforcement agencies' policies


(1)  No state law enforcement agency or official shall stop, detain, or search any person when such action is solely motivated by consideration of race, color, or ethnicity, and the action would constitute a violation of the civil rights of the person.

(2)  The secretary of the Justice and Public Safety Cabinet, in consultation with the Kentucky Law Enforcement Council, the Attorney General, the Department of Criminal Justice Training, the secretary of the Transportation Cabinet, the Department of Kentucky State Police, the secretary of the Energy and Environment Cabinet, and the secretary of the Public Protection Cabinet, shall design and implement a model policy to prohibit racial profiling by state law enforcement agencies and officials.

(3)  The Kentucky Law Enforcement Council shall disseminate the established model policy against racial profiling to all sheriffs and local law enforcement officials, including local police departments, city councils, and fiscal courts.  All local law enforcement agencies and sheriffs' departments are urged to implement a written policy against racial profiling or adopt the model policy against racial profiling as established by the secretary of the Justice and Public Safety Cabinet within one hundred eighty (180) days of dissemination of the model policy.  A copy of any implemented or adopted policy against racial profiling shall be filed with the Kentucky Law Enforcement Council and the Kentucky Law Enforcement Foundation Program Fund.

(4)  (a) Each local law enforcement agency that participates in the Kentucky Law Enforcement Foundation Program fund under KRS 15.420 in the Commonwealth shall implement a policy banning the practice of racial profiling that meets or exceeds the requirements of the model policy disseminated under subsection (3) of this section.  The local law enforcement agency's policy shall be submitted by the local law enforcement agency to the secretary of the Justice and Public Safety Cabinet within one hundred eighty (180) days of dissemination of the model policy by the Kentucky Law Enforcement Council under subsection (3) of this section.  If the local law enforcement agency fails to submit its policy within one hundred eighty (180) days of dissemination of the model policy, or the secretary rejects a policy submitted within the one hundred and eighty (180) days, that agency shall not receive Kentucky Law Enforcement Foundation Program funding until the secretary approves a policy submitted by the agency.

(b) If the secretary of the Justice and Public Safety Cabinet approves a local law enforcement agency's policy, the agency shall not change its policy without obtaining approval of the new policy from the secretary of the Justice and Public Safety Cabinet.  If the agency changes its policy without obtaining the secretary's approval, the agency shall not receive Kentucky Law Enforcement Foundation Program funding until the secretary approves a policy submitted by the agency.

(5)  Each local law enforcement agency shall adopt an administrative action for officers found not in compliance with the agency's policy.  The administrative action shall be in accordance with other penalties enforced by the agency's administration for similar officer misconduct.



Louisana

LSA-R.S. 32:398.10   WEST'S LOUISIANA STATUTES ANNOTATED   LOUISIANA REVISED STATUTES   TITLE 32. MOTOR VEHICLES AND TRAFFIC REGULATION   CHAPTER 1. LOUISIANA HIGHWAY REGULATORY ACT   PART VII-B. REPORTING OF STATISTICS RELATED TO TRAFFIC CITATIONS   § 398.10. Collection and reporting of statistical information relating to traffic stops


A. All law enforcement officers defined as a peace officer in R.S. 40:2402 shall record and retain the following information:

(1) The number of persons stopped for traffic violations.

(2) Characteristics of race, gender, age, and state of residence of such persons, provided the identification of such characteristics shall be based on the observation and perception of the law enforcement officer responsible for reporting the stop and the information shall not be required to be provided by the person stopped.

(3) The nature of the alleged traffic violation that resulted in the stop.

(4) Whether a warrant or citation was issued, an arrest made, or a search conducted as a result of the stop.

(5) If a search was conducted, the type of search and the legal basis for that search, and whether contraband was discovered and property was seized.

(6) The number of persons stopped for violations of R.S. 32:300.5 and 300.6.

(7) The number of violations of R.S. 32:300.7.

(8) The number of violations of R.S. 32:289.1.

B. Any law enforcement officer who in good faith records traffic stop information pursuant to the requirements of this Section shall not be held civilly liable for the act of recording such information.

C. Law enforcement agencies shall submit the information required by Subsection A of this Section for all traffic citations issued by their law enforcement officers on a quarterly basis to the Department of Public Safety and Corrections.

D. The secretary of the Department of Public Safety and Corrections shall collect statistical information regarding the age, sex, race, and state of residence of motorists issued traffic citations by Louisiana law enforcement agents and shall provide a report of this information annually to the governor and members of the legislature on or before May first of every year.

E. The provisions of this Section shall be inapplicable to any law enforcement agency or department that has adopted a written policy against racial profiling.

F. Each state or local law enforcement agency or department covered by this Section shall require every law enforcement officer within their respective agency or department to view the video on racial profiling produced by the Department of Public Safety and Corrections, public safety services.



Massachusetts


M.G.L.A. 90C § 2   MASSACHUSETTS GENERAL LAWS ANNOTATED   PART I. ADMINISTRATION OF THE GOVERNMENT (CH. 1-182)   TITLE XIV. PUBLIC WAYS AND WORKS (CH. 81-92B)   CHAPTER 90C. PROCEDURE FOR MOTOR VEHICLE OFFENSES    § 2. Citations and citation books


Each police chief shall issue citation books to each permanent full-time police officer of his department whose duties may or will include traffic duty or traffic law enforcement, or directing or controlling traffic, and to such other officers as he at his discretion may determine.  Each police chief shall obtain a receipt on a form approved by the registrar from such officer to whom a citation book has been issued.  Each police chief shall also maintain citation books at police headquarters for the recording of automobile law violations by police officers to whom citation books have not been issued.

Each police chief appointed by the trustees of the commonwealth's state universities and community colleges under section 22 of chapter 15A shall certify to the registrar, on or before January first of each year, that:

(a) the police officers appointed by the trustees at the state university or community college have been issued a current first aid/CPR certificate;

(b)(i)(A) 51 per cent of such police officers have completed either the basic full-time recruit academy operated or certified by the municipal police training committee or the campus police academy operated by the Massachusetts state police, or

(B) 51 per cent of the police officers have completed a basic reserve/intermittent police officer training course approved by the municipal police training committee and have had at least 5 years experience issuing citations pursuant to this chapter;  and

(ii) the remaining 49 per cent of police officers have completed a minimum of a basic reserve/intermittent police officer training course approved by the municipal police training committee;

(c) such officers have completed annual in-service training of no less than 40 hours;

(d) such officers meet the same firearms qualification standards as set from time to time by the municipal police training committee if such officers have been authorized by the board of trustees of the state university or community college to carry firearms;

(e) the state university or community college police department submits uniform crime reports to the FBI;

(f) a memorandum of understanding has been entered into with the police chief of the municipality wherein the state university or community college is located outlining the policies and procedures for utilizing the municipality's booking and lock-up facilities, fingerprinting and breathalyzer equipment if the state university or community college police department does not provide booking and lock-up facilities, fingerprinting or breathalyzer equipment;  and

(g) the state university or community college police department has policies and procedures in place for use of force, pursuit, arrest, search and seizure, racial profiling and motor vehicle law enforcement.

Notwithstanding the previous paragraph, nothing in this section shall limit the authority granted to the police chiefs and police officers at the state universities and community colleges under said section 22 of said chapter 15A or section 18 of chapter 73.

Notwithstanding the provisions of any general or special law, other than a provision of this chapter, to the contrary, any police officer assigned to traffic enforcement duty shall, whether or not the offense occurs within his presence, record the occurrence of automobile law violations upon a citation, filling out the citation and each copy thereof as soon as possible and as completely as possible and indicating thereon for each such violation whether the citation shall constitute a written warning and, if not, whether the violation is a criminal offense for which an application for a complaint as provided by subsection B of section three shall be made, whether the violation is a civil motor vehicle infraction which may be disposed of in accordance with subsection (A) of said section three, or whether the violator has been arrested in accordance with section twenty-one of chapter ninety. Said police officer shall inform the violator of the violation and shall give a copy of the citation to the violator.  Such citation shall be signed by said police officer and by the violator, and whenever a citation is given to the violator in person that fact shall be so certified by the police officer.  The violator shall be requested to sign the citation in order to acknowledge that is  [FN1] has been received.  If a written warning is indicated, no further action need be taken by the violator.  No other form of notice, except as provided in this section, need be given to the violator.

A failure to give a copy of the citation to the violator at the time and place of the violation shall constitute a defense in any court proceeding for such violation, except where the violator could not have been stopped or where additional time was reasonably necessary to determine the nature of the violation or the identity of the violator, or where the court finds that a circumstance, not inconsistent with the purpose of this section to create a uniform, simplified and non-criminal method for disposing of automobile law violations, justifies the failure.  In such case the violation shall be recorded upon a citation as soon as possible after such violation and the citation shall be delivered to the violator or mailed to him at his residential or mail address or to the address appearing on his license or registration as appearing in registry of motor vehicles records.  The provisions of the first sentence of this paragraph shall not apply to any complaint or indictment charging a violation of section twenty-four, twenty-four G or twenty-four L of chapter ninety, providing such complaint or indictment relates to a violation of automobile law which resulted in one or more deaths.

At or before the completion of his tour of duty, a police officer to whom a citation book has been issued and who has recorded the occurrence of an automobile law violation upon a citation shall deliver to his police chief or to the person duly authorized by said chief all remaining copies of such citation, duly signed, except the police officer's copy which shall be retained by him.  If the police officer has directed that a written warning be issued, the part of the citation designated as the registry of motor vehicles record shall be forwarded forthwith by the police chief or person authorized by him to the registrar and shall be kept by the registrar in his main office.

If the police officer has not directed that a written warning be issued and has not arrested the violator, the police chief or a person duly authorized by him shall retain the police department copy of each citation, and not later than the end of the sixth business day after the date of the violation:

(a) in the case of citations alleging only one or more civil motor vehicle infractions, shall cause all remaining copies of such citations to be mailed or delivered to the registrar;  or

(b) in the case of citations alleging one or more criminal automobile law violations, shall cause all remaining copies of such citations to be delivered to the clerk-magistrate of the district court for the judicial district where the violation occurred.  Failure to comply with the provisions of this paragraph shall not constitute a defense to any complaint or indictment charging a violation of section twenty-four, twenty-four G or twenty-four L of chapter ninety if such violation resulted in one or more deaths. Each clerk-magistrate shall maintain a record in the form prescribed by the chief justice of the district court department of such citations and shall notify the registrar of the disposition of such citations in accordance with the provisions of section twenty-seven of said chapter ninety.

If a citation is spoiled, mutilated or voided, it shall be endorsed with a full explanation thereof by the police officer voiding such citation, and shall be returned to the registrar forthwith and shall be duly accounted for upon the audit sheet for the citation book from which said citation was removed.

Massachusetts General Laws Annotated Currentness

Part I. Administration of the Government (Ch. 1-182)
 Title XII. Education (Ch. 69-78A)
 Chapter 69. Powers and Duties of the Department of Elementary and Secondary Education (Refs & Annos)

(a) The department of education, hereinafter referred to as the department, shall establish a grant program, subject to appropriation, to be known as the alternative education grant program for the purpose of providing grants to assist school districts and Horace Mann and commonwealth charter schools with the development and establishment of alternative education programs and services to students suspended or expelled from school.  The grants shall support the development of alternative education programs which would:  (1) allow school districts to coordinate efforts to establish interdistrict regional alternative education collaboratives to provide educational services to suspended or expelled students;  or (2) establish a district based alternative education program for those students.  The grants may also be used to encourage the use of technology in alternative education programs.  The grants shall also encourage voluntary expansion of existing alternative education programs in the commonwealth, and shall be used to provide alternative education programs for students who are at risk of educational failure due to truancy, or dropping out of school.   Grants may also be used to assist in developing programs that provide a range of approaches to address behavior issues, such as behavior specialists, in-school suspension rooms and crisis centers, in addition to out-of-school alternative settings.

Programs designed under the grants shall be developed at the middle and high school levels and shall afford students the opportunity to earn a high school diploma in accordance with section 1D, and to be taught to the same academic standards and curriculum frameworks established for all students in accordance with sections 1D and 1E.  The programs shall make use of existing resources in school districts, educational collaboratives, community colleges, and other agencies, service providers, and organizations.  Programs shall be designed as placements that, at a minimum, educate students to the same academic standards and curriculum frameworks as taught to all students, address behavioral problems, utilize small class size, address individual needs and learning styles, provide engaging instruction and a supportive environment, and, where appropriate, utilize flexible scheduling.  The programs shall also provide a comprehensive array of social services to support a student's remediation of issues that cause school failure, excessive absenteeism, truancy and school dropout.  Grant recipients shall develop remediation plans for students that address both academic and behavioral issues.  Grants may also be made available for in-school regular education programs that include self-improvement, behavior management and life skills training to help provide students with tools to better manage their lives and attitudes, to support programs that use family-based approaches, and to assist students and teachers during the transition of students back into regular education classrooms.

A grant awarded pursuant to this subsection, shall require that recipients undertake ongoing program evaluations that document the effectiveness of the program in helping students to achieve academically to the same academic standards and curriculum frameworks required for all students, to develop self-management skills, and to reintegrate and remain in regular education classrooms.  In awarding grants, priority shall be given to programs that employ interventions that have been empirically validated.

The department shall establish guidelines governing the alternative education grant program.  The guidelines shall include, but not be limited to, a requirement that when a student is transferred to an alternative education program a representative of the school district shall meet with the student and the student's parents or legal guardian to develop an agreement that specifies the responsibilities of the school, the student and the student's parents or legal guardian.  The agreement shall, at a minimum, include:

(1) a remediation plan to address both academic and behavioral issues;

(2) a plan for frequent evaluations and assessments of the student's adjustment, and academic achievement and progress;

(3) a requirement that the parents or legal guardian of the student attend specified meetings or conferences with teachers, or utilize such other means of communication as determined necessary to facilitate communication, to review and assist in the student's progress;

(4) a timetable for reintegrating the student into a regular education classroom;

(5) the student's and the parents' or legal guardian's acknowledgement that they understand and accept the responsibilities imposed by the agreement.

(b) The department shall establish a grant program, subject to appropriation, to assist school districts with the development and establishment of in-school regular education programs and services to address within the regular
 education school program the educational and psycho-social needs of children whose behavior interferes with learning, particularly those who are suffering from the traumatic effects of exposure to violence.  As used in this subsection, students suffering from the traumatic effects of exposure to violence shall include, but not be limited to, those exposed to abuse, family or community violence, war, homelessness or any combination thereof.  The grants shall support the development of school based teams with community ties that:  (1) collaborate with broadly recognized experts in the fields of trauma and family and community violence and with battered women shelters;  (2) provide ongoing training to inform and train teachers, administrators, and other school personnel to understand and identify the symptoms and trauma;  and (3) evaluate school policy and existing school and community programs and services to determine whether and to what extent students identified as suffering from exposure to trauma can receive effective supports and interventions that can help them to succeed in their public school programs, and where necessary be referred quickly and confidentially to appropriate services.

Grants may also be awarded to assist school districts in developing comprehensive programs to help prevent violence in schools, from whatever causes, and to promote school safety.  The programs shall be designed to meet the following objectives:  creating a school environment where students feel safe and that prevents problems from starting;  helping students to take the lead in keeping the school safe;  ensuring that school personnel have the skills and resources to identify and intervene with at-risk students; equipping students and teachers with the skills needed to avoid conflict and violence;  and helping schools and individuals to reconnect with the community and share resources.

The department shall develop guidelines governing the implementation of the grant program authorized by this subsection.  A grant awarded pursuant to this subsection shall require that recipients undertake ongoing evaluations of the effectiveness of the program.  In awarding grants, priority shall be given to programs that are based on empirically validated interventions.

The department of education, in consultation with the department of public health and the department of mental health, shall establish an advisory committee to assist in implementing the grant program and in assisting public schools in addressing the learning and behavior problems of students who manifest trauma-related symptoms or classroom behavior that interferes with learning.  Members of the advisory committee shall include but not be limited to:  3 educators, 1 of whom shall serve as the chair, appointed by the commissioner of the department of education;  2 leaders in the field of trauma and its relationship to school learning and behavior appointed by the commissioner of the department of public health;  2 leaders in mental health with expertise in family and/or community violence appointed by the commissioner of mental health;  1 leader in battered women's services appointed by the commissioner of public health;  1 leader in the area of homelessness and its impact on children appointed by commissioner of mental health;  and 3 parents, 1 each appointed by the commissioner of education, the commissioner of public health, the commissioner of mental health.  The advisory committee, at its discretion, may select additional members with relevant experience including but not limited to child advocates, medical doctors and representatives of juvenile and probate court.

(c) The commissioner shall evaluate annually the effectiveness of programs established under this section including the potential for replicating such programs throughout the commonwealth.  The annual evaluation shall also examine whether students in alternative education programs funded under this section are being taught to the same academic standards required for all students, how much time students are spending in the programs, the racial profile of expelled or suspended students and the percentages of the students who are in special education or bilingual education.  The commissioner shall also provide technical assistance to school districts seeking to replicate programs funded under this section, and shall provide training for teachers in the development of effective remediation plans for students in alternative education, and in the development of skills, techniques, and innovative strategies to assist the students.  In evaluating programs funded under subsection (b), the commissioner shall consult with the department of public health, the department of mental health, and the advisory committee established pursuant to said subsection (b).



MINNESOTA

M.S.A. § 13.871   MINNESOTA STATUTES ANNOTATED   DATA PRACTICES (CH. 13-13C)   CHAPTER 13. GOVERNMENT DATA PRACTICES    LAW ENFORCEMENT;  JUDICIAL;  CORRECTIONS;  CRIMINAL JUSTICE DATA   13.871. Criminal justice data coded elsewhere


Subdivision 1. Scope.  The sections referred to in this section are codified outside this chapter.  Those sections classify criminal justice data as other than public, place restrictions on access to government data, or involve data sharing.

Subd. 1a. Mental health data received by law enforcement.  Certain mental health data received by law enforcement from health care providers is classified under section 144.294, subdivision 2.

Subd. 2. Controlled substance convictions.  Data on certain convictions for controlled substances offenses may be expunged under section 152.18, subdivision 3.

Subd. 3. Criminal code.  (a) Sources of presentence investigation reports.  Disclosure of confidential sources in presentence investigation reports is governed by section 609.115, subdivision 4.

(b) Domestic abuse investigation report.  Data contained in domestic abuse investigation reports are classified under section 609.2244.

(c) Use of motor vehicle to patronize prostitutes.  Use of a motor vehicle in the commission of an offense under section 609.324 is noted on the offender's driving records and the notation is classified pursuant to section 609.324, subdivision 5.

(d) Sex offender assessment.  Assessor access to data relevant to sex offender assessments is governed under section 609.3457.

(e) Sexual assault crime victims.  Data on sexual assault victims are governed by section 609.3471.

(f) Data for assessment of offenders.  Access to data for the purpose of a mental health assessment of a convicted stalking offender is governed by section 609.749, subdivision 6.

Subd. 4. Public defenders.  (a) Disclosure of financial information.  Disclosure of financial information provided by a defendant seeking public defender services is governed by section 611.17.

(b) Criminal justice data.  Access to the criminal justice data network is governed by section 611.272.

Subd. 5. Crime victims.  (a) Crime victim notice of release. Data on crime victims who request notice of an offender's release are classified under section 611A.06.

(b) Sex offender HIV tests.  Results of HIV tests of sex offenders under  section 611A.19, subdivision 2, are classified under that section.

(c) Battered women.  Data on battered women maintained by grantees for emergency shelter and support services for battered women are governed by section 611A.32, subdivision 5.

(d) Victims of domestic abuse.  Data on battered women and victims of domestic abuse maintained by grantees and recipients of per diem payments for emergency shelter for battered women and support services for battered women and victims of domestic abuse are governed by sections 611A.32, subdivision 5, and 611A.371, subdivision 3.

(e) Personal history;  internal auditing.  Certain personal history and internal auditing data is classified by section 611A.46.

(f) Crime victim claims for reparations.  Claims and supporting documents filed by crime victims seeking reparations are classified under section 611A.57, subdivision 6.

(g) Crime Victim Oversight Act.   Data maintained by the commissioner of public safety under the Crime Victim Oversight Act are classified under section 611A.74, subdivision 2.

(h) Victim identity data.  Data relating to the identity of the victims of certain criminal sexual conduct is governed by section 609.3471.

Subd. 6. Training;  investigation;  apprehension;  reports.  (a) Reports of gunshot wounds.  Disclosure of the name of a person making a report under section 626.52, subdivision 2, is governed by section 626.53.

(b) Child abuse report records.  Data contained in child abuse report records are classified under section 626.556.

(c) Interstate data exchange.  Disclosure of child abuse reports to agencies of another state is classified under section 626.556, subdivision 10g.

(d) Release to family court services.  Release of child abuse data to a court services agency is authorized under section 626.556, subdivision 10h.

(e) Release of data to mandated reporters.  Release of child abuse data to mandated reporters who have an ongoing responsibility for the health, education, or welfare of a child affected by the data is authorized under section 626.556, subdivision 10j.

(f) Release of child abuse investigative records to other counties.  Release of child abuse investigative records to local welfare agencies is authorized under section 626.556, subdivision 10k.

(g) Classifying and sharing records and reports of child abuse.  The classification of child abuse data and the sharing of records and reports of child abuse by and between local welfare agencies and law enforcement agencies are governed under section 626.556, subdivision 11.

(h) Disclosure of information not required in certain cases.  Disclosure of certain data obtained from interviewing a minor is governed by section 626.556, subdivision 11a.

(i) Data received from law enforcement.  Classifying child abuse data received by certain agencies from law enforcement agencies is governed under section 626.556, subdivision 11b.

(j) Disclosure in child fatality cases.  Disclosure of information relating to a child fatality is governed under section 626.556, subdivision 11d.

(k) Reports of prenatal exposure to controlled substances.  Data on persons making reports under section 626.5561 are classified under section 626.5561, subdivision 3.

(l) Vulnerable adult report records.  Data contained in vulnerable adult report records are classified under section 626.557, subdivision 12b.

(m) Adult protection team information sharing.  Sharing of local welfare agency vulnerable adult data with a protection team is governed by section 626.5571, subdivision 3.

(n) Child protection team.  Data acquired by a case consultation committee or subcommittee of a child protection team are classified by section 626.558, subdivision 3.

(o) Child maltreatment reports peer review panel.  Sharing data of cases reviewed by the panel is governed under section 626.5593, subdivision 2.

(p) Peace officer discipline procedures.  Access by an officer under investigation to the investigating agency's investigative report on the officer is governed by section 626.89, subdivision 6.

(q) Racial profiling study data.  Racial profiling study data is governed by  Minnesota Statutes 2006, section 626.951.

Subd. 7. Domestic abuse police reports.  Police reports on domestic incidents are classified under section 629.341.

Subd. 8. Board of Pardons records.  Access to Board of Pardons records is governed by section 638.07.

Subd. 9. Pistol permit data.  Data on persons permitted to carry pistols under the terms of a permit must be shared as required by section 624.714, subdivision 6.

Subd. 10. Discharge and dismissal records.  Data contained in discharge and dismissal records are classified under section 609.3751, subdivision 5.

Subd. 11. E-charging.  Data in e-charging is governed by section 299C.41.

Subd. 12. Crime alert access request.  Data regarding contact information provided by a citizen requesting a crime alert are classified under section 611A.0393.

Subd. 13. Orders for protection and no contact orders.  Data contained in orders for protection and no contact orders are classified in section 299C.46, subdivision 6.

 

M.S.A. § 626.8471   MINNESOTA STATUTES ANNOTATED   CRIMINAL PROCEDURE (CH. 625-634)   CHAPTER 626. PEACE OFFICERS; AUTHORITY; TRAINING; REPORTING    PEACE OFFICERS   626.8471. Avoiding racial profiling;  policies and learning objectives required


Subdivision 1. Purpose. The legislature finds that the reality or public perception of racial profiling alienates people from police, hinders community policing efforts, and causes law enforcement to lose credibility and trust among the people law enforcement is sworn to protect and serve. No stop initiated by a peace officer should be made without a legitimate reason; race, ethnicity, or national origin alone should never provide a sufficient reason. Law enforcement policies and training programs must emphasize the need to respect the balance between the rights of all persons to be free from unreasonable governmental intrusions and law enforcement's need to enforce the law.

Subd. 2. Definition. "Racial profiling" means any action initiated by law enforcement that relies upon the race, ethnicity, or national origin of an individual rather than:

(1) the behavior of that individual; or

(2) information that leads law enforcement to a particular individual who has been identified as being engaged in or having been engaged in criminal activity.

Racial profiling includes use of racial or ethnic stereotypes as factors in selecting whom to stop and search. Racial profiling does not include law enforcement's use of race or ethnicity to determine whether a person matches a specific description of a particular subject.

Subd. 3. Statewide model policy. (a) The Board of Peace Officer Standards and Training shall consult with the Minnesota Chiefs of Police Association, the Minnesota Sheriffs Association, the Racial Profiling Advisory Committee, and the Minnesota Police and Peace Officers Association in developing an antiracial profiling model policy governing the conduct of peace officers engaged in stops of citizens. This policy shall define racial profiling and identify conduct that violates the law. The policy must also include a duty to give the officer's name or badge number and identify the officer's department during routine traffic stops.

(b) The board shall adopt a model policy and distribute the model policy to all chief law enforcement officers by August 1, 2001.

Subd. 4. Agency policies required. (a) By November 1, 2001, the chief law enforcement officer of every state and local law enforcement agency must establish and enforce a written antiracial profiling policy governing the conduct of peace officers engaged in stops of citizens. The chief law enforcement officer shall ensure that each peace officer receives a copy of the agency's antiracial profiling policy. The chief law enforcement officer also must ensure that each peace officer is aware of the policy's purpose and the conduct prohibited by it.

(b) The policy must, at a minimum, comply with the requirements of the model policy adopted by the board under subdivision 3.

(c) Every state and local law enforcement agency must certify to the board that it has adopted a written policy in compliance with the board's model policy.

(d) The board shall assist the chief law enforcement officer of each state and local law enforcement agency in developing and implementing antiracial profiling policies under this subdivision.

Subd. 5. Preservice training learning objectives; requirements. (a) By August 1, 2001, the board shall prepare learning objectives for preservice training to instruct peace officers in avoiding racial profiling when making stops of citizens. These learning objectives shall be included in the required curriculum of professional peace officer education programs.

(b) An individual is not eligible to take the peace officer licensing examination or the part-time peace officer licensing examination on or after June 1, 2002, unless:

(1) the individual has received the training described in paragraph (a); and

(2) the individual has completed a psychological evaluation demonstrating that the individual is not likely to engage in racial profiling.

Subd. 6. In-service training learning objectives. By August 1, 2001, the board shall prepare learning objectives for in-service training to instruct peace officers in avoiding racial profiling when making stops of citizens. The board shall evaluate and monitor in-service training courses to ensure they satisfy the learning objectives.

Subd. 7. Chief law enforcement officers and supervisors; requirements. The executive director of the Board of Peace Officer Standards and Training shall prepare training materials to provide chief law enforcement officers and other peace officers with supervisory authority with information on how to detect and respond to racial profiling by peace officers under their command. The training materials must address both the agency's antiracial profiling policy and procedural components aimed at eliminating racial profiling in stops of citizens. The materials must include information on federal and state constitutional and statutory laws prohibiting discrimination by law enforcement. The procedural information must describe conduct that is unlawful or inappropriate and present guidelines for reinforcing techniques that are lawful and appropriate. The procedural information shall discuss appropriate search and seizure and interviewing techniques.

Subd. 8. POST board; compliance reviews authorized. The board has authority to inspect state and local agency policies to ensure compliance with subdivision 4. The board may conduct this inspection based upon a complaint it receives about a particular agency or through a random selection process.


M.S.A. § 626.9517   MINNESOTA STATUTES ANNOTATED   CRIMINAL PROCEDURE (CH. 625-634)   CHAPTER 626. PEACE OFFICERS; AUTHORITY; TRAINING; REPORTING    RACIAL PROFILING   626.9517. Grant program for installation of video cameras in police vehicles


Subdivision 1. Grants;  cameras described.  The commissioner of public safety shall make grants to law enforcement agencies participating in the racial profiling study described in section 626.951 for the purchase, installation, and maintenance of video cameras on police vehicles designed to record traffic stops.  A video camera installed pursuant to a grant under this section must:

(1) be automatically activated during every traffic stop;

(2) contain an audio feature;  and

(3) be designed and installed so as to record the stop in its entirety.

Cameras may not be equipped with manual shutoff switches and must be activated for the entirety of a traffic stop.

Subd. 2. Storage of video.  Notwithstanding section 138.163 or 138.17, chief law enforcement officers of agencies receiving grants under this section for video cameras in police vehicles shall ensure that the videotape or disk from the camera be stored for a minimum of 60 days after use.  If the chief law enforcement officer has not been instructed by the board or the attorney general to maintain the tape or disk beyond that period, the chief law enforcement officer may reuse it.  Tapes and disks must be stored and maintained under this subdivision in an accessible manner.  The tapes and disks must be clearly labeled and ordered.

Subd. 3. Availability of videotape.  A chief law enforcement officer shall provide a copy of a videotape or disk that recorded a traffic stop to the driver of the stopped vehicle upon the driver's request and at the driver's expense if the tape or disk has not yet been reused.
MINNESOTA STATUTES ANNOTATED   CRIMINAL PROCEDURE (CH. 625-634)   CHAPTER 626. PEACE OFFICERS; AUTHORITY; TRAINING; REPORTING    RACIAL PROFILING   626.9514. Toll-free telephone number


The attorney general shall operate and maintain a toll-free telephone number for complaints dealing with racial profiling. The attorney general must act as a clearinghouse for racial profiling complaints and must forward complaints to the Peace Officer Standards and Training Board.


MISSISSIPPI

Miss. Code Ann. § 45-4-9   WEST'S ANNOTATED MISSISSIPPI CODE   TITLE 45. PUBLIC SAFETY AND GOOD ORDER   CHAPTER 4. COUNTY JAIL OFFICERS TRAINING PROGRAM   § 45-4-9. Certification requirements and discipline

(1)(a) After January 1, 2000, no person shall be appointed or employed as a jail officer or a part-time jail officer unless that person has been certified as being qualified under subsection (3) of this section.

(b) No person who is required to be certified shall be appointed or employed as a jail officer by any sheriff or police department for a period to exceed two (2) years without being certified.  The prohibition against the appointment or employment of a jail officer for a period not to exceed two (2) years may not be nullified by terminating the appointment or employment of such a person before the expiration of the time period and then rehiring the person for another period.  Any person who, due to illness or other events beyond his control, as may be determined by the Board on Jail Officer Standards and Training, does not attend the required school or training as scheduled, may serve with full pay and benefits in such a capacity until he can attend the required school or training.

(c) No person shall serve as a jail officer in any full-, part-time, reserve or auxiliary capacity during a period when that person's certification has been suspended, cancelled or recalled pursuant to this chapter.

(2) Jail officers serving under permanent appointment on January 1, 2000, shall not be required to meet certification requirements of this section as a condition of continued employment;  nor shall failure of any such jail officer to fulfill such requirements make that person ineligible for any promotional examination for which that person is otherwise eligible.  If any jail officer certified under this chapter leaves his employment and does not become employed as a jail officer within two (2) years from the date of termination of his prior employment, he shall be required to comply with board policy as to rehiring standards in order to be employed as a jail officer.

(3) In addition to the other requirements of this section, the Board on Jail Officer Standards and Training, by rules and regulations consistent with other provisions of law, shall fix other qualifications for the employment of jail officers, including education, physical and mental standards, citizenship, good moral character, experience and such other matters as relate to the competence and reliability of persons to assume and discharge the responsibilities of jail officers, and the board shall prescribe the means for presenting evidence of fulfillment of these requirements.  Additionally, the board shall fix qualifications for the appointment or employment of part-time jail officers to essentially the same standards and requirements as jail officers.  The board shall develop and implement a part-time jail officer training program that meets the same performance objectives and has essentially the same or similar content as the programs approved by the board for full-time jail officers.

(4)(a) The Board on Jail Officer Standards and Training shall issue a certificate evidencing satisfaction of the requirements of subsections (1) and (3) of this section to any applicant who presents such evidence as may be required by its rules and regulations of satisfactory completion of a program or course of instruction in another jurisdiction equivalent in content and quality to that required by the board for approved jail officer education and training programs in this state.

(b) The Board on Jail Officer Standards and Training shall issue a certificate to any person who successfully completes the Mississippi Department of Corrections' training program for correctional officers of regional jails.

(c) The Board on Jail Officer Standards and Training shall develop and train persons seeking certification as a correctional officer in the prevention of racial profiling.  The provisions of this paragraph shall apply to all recruits who begin training on or after January 1, 2005.

(5) Professional certificates remain the property of the board, and the board reserves the right to either reprimand the holder of a certificate, suspend a certificate upon conditions imposed by the board, or cancel and recall any certificate when:

(a) The certificate was issued by administrative error;

(b) The certificate was obtained through misrepresentation or fraud;

(c) The holder has been convicted of any crime involving moral turpitude;

(d) The holder has been convicted of a felony;  or

(e) Other due cause as determined by the board.

(6) When the board believes there is a reasonable basis for either the reprimand, suspension, cancellation of, or recalling the certification of a jail officer, notice and opportunity for a hearing shall be provided in accordance with law prior to such reprimand, suspension or revocation.

(7) Any jail officer aggrieved by the final findings and order of the board may file an appeal with the chancery court of the county in which the person is employed.  The appeal must be filed within thirty (30) days of the final order.

(8) Any jail officer whose certification has been cancelled may reapply for certification, but not sooner than two (2) years after the date on which the order canceling the certification becomes final.



Missouri

V.A.M.S. 590.050   VERNON'S ANNOTATED MISSOURI STATUTES   TITLE XXXVIII. CRIMES AND PUNISHMENT;  PEACE OFFICERS AND PUBLIC DEFENDERS   CHAPTER 590. PEACE OFFICERS, SELECTION, TRAINING AND DISCIPLINE   590.050. Continuing education requirements


1. The POST commission shall establish requirements for the continuing education of all peace officers. Peace officers who make traffic stops shall be required to receive three hours of training within the law enforcement continuing education three-year [FN1] reporting period concerning the prohibition against racial profiling and such training shall promote understanding and respect for racial and cultural differences and the use of effective, noncombative methods for carrying out law enforcement duties in a racially and culturally diverse environment.

2. The director shall license continuing education providers and may probate, suspend and revoke such licenses upon written notice stating the reasons for such action. Any person aggrieved by a decision of the director pursuant to this subsection may appeal as provided in chapter 536, RSMo.

3. The costs of continuing law enforcement education shall be reimbursed in part by moneys from the peace officer standards and training commission fund created in section 590.178, subject to availability of funds, except that no such funds shall be used for the training of any person not actively commissioned or employed by a county or municipal law enforcement agency.

4. The director may engage in any activity intended to further the professionalism of peace officers through training and education, including the provision of specialized training through the department of public safety.

 

V.A.M.S. 590.650   VERNON'S ANNOTATED MISSOURI STATUTES   TITLE XXXVIII. CRIMES AND PUNISHMENT;  PEACE OFFICERS AND PUBLIC DEFENDERS   CHAPTER 590. PEACE OFFICERS, SELECTION, TRAINING AND DISCIPLINE   RACIAL PROFILING   590.650. Racial profiling--minority group defined--reporting requirements-- annual report--review of findings--failure to comply--funds for audio-visual equipment--sobriety check points exempt


1. As used in this section "minority group" means individuals of African, Hispanic, Native American or Asian descent.

2. Each time a peace officer stops a driver of a motor vehicle, that officer shall report the following information to the law enforcement agency that employs the officer:

(1) The age, gender and race or minority group of the individual stopped;

(2) The reasons for the stop;

(3) Whether a search was conducted as a result of the stop;

(4) If a search was conducted, whether the individual consented to the search, the probable cause for the search, whether the person was searched, whether the person's property was searched, and the duration of the search;

(5) Whether any contraband was discovered in the course of the search and the type of any contraband discovered;

(6) Whether any warning or citation was issued as a result of the stop;

(7) If a warning or citation was issued, the violation charged or warning provided;

(8) Whether an arrest was made as a result of either the stop or the search;

(9) If an arrest was made, the crime charged; and

(10) The location of the stop.

Such information may be reported using a format determined by the department of public safety which uses existing citation and report forms.

3. (1) Each law enforcement agency shall compile the data described in subsection 2 of this section for the calendar year into a report to the attorney general.

(2) Each law enforcement agency shall submit the report to the attorney general no later than March first of the following calendar year.

(3) The attorney general shall determine the format that all law enforcement agencies shall use to submit the report.

4. (1) The attorney general shall analyze the annual reports of law enforcement agencies required by this section and submit a report of the findings to the governor, the general assembly and each law enforcement agency no later than June first of each year.

(2) The report of the attorney general shall include at least the following information for each agency:

(a) The total number of vehicles stopped by peace officers during the previous calendar year;

(b) The number and percentage of stopped motor vehicles that were driven by members of each particular minority group;

(c) A comparison of the percentage of stopped motor vehicles driven by each minority group and the percentage of the state's population that each minority group comprises; and

(d) A compilation of the information reported by law enforcement agencies pursuant to subsection 2 of this section.

5. Each law enforcement agency shall adopt a policy on race-based traffic stops that:

(1) Prohibits the practice of routinely stopping members of minority groups for violations of vehicle laws as a pretext for investigating other violations of criminal law;

(2) Provides for periodic reviews by the law enforcement agency of the annual report of the attorney general required by subsection 4 of this section that:

(a) Determine whether any peace officers of the law enforcement agency have a pattern of stopping members of minority groups for violations of vehicle laws in a number disproportionate to the population of minority groups residing or traveling within the jurisdiction of the law enforcement agency; and

(b) If the review reveals a pattern, require an investigation to determine whether any peace officers of the law enforcement agency routinely stop members of minority groups for violations of vehicle laws as a pretext for investigating other violations of criminal law; and

(3) Provides for appropriate counseling and training of any peace officer found to have engaged in race-based traffic stops within ninety days of the review.

The course or courses of instruction and the guidelines shall stress understanding and respect for racial and cultural differences, and development of effective, noncombative methods of carrying out law enforcement duties in a racially and culturally diverse environment.

6. If a law enforcement agency fails to comply with the provisions of this section, the governor may withhold any state funds appropriated to the noncompliant law enforcement agency.

7. Each law enforcement agency in this state may utilize federal funds from community-oriented policing services grants or any other federal sources to equip each vehicle used for traffic stops with a video camera and voice-activated microphone.

8. A peace officer who stops a driver of a motor vehicle pursuant to a lawfully conducted sobriety check point or road block shall be exempt from the reporting requirements of subsection 2 of this section.

V.A.M.S. 590.653   VERNON'S ANNOTATED MISSOURI STATUTES   TITLE XXXVIII. CRIMES AND PUNISHMENT;  PEACE OFFICERS AND PUBLIC DEFENDERS   CHAPTER 590. PEACE OFFICERS, SELECTION, TRAINING AND DISCIPLINE   RACIAL PROFILING   590.653. Civilian review board--powers, duties


1. Each city, county and city not within a county may establish a civilian review board, or may use an existing civilian review board which has been appointed by the local governing body, with the authority to investigate allegations of misconduct by local law enforcement officers towards members of the public. The members shall not receive compensation but shall receive reimbursement from the local governing body for all reasonable and necessary expenses.

2. The board shall have the power to receive, investigate, make findings and recommend disciplinary action upon complaints by members of the public against members of the police department that allege misconduct involving excessive use of force, abuse of authority, discourtesy, or use of offensive language, including, but not limited to, slurs relating to race, ethnicity, religion, gender, sexual orientation and disability. The findings and recommendations of the board, and the basis therefor, shall be submitted to the chief law enforcement official. No finding or recommendation shall be based solely upon an unsworn complaint or statement, nor shall prior unsubstantiated, unfounded or withdrawn complaints be the basis for any such findings or recommendations.




MONTANA

MCA 44-2-117   WEST'S MONTANA CODE ANNOTATED   TITLE 44. LAW ENFORCEMENT   CHAPTER 2. INVESTIGATION, COMMUNICATION, AND IDENTIFICATION   PART 1. CRIMINAL INVESTIGATION   44-2-117. Racial profiling prohibited--definitions--policies--complaints-- training


(1) A peace officer may not engage in racial profiling.

(2) The race or ethnicity of an individual may not be the sole factor in:

(a) determining the existence of probable cause to take into custody or arrest an individual; or

(b) constituting a particularized suspicion that an offense has been or is being committed in order to justify the detention of an individual or the investigatory stop of a motor vehicle.

(3) Each law enforcement agency shall adopt a policy on race-based traffic stops that:

(a) prohibits the practice of routinely stopping members of minority groups for violations of vehicle laws as a pretext for investigating other violations of criminal law;

(b) provides for periodic reviews by the law enforcement agency and collection of data that determine whether any peace officers of the law enforcement agency have a pattern of stopping members of minority groups for violations of vehicle laws in a number disproportionate to the population of minority groups residing or traveling within the jurisdiction of the law enforcement agency;

(c) if the review under subsection (3)(b) reveals a pattern, requires an investigation to determine whether any peace officers of the law enforcement agency routinely stop members of minority groups for violations of vehicle laws as a pretext for investigating other violations of criminal law.

(4)(a) Each municipal, county, consolidated local government, and state law enforcement agency shall adopt a detailed written policy that clearly defines the elements constituting racial profiling. Each agency's policy must prohibit racial profiling, require that all stops are lawful under 46-5-401, and require that all stops are documented according to subsection (3) of this section.

(b) The policy must include a procedure that the law enforcement agency will use to address written complaints concerning racial profiling. The complaint procedure must require that:

(i) all written complaints concerning racial profiling be promptly reviewed;

(ii) a person is designated who shall review all written complaints of racial profiling;

(iii) the designated person shall, within 10 days of receipt of a written complaint, acknowledge receipt of the complaint in writing; and

(iv) after a review is completed, the designated person shall, in writing, inform the person who submitted the written complaint and the head of the agency of the results of the review.

(c) The policy must be available for public inspection during normal business hours.

(5) Each municipal, county, consolidated local government, and state law enforcement agency shall require for all of its peace officers cultural awareness training and training in racial profiling. The training program must be certified by the Montana public safety officer standards and training council established in 2-15-2029.

(6) Each law enforcement agency may provide for appropriate counseling and training of any peace officer found to have engaged in race-based traffic stops within 90 days of the review. The course or courses of instruction and the guidelines must stress understanding and respect for racial and cultural differences and development of effective, noncombative methods of carrying out law enforcement duties in a racially and culturally diverse environment.

(7) If an investigation of a complaint of racial profiling reveals that a peace officer was in direct violation of the law enforcement agency's written policy prohibiting racial profiling, the law enforcement agency shall take appropriate action against the peace officer consistent with applicable laws, rules, ordinances, or policies.

(8) For the purposes of this section, the following definitions apply:

(a) "Minority group" means individuals of African American, Hispanic, Native American, Asian, or Middle Eastern descent.

(b) "Peace officer" has the meaning provided in 46-1-202.

(c) "Racial profiling" means the detention, official restraint, or other disparate treatment of an individual solely on the basis of the racial or ethnic status of the individual.

(9) The department of justice shall make periodic reports to the law and justice interim committee regarding the degree of compliance by municipal, county, consolidated local government, and state law enforcement agencies with the requirements of this section.

(10) Each law enforcement agency in this state may use federal funds from community-oriented policing services grants or any other federal sources to equip each vehicle used for traffic stops with a video camera and voice-activated microphone.



NEBRASKA

Neb.Rev.St. § 20-501   WEST'S REVISED STATUTES OF NEBRASKA ANNOTATED   CHAPTER 20. CIVIL RIGHTS   ARTICLE 5. RACIAL PROFILING   20-501. Racial profiling;  legislative intent


Racial profiling is a practice that presents a great danger to the fundamental principles of a democratic society. It is abhorrent and cannot be tolerated. Motorists who have been stopped by the police for no reason other than the color of their skin or their apparent nationality or ethnicity are the victims of discriminatory practices.

Neb.Rev.St. § 20-502   WEST'S REVISED STATUTES OF NEBRASKA ANNOTATED   CHAPTER 20. CIVIL RIGHTS   ARTICLE 5. RACIAL PROFILING   20-502. Racial profiling prohibited


(1) No member of the Nebraska State Patrol or a county sheriff's office, officer of a city or village police department, or member of any other law enforcement agency in this state shall engage in racial profiling. The disparate treatment of an individual whose motor vehicle has been stopped by a law enforcement officer is inconsistent with this policy.

(2) Racial profiling shall not be used to justify the detention of an individual or to conduct a motor vehicle stop.
Neb.Rev.St. § 20-503   WEST'S REVISED STATUTES OF NEBRASKA ANNOTATED   CHAPTER 20. CIVIL RIGHTS   ARTICLE 5. RACIAL PROFILING   20-503. Terms, defined


For purposes of sections 20-501 to 20-506:

(1) Disparate treatment means differential treatment of persons on the basis of race, color, or national origin;

(2) Motor vehicle stop means any stop of a motor vehicle, except for a stop of a motor truck, truck-tractor, semitrailer, trailer, or towed vehicle at a state weighing station; and

(3) Racial profiling means detaining an individual or conducting a motor vehicle stop based upon disparate treatment of an individual.

Neb.Rev.St. § 20-504   WEST'S REVISED STATUTES OF NEBRASKA ANNOTATED   CHAPTER 20. CIVIL RIGHTS   ARTICLE 5. RACIAL PROFILING   20-504. Written policy;  records maintained;  immunity


(1) On or before January 1, 2002, the Nebraska State Patrol, the county sheriffs, all city and village police departments, and any other law enforcement agency in this state shall adopt a written policy that prohibits the detention of any person or a motor vehicle stop when such action is motivated by racial profiling and the action would constitute a violation of the civil rights of the person.

(2) With respect to a motor vehicle stop, on and after January 1, 2002, and until January 1, 2014, the Nebraska State Patrol, the county sheriffs, all city and village police departments, and any other law enforcement agency in this state shall record and retain the following information using the form developed and promulgated pursuant to section 20-505:

(a) The number of motor vehicle stops;

(b) The characteristics of race or ethnicity of the person stopped.  The identification of such characteristics shall be based on the observation and perception of the law enforcement officer responsible for reporting the motor vehicle stop and the information shall not be required to be provided by the person stopped;

(c) If the stop is for a law violation, the nature of the alleged law violation that resulted in the motor vehicle stop;

(d) Whether a warning or citation was issued, an arrest made, or a search conducted as a result of the motor vehicle stop.  Search does not include a search incident to arrest or an inventory search;  and

(e) Any additional information that the Nebraska State Patrol, the county sheriffs, all city and village police departments, or any other law enforcement agency in this state, as the case may be, deems appropriate.

(3) The Nebraska Commission on Law Enforcement and Criminal Justice may develop a uniform system for receiving allegations of racial profiling.  The Nebraska State Patrol, the county sheriffs, all city and village police departments, and any other law enforcement agency in this state shall provide to the commission (a) a copy of each allegation of racial profiling received and (b) written notification of the review and disposition of such allegation.  No information revealing the identity of the law enforcement officer involved in the stop shall be used, transmitted, or disclosed in violation of any collective-bargaining agreement provision or personnel rule under which such law enforcement officer is employed.  No information revealing the identity of the complainant shall be used, transmitted, or disclosed in the form alleging racial profiling.

(4) Any law enforcement officer who in good faith records information on a motor vehicle stop pursuant to this section shall not be held civilly liable for the act of recording such information unless the law enforcement officer's conduct was unreasonable or reckless or in some way contrary to law.

(5) On or before October 1, 2002, and annually thereafter until January 1, 2014, the Nebraska State Patrol, the county sheriffs, all city and village police departments, and all other law enforcement agencies in this state shall provide to the commission, in such form as the commission prescribes, a summary report of the information recorded pursuant to subsection (2) of this section.

(6) On and after January 1, 2002, and until April 1, 2014, the commission may, within the limits of its existing appropriations, provide for a review of the prevalence and disposition of motor vehicle stops based on racial profiling and allegations reported pursuant to this section.  The results of such review shall be reported annually to the Governor and the Legislature beginning on or before April 1, 2004, until April 1, 2014.

Neb.Rev.St. § 20-505   WEST'S REVISED STATUTES OF NEBRASKA ANNOTATED   CHAPTER 20. CIVIL RIGHTS   ARTICLE 5. RACIAL PROFILING   20-505. Forms authorized

On or before January 1, 2002, the Nebraska Commission on Law Enforcement and Criminal Justice, the Superintendent of Law Enforcement and Public Safety, the Attorney General, and the State Court Administrator may adopt and promulgate: (1) A form, in printed or electronic format, to be used by a law enforcement officer when making a motor vehicle stop to record personal identifying information about the operator of such motor vehicle, the location of the stop, the reason for the stop, and any other information that is required to be recorded pursuant to subsection (2) of section 20-504 and (2) a form, in printed or electronic format, to be used to report an allegation of racial profiling by a law enforcement officer.

 

Neb.Rev.St. § 20-506   WEST'S REVISED STATUTES OF NEBRASKA ANNOTATED   CHAPTER 20. CIVIL RIGHTS   ARTICLE 5. RACIAL PROFILING   20-506. Racial Profiling Advisory Committee;  created;  members;  duties


(1) The Racial Profiling Advisory Committee is created.

(2)(a) The committee shall consist of:

(i) The executive director of the Nebraska Commission on Law Enforcement and Criminal Justice, who also shall be the chairperson of the committee;

(ii) The Superintendent of Law Enforcement and Public Safety or his or her designee;

(iii) The director of the Commission on Latino-Americans or his or her designee;  and

(iv) The executive director of the Commission on Indian Affairs or his or her designee.

(b) The committee shall also consist of the following persons, each appointed by the Governor from a list of three names submitted to the Governor for each position:

(i) A representative of the Fraternal Order of Police;

(ii) A representative of the Nebraska County Sheriffs Association;

(iii) A representative of the Police Officers Association of Nebraska;

(iv) A representative of the American Civil Liberties Union of Nebraska;

(v) A representative of the AFL-CIO;

(vi) A representative of the Police Chiefs Association of Nebraska;

(vii) A representative of the Nebraska branches of the National Association for the Advancement of Colored People;  and

(viii) A representative of the Nebraska State Bar Association appointed by the Governor from a list of attorneys submitted by the executive council of the Nebraska State Bar Association.

(3) The committee shall meet and organize within thirty days after the appointment of the members.  The committee shall meet semiannually at a time and place to be fixed by the committee.  Special meetings may be called by the chairperson or at the request of two or more members of the committee.

(4) The committee shall advise the executive director of the commission in the conduct of his or her duties regarding the review required pursuant to subsection (6) of section 20-504, provide an analysis of the review, and make policy recommendations with respect to racial profiling.



 NEVADA

N.R.S. 289.820   WEST'S NEVADA REVISED STATUTES ANNOTATED   TITLE 23. PUBLIC OFFICERS AND EMPLOYEES (CHAPTERS 281-289)   CHAPTER 289. PEACE OFFICERS   MISCELLANEOUS PROVISIONS   289.820. Peace officer prohibited from engaging in racial profiling; retaliatory or punitive action prohibited against peace officer for disclosure of information concerning racial profiling


1. A peace officer shall not engage in racial profiling.

2. No retaliatory or punitive action may be taken against a peace officer who discloses information concerning racial profiling.

3. For purposes of this section, "racial profiling" means reliance by a peace officer upon the race, ethnicity or national origin of a person as a factor in initiating action when the race, ethnicity or national origin of the person is not part of an identifying description of a specific suspect for a specific crime.



New Jersey

N.J.S.A. 10:5-3   NEW JERSEY STATUTES ANNOTATED   TITLE 10. CIVIL RIGHTS   CHAPTER 5. LAW AGAINST DISCRIMINATION    10:5-3. Legislative findings and declarations


The Legislature finds and declares that practices of discrimination against any of its inhabitants, because of race, creed, color, national origin, ancestry, age, sex, gender identity or expression, affectional or sexual orientation, marital status, familial status, liability for service in the Armed Forces of the United States, disability or nationality, are matters of concern to the government of the State, and that such discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a free democratic State;  provided, however, that nothing in this expression of policy prevents the making of legitimate distinctions between citizens and aliens when required by federal law or otherwise necessary to promote the national interest.

The Legislature further declares its opposition to such practices of discrimination when directed against any person by reason of the race, creed, color, national origin, ancestry, age, sex, gender identity or expression, affectional or sexual orientation, marital status, liability for service in the Armed Forces of the United States, disability or nationality of that person or that person's spouse, partners, members, stockholders, directors, officers, managers, superintendents, agents, employees, business associates, suppliers, or customers, in order that the economic prosperity and general welfare of the inhabitants of the State may be protected and ensured.

The Legislature further finds that because of discrimination, people suffer personal hardships, and the State suffers a grievous harm.  The personal hardships include:  economic loss;  time loss;  physical and emotional stress; and in some cases severe emotional trauma, illness, homelessness or other irreparable harm resulting from the strain of employment controversies; relocation, search and moving difficulties;  anxiety caused by lack of information, uncertainty, and resultant planning difficulty;  career, education, family and social disruption;  and adjustment problems, which particularly impact on those protected by this act.  Such harms have, under the common law, given rise to legal remedies, including compensatory and punitive damages.  The Legislature intends that such damages be available to all persons protected by this act and that this act shall be liberally construed in combination with other protections available under the laws of this State.

 

N.J.S.A. 2C:30-5   NEW JERSEY STATUTES ANNOTATED   TITLE 2C. THE NEW JERSEY CODE OF CRIMINAL JUSTICE   SUBTITLE 2. DEFINITION OF SPECIFIC OFFENSES    PART 4. OFFENSES AGAINST PUBLIC ADMINISTRATION    CHAPTER 30. MISCONDUCT IN OFFICE: ABUSE OF OFFICE    2C:30-5. Legislative findings


The Legislature finds and declares that:

a. Public confidence in the institutions of government is undermined when an official engages in any form of misconduct involving the official's office.

b. Such misconduct, and the corresponding damage to the public confidence, impairs the ability of government to function properly, fosters mistrust and engenders disrespect for government and public servants.

c. A particular concern arises when a law enforcement official, duly entrusted to protect the public safety and impartially enforce the laws, abuses that trust by unlawfully depriving persons of their civil rights, especially in the context of racial profiling.

d. It is important to ensure that law enforcement officers are prohibited from using racial characteristics or color, either alone or in conjunction with other composite characteristics such as a generalized vehicle description or the age of the driver or passengers, as the basis for initiating an investigative stop.

e. Existing laws must be amended to provide a greater deterrent to this type of conduct, as well as to enhance other provisions of the law targeting official misconduct.

f. Accordingly, it is in the public interest to strengthen our laws that define and punish acts of official misconduct by members of law enforcement and other public servants.


Oklahoma

OKLAHOMA STATUTES ANNOTATED   TITLE 22. CRIMINAL PROCEDURE   CHAPTER 2. PREVENTION OF PUBLIC OFFENSES   GENERAL PROVISIONS   § 34.5. Human Rights Commission to establish procedures for filing racial profiling complaint


§ 34.5. Human Rights Commission to establish procedures for filing racial profiling complaint--Report

A. The Oklahoma Human Rights Commission shall promulgate rules establishing procedures for filing a racial profiling complaint with the Oklahoma Human Rights Commission and the district attorney and the process for delivering a copy of the complaint by the Commission to the employing agency. The Commission, in consultation with the Governor's Cabinet Secretary for Safety and Security, shall promulgate forms for complaints of racial profiling.

B. The Commission shall compile an annual report of all complaints received for racial profiling and submit the report on or before January 31 of each year to the Governor, the President Pro Tempore of the Senate, and the Speaker of the House of Representatives.
22 Okl.St.Ann. § 34.4   OKLAHOMA STATUTES ANNOTATED   TITLE 22. CRIMINAL PROCEDURE   CHAPTER 2. PREVENTION OF PUBLIC OFFENSES   GENERAL PROVISIONS   § 34.4. Stop or arrest resulting from racial profiling


Whenever a person who is stopped or arrested believes the stop or arrest was in violation of Section 1 of this act,  [FN1] that person may file a complaint with the Oklahoma Human Rights Commission and may also file a complaint with the district attorney for the county in which the stop or arrest occurred.  A copy of the complaint shall be forwarded to the arresting officer's employer by the Commission.  The employer shall investigate the complaint for purposes of disciplinary action and/or criminal prosecution.


OKLAHOMA STATUTES ANNOTATED   TITLE 22. CRIMINAL PROCEDURE   CHAPTER 2. PREVENTION OF PUBLIC OFFENSES   GENERAL PROVISIONS   § 34.3. Racial profiling prohibited


§ 34.3. Racial profiling prohibited

A. For the purposes of this section, "racial profiling" means the detention, interdiction or other disparate treatment of an individual solely on the basis of the racial or ethnic status of such individual.

B. No officer of any municipal, county or state law enforcement agency shall engage in racial profiling.

C. The race or ethnicity of an individual shall not be the sole factor in determining the existence of probable cause to take into custody or to arrest an individual or in constituting a reasonable and articulable suspicion that an offense has been or is being committed so as to justify the detention of an individual or the investigatory stop of a motor vehicle.

D. A violation of this section shall be a misdemeanor.

E. Every municipal, county, and state law enforcement agency shall adopt a detailed written policy that clearly defines the elements constituting racial profiling. Each agency's policy shall prohibit racial profiling based solely on an individual's race or ethnicity. The policy shall be available for public inspection during normal business hours.

F. If the investigation of a complaint of racial profiling reveals the officer was in direct violation of the law enforcement agency's written policy regarding racial profiling, the employing law enforcement agency shall take appropriate action consistent with applicable laws, rules, ordinances or policy.


RHODE ISLAND

Gen.Laws 1956, § 31-21.1-2   WEST'S GENERAL LAWS OF RHODE ISLAND ANNOTATED   TITLE 31. MOTOR AND OTHER VEHICLES   CHAPTER 21.1. TRAFFIC STOPS STATISTICS   § 31-21.1-2. Declaration and policy


The general assembly declares that the use of racial profiling for stopping or searching motorists on our public highways is against public policy and violates the civil rights of the motorist. For purposes of this chapter, "racial profiling" means the detention, interdiction or other disparate treatment of an individual on the basis, in whole or in part, of the racial or ethnic status of such individual, except when such status is used in combination with other identifying factors in seeking to apprehend a specific suspect whose racial or ethnic status is part of the description of the suspect. The purpose of this chapter is to conduct a study of the traffic stops by the police to determine whether racial profiling is occurring and to require that police prohibit the practice of racial profiling.

Gen.Laws 1956, § 31-21.2-2   WEST'S GENERAL LAWS OF RHODE ISLAND ANNOTATED   TITLE 31. MOTOR AND OTHER VEHICLES   CHAPTER 21.2. RACIAL PROFILING PREVENTION ACT OF 2004   § 31-21.2-2. Findings


(a) Municipal and state law enforcement officers play a vital role in protecting the public from crime. The vast majority of police officers discharge their duties professionally and without bias.

(b) The use by police officers of race, ethnicity, or national origin solely in deciding which persons should be subject to traffic stops, searches and seizures is improper.

(c) In many communities nonwhite drivers in Rhode Island, subjected to discretionary searches, are twice as likely as whites to be searched.

(d) In some instances, law enforcement practices may have the unintended effect of promoting racially disparate stops and searches.

(e) Racial profiling harms individuals subjected to it because they experience fear, anxiety, humiliation, anger, resentment and cynicism when they are unjustifiably treated as criminal suspects.

(f) Racial profiling damages law enforcement and the criminal justice system as a whole by undermining public confidence and trust in the police, the courts, and criminal law, and thereby undermining law enforcement efforts and ability to solve and reduce crime.

(g) A comprehensive solution is needed to address racial profiling at the state and local levels.

Gen.Laws 1956, § 31-21.2-1   WEST'S GENERAL LAWS OF RHODE ISLAND ANNOTATED   TITLE 31. MOTOR AND OTHER VEHICLES   CHAPTER 21.2. RACIAL PROFILING PREVENTION ACT OF 2004   § 31-21.2-1. Title


Title 31. Motor and Other Vehicles
 Chapter 21.2. Racial Profiling Prevention Act of 2004
§ 31-21.2-1. Title

This chapter may be cited as "Racial Profiling Prevention Act of 2004."

Gen.Laws 1956, § 31-21.2-8   WEST'S GENERAL LAWS OF RHODE ISLAND ANNOTATED   TITLE 31. MOTOR AND OTHER VEHICLES   CHAPTER 21.2. RACIAL PROFILING PREVENTION ACT OF 2004   § 31-21.2-8. Complaint procedures


(a) Each state and municipal law enforcement agency shall establish a procedure to investigate complaints of police misconduct by members of the public against personnel of these agencies, and shall make a written description of the procedure available to the public. Copies of any departmental complaint forms shall be available in at least one governmental location other than the police department. The procedure and forms shall also be made available on any website of a law enforcement agency.

(b) At a minimum, complaints shall be accepted in person by mail or by facsimile.

(c) Information on the complaints received by each law enforcement agency shall be submitted on an annual basis under uniform criteria established by the Select Commission on Race and Police-Community Relations. The information provided by each department shall include the total number of complaints received, a breakdown by category of the type of complaint and a further breakdown by category of the disposition of the complaints.
Gen.Laws 1956, § 31-21.2-5   WEST'S GENERAL LAWS OF RHODE ISLAND ANNOTATED   TITLE 31. MOTOR AND OTHER VEHICLES   CHAPTER 21.2. RACIAL PROFILING PREVENTION ACT OF 2004   § 31-21.2-5. Law enforcement practices


(a) Unless there exists reasonable suspicion or probable cause of criminal activity, no motor vehicle stopped for a traffic violation shall be detained beyond the time needed to address the violation. Nothing contained herein shall prohibit the detention of a motor vehicle for a reasonable period of time for the arrival of a canine unit or subsequent criminal investigation, if there is reasonable suspicion or probable cause of criminal activity.

(b) No operator or owner-passenger of a motor vehicle shall be requested to consent to a search by a law enforcement officer of his or her motor vehicle which is stopped solely for a traffic violation, unless there exists reasonable suspicion or probable cause of criminal activity.

(c) Any evidence obtained as a result of a search prohibited by subsection (a) or (b) shall be inadmissible in any judicial proceeding. Nothing contained herein shall be construed to preclude any search otherwise based upon any legally sufficient cause.

(d) Law enforcement agencies using video and/or audio surveillance cameras in their vehicles shall adopt written policies and procedures regarding the use of such cameras, which shall be public records.

(e) The policies and procedures established by this section shall be added to, and prominently placed in, all relevant departmental policy and training manuals. Other appropriate training about the requirements of this chapter shall also be provided to all officers.

Gen.Laws 1956, § 31-21.2-6   WEST'S GENERAL LAWS OF RHODE ISLAND ANNOTATED   TITLE 31. MOTOR AND OTHER VEHICLES   CHAPTER 21.2. RACIAL PROFILING PREVENTION ACT OF 2004   § 31-21.2-6. Continued data collection


(a) The Rhode Island Justice Commission is authorized to and shall conduct a study of routine traffic stops by the Rhode Island State Police and each municipal police department in order to determine whether racial profiling is occurring, and to examine whether searches of vehicles and motorists are being conducted in a disparate manner.

(b) The Rhode Island Justice Commission shall, not later than forty-five (45) days after enactment of this act, develop a form to be used by each police officer when making a traffic stop to record the data required under this chapter, which form shall include the information listed in § 31-21.1-4.

(c) The Rhode Island Justice Commission shall advise the Rhode Island State Police and each municipal police department of the date that data collection shall commence. Data collection shall begin not later than October 1, 2004, but may begin prior to that time upon notification to police departments from the Rhode Island Justice Commission.

(d) A traffic stop data collection card shall be completed for each routine traffic stop by the Rhode Island State Police and municipal police department during the term of this study.

(e) Upon commencement of data collection, and monthly thereafter, each municipal police department and the Rhode Island State Police shall transmit to the Rhode Island Justice Commission all forms collected to date of motorists who were stopped, and any other information the police department or the Rhode Island State Police deem appropriate. Data collection shall continue for twelve (12) months following commencement of data collection.

(f) Appropriate funding shall be made available to implement the provision of this chapter, and completion of this study shall be contingent upon such funding.

(g) The study shall include a multivariate analysis of the collected data in accordance with general statistical standards, and shall be substantially similar to the study prepared pursuant to chapter 21.1 of this title. The study shall be prepared by an organization, company, person or other entity with sufficient expertise in the field of statistics and the study of traffic stop data collection to assist with the implementation of this chapter, and chosen by the Rhode Island Justice Commission. The study shall be released not later than eighteen (18) months after commencement of data collection under this chapter. The report, findings and conclusions submitted pursuant to this subsection shall be a public record.

(h) The Rhode Island Justice Commission shall be exempt from the provisions of chapter 2 of title 37 in connection with its procurement of equipment and services necessary to the implementation of this chapter.

(i) On a quarterly basis a summary report of the monthly data provided by each police department and the state police for that quarterly period shall be issued. The report shall be a public record. The summary report shall include a monthly breakdown by race for each police department of the number of traffic stops made and of searches conducted, and any other information deemed appropriate by the Rhode Island Justice Commission. The report shall be released not more than ninety (90) days after the end of each quarterly period. No information revealing the identity of any individual shall be contained in the report.

(j) Every law enforcement agency collecting data pursuant to this chapter shall ensure that supervisory personnel review each officer's stop and search documentation and data results on a weekly basis to ensure compliance with all policies, prohibitions and documentation requirements.

(k) The head of every law enforcement agency subject to this chapter, or his or her designee, shall review the data on a regular basis in an effort to determine whether any racial disparities in the agency's traffic stops enforcement exists, and to appropriately respond to any such disparities.

(l) An organization chartered for the purpose of combating discrimination, racism, or of safeguarding civil liberties, or of promoting full, free, or equal employment opportunities, and/or the Rhode Island Justice Commission may seek appropriate relief in a civil action against any police department for failing to collect or transmit the data required in this chapter, and may be awarded its costs, including attorneys' fees, for bringing such an action. As a condition precedent to the filing of a civil action by an organization under this section, the organization shall send a notice to the Rhode Island Justice Commission identifying the police department which is failing to collect or transmit the data and the organization shall then allow fifteen (15) days to elapse.

(m) The Rhode Island Justice Commission shall consult with community, police and civil rights representatives, as the executive director deems appropriate, in the development of the form required by subsection (b) and on other issues that arise relating to the implementation and enforcement of this chapter.
GENERAL LAWS OF RHODE ISLAND ANNOTATED   TITLE 31. MOTOR AND OTHER VEHICLES   CHAPTER 21.1. TRAFFIC STOPS STATISTICS   § 31-21.1-5. Adoption of written policies


(a) Not later than ninety (90) days after January 1, 2004, each police department and the state police shall adopt written policies which shall prohibit the use of racial profiling as the sole reason for stopping or searching motorists for routine traffic stops.

(b) Copies of the policies adopted pursuant to this section shall be submitted to the attorney general and the committee, and shall be public records.

 

Gen.Laws 1956, § 31-21.1-4   WEST'S GENERAL LAWS OF RHODE ISLAND ANNOTATED   TITLE 31. MOTOR AND OTHER VEHICLES   CHAPTER 21.1. TRAFFIC STOPS STATISTICS   § 31-21.1-4. Traffic stop study


(a) The attorney general is authorized to and shall conduct a study of routine traffic stops by the Rhode Island state police and each municipal police department. The study shall include the collection and analysis of the data received from the police department pursuant to this section, which shall include the following information for each traffic stop conducted by the police:

(1) The date, time and general location of the traffic stop;

(2) The race or ethnicity, gender, and approximate age of the driver stopped; provided that the identification of these characteristics shall be based on the observation and perception of the police officer making the stop and the information shall not be requested of the person stopped;

(3) The reason for the stop;

(4) Whether a search was instituted as a result of the stop;

(5) The scope of any search conducted;

(6) Whether the search was conducted pursuant to consent, probable cause, or reasonable suspicion to suspect a crime;

(7) Whether any contraband, including money, was seized in the course of the search, and if so, the nature of the contraband;

(8) Whether any warning or citation was issued as a result of the stop;

(9) Whether an arrest was made as a result of either the stop or the search;

(10) The approximate duration of the stop; and

(11) Whether the vehicle is registered in Rhode Island or out of the state.

(b) Not later than ninety (90) days after July 13, 2000, the attorney general, with the advice of the committee, shall develop a form, in both printed and electronic format, to be used by each police officer when making a traffic stop to record the data required under this chapter.

(c) Beginning January 15, 2001, and monthly thereafter, each municipal police department and the Rhode Island state police shall transmit to the attorney general a report containing:

(1) All of the forms collected to date of motorists who were stopped;

(2) Any complaints filed by motorists who believed they were the subject of racial profiling, provided that no information revealing the identity of the complainant, witnesses or the law enforcement officer involved in the traffic stop shall be used, transmitted or disclosed in violation of the provisions of Chapter 28.6 of Title 42, the Law Enforcement Officers' Bill of Rights; and

(3) Any other information the police department or Rhode Island state police deem appropriate.

(d) The study authorized under this chapter shall include a multi-variate analysis of the collected data in accordance with general statistical standards. The attorney general shall collect data for a period of not less than twenty-four (24) months and report its findings and conclusions to the governor and the general assembly not later than thirty (30) months after the commencement of the collection of data under this chapter. The report, findings and conclusions submitted pursuant to this subsection shall be deemed a public record.

(e) In addition, the attorney general, with the advice of the committee, shall prepare on a quarterly basis a summary report of the monthly data provided by each police department and the state police for that quarterly period. The report shall be a public record. The summary report shall include a monthly breakdown by race for each police department of the number of traffic stops made and of searches conducted, and any other information deemed appropriate by the attorney general with the advice of the committee. The report shall be released not more than ninety (90) days after the end of each quarterly period. No information revealing the identity of any individual shall be contained in the report.

(f) Upon July 13, 2000, the attorney general with the advice of the committee shall procure the services of an organization, company, person or other entity with sufficient expertise in the field of statistics to assist with the implementation of this chapter. The organization, company, person or other entity so retained shall assist the attorney general and the committee with the design of the methodology for gathering statistics pursuant to this chapter, monitor compliance with the act throughout the study, and conduct a statistical analysis at the conclusion of the study to determine the extent to which racial profiling exists within the state.

(g) Appropriate funding shall be made available to implement the provisions of this chapter.

(h) The department of attorney general shall be exempt from the provisions of chapter 2 of title 37 in connection with its procurement of equipment and services necessary to the implementation of this chapter.


Gen.Laws 1956, § 31-21.2-7   WEST'S GENERAL LAWS OF RHODE ISLAND ANNOTATED   TITLE 31. MOTOR AND OTHER VEHICLES   CHAPTER 21.2. RACIAL PROFILING PREVENTION ACT OF 2004   § 31-21.2-7. Data collection and use


(a) Data acquired under this chapter shall not be used in any legal proceeding to establish an inference of discrimination except by court order; provided, however, that use of the data for this purpose shall be allowed only upon completion of the study authorized by § 31-21.2-6. All data collected pursuant to this chapter shall be public. For those motor vehicle stops where a citation was issued or an arrest was made, the forms prepared pursuant to § 31-21.2-6(b) of this chapter shall include a citation or arrest number for reference. The data collection form shall not include the name or badge number of the officer completing the form.

(b) Any police officer who in good faith records traffic stop information pursuant to the requirements of this chapter shall not be held civilly liable for the act of recording the information unless the officer's conduct was reckless.

Gen.Laws 1956, § 31-21.2-4   WEST'S GENERAL LAWS OF RHODE ISLAND ANNOTATED   TITLE 31. MOTOR AND OTHER VEHICLES   CHAPTER 21.2. RACIAL PROFILING PREVENTION ACT OF 2004   § 31-21.2-4. Enforcement


Any individual who alleges a violation of this chapter, other than § 31- 21.2-6, may file a civil action for damages and any appropriate and equitable relief in Superior Court. The court may allow a prevailing plaintiff reasonable attorneys' fees as part of the costs.
Gen.Laws 1956, § 31-21.2-3   WEST'S GENERAL LAWS OF RHODE ISLAND ANNOTATED   TITLE 31. MOTOR AND OTHER VEHICLES   CHAPTER 21.2. RACIAL PROFILING PREVENTION ACT OF 2004   § 31-21.2-3. Ban on racial profiling


No state or municipal law enforcement officer or law enforcement agency shall engage in racial profiling.  For purposes of this chapter, "racial profiling" means the detention, interdiction or other disparate treatment of an individual on the basis, in whole or in part, of the racial or ethnic status of such individual, except when such status is used in combination with other identifying factors seeking to apprehend a specific suspect whose racial or ethnic status is part of the description of the suspect, which description is timely and reliable.

 

Gen.Laws 1956, § 42-137-5   WEST'S GENERAL LAWS OF RHODE ISLAND ANNOTATED   TITLE 42. STATE AFFAIRS AND GOVERNMENT   CHAPTER 137. THE SELECT COMMISSION ON RACE AND POLICE-COMMUNITY RELATIONS ACT   § 42-137-5. Duties


The select commission shall:

(1) Analyze and recommend changes that will improve police-community relations in Rhode Island.

(2) Study and recommend changes needed to statutes, ordinances, institutional policies, procedures and practices deemed necessary to:

(i) Improve law enforcement work and accountability;

(ii) Reduce racism;

(iii) Enhance the administration of justice; and

(iv) Affect reconciliation between diverse segments of the statewide community.

(3) Study, recommend, promote and implement methods to achieve greater citizen participation in law enforcement policy development, review of law enforcement practices, and advocacy for the needs of law enforcement agencies, officers, and the public at large in the prevention of crime, administration of justice and public safety.

(4) Study, recommend, promote and assist in the incorporation of evolving homeland security needs with effective models of neighborhood-oriented community policing, crime prevention and public safety.

(5) Promote greater understanding of the need to incorporate cultural diversity in everyday as well as extraordinary activities involving law enforcement, public safety and the administration of justice.

(6) Analyze, review, recommend, assist in and monitor changes to police policies, procedures and practices related to:

(i) Recruitment, hiring, promotion and training of police officers;

(ii) The level and quality of diversity training, sensitivity awareness and cultural competency;

(iii) The level and quality of efforts related to building and improving overall community relations;

(iv) The use of firearms by on-duty and off-duty police officers;

(v) The use of force, the use of excessive force or the excessive use of force;

(vi) The use of racial profiling and other forms of bias based policing; and

(vii) Legislation reforming police policies, practices, or procedures involving community relations.

(7) To assist the select commission in its duties pursuant to subsection (6), all police departments shall submit to the select commission on an annual basis beginning on January 15, 2004, and for six (6) years thereafter, a report indicating what action, if any, has been taken to address any racial disparities in traffic stops and/or searches documented in the study authorized by §§ 31-21.1-4 and 31-21.2-6, and to otherwise implement any recommendations of that study. The reports shall be public records.

(8) Collect and publish data regarding complaints of police misconduct pursuant to § 31-21.2-8.


TENNESSEE

T. C. A. § 38-1-502   WEST'S TENNESSEE CODE ANNOTATED   TITLE 38. PREVENTION AND DETECTION OF CRIME   CHAPTER 1. MISCELLANEOUS PROVISIONS   PART  5--RACIAL PROFILING PREVENTION ACT [OBSOLETE]   § 38-1-502. Obsolete


Section 38-1-502, which related to definitions and was derived from 2008 Pub.Acts, c. 977, § 2, eff. July 1, 2008, was declared obsolete in 2010.

T. C. A. § 38-1-501   WEST'S TENNESSEE CODE ANNOTATED   TITLE 38. PREVENTION AND DETECTION OF CRIME   CHAPTER 1. MISCELLANEOUS PROVISIONS   PART  5--RACIAL PROFILING PREVENTION ACT [OBSOLETE]   § 38-1-501. Obsolete


Section 38-1-501, which related to the short title of the Racial Profiling Prevention Act and was derived from 2008 Pub.Acts, c. 977, § 1, eff. July 1, 2008, was declared obsolete in 2010.
T. C. A. § 38-1-503   WEST'S TENNESSEE CODE ANNOTATED   TITLE 38. PREVENTION AND DETECTION OF CRIME   CHAPTER 1. MISCELLANEOUS PROVISIONS   PART  5--RACIAL PROFILING PREVENTION ACT [OBSOLETE]   § 38-1-503. Obsolete

Section 38-1-503, which related to the written policy to prohibit racial profiling and was derived from 2008 Pub.Acts, c. 977, § 2, eff. July 1, 2008, was declared obsolete in 2010.

T. C. A. § 45-6-223   WEST'S TENNESSEE CODE ANNOTATED   TITLE 45. BANKS AND FINANCIAL INSTITUTIONS   CHAPTER 6. PAWNBROKERS   PART 2--PAWNBROKERS ACT OF 1988   § 45-6-223. Racial profiling; violations


(a) No law enforcement officer or agency shall use any thumb or other print obtained pursuant to § 45-6-222 for the purpose of racial profiling.

(b)(1) Any person residing within the jurisdiction of the law enforcement officer or agency alleged to have violated this section may petition the chancery or circuit court of the county for injunctive relief under this section.  The court in which the petition is filed shall conduct a show cause hearing to determine if thumb or other prints obtained pursuant to § 45-6- 222 have been used by a law enforcement officer or agency for the purpose of racial profiling.

(2) If the court finds by a preponderance of evidence that a violation of this section has occurred, it shall grant an injunction prohibiting the officer or agency from obtaining thumb or other prints pursuant to § 45-6-222 for the period specified in subsection (c).

(3) If the court finds by a preponderance of evidence that a violation of this section has not occurred, it shall deny the petition for an injunction.

(c)(1) A law enforcement officer or agency who violates this section for the first time shall be enjoined from requesting subpoenas for the production of thumb or other prints pursuant to § 45-6-222 for a period of six (6) months.

(2) A law enforcement officer or agency who violates this section for the second time shall be enjoined from requesting subpoenas for the production of thumb or other prints pursuant to § 45-6-222 for a period of one (1) year.

(3) A law enforcement officer or agency who violates this section for a third or subsequent time shall be permanently enjoined from requesting subpoenas for the production of thumb or other prints pursuant to § 45-6-222.


WEST'S TENNESSEE CODE ANNOTATED   TITLE 4. STATE GOVERNMENT   CHAPTER 7. HIGHWAY PATROL   PART  1--GENERAL PROVISIONS   § 4-7-119. Racial profiling study and pilot project


§ 4-7-119. Racial profiling study and pilot project

(a) Commencing on January 1, 2006, and continuing all through the calendar year, the Tennessee highway patrol, using the form developed and promulgated pursuant to subsection (d), shall record and retain the following information:

(1) The number of persons stopped for traffic violations;

(2) Characteristics of race, color, ethnicity, gender and age of such persons;  provided, that the identification of such characteristics shall be based on the observation and perception of the law enforcement officer responsible for reporting the stop and the information shall not be required to be provided by the person stopped;

(3) The nature of the alleged traffic violation that resulted in the stop;

(4) Whether a warrant or citation was issued, an arrest made or a search conducted as a result of the stop;  and

(5) If a search was conducted, the type of search and the legal basis for that search, and whether contraband was discovered and property was seized.

(b) The Tennessee highway patrol shall begin submitting such data and information to the comptroller of the treasury on a monthly basis, beginning no later than February 1, 2006, by submitting or electronically transferring a copy of the form prescribed by the comptroller of the treasury.

(c) Any law enforcement officer who in good faith records traffic stop information pursuant to the requirements of this section shall not be held civilly liable for the act of recording such information.

(d) The comptroller of the treasury shall, within the limits of existing resources, provide for a review of the prevalence and disposition of traffic stops reported pursuant to this section.  The comptroller of the treasury shall develop and promulgate a form, in both printed and electronic format, to be used by law enforcement officers to which this section applies when making a traffic stop to record personal identifying information about the operator of the motor vehicle that is stopped, the location of the stop, the reason for the stop and other information that is required to be recorded pursuant to subsection (a).  The comptroller of the treasury shall report to the governor and the general assembly the results of such review, including any recommendations, no later than April 1, 2007.

(e) This section shall be in effect from May 19, 2005, until July 1, 2007.


TEXAS

Texas C.C.P. Art. 2.131   VERNON'S TEXAS STATUTES AND CODES ANNOTATED   CODE OF CRIMINAL PROCEDURE   TITLE 1. CODE OF CRIMINAL PROCEDURE OF 1965   INTRODUCTORY    CHAPTER TWO. GENERAL DUTIES OF OFFICERS    Art. 2.131. Racial Profiling Prohibited


A peace officer may not engage in racial profiling.


Texas C.C.P. Art. 2.132   VERNON'S TEXAS STATUTES AND CODES ANNOTATED   CODE OF CRIMINAL PROCEDURE   TITLE 1. CODE OF CRIMINAL PROCEDURE OF 1965   INTRODUCTORY    CHAPTER TWO. GENERAL DUTIES OF OFFICERS    Art. 2.132. Law Enforcement Policy on Racial Profiling


(a) In this article:

(1) "Law enforcement agency" means an agency of the state, or of a county, municipality, or other political subdivision of the state, that employs peace officers who make motor vehicle stops in the routine performance of the officers' official duties.

(2) "Motor vehicle stop" means an occasion in which a peace officer stops a motor vehicle for an alleged violation of a law or ordinance.

(3) "Race or ethnicity" means of a particular descent, including Caucasian, African, Hispanic, Asian, Native American, or Middle Eastern descent.

(b) Each law enforcement agency in this state shall adopt a detailed written policy on racial profiling.  The policy must:

(1) clearly define acts constituting racial profiling;

(2) strictly prohibit peace officers employed by the agency from engaging in racial profiling;

(3) implement a process by which an individual may file a complaint with the agency if the individual believes that a peace officer employed by the agency has engaged in racial profiling with respect to the individual;

(4) provide public education relating to the agency's complaint process;

(5) require appropriate corrective action to be taken against a peace officer employed by the agency who, after an investigation, is shown to have engaged in racial profiling in violation of the agency's policy adopted under this article;

(6) require collection of information relating to motor vehicle stops in which a citation is issued and to arrests made as a result of those stops, including information relating to:

(A) the race or ethnicity of the individual detained;

(B) whether a search was conducted and, if so, whether the individual detained consented to the search;  and

(C) whether the peace officer knew the race or ethnicity of the individual detained before detaining that individual;  and

(7) require the chief administrator of the agency, regardless of whether the administrator is elected, employed, or appointed, to submit an annual report of the information collected under Subdivision (6) to:

(A) the Commission on Law Enforcement Officer Standards and Education;  and

(B) the governing body of each county or municipality served by the agency, if the agency is an agency of a county, municipality, or other political subdivision of the state.

(c) The data collected as a result of the reporting requirements of this article shall not constitute prima facie evidence of racial profiling.

(d) On adoption of a policy under Subsection (b), a law enforcement agency shall examine the feasibility of installing video camera and transmitter-activated equipment in each agency law enforcement motor vehicle regularly used to make motor vehicle stops and transmitter-activated equipment in each agency law enforcement motorcycle regularly used to make motor vehicle stops.  If a law enforcement agency installs video or audio equipment as provided by this subsection, the policy adopted by the agency under Subsection (b) must include standards for reviewing video and audio documentation.


(e) A report required under Subsection (b)(7) may not include identifying information about a peace officer who makes a motor vehicle stop or about an individual who is stopped or arrested by a peace officer.  This subsection does not affect the collection of information as required by a policy under Subsection (b)(6).

(f) On the commencement of an investigation by a law enforcement agency of a complaint described by Subsection (b)(3) in which a video or audio recording of the occurrence on which the complaint is based was made, the agency shall promptly provide a copy of the recording to the peace officer who is the subject of the complaint on written request by the officer.

(g) On a finding by the Commission on Law Enforcement Officer Standards and Education that the chief administrator of a law enforcement agency intentionally failed to submit a report required under Subsection (b)(7), the commission shall begin disciplinary procedures against the chief administrator.

 

Texas C.C.P. Art. 2.134   VERNON'S TEXAS STATUTES AND CODES ANNOTATED   CODE OF CRIMINAL PROCEDURE   TITLE 1. CODE OF CRIMINAL PROCEDURE OF 1965   INTRODUCTORY    CHAPTER TWO. GENERAL DUTIES OF OFFICERS    Art. 2.134. Compilation and Analysis of Information Collected


(a) In this article:

(1) "Motor vehicle stop" has the meaning assigned by Article 2.132(a).

(2) "Race or ethnicity" has the meaning assigned by Article 2.132(a).

(b) A law enforcement agency shall compile and analyze the information contained in each report received by the agency under Article 2.133.  Not later than March 1 of each year, each law enforcement agency shall submit a report containing the incident-based data compiled during the previous calendar year to the Commission on Law Enforcement Officer Standards and Education and, if the law enforcement agency is a local law enforcement agency, to the governing body of each county or municipality served by the agency.

(c) A report required under Subsection (b) must be submitted by the chief administrator of the law enforcement agency, regardless of whether the administrator is elected, employed, or appointed, and must include:

(1) a comparative analysis of the information compiled under Article 2.133 to:

(A) evaluate and compare the number of motor vehicle stops, within the applicable jurisdiction, of persons who are recognized as racial or ethnic minorities and persons who are not recognized as racial or ethnic minorities; and

(B) examine the disposition of motor vehicle stops made by officers employed by the agency, categorized according to the race or ethnicity of the affected persons, as appropriate, including any searches resulting from stops within the applicable jurisdiction;  and

(2) information relating to each complaint filed with the agency alleging that a peace officer employed by the agency has engaged in racial profiling.

(d) A report required under Subsection (b) may not include identifying information about a peace officer who makes a motor vehicle stop or about an individual who is stopped or arrested by a peace officer.  This subsection does not affect the reporting of information required under Article 2.133(b)(1).

(e) The Commission on Law Enforcement Officer Standards and Education, in accordance with Section 1701.162, Occupations Code, shall develop guidelines for compiling and reporting information as required by this article.

(f) The data collected as a result of the reporting requirements of this article shall not constitute prima facie evidence of racial profiling.

(g) On a finding by the Commission on Law Enforcement Officer Standards and Education that the chief administrator of a law enforcement agency intentionally failed to submit a report required under Subsection (b), the commission shall begin disciplinary procedures against the chief administrator.


Texas C.C.P. Art. 2.135   VERNON'S TEXAS STATUTES AND CODES ANNOTATED   CODE OF CRIMINAL PROCEDURE   TITLE 1. CODE OF CRIMINAL PROCEDURE OF 1965   INTRODUCTORY    CHAPTER TWO. GENERAL DUTIES OF OFFICERS    Art. 2.135. Partial Exemption for Agencies Using Video and Audio Equipment


(a) A peace officer is exempt from the reporting requirement under Article 2.133 and the chief administrator of a law enforcement agency, regardless of whether the administrator is elected, employed, or appointed, is exempt from the compilation, analysis, and reporting requirements under Article 2.134 if:

(1) during the calendar year preceding the date that a report under Article 2.134 is required to be submitted:

(A) each law enforcement motor vehicle regularly used by an officer employed by the agency to make motor vehicle stops is equipped with video camera and transmitter-activated equipment and each law enforcement motorcycle regularly used to make motor vehicle stops is equipped with transmitter-activated equipment;  and

(B) each motor vehicle stop made by an officer employed by the agency that is capable of being recorded by video and audio or audio equipment, as appropriate, is recorded by using the equipment;  or

(2) the governing body of the county or municipality served by the law enforcement agency, in conjunction with the law enforcement agency, certifies to the Department of Public Safety, not later than the date specified by rule by the department, that the law enforcement agency needs funds or video and audio equipment for the purpose of installing video and audio equipment as described by Subsection (a)(1)(A) and the agency does not receive from the state funds or video and audio equipment sufficient, as determined by the department, for the agency to accomplish that purpose.

(b) Except as otherwise provided by this subsection, a law enforcement agency that is exempt from the requirements under Article 2.134 shall retain the video and audio or audio documentation of each motor vehicle stop for at least 90 days after the date of the stop.  If a complaint is filed with the law enforcement agency alleging that a peace officer employed by the agency has engaged in racial profiling with respect to a motor vehicle stop, the agency shall retain the video and audio or audio record of the stop until final disposition of the complaint.

(c) This article does not affect the collection or reporting requirements under Article 2.132.

(d) In this article, "motor vehicle stop" has the meaning assigned by  Article 2.132(a).


Texas C.C.P. Art. 3.05   VERNON'S TEXAS STATUTES AND CODES ANNOTATED   CODE OF CRIMINAL PROCEDURE   TITLE 1. CODE OF CRIMINAL PROCEDURE OF 1965   INTRODUCTORY    CHAPTER THREE. DEFINITIONS    Art. 3.05. Racial Profiling


In this code, "racial profiling" means a law enforcement-initiated action based on an individual's race, ethnicity, or national origin rather than on the individual's behavior or on information identifying the individual as having engaged in criminal activity.



V.T.C.A., Education Code § 96.641   VERNON'S TEXAS STATUTES AND CODES ANNOTATED   EDUCATION CODE   TITLE 3. HIGHER EDUCATION    SUBTITLE E. THE TEXAS STATE UNIVERSITY SYSTEM   CHAPTER 96. INSTITUTIONS OF THE TEXAS STATE UNIVERSITY SYSTEM    SUBCHAPTER D. SAM HOUSTON STATE UNIVERSITY   § 96.641. Initial Training and Continuing Education for Police Chiefs and Command Staff


(a) The Bill Blackwood Law Enforcement Management Institute of Texas shall establish and offer a program of initial training and a program of continuing education for police chiefs.  The curriculum for each program must relate to law enforcement management issues.  The institute shall develop the curriculum for the programs.  The curriculum must be approved by the Commission on Law Enforcement Officer Standards and Education.

(a-1) The institute may establish and offer a continuing education program for command staff for individuals who are second in command to police chiefs.  The command staff continuing education program must satisfy the requirements for the police chief continuing education program under Subsection (a).

(b) Each police chief must receive at least 40 hours of continuing education provided by the institute under this section each 24-month period.  The Commission on Law Enforcement Officer Standards and Education by rule shall establish a uniform 24-month continuing education training period.

(c) An individual appointed or elected to that individual's first position as chief must receive not fewer than 80 hours of initial training for new chiefs in accordance with Subsections (d) and (e).

(d) A newly appointed or elected police chief shall complete the initial training program for new chiefs not later than the second anniversary of that individual's appointment or election as chief.  The initial training program for new chiefs is in addition to the initial training and continuing education required by Chapter 1701, Occupations Code.  The Commission on Law Enforcement Officer Standards and Education by rule shall establish that the first continuing education training period for an individual under Subsection (b) begins on the first day of the first uniform continuing education training period that follows the date the individual completed the initial training program.

(e) The institute by rule may provide for the waiver of:

(1) the requirement of all or part of the 80 hours of initial training for new chiefs to the extent the new chief has satisfactorily completed equivalent training in the 24 months preceding the individual's appointment or election; or

(2) the continuing education requirements of Subsection (b) for an individual who has satisfactorily completed equivalent continuing education in the preceding 24 months.

(f) An individual who is subject to the continuing education requirements of Subsection (b) is exempt from other continuing education requirements under Subchapter H, Chapter 1701, Occupations Code. [FN1]

(g) In this section, "police chief" or "chief" means the head of a police department.

(h) The chief of a municipal police department must be licensed as a peace officer by the commission no later than one year after the date that the chief is appointed to the position of police chief.  The commission shall establish requirements for licensing and for revocation, suspension, cancellation, or denial of peace officer license for a police chief.

(i) A police chief who does not comply with this section cannot continue to be the chief.

(j) As part of the initial training and continuing education for police chiefs required under this section, the institute shall establish a program on asset forfeiture under Chapter 59, Code of Criminal Procedure.  The program must include an examination of the best practices for educating peace officers about asset forfeiture and monitoring peace officers' compliance with laws relating to asset forfeiture.

(k) As part of the initial training and continuing education for police chiefs required under this section, the institute shall establish a program on racial profiling.  The program must include an examination of the best practices for:

(1) monitoring peace officers' compliance with laws and internal agency policies relating to racial profiling;

(2) implementing laws and internal agency policies relating to preventing racial profiling;  and

(3) analyzing and reporting collected information.


(l) As part of the initial training and continuing education for police chiefs required under this section, the institute shall establish a program on de-escalation and crisis intervention techniques to facilitate interaction with persons with mental impairments.  The program must include an examination of the best practices for:

(1) monitoring peace officers' compliance with internal agency policies relating to de-escalation and crisis intervention techniques to facilitate interaction with persons with mental impairments;  and

(2) implementing internal agency policies relating to those techniques.

(m) A police chief may not satisfy the requirements of Subsection (l) by taking an online course on de-escalation and crisis intervention techniques to facilitate interaction with persons with mental impairments.

V.T.C.A., Occupations Code § 1701.402   VERNON'S TEXAS STATUTES AND CODES ANNOTATED   OCCUPATIONS CODE   TITLE 10. OCCUPATIONS RELATED TO LAW ENFORCEMENT AND SECURITY   CHAPTER 1701. LAW ENFORCEMENT OFFICERS   SUBCHAPTER I. PROFESSIONAL TRAINING AND RECOGNITION   § 1701.402. Proficiency Certificates


(a) The commission shall issue certificates that recognize proficiency based on law enforcement training, education, and experience.  For this purpose the commission shall use the employment records of the employing agency.

(b) As a requirement for a basic proficiency certificate, the commission shall require completion of local courses or programs of instruction on federal and state statutes that relate to employment issues affecting peace officers, telecommunicators, and county jailers, including:

(1) civil service;

(2) compensation, including overtime compensation, and vacation time;

(3) personnel files and other employee records;

(4) management-employee relations in law enforcement organizations;

(5) work-related injuries;

(6) complaints and investigations of employee misconduct;  and

(7) disciplinary actions and the appeal of disciplinary actions.

(c) An employing agency is responsible for providing the training required by this section.

(d) As a requirement for an intermediate proficiency certificate, an officer must complete an education and training program on asset forfeiture established by the commission under Section 1701.253(g).

(e) As a requirement for an intermediate proficiency certificate, an officer must complete an education and training program on racial profiling established by the commission under Section 1701.253(h).

(f) As a requirement for an intermediate proficiency certificate, an officer must complete an education and training program on identity theft established by the commission under Section 1701.253(i).

(g) As a requirement for an intermediate proficiency certificate or an advanced proficiency certificate, an officer must complete the education and training program described by Section 1701.253 regarding de-escalation and crisis intervention techniques to facilitate interaction with persons with mental impairments.

(h) As a requirement for an intermediate proficiency certificate, an officer must complete an education and training program on investigative topics established by the commission under Section 1701.253(b).

(i) As a requirement for an intermediate proficiency certificate, an officer must complete an education and training program on civil rights, racial sensitivity, and cultural diversity established by the commission under Section 1701.253(c).

(j) As a requirement for an intermediate or advanced proficiency certificate issued by the commission on or after January 1, 2011, an officer must complete the basic education and training program on the trafficking of persons described by Section 1701.258(a).


V.T.C.A., Occupations Code § 1701.253   VERNON'S TEXAS STATUTES AND CODES ANNOTATED   OCCUPATIONS CODE   TITLE 10. OCCUPATIONS RELATED TO LAW ENFORCEMENT AND SECURITY   CHAPTER 1701. LAW ENFORCEMENT OFFICERS   SUBCHAPTER F. TRAINING PROGRAMS AND SCHOOLS   § 1701.253. School Curriculum


(a) The commission shall establish minimum curriculum requirements for preparatory and advanced courses and programs for schools subject to approval under Section 1701.251(c)(1).

(b) In establishing requirements under this section, the commission shall require courses and programs to provide training in:

(1) the investigation and documentation of cases that involve:

(A) child abuse or neglect;

(B) family violence;  and

(C) sexual assault;

(2) issues concerning sex offender characteristics;  and

(3) crime victims' rights under Chapter 56, Code of Criminal Procedure, and Chapter 57, Family Code, and the duty of law enforcement agencies to ensure that a victim is afforded those rights.

(c) As part of the minimum curriculum requirements, the commission shall establish a statewide comprehensive education and training program on civil rights, racial sensitivity, and cultural diversity for persons licensed under this chapter.

(d) Training in documentation of cases required by Subsection (b) shall include instruction in:

(1) making a written account of the extent of injuries sustained by the victim of an alleged offense;

(2) recording by photograph or videotape the area in which an alleged offense occurred and the victim's injuries;  and

(3) recognizing and recording a victim's statement that may be admissible as evidence in a proceeding concerning the matter about which the statement was made.

(e) As part of the minimum curriculum requirements relating to the vehicle and traffic laws of this state, the commission shall require an education and training program on laws relating to the operation of motorcycles and to the wearing of protective headgear by motorcycle operators and passengers.  In addition, the commission shall require education and training on motorcycle operator profiling awareness and sensitivity training.

(f) Training for officers and recruits in investigation of cases required by Subsection (b)(1)(B) shall include instruction in preventing dual arrest whenever possible and conducting a thorough investigation to determine which person is the predominant aggressor when allegations of family violence from two or more opposing persons are received arising from the same incident.

(g) As part of the minimum curriculum requirements, the commission shall establish a statewide comprehensive education and training program on asset forfeiture under Chapter 59, Code of Criminal Procedure, for officers licensed under this chapter.  An officer shall complete a program established under this subsection not later than the second anniversary of the date the officer is licensed under this chapter or the date the officer applies for an intermediate proficiency certificate, whichever date is earlier.

(h) As part of the minimum curriculum requirements, the commission shall establish a statewide comprehensive education and training program on racial profiling for officers licensed under this chapter.  An officer shall complete a program established under this subsection not later than the second anniversary of the date the officer is licensed under this chapter or the date the officer applies for an intermediate proficiency certificate, whichever date is earlier.

(i) As part of the minimum curriculum requirements, the commission shall establish a statewide comprehensive education and training program on identity theft under Section 32.51, Penal Code, for officers licensed under this chapter.  An officer shall complete a program established under this subsection not later than the second anniversary of the date the officer is licensed under this chapter or the date the officer applies for an intermediate proficiency certificate, whichever date is earlier.

(j) As part of the minimum curriculum requirements, the commission shall require an officer to complete a statewide education and training program on de-escalation and crisis intervention techniques to facilitate interaction with persons with mental impairments.  An officer shall complete the program not later than the second anniversary of the date the officer is licensed under this chapter or the date the officer applies for an intermediate proficiency certificate, whichever date is earlier.  An officer may not satisfy the requirements of this section or Section 1701.402(g) by taking an online course on de-escalation and crisis intervention techniques to facilitate interaction with persons with mental impairments.

(k) As part of the minimum curriculum requirements, the commission shall establish a statewide comprehensive education and training program for officers licensed under this chapter that covers the laws of this state and of the United States pertaining to peace officers.



Washington

WASHINGTON ANNOTATED   TITLE 43. STATE GOVERNMENT--EXECUTIVE   CHAPTER 43.101. CRIMINAL JUSTICE TRAINING COMMISSION--EDUCATION AND TRAINING STANDARDS BOARDS   43.101.410. Racial profiling--Policies--Training--Complaint review process-- Data collection and reporting


43.101.410. Racial profiling--Policies--Training--Complaint review process-- Data collection and reporting

(1) Local law enforcement agencies shall comply with the recommendations of the Washington association of sheriffs and police chiefs regarding racial profiling, as set forth under (a) through (f) of this subsection. Local law enforcement agencies shall:

(a) Adopt a written policy designed to condemn and prevent racial profiling;

(b) Review and audit their existing procedures, practices, and training to ensure that they do not enable or foster the practice of racial profiling;

(c) Continue training to address the issues related to racial profiling. Officers should be trained in how to better interact with persons they stop so that legitimate police actions are not misperceived as racial profiling;

(d) Ensure that they have in place a citizen complaint review process that can adequately address instances of racial profiling. The process must be accessible to citizens and must be fair. Officers found to be engaged in racial profiling must be held accountable through the appropriate disciplinary procedures within each department;

(e) Work with the minority groups in their community to appropriately address the issue of racial profiling; and

(f) Within fiscal constraints, collect demographic data on traffic stops and analyze that data to ensure that racial profiling is not occurring.

(2) The Washington association of sheriffs and police chiefs shall coordinate with the criminal justice training commission to ensure that issues related to racial profiling are addressed in basic law enforcement training and offered in regional training for in-service law enforcement officers at all levels.

(3) Local law enforcement agencies shall report all information required under this section to the Washington association of sheriffs and police chiefs.

 

West's RCWA 43.101.415    WASHINGTON ANNOTATED   TITLE 43. STATE GOVERNMENT--EXECUTIVE   CHAPTER 43.101. CRIMINAL JUSTICE TRAINING COMMISSION--EDUCATION AND TRAINING STANDARDS BOARDS   43.101.415. Racial profiling--Reports to the legislature


The Washington association of sheriffs and police chiefs, in cooperation with the criminal justice training commission, shall report to the legislature by December 31, 2002, and each December 31st thereafter, on the progress and accomplishments of each local law enforcement agency in the state in meeting the requirements and goals set forth in RCW 43.101.410.

West's RCWA 43.43.490    WASHINGTON ANNOTATED   TITLE 43. STATE GOVERNMENT--EXECUTIVE   CHAPTER 43.43. WASHINGTON STATE PATROL   43.43.490. Routine traffic enforcement information--Data collection-- Training materials on racial profiling


(1) The Washington state patrol shall work with the criminal justice training commission and the Washington association of sheriffs and police chiefs to develop (a) further criteria for collection and evaluation of the data collected under RCW 43.43.480, and (b) training materials for use by the state patrol and local law enforcement agencies on the issue of racial profiling.

(2) The Washington state patrol, criminal justice training commission, and Washington association of sheriffs and police chiefs shall encourage local law enforcement agencies to voluntarily collect the data set forth under RCW 43.43.480(1).



West Virginia

W. Va. Code, § 30-29-10   WEST'S ANNOTATED CODE OF WEST VIRGINIA   CHAPTER 30. PROFESSIONS AND OCCUPATIONS   ARTICLE 29. LAW-ENFORCEMENT TRAINING AND CERTIFICATION   § 30-29-10. Prohibition of racial profiling


§ 30-29-10. Prohibition of racial profiling

(a) The Legislature finds that the use by a law-enforcement officer of race, ethnicity, or national origin in deciding which persons should be subject to traffic stops, stops and frisks, questioning, searches, and seizures is a problematic law-enforcement tactic.  The reality or public perception of racial profiling alienates people from police, hinders community policing efforts, and causes law-enforcement officers and law-enforcement agencies to lose credibility and trust among the people law-enforcement is sworn to protect and serve.  Therefore, the West Virginia Legislature declares that racial profiling is contrary to public policy and should not be used as a law-enforcement investigative tactic.

(b) For purposes of this section:

(1) The term "law-enforcement officer" means any duly authorized member of a law-enforcement agency who is authorized to maintain public peace and order, prevent and detect crime, make arrests and enforce the laws of the state or any county or municipality thereof.

(2) The term "municipality" means any incorporated town or city whose boundaries lie within the geographic boundaries of the state.

(3) The term "racial profiling" means the practice of a law-enforcement officer relying, to any degree, on race, ethnicity, or national origin in selecting which individuals to subject to routine investigatory activities, or in deciding upon the scope and substance of law-enforcement activity following the initial routine investigatory activity.  Racial profiling does not include reliance on race, ethnicity, or national origin in combination with other identifying factors when the law-enforcement officer is seeking to apprehend a specific suspect whose race, ethnicity, or national origin is part of the description of the suspect.

(4) The term "state and local law-enforcement agencies" means any duly authorized state, county or municipal organization employing one or more persons whose responsibility is the enforcement of laws of the state or any county or municipality thereof.

(c) No law-enforcement officer shall engage in racial profiling.

(d) All state and local law-enforcement agencies shall establish and maintain policies and procedures designed to eliminate racial profiling.  Policies and procedures shall include the following:

(1) A prohibition on racial profiling;

(2) Independent procedures for receiving, investigating, and responding to complaints alleging racial profiling by law-enforcement officers;

(3) Procedures to discipline law-enforcement officers who engage in racial profiling;

(4) Procedures to insure the inclusion of training in the investigation of organized criminal enterprises and anti-racial profiling training in new officer training and to law-enforcement officers who have not received such training as certified by the Governor's committee;  and

(5) Any other policies and procedures deemed necessary by state and local law-enforcement agencies to eliminate racial profiling.

 


West's Annotated Code of West Virginia Currentness

Chapter 30. Professions and Occupations (Refs & Annos)
 Article 29. Law-Enforcement Training and Certification (Refs & Annos)

§ 30-29-10. Prohibition of racial profiling


(a) The Legislature finds that the use by a law-enforcement officer of race, ethnicity, or national origin in deciding which persons should be subject to traffic stops, stops and frisks, questioning, searches, and seizures is a problematic law-enforcement tactic.  The reality or public perception of racial profiling alienates people from police, hinders community policing efforts, and causes law-enforcement officers and law-enforcement agencies to lose credibility and trust among the people law-enforcement is sworn to protect and serve.  Therefore, the West Virginia Legislature declares that racial profiling is contrary to public policy and should not be used as a law-enforcement investigative tactic.

(b) For purposes of this section:

(1) The term "law-enforcement officer" means any duly authorized member of a law-enforcement agency who is authorized to maintain public peace and order, prevent and detect crime, make arrests and enforce the laws of the state or any county or municipality thereof.

(2) The term "municipality" means any incorporated town or city whose boundaries lie within the geographic boundaries of the state.

(3) The term "racial profiling" means the practice of a law-enforcement officer relying, to any degree, on race, ethnicity, or national origin in selecting which individuals to subject to routine investigatory activities, or in deciding upon the scope and substance of law-enforcement activity following the initial routine investigatory activity.  Racial profiling does not include reliance on race, ethnicity, or national origin in combination with other identifying factors when the law-enforcement officer is seeking to apprehend a specific suspect whose race, ethnicity, or national origin is part of the description of the suspect.

(4) The term "state and local law-enforcement agencies" means any duly authorized state, county or municipal organization employing one or more persons whose responsibility is the enforcement of laws of the state or any county or municipality thereof.

(c) No law-enforcement officer shall engage in racial profiling.

(d) All state and local law-enforcement agencies shall establish and maintain policies and procedures designed to eliminate racial profiling.  Policies and procedures shall include the following:

(1) A prohibition on racial profiling;

(2) Independent procedures for receiving, investigating, and responding to complaints alleging racial profiling by law-enforcement officers;

(3) Procedures to discipline law-enforcement officers who engage in racial profiling;
(4) Procedures to insure the inclusion of training in the investigation of organized criminal enterprises and anti-racial profiling training in new officer training and to law-enforcement officers who have not received such training as certified by the Governor's committee;  and

(5) Any other policies and procedures deemed necessary by state and local law-enforcement agencies to eliminate racial profiling.
W. Va. Code, § 17G-2-1   WEST'S ANNOTATED CODE OF WEST VIRGINIA   CHAPTER 17G. RACIAL PROFILING DATA COLLECTION ACT   ARTICLE 2. ANALYSIS OF TRAFFIC STOPS STUDY AND ANNUAL REPORT BY DIRECTOR OF THE GOVERNOR'S COMMITTEE ON CRIME, DELINQUENCY AND CORRECTION   § 17G-2-1. Format of traffic stops data collection forms


The division of motor vehicles shall provide a form as required by section three of this article, in both printed and electronic format, to be used by law-enforcement officers when making a traffic stop to record the information listed in section two, article one of this chapter.

W. Va. Code, § 30-29-3   WEST'S ANNOTATED CODE OF WEST VIRGINIA   CHAPTER 30. PROFESSIONS AND OCCUPATIONS   ARTICLE 29. LAW-ENFORCEMENT TRAINING AND CERTIFICATION   § 30-29-3. Duties of the Governor's committee and the subcommittee


Upon recommendation of the subcommittee, the Governor's committee shall, by or pursuant to rules proposed for legislative approval in accordance with article three, chapter twenty-nine-a of this code:

(a) Provide funding for the establishment and support of law-enforcement training academies in the state;

(b) Establish standards governing the establishment and operation of the law-enforcement training academies, including regional locations throughout the state, in order to provide access to each law-enforcement agency in the state in accordance with available funds;

(c) Establish minimum law-enforcement instructor qualifications;

(d) Certify qualified law-enforcement instructors;

(e) Maintain a list of approved law-enforcement instructors;

(f) Promulgate standards governing the qualification of law-enforcement officers and the entry-level law-enforcement training curricula.  These standards shall require satisfactory completion of a minimum of four hundred classroom hours, shall provide for credit to be given for relevant classroom hours earned pursuant to training other than training at an established law-enforcement training academy if earned within five years immediately preceding the date of application for certification, and shall provide that the required classroom hours can be accumulated on the basis of a part-time curricula spanning no more than twelve months, or a full-time curricula;

(g) Establish standards governing in-service law-enforcement officer training curricula and in-service supervisory level training curricula;

(h) Certify organized criminal enterprise investigation techniques with a qualified anti-racial profiling training course or module;

(i) Establish standards governing mandatory training to effectively investigate organized criminal enterprises as defined in article thirteen, chapter sixty-one of this code, while preventing racial profiling, as defined in section ten of this article, for entry level training curricula and for law-enforcement officers who have not received such training as certified by the Governor's committee as required in this section;

(j) Establish, no later than July 1, 2011, procedures for implementation of a course in investigation of organized criminal enterprises which includes an anti-racial training module to be available on the Internet or otherwise to all law-enforcement officers.  The procedures shall include the frequency with which a law-enforcement officer shall receive training in investigation of organized criminal enterprises and anti-racial profiling, and a time frame for which all law-enforcement officers must receive such training:  Provided, That all law-enforcement officers in this state shall receive such training no later than July 1, 2012.  In order to implement and carry out the intent of this section, the Governor's committee may promulgate emergency rules pursuant to section fifteen, article three, chapter twenty-nine-a of this code;

(k) Certify or de-certify or reactivate law-enforcement officers, as provided in sections five and eleven of this article;

(l) Establish standards and procedures for the reporting of complaints and certain disciplinary matters concerning law-enforcement officers and for reviewing the certification of law-enforcement officers.  These standards and procedures shall provide for preservation of records and access to records by law-enforcement agencies and conditions as to how the information in those records is to be used regarding an officer's law-enforcement employment by another law enforcement agency;

(1) The subcommittee shall establish and manage a database that is available to all law-enforcement agencies in the state concerning the status of any person's certification.

(2) Personnel or personal information not resulting in a criminal conviction is exempt from disclosure pursuant to the provisions of chapter twenty-nine-b of this code.

(m) Seek supplemental funding for law-enforcement training academies from sources other than the fees collected pursuant to section four of this article;

(n) Any responsibilities and duties as the Legislature may, from time to time, see fit to direct to the committee;  and

(o) Submit, on or before September 30 of each year, to the Governor, and upon request to individual members of the Legislature, a report on its activities during the previous year and an accounting of funds paid into and disbursed from the special revenue account established pursuant to section four of this article.

W. Va. Code, § 17G-2-2   WEST'S ANNOTATED CODE OF WEST VIRGINIA   CHAPTER 17G. RACIAL PROFILING DATA COLLECTION ACT   ARTICLE 2. ANALYSIS OF TRAFFIC STOPS STUDY AND ANNUAL REPORT BY DIRECTOR OF THE GOVERNOR'S COMMITTEE ON CRIME, DELINQUENCY AND CORRECTION   § 17G-2-2. Law-enforcement agency traffic stops data collection and submission

(a) Each law-enforcement agency shall report its data described in section two, article one of this chapter to the division of motor vehicles in a report format as prescribed by the division.

(b) If a law-enforcement agency fails to comply with the provisions of this section, the division of motor vehicles shall notify the agency by certified mail of its failure to comply.  If the agency continues to fail to comply, the governor may withhold state-controlled funds appropriated to the noncompliant law-enforcement agency until reports are made as required by this article.

W. Va. Code, § 17G-2-3   WEST'S ANNOTATED CODE OF WEST VIRGINIA   CHAPTER 17G. RACIAL PROFILING DATA COLLECTION ACT   ARTICLE 2. ANALYSIS OF TRAFFIC STOPS STUDY AND ANNUAL REPORT BY DIRECTOR OF THE GOVERNOR'S COMMITTEE ON CRIME, DELINQUENCY AND CORRECTION   § 17G-2-3. Analysis of traffic stop statistics, annual report and legislative rules


(a) To facilitate the commencement of data collection, the Director of the Governor's Committee on Crime, Delinquency and Corrections, in consultation with the Division of Motor Vehicles, shall propose legislative rules in accordance with article three, chapter twenty-nine-a of this code.  These rules shall include, but are not limited to:

(1) The manner of reporting the information to the Division of Motor Vehicles;

(2) Promulgation of a form or forms for reporting purposes by various law-enforcement agencies;

(3) A means of reporting the information required in section two, article one of this chapter on warning citations to the Division of Motor Vehicles;

(4) In consultation with the Fraternal Order of Police, the Sheriff's Association, the Deputy Sheriff's Association and representatives of law-enforcement agencies, a means of providing training to law-enforcement officers on completion and submission of the data on the proposed form;

(5) A means of reporting back to individual law-enforcement agencies, from time to time, at the request of a law-enforcement agency on findings specific to that agency in an agreed-upon format to allow the agency to evaluate independently the data provided;

(6) A limitation that the data is to be used solely for the purposes of this chapter;

(7) Safeguards to protect the identity of individual law-enforcement officers collecting data required by section two, article one of this chapter when no citation or warning is issued;

(8) Methodology for collection of gross data by law-enforcement agencies and the analysis of the data;

(9) The number of motor vehicle stops and searches of motor vehicles occupied by members of a perceived minority group;  the number of motor vehicle stops and searches of motor vehicles occupied by persons who are not members of a minority group;  the population of minorities in the areas where the stops occurred;  estimates of the number of all vehicles traveling on the public highways where the stops occurred;  factors to be included in any evaluation that the data may indicate racial profiling, racial stereotyping or other race-based discrimination or selective enforcement;  and other data deemed appropriate by the Governor's Committee on Crime, Delinquency and Correction for the analysis of the protection of constitutional rights;  and

(10) Protocols for reporting collected data by the Division of Motor Vehicles to the Governor's Committee on Crime, Delinquency and Correction and the analysis thereof.

(b) Annually, on or before the first day of February, the Director of the Governor's Committee on Crime, Delinquency and Correction shall publish a public report of the data collected and provide a copy thereof to all law-enforcement agencies subject to this chapter and provide a copy of the report and analysis of the data collected to the Governor and to the Joint Committee on Government and Finance.

(c) The provisions of sections two and three, article one of this chapter and section two of this article were effective the thirty-first day of December, two thousand four.

(d) Collection of data pursuant to subsection (a) of this section shall terminate on the thirty-first day of December, two thousand eight.  The provisions of this chapter shall be of no force or effect after the thirtieth day of June, two thousand nine.

W. Va. Code, § 17G-1-3   WEST'S ANNOTATED CODE OF WEST VIRGINIA   CHAPTER 17G. RACIAL PROFILING DATA COLLECTION ACT   ARTICLE 1. RACIAL PROFILING DATA COLLECTION   § 17G-1-3. Law-enforcement officer exemption from civil liability


Any law-enforcement officer who, in good faith, records traffic stop information under the requirements of section two of this article may not be held civilly liable for the act of inaccurately recording the information unless the officer's conduct was unconstitutional, unreasonable, intentional or reckless.


W. Va. Code, § 17G-1-2   WEST'S ANNOTATED CODE OF WEST VIRGINIA   CHAPTER 17G. RACIAL PROFILING DATA COLLECTION ACT   ARTICLE 1. RACIAL PROFILING DATA COLLECTION   § 17G-1-2. Information obtained by law-enforcement officers during a traffic stop


Each time a law-enforcement officer stops a driver of a motor vehicle for a violation of any motor vehicle statute or ordinance, other than for a nonviolation stop, including, but not limited to, a checkpoint for driving under the influence, license, registration or seat belts, the officer shall obtain and prepare a brief report based on the officer's visual observation and perception of basic information about the nature, duration and outcome of the stop, including, but not limited to, information relating to the perceived racial characteristics of each operator stopped.  The report is to be provided to the West Virginia law-enforcement agency which employs the law- enforcement officer:  Provided, That the failure of the law-enforcement officer to obtain and report racial profiling data shall not affect the validity of the underlying traffic citation or warning.

The information to be collected shall include:

(a) The identifying characteristics of the operator stopped, including perceived race, ethnicity or national origin, gender and age;

(b) The location and duration of the stop;

(c) The traffic violation or violations alleged to have been committed that led to the stop;

(d) Whether or not a warning or citation was issued as a result of the stop and if so, the specific violation, if any, charged or warning given;

(e) Whether a search was performed as a result of the stop;

(f) If a search was performed, whether the person consented to the search, the probable cause or reasonable suspicion for the search, whether the person was searched, whether the person's property was searched and the duration of the search;

(g) If a search was of a passenger in the motor vehicle, the perceived age, gender and race or minority group of the passenger;

(h) Whether any contraband was discovered or seized in the course of the search and the type of any contraband discovered or seized;

(i) Identify whether the search involved canine units or advanced technology;  and

(j) Any additional information which the law-enforcement agency considers appropriate
W. Va. Code, § 17G-1-1   WEST'S ANNOTATED CODE OF WEST VIRGINIA   CHAPTER 17G. RACIAL PROFILING DATA COLLECTION ACT   ARTICLE 1. RACIAL PROFILING DATA COLLECTION   § 17G-1-1. Definitions


The following words and phrases, when used in this chapter, shall, for the purposes of this chapter, have the meanings respectively ascribed to them in this article:

(a) "Gross data" means aggregate data regarding the information obtained under section two of this article.

(b) "Law-enforcement agency" means every state, county or municipal agency with officers who are authorized to direct or regulate traffic or to make arrests or issue citations or warnings for violations of traffic laws and ordinances.

(c) "Minority group" means individuals of any ethnic descent, including, but not limited to, African-American, Hispanic, Native American, Middle Eastern, Asian or Pacific  Islander.

The Stories, the Statistics, and the Law: Why "Driving While Black" Matters

David A. Harris, The Stories, the Statistics, and the Law:  Why "Driving While Black" Matters , 84 Minnesota Law Review 265-326 (1999) (200+ footnotes omitted)


 

Each one of those stops, for me, had nothing to do with breaking the law. It had to do with who I was. . . . It's almost like somebody pulls your pants down around your ankles. You're standing there nude, but you've got to act like there's nothing happening.

It has happened to actors Wesley Snipes, Will Smith, Blair Underwood, and LeVar Burton. It has also happened to football player Marcus Allen, and Olympic athletes Al Joyner and Edwin Moses. African-Americans call it "driving while black"--police officers stopping, questioning, and even searching black drivers who have committed no crime, based on the excuse of a traffic offense. And it has even happened to O.J. Simpson lawyer Johnnie Cochran.

In his pre-Simpson days, Cochran worked hand-in-hand with police officers as an Assistant District Attorney in Los Angeles, putting criminals behind bars. Cochran was driving down Sunset Boulevard one Saturday afternoon with his two youngest children in the back seat when a police car stopped him. Looking in his rearview mirror, Cochran got a frightening shock: "the police were out of their car with their guns out." The officers said that they thought Cochran was driving a stolen car, and with no legal basis they began to search it. But instead of finding evidence, they found Cochran's official badge, identifying him as an Assistant District Attorney. "When they saw my badge, they ran for cover," Cochran said.

The incident unnerved Cochran, but it terrified his young children. "[The officers] had their guns out and my kids were in that car crying. My daughter said, 'Daddy, I thought you were with the police.' I had to explain to her why this happened."

Cochran's experience is a textbook example of what many African-American drivers say they go through every day: police using traffic offenses as an excuse to stop and conduct roadside investigations of black drivers and their cars, usually to look for drugs. Normally, if police want to conduct stops and searches for contraband they need probable cause or at least reasonable suspicion that the suspect is involved in an offense. But with the Supreme Court's recent cases involving cars, drivers, and passengers, none of this is necessary. Traffic offenses open the door to stops, searches, and questioning, based on mere hunches, or nothing at all. And African-Americans believe they are subjected to this treatment in numbers far out of proportion to their presence in the driving population.

But is this just a problem of perception, the product of years of mistrust between police and minorities? Is it a problem only in large urban centers? Are these claims supported by statistical evidence, or are they merely strong feelings born of anecdotes?

To answer these questions, a number of African-Americans--all middle class, taxpaying citizens--described their experiences in interviews. The interviewees were drawn from Toledo, Ohio, an almost prototypical medium-sized Midwestern city. Statistics from courts in Toledo and in three other Ohio cities--Dayton, Akron, and Columbus--were analyzed. Research from other areas of the country was also reviewed.

The interviews reveal that African-Americans strongly believe that they are stopped and ticketed more often than whites, and the data from Ohio and elsewhere show that they are right. For example, the Toledo Police Department is at least twice as likely to issue tickets to blacks than to all other drivers. The numbers in Akron, Columbus and Dayton are similar: blacks are about twice as likely to get tickets as those who are not black. When adjusted to reflect the fact that 21% of all black households do not own vehicles, making blacks less likely to drive than others, these numbers increase to even higher levels. All of the assumptions built into this statistical analysis are conservative; they are structured to give the law enforcement agencies the benefit of the doubt. Statistics from cases in New Jersey and Maryland are similar. Sophisticated analyses of stops and driving populations in both states showed racial disparities in traffic stops that were "literally off the charts."

Police departments engage in these practices for a simple reason: they help catch criminals. Since blacks represent a disproportionate share of those arrested for certain crimes, police believe that it makes sense to stop a disproportionate share of blacks. Lt. Ernest Leatherbury, a spokesman for the Maryland State Police (a department that has been sued twice over race-based traffic stops), explained to the Washington Post that stopping an outsized number of blacks was not racism, but rather "an unfortunate byproduct of sound police policies." Carl Williams, Superintendent of the New Jersey State Police, put the matter even more bluntly in an interview with the Newark Star-Ledger. With narcotics today, he said, "it's most likely a minority group that's involved with that." In other words, officers may be targeting blacks and other minorities, but this is a rational thing to do.

This type of thinking means that anyone who is African-American is automatically suspect during every drive to work, the store, or a friend's house. Suspicion is not focused on individuals who have committed crimes, but on a whole racial group. Skin color becomes evidence, and race becomes a proxy for general criminal propensity. Aside from the possibility of suing a police department for these practices--a mammoth undertaking, that should only be undertaken by plaintiffs with absolutely clean records and the thickest skin-- there is no relief available.

Pretextual traffic stops aggravate years of accumulated feelings of injustice, resulting in deepening distrust and cynicism by African-Americans about police and the entire criminal justice system. But the problem goes deeper. If upstanding citizens are treated like criminals by the police, they will not trust those same officers as investigators of crimes or as witnesses in court. Fewer people will trust the police enough to tell them what they know about criminals in their neighborhoods, and some may not vote to convict the guilty in court when they are jurors. Recent polling data show that not just blacks, but a majority of whites believe that blacks face racism at the hands of police. "Driving while black" has begun to threaten the integrity of the entire process not only in the eyes of African-Americans, but of everyone.

This Article begins in Part I by discussing the experiences of three of the African-Americans who were interviewed for this Article. Their stories, selected not because they are unusually harsh but because they are typical, speak for themselves. The frightening and embarrassing nature of the experiences, the emotional difficulties and devastation that often follow, and the ways that they cope, bring to life the statistics, which are discussed in Part II. Part III then shows how the problem is connected to larger issues at the intersection of criminal justice and race. Part IV puts the problem of "driving while black" into its legal context and explains how the law not only allows but encourages these practices. Finally, Part V concludes with a discussion of some approaches that might be taken to address the problem.


THE COST OF GETTING STOPPED: FEAR, ANGER, AND HUMILIATION

Talk to almost any black person any place in the country and you will hear accounts of pretextual traffic stops. Some say they have experienced it many times. All of those interviewed--not criminals trying to explain away wrongdoing, but people with good jobs and families--described an experience common to blacks, but almost invisible to whites. The stories of several of these individuals illustrate what the experience is like and how it has impacted their lives.

Karen Brank, a licensed social worker in her early thirties with a young son, had never been in trouble with the police. But one morning, on her way to work for a monthly staff meeting, all of that changed when Brank was pulled over for speeding. Brank recalls being one of several cars that were traveling down a main thoroughfare at about the same rate of speed. The officer who stopped her told her she was going too fast. He then asked for her license and registration and took these items to the squad car. When he returned, the officer told Brank that there were outstanding warrants for her arrest for unpaid traffic tickets. Brank remembered the tickets because she did not get many and told the officer that she had paid them weeks before. But when she could not produce a receipt to prove payment (and who could have?), the officer said he would have to arrest her.

Brank was stunned. Arrest me? she thought. What do you mean arrest me? I'm not a criminal--I'm on my way to work! This could not be happening--and yet it was. It turned out later that the warrants were incorrect. Brank had paid, but a clerical error had kept the tickets in the computer system. Additional squad cars arrived, making the area around her car look like a crime scene. Mistake or not, minutes later Brank stood by the side of the road in handcuffs so tight that they left ugly red marks on her wrists for several days. She was distraught, breaking down in tears standing next to a public street. She can still feel the sting of embarrassment.

I was really upset. I was like, "Why are you guys handcuffing me about some tickets?" They had me standing outside with all these people passing by. It was so humiliating.

Months afterward, the pain she experienced during these moments still becomes visible on her face as she recalls the incident. She was put into a squad car and sat there, afraid to say anything.

I didn't say nothing, because I figured if I said anything, if I moved, that would just give them permission to beat me. And I did not want that to happen because I have a little boy.

Brank watched as the police searched her car. She says that the other officers on the scene--perhaps four or five--exchanged high fives with the arresting officer, accompanied by phrases like "good job" and "you got another one." Eventually, she was taken downtown and released. Brank felt unable to go to work that day. In the days that followed, her co-workers could tell something was wrong, but for some reason she hesitated to tell them what had happened. "I didn't want anyone to know. I was so embarrassed."

Brank is firmly convinced that she was singled out from the other cars around her, which she says were going the same speed, because she is black. She is sure that a white person would not have been handcuffed and humiliated the way she was. But the police officer who stopped her denies this. "The only reason I stopped her was because of a violation--speeding," he says, adding that he caught her on radar. "I don't care if you're black, blue, beige, brown, whatever--if you're violating the law, I'll stop you." And he categorically denies that any high fives or congratulatory words were exchanged.

James, a well-dressed, 28-year-old advertising account executive with a media company, also has been stopped for numerous traffic offenses. "I'm not one of those guys who says, 'Oh yeah, blacks, we've just got it bad," ' he says. But being stopped repeatedly by police is such an unchangeable part of life for him that "it's like the fact that I'm black."

James described an incident that took place recently in an upscale neighborhood, where he had visited a friend. After socializing for a while, James left the house and got in his car to leave. As soon as he pulled out of the driveway, James noticed that a police car was following him. Although he drove with extra care, the officer pulled James over and questioned him, accused him of weaving, checked his license and registration, and threatened to give him a citation for not wearing a seat belt. "I think he saw a black male in that neighborhood and he was suspicious," James says. Months later, the anger James felt that night remains fresh.

I feel like I'm a guy who's pretty much walked the straight line and that's respecting people and everything. But if cops will even bother me, that makes me think, well, it's gotta be something . . . [W]e just constantly get harassed. So we just feel like we can't go nowhere without being bothered . . . I'm not trying to bother nobody. But yet I got a cop pull me over says I'm weaving in the road. And I just came from a friend's house, no alcohol, no nothing. It just makes you wonder--was it just because I'm black?

It would be a mistake to think that pretextual traffic stops are limited to younger blacks. Michael, 41, is tall, attractive, and well-spoken. He is the top executive in an important public institution and has been stopped by the police many times. One afternoon, Michael was driving to a local high school to work out. As he approached the parking lot, he saw a parked police cruiser, so he drove with extra caution. "As I pulled up and put it in park and turned the key off, this police car comes screeching up behind me--the lights flashing, the whole deal," Michael says. The squad car blocked him in to the parking space, so he could not leave. But when the officer walked up to the window, he immediately noticed Michael's official identification. Without offering any explanation for why he had treated Michael as if he were a dangerous criminal, the officer "just backed away and he was gone. Just disappeared."

Michael was angry and frustrated at being treated this way, but it was not the first time it had happened. As he has done many times before, he distanced himself from the experience as a kind of emotional self-defense.

You've gotta learn to play through it. Even though you haven't done anything wrong, the worst thing you can do in a situation like that is to become emotionally engaged when they do that to you. . . . Because if you do something, maybe they're going to do something else to you for no reason at all, because they have the power. They have the power and they can do whatever they want to do to you for that period of time. . . . It doesn't make a difference who you are. You're never beyond this, because of the color of your skin.

For many blacks, the emotional cost is profound. Karen Brank missed work and experienced depression. For some time afterwards, she felt a wave of fear wash over her every time she saw a police car in her rearview mirror. In that one brief encounter, her entire sense of herself--her job, the fact that she is a mother and an educated, law-abiding person working on a master's degree--was stripped away. Kevin, an executive in his thirties with a large financial services corporation, a husband, and father with several young children, says his experiences have left him with very negative feelings about police. "When I see cops today, I don't feel like I'm protected. I'm thinking, 'Oh shoot, are they gonna pull me over, are they gonna stop me?' That's my reaction. I do not feel safe around cops."

To cope, African-Americans often make adjustments in their daily activities. They avoid certain places where they think police will "look" for blacks. Some drive bland cars. "I drive a minivan because it doesn't grab attention," says Kevin. "If I was driving a BMW"--a car he could certainly afford--"different story." Some change the way they dress. Others who drive long distances even factor in extra time for the inevitable traffic stops they will face.

But nowhere does the effect of racially-biased traffic stops become more painful than when blacks instruct their children on how to behave when--not if--they are stopped by police. Michael remembers, "[M]y dad would tell me, 'If you get pulled over, you just keep your mouth shut and do exactly what they tell you to do. Don't get into arguments, and don't be stupid. It doesn't make a difference [that you did nothing wrong]. Just do what they tell you to do." ' Officer Ova Tate, a thirteen-year veteran police officer and an African-American, told his teenage son not to expect special treatment because Tate is a police officer. "[If] you're black, you're out in the neighborhood, it's a fact of life you're going to be stopped. So how you deal with the police is how your life is going to be. They say you did something, say 'O.K.,' and let them get out of your life." Karen Brank's son is young, but she says that when the time comes, she will know what to say to him. Perhaps thinking of her own experience, she acknowledges the emotional cost, but knows it cannot be avoided.

[The police] are supposed to be there to protect and to serve, but you being black and being male, you've got two strikes against you. Keep your hands on the steering wheel, and do not run, because they will shoot you in your back. Keep your hands on the steering wheel, let them do whatever they want to do. I know it's humiliating, but let them do whatever they want to do to make sure you get out of that situation alive. Deal with your emotions later. Your emotions are going to come second--or last. These instructions will undoubtedly give black children a devastatingly poor impression of the police, but African-American parents say they have no choice. They know that traffic stops can lead to physical, even deadly, confrontations. Christopher Darden, the African-American prosecutor in the O.J. Simpson case, says that to survive traffic stops, he "learned the rules of the game years before . . . Don't move. Don't turn around. Don't give some rookie an excuse to shoot you." This may seem like an overreaction, but given the facts of life on the street, it seems likely that most African-American parents would agree.


The Statistical Analysis

Talking with African-Americans leaves little doubt that pretextual traffic stops have a profound impact on each individual stopped, and on all blacks collectively. There is also no doubt that blacks view this not as a series of isolated incidents and anecdotes, but as a long-standing pattern of law enforcement. For those subjected to these practices, pretextual stops are nothing less than blatant racial discrimination in the enforcement of the criminal law.

But is there proof that would substantiate those strongly-held beliefs? What statistics exist that would allow one to conclude, to an acceptable degree of certainty, that "driving while black" is, indeed, more than just the sum of many individual stories?

Data on this problem are not easy to come by. This is, in part, because the problem has only recently been recognized beyond the black community. It may also be because records concerning police conduct are either irregular or nonexistent. But it may also be because there is active hostility in the law enforcement community to the idea of keeping comprehensive records of traffic stops. In 1997, Representative John Conyers of Michigan introduced H.R. 118, the Traffic Stops Statistics Act, which would require the Department of Justice to collect and analyze data on all traffic stops around the country--including the race of the driver, whether a search took place, and the legal justification for the search. When the bill passed the House with unanimous, bipartisan support the National Association of Police Organizations (NAPO), an umbrella group representing more than 4,000 police interest groups across the country, announced its strong opposition to the bill. Officers would "resent" having to collect the data, a spokesman for the group said. Moreover, there is "no pressing need or justification" for collecting the data. In other words, there is no problem, so there is no need to collect data. NAPO's opposition was enough to kill the bill in the Senate in the 105th Congress. As a consequence, there is now no requirement at the federal level that law enforcement agencies collect data on traffic stops that include race. Thus, all of the data gathering so far has been the result of statistical inquiry in lawsuits or independent academic research.

A. New Jersey

The most rigorous statistical analysis of the racial distribution of traffic stops was performed in New Jersey by Dr. John Lamberth of Temple University. In the late 1980s and early 1990s, African-Americans often complained that police stopped them on the New Jersey Turnpike more frequently than their numbers on that road would have predicted. Similarly, public defenders in the area had observed that "a strikingly high proportion of cases arising from stops and searches on the New Jersey Turnpike involve black persons." In 1994, the problem was brought to the state court's attention in State v. Pedro Soto, in which the defendant alleged that he had been stopped because of his ethnicity. The defendant sought to have the evidence gathered as a result of the stop suppressed as the fruit of an illegal seizure. Lamberth served as a defense expert in the case. His report is a virtual tutorial on how to apply statistical analysis to this type of problem.

The goal of Lamberth's study was "to determine if the State Police stop, investigate, and arrest black travelers at rates significantly disproportionate to the percentage of blacks in the traveling population, so as to suggest the existence of an official or de facto policy of targeting blacks for investigation and arrest." To do this, Lamberth designed a research methodology to determine two things: first, the rate at which blacks were being stopped, ticketed, and/or arrested on the relevant part of the highway, and second, the percentage of blacks among travelers on that same stretch of road.

To gather data concerning the rate at which blacks were stopped, ticketed and arrested, Lamberth reviewed and reconstructed three types of information received in discovery from the state: reports of all arrests that resulted from stops on the turnpike from April of 1988 through May of 1991, patrol activity logs from randomly selected days from 1988 through 1991, and police radio logs from randomly selected days from 1988 through 1991. Many of these records identified the race of the driver or passenger.

Then Lamberth sought to measure the racial composition of the traveling public on the road. He did this through a turnpike population census--direct observation by teams of research assistants who counted the cars on the road and tabulated whether the driver or another occupant appeared black. During these observations, teams of observers sat at the side of the road for randomly selected periods of 75 minutes from 8:00 a.m. to 8:00 p.m. To ensure further precision, Lamberth also designed another census procedure--a turnpike violation census. This was a rolling survey by teams of observers in cars moving in traffic on the highway, with the cruise control calibrated and set at five miles per hour above the speed limit. The teams observed each car that they passed or that passed them, noted the race of the driver, and also noted whether or not the driver was exceeding the speed limit.

The teams recorded data on more than forty-two thousand cars. With these observations, Lamberth was able to compare the percentages of African- Americans drivers who are stopped, ticketed, and arrested, to their relative presence on the road. This data enabled him to carefully and rigorously test whether blacks were in fact being disproportionately targeted for stops.

By any standard, the results of Lamberth's analysis are startling. First, the turnpike violator census, in which observers in moving cars recorded the races and speeds of the cars around them, showed that blacks and whites violated the traffic laws at almost exactly the same rate; there was no statistically significant difference in the way they drove. Thus, driving behavior alone could not explain differences in how police might treat black and white drivers. With regard to arrests, 73.2% of those stopped and arrested were black, while only 13.5% of the cars on the road had a black driver or passenger. Lambert notes that the disparity between these two numbers "is statistically vast." The number of standard deviations present--54.27--means that the probability that the racial disparity is a random result "is infinitesimally small." Radio and patrol logs yielded similar results. Blacks are approximately 35% of those stopped, though they are only 13.5% of those on the road--19.45 standard deviations. Considering all stops in all three types of records surveyed, the chance that 34.9% of the cars combined would have black drivers or occupants "is substantially less than one in one billion." This led Lamberth to the following conclusion:

Absent some other explanation for the dramatically disproportionate number of stops of blacks, it would appear that the race of the occupants and/or drivers of the cars is a decisive factor or a factor with great explanatory power. I can say to a reasonable degree of statistical probability that the disparity outlined here is strongly consistent with the existence of a discriminatory policy, official or de facto, of targeting blacks for stop and investigation. . . .. . . .. . . Put bluntly, the statistics demonstrate that in a population of blacks and whites which is (legally) virtually universally subject to police stop for traffic law violation, (cf. the turnpike violator census), blacks in general are several times more likely to be stopped than non-blacks.

B. Maryland

A short time after completing his analysis of the New Jersey data, Lamberth also conducted a study of traffic stops by the Maryland State Police on Interstate 95 between Baltimore and the Delaware border. In 1993, an African-American Harvard Law School graduate named Robert Wilkins filed a federal lawsuit against the Maryland State Police. Wilkins alleged that the police stopped him as he was driving with his family, questioned them and searched the car with a drug-sniffing dog because of their race. When a State Police memo surfaced during discovery instructing troopers to look for drug couriers who were described as "predominantly black males and black females," the State Police settled with Wilkins. As part of the settlement, the police agreed to give the court data on every stop followed by a search conducted with the driver's consent or with a dog for three years. The data also were to include the race of the driver.

With this data, Lamberth used a rolling survey, similar to the one in New Jersey, to determine the racial breakdown of the driving population. Lamberth's assistants observed almost 6,000 cars over approximately 42 randomly distributed hours. As he had in New Jersey, Lamberth concluded that blacks and whites drove no differently; the percentages of blacks and whites violating the traffic code were virtually indistinguishable. More importantly, Lamberth's analysis found that although 17.5% of the population violating the traffic code on the road he studied was black, more than 72% of those stopped and searched were black. In more than 80% of the cases, the person stopped and searched was a member of some racial minority. The disparity between 17.5% black and 72% stopped includes 34.6 standard deviations. Such statistical significance, Lamberth said, "is literally off the charts." Even while exhibiting appropriate caution, Lamberth came to a devastating conclusion.

While no one can know the motivation of each individual trooper in conducting a traffic stop, the statistics presented herein, representing a broad and detailed sample of highly appropriate data, show without question a racially discriminatory impact on blacks . . . from state police behavior along I-95. The disparities are sufficiently great that taken as a whole, they are consistent and strongly support the assertion that the state police targeted the community of black motorists for stop, detention, and investigation within the Interstate 95 corridor.

C. Ohio

In the Spring of 1998, several members of the Ohio General Assembly began to consider whether to propose legislation that would require police departments to collect data on traffic stops. But in order to sponsor such a bill, the legislators wanted some preliminary statistical evidence--a prima facie case, one could say--of the existence of the problem. This would help them persuade their colleagues to support the effort, they said. I was asked to gather this preliminary evidence. The methodology used here presents a case study in how to analyze this type of problem when the best type of data to do so is not available.

In the most fundamental ways, the task was the same as Lamberth's had been in both New Jersey and Maryland: use statistics to test whether blacks in Ohio were being stopped in numbers disproportionate to their presence in the driving population. Doing this would require data on stops broken down by race, and a comparison of those numbers to the percentage of black drivers on the roads. But if the goal was the same, two circumstances made the task considerably more difficult to accomplish in Ohio. First, Ohio does not collect statewide data on traffic stops that can be correlated with race. In fact, no police department of any sizeable city in the state keeps any data on all of its traffic stops that could be broken down by race. Second, the state legislators wanted some preliminary statistics to demonstrate that "driving while black" was a problem in all of Ohio, or at least in some significant--and different--parts of the whole state. While Lamberth's stationary and rolling survey methods worked well to ascertain the driving populations of particular stretches of individual, limited access highways, those methods were obviously resource- and labor-intensive. Applying the same methods to an entire city--even a medium-sized one--would entail duplicating the Lamberth approach on many major roads to get a complete picture. It would be impractical, not to mention prohibitively expensive, to do this in communities across an entire state. Thus, different methods had to be found.

To determine the percentage of blacks stopped, data was obtained from municipal courts in four Ohio cities. Municipal courts in Ohio handle all low-level criminal cases and virtually all of the traffic citations issued in the state. Most of these courts also generate a computer file for each case, which includes the race of the defendant as part of a physical description. This data provided the basis for a breakdown of all tickets given by the race of the driver.

The downside of using the municipal court data is that it only includes stops in which citations were given. Stops resulting in no action or a warning are not included. In all likelihood, using tickets alone might underestimate any racial bias that is present because police might not ticket blacks stopped for nontraffic purposes. Since using tickets could underestimate any possible racial bias, any resulting calculations are conservative and tend to give law enforcement the benefit of the doubt. Similarly, the way the racial statistics are grouped in the analysis is also conservative because the numbers are limited to only two categories of drivers: black and nonblack. In other words, all minorities other than African- Americans are lumped together with whites, even though some of these other minorities, notably Hispanics, have also complained about targeted stops directed at them. Using conservative assumptions means that if a bias does show up in the analysis, we can be relatively confident that it actually exists.

The percentage of all tickets in 1996, 1997, and the first four months of 1998 that were issued to blacks by the Akron, Dayton, and Toledo Police Departments and all of the police departments in Franklin County are set out in Table 1.

With ticketing percentages used as a measure of stops, attention turns to the other number needed for the analysis: the presence of blacks in the driving population. Given the concerns about the use of Lamberth's method in a statewide, preliminary study, another approach--a less exact one than direct observation, to be sure, but one that would yield a reasonable estimate of the driving population--was devised. Data from the U.S. Census breaks down the populations of states, counties, and individual cities by race and by age. This data is readily available and easy to use. Using this data, a reasonable basis for comparing ticketing percentages can be constructed: blacks versus nonblacks in the driving age population. This was done by breaking down the general population by race and by age. By selecting a lower and upper age limit--fifteen and seventy-five, respectively--for driving age, the data yield a reasonable reflection of what we would expect to find if we surveyed the roads themselves. The data on driving age population can also be sharpened by using information from the National Personal Transportation Survey, a study done every five years by the Federal Highway Administration of the U.S. Department of Transportation. The 1990 survey indicates that 21% of black households do not own a vehicle. If the driving age population figure is reduced by 21%, this gives us another baseline with which to make a comparison to the ticketing percentages. Both baselines--black driving age population, and black driving age population less 21%--for Akron, Dayton, Toledo, and Franklin County are set out in Table 2.

Table 2. Population Baselines

The ticketing percentages in Table 1 and the baselines in Table 2 can then be compared by constructing a "likelihood ratio" that will show whether blacks are receiving tickets in numbers that are out of proportion to their presence in the driving age population and the driving age population less 21%. The likelihood ratio will allow the following sentence to be completed: "If you're black, you're ___ times as likely to be ticketed by this police department than if you are not black." A likelihood ratio of approximately one means that blacks received tickets in roughly the proportion one would expect, given their presence in the driving age population. A likelihood ratio of much greater than one indicates that blacks received tickets at a rate higher than would be expected. Using both baselines--the black driving age population, and the black driving age population less 21%-- the likelihood ratios for Akron, Dayton, Toledo and Franklin County are presented in Table 3.

Table 3. Likelihood Ratio "If You're Black, You're __ Times as Likely

to Get a Ticket in This City Than if You Are Not Black"

Table 4 combines population baselines from Table 2 and likelihood ratios from Table 3.

Table 4. Combined Population Baselines and Likelihood Ratios

The method used here to attempt to discover whether "driving while black" is a problem in Ohio is less exact than the observation-based method used in New Jersey and Maryland. There are assumptions built into the analysis at several points in an attempt to arrive at reasonable substitutes for observation-based data. Since better data do not exist, all of the assumptions made in the analysis involve some speculation. But all of the assumptions are conservative, calculated to err on the side of caution. According to sociologist and criminologist Joseph E. Jacoby, the numbers used here probably are flawed because blacks are probably "at an even greater risk of being stopped" than these numbers show. For example, blacks are likely to drive fewer miles than whites, which suggests that police have fewer opportunities to stop blacks for traffic violations. In statistical terms, the biases in the assumptions are additive, not offsetting.

What do these figures mean? Even when conservative assumptions are built in, likelihood ratios for Akron, Dayton, Toledo, and Franklin County, Ohio, all either approach or exceed 2.0. In other words, blacks are about twice as likely to be ticketed as nonblacks. When the fact that 21% of black households do not own a vehicle is factored in, the ratios rise, with some approaching 3.0. Assuming that ticketing is a fair mirror of traffic stops in general, the data suggest that a "driving while black" problem does indeed exist in Ohio. There may be race-neutral explanations for the statistical pattern, but none seem obvious. At the very least, further study--something as accurate and exacting as Lamberth's studies in New Jersey and Maryland--is needed.


Why it Matters

The interviews excerpted here show that racially biased pretextual traffic stops have a strong and immediate impact on the individual African-American drivers involved. These stops are not the minor inconveniences they might seem to those who are not subjected to them. Rather, they are experiences that can wound the soul and cause psychological scar tissue to form. And the statistics show that these experiences are not simply disconnected anecdotes or exaggerated versions of personal experiences, but rather established and persistent patterns of law enforcement conduct. It may be that these stops do not spring from racism on the part of individual officers, or even from the official policies of the police departments for which they work. Nevertheless, the statistics leave little doubt that, whatever the source of this conduct by police, it has a disparate and degrading impact on blacks.

But racial profiling is important not only because of the damage it does, but also because of the connections between stops of minority drivers and other, larger issues of criminal justice and race. Put another way, "driving while black" reflects, illustrates, and aggravates some of the most important problems we face today when we debate issues involving race, the police, the courts, punishment, crime control, criminal justice, and constitutional law.

A. The Impact on the Innocent

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures, and specifies some of the requirements to be met in order to procure a warrant for a search. Since 1961--and earlier in the federal court system--the Supreme Court has required the exclusion of any evidence obtained through an unconstitutional search or seizure. From its inception, the exclusionary rule has inspired spirited criticism. Cardozo himself said that "the criminal is to go free because the constable has blundered," capturing the idea that the bad guy, caught red handed, gets a tremendous windfall when he escapes punishment because of a mistake in the police officer's behavior. We need not even go all the way back to Cardozo to hear the argument that the exclusion of evidence protects--and rewards--only the guilty.

The justification advanced for the exclusionary rule is that while the guilty may receive the most direct benefit when a court suppresses evidence because of a constitutional violation, the innocent--all the rest of us--are also better off. The right to be free from illegal searches and seizures belongs not just to the guilty, but to everyone. The guilty parties who bring motions to suppress are simply the most convenient vehicles for vindicating these rights, because they will have the incentive--escaping conviction--to litigate the issues. In so doing, the argument goes, the rights of all are vindicated, and police are deterred from violating constitutional rules on pain of failing to convict the guilty. One problem with this argument is that it takes imagination: the beneficiaries of suppressed evidence other than the guilty who escape punishment are ephemeral and amorphous. They are everybody--all of us. And if they are everybody, they quickly become nobody, because law-abiding, taxpaying citizens are unlikely to view ourselves as needing these constitutional protections. After all, we obey the law; we do not commit crimes. We can do without these protections--or so we think.

It is not my intention here to recapitulate every argument for and against the exclusionary rule. Rather, I wish to point out a major difference between the usual Fourth Amendment cases and the most common "driving while black" cases. While police catch some criminals through the use of pretext stops, far more innocent people are likely to be affected by these practices than criminals. Indeed, the black community as a whole undoubtedly needs the protection of the police more than other segments of society because African- Americans are more likely than others to be victims of crime. Ironically, it is members of that same community who are likely to feel the consequences of pretextual stops and be treated like criminals. It is the reverse of the usual Fourth Amendment case, in that there is nothing ghostlike or indefinite about those whose rights would be vindicated by addressing these police practices. On the contrary, the victims are easy to identify because they are the great majority of black people who are subjected to these humiliating and difficult experiences but who have done absolutely nothing to deserve this treatment--except to resemble, in a literally skin-deep way, a small group of criminals. While whites who have done nothing wrong generally have little need to fear constitutional violations by the police, this is decidedly untrue for blacks. Blacks attract undesirable police attention whether they do anything to bring it on themselves or not. This makes "driving while black" a most unusual issue of constitutional criminal procedure: a search and seizure question that directly affects a large, identifiable group of almost entirely innocent people.

B. The Criminalization of Blackness

The fact that the cost of "driving while black" is imposed almost exclusively on the innocent raises another point. Recall that by allowing the police to stop, question, and sometimes even search drivers without regard to the real motives for the search, the Supreme Court has, in effect, turned a blind eye to the use of pretextual stops on a racial basis. That is, as long as the officer or the police department does not come straight out and say that race was the reason for a stop, the stop can always be accomplished based on some other reason--a pretext. Police are therefore free to use blackness as a surrogate indicator or proxy for criminal propensity. While it seems unfair to view all members of one racial or ethnic group as criminal suspects just because some members of that group engage in criminal activity, this is what the law permits.

Stopping disproportionate numbers of black drivers because some small percentage are criminals means that skin color is being used as evidence of wrongdoing. In effect, blackness itself has been criminalized. And if "driving while black" is a powerful example, it is not the only one. For instance, in 1992, the city of Chicago enacted an ordinance that made it a criminal offense for gang members to stand on public streets or sidewalks after police ordered them to disperse. The ordinance was used to make over forty-five thousand arrests of mostly African-American and Latino youths before Illinois courts found the ordinance unconstitutionally vague. Supporters said that the law legitimately targeted gang members who made the streets of black and Latino neighborhoods unsafe for residents. Accordingly, the thousands of arrests that resulted were a net good, regardless of the enormous amount of police discretion that was exercised almost exclusively against African-Americans and Hispanics. Opponents, such as Professor David Cole, argued that the ordinance had, in effect, created a new crime: "standing while black." In June of 1999, the U.S. Supreme Court declared the law unconstitutional, because it did not sufficiently limit the discretion of officers enforcing it.

The arrests under the Chicago ordinance share something with "driving while black": in each instance, the salient quality that attracts police attention will often be the suspect's race or ethnicity. An officer cannot know simply by looking whether a driver has a valid license or carries insurance, as the law requires, and cannot see whether there is a warrant for the arrest of the driver or another occupant of the car. But the officer can see whether the person is black or white. And, as the statistics presented here show, police use blackness as a way to sort those they are interested in investigating from those that they are not. As a consequence, every member of the group becomes a potential criminal in the eyes of law enforcement.

C. Rational Discrimination

When one hears the most common justification offered for the disproportionate numbers of traffic stops of African-Americans, it usually takes the form of rationality, not racism. Blacks commit a disproportionate share of certain crimes, the argument goes. Therefore, it only makes sense for police to focus their efforts on African-Americans. To paraphrase the Maryland State Police officer quoted at the beginning of this Article, this is not racism--it is good policing. It only makes sense to focus law enforcement efforts and resources where they will make the most difference. In other words, targeting blacks is the rational, sound policy choice. It is the efficient approach, as well.

As appealing as this argument may sound, it is fraught with problems because its underlying premise is dubious at best. Government statistics on drug offenses, which are the basis for the great majority of pretext traffic stops, tell us virtually nothing about the racial breakdown of those involved in drug crime. Thinking for a moment about arrest data and victimization surveys makes the reasons for this clear. These statistics show that blacks are indeed overrepresented among those arrested for homicide, rape, robbery, aggravated assault, larceny/theft, and simple assault crimes. Note that because they directly affect their victims, these crimes are at least somewhat likely to be reported to the police and to result in arrests. By contrast, drug offenses are much less likely to be reported, since possessors, buyers, and sellers of narcotics are all willing participants in these crimes. Therefore, arrest data for drug crimes is highly suspect. These data may measure the law enforcement activities and policy choices of the institutions and actors involved in the criminal justice system, but the number of drug arrests does not measure the extent of drug crimes themselves. Similarly, the racial composition of prisons and jail populations or the racial breakdown of sentences for these crimes only measures the actions of those institutions and individuals in charge; it tells us nothing about drug activity itself.

Other statistics on both drug use and drug crime show something surprising in light of the usual beliefs many hold: blacks may not, in fact, be more likely than whites to be involved with drugs. Lamberth's study in Maryland showed that among vehicles stopped and searched, the "hit rates"--the percentage of vehicles searched in which drugs were found--were statistically indistinguishable for blacks and whites. In a related situation, the U.S. Customs Service, which is engaged in drug interdiction efforts at the nation's airports, has used various types of invasive searches from pat downs to body cavity searches against travelers suspected of drug use. The Custom Service's own nationwide figures show that while over forty-three percent of those subjected to these searches were either black or Hispanic, "hit rates" for these searches were actually lower for both blacks and Hispanics than for whites. There is also a considerable amount of data on drug use that belies the standard beliefs. The percentages of drug users who are black or white are roughly the same as the presence of those groups in the population as a whole. For example, blacks constitute approximately twelve percent of the country's population. In 1997, the most recent year for which statistics are available, thirteen percent of all drug users were black. In fact, among black youths, a demographic group often portrayed as most likely to be involved with drugs, use of all illicit substances has actually been consistently lower than among white youths for twenty years running.

Nevertheless, many believe that African-Americans and members of other minority groups are responsible for most drug use and drug trafficking. Carl Williams, the head of the New Jersey State Police dismissed by the Governor in March of 1999, stated that "mostly minorities" trafficked in marijuana and cocaine, and pointed out that when senior American officials went overseas to discuss the drug problem, they went to Mexico, not Ireland. Even if he is wrong, if the many troopers who worked for Williams share his opinions, they will act accordingly. And they will do so by looking for drug criminals among black drivers. Blackness will become an indicator of suspicion of drug crime involvement. This, in turn, means that the belief that blacks are disproportionately involved in drug crimes will become a self- fulfilling prophecy. Because police will look for drug crime among black drivers, they will find it disproportionately among black drivers. More blacks will be arrested, prosecuted, convicted, and jailed, thereby reinforcing the idea that blacks constitute the majority of drug offenders. This will provide a continuing motive and justification for stopping more black drivers as a rational way of using resources to catch the most criminals. At the same time, because police will focus on black drivers, white drivers will receive less attention, and the drug dealers and possessors among them will be apprehended in proportionately smaller numbers than their presence in the population would predict.

The upshot of this thinking is visible in the stark and stunning numbers that show what our criminal justice system is doing when it uses law enforcement practices like racially-biased traffic stops to enforce drug laws. African- Americans are just 12% of the population and 13% of the drug users, but they are about 38% of all those arrested for drug offenses, 59% of all those convicted of drug offenses, and 63% of all those convicted for drug trafficking. While only 33% of whites who are convicted are sent to prison, 50% of convicted blacks are jailed, and blacks who are sent to prison receive higher sentences than whites for the same crimes. For state drug defendants, the average maximum sentence length is fifty-one months for whites and sixty months for blacks.

D. The Distortion of the Legal System

Among the most serious effects of "driving while black" on the larger issues of criminal justice and race are those it has on the legal system itself. The use of pretextual traffic stops distorts the whole system, as well as our perceptions of it. This undermines the system's legitimacy, which effects not only African-Americans but every citizen, since the health of our country depends on a set of legal institutions that have the public's respect.

1. Deep Cynicism

Racially targeted traffic stops cause deep cynicism among blacks about the fairness and legitimacy of law enforcement and courts. Many of those African-Americans interviewed for this Article said this, some in strong terms. Karen Brank said she thought that her law-abiding life, her responsible job, her education, and even her gender protected her from arbitrary treatment by the police. She thought that these stops happened only to young black men playing loud music in their cars. Now, she feels she was "naive," and has considerably less respect for police and all legal institutions. For James, who looks at himself as someone who has toed the line and lived an upright life, constant stops are a reminder that whatever he does, no matter how well he conducts himself, he will still attract unwarranted police attention. Michael describes constant police scrutiny as something blacks have to "play through," like athletes with injuries who must perform despite significant pain.

Thus, it is no wonder that blacks view the criminal justice system in totally different terms than whites do. They have completely different experiences within the system than whites have, so they do not hold the same beliefs about it. Traffic stops of whites usually concern the actual traffic offense allegedly committed; traffic stops of blacks are often arbitrary, grounded not in any traffic offense but in who they are. Since traffic stops are among the most common encounters regular citizens have with police, it is hardly surprising that pretextual traffic stops might lead blacks to view the whole of the system differently. One need only think of the split-screen television images that followed the acquittal in the O.J. Simpson case--stunned, disbelieving whites, juxtaposed with jubilant blacks literally jumping for joy--to understand how deep these divisions are. Polling data have long shown that blacks believe that the justice system is biased against them. For example, in a Justice Department survey released in 1999, blacks were more than twice as likely as whites to say they are dissatisfied with the police. But this cynicism is no longer limited to blacks; it is now beginning to creep into the general population's perception of the system. Recent data show that a majority of whites believe that police racism toward blacks is common. The damage done to the legitimacy of the system has spread across racial groups, and is no longer confined to those who are most immediately affected.

Perhaps the most direct result of this cynicism is that there is considerably more skepticism about the testimony of police officers than there used to be. This is especially true in minority communities. Both the officer and the driver recognize that each pretextual traffic stop involves an untruth. When a black driver asks a police officer why he or she has been stopped, the officer will most likely explain that the driver committed a traffic violation. This may be literally true, since virtually no driver can avoid committing a traffic offense. But odds are that the violation is not the real reason that the officer stopped the driver. This becomes more than obvious when the officer asks the driver whether he or she is carrying drugs or guns, and for consent to search the car. If the stop was really about enforcement of the traffic laws, there would be no need for any search. Thus, for an officer to tell a driver that he or she has been stopped for a traffic offense when the officer's real interest is drug interdiction is a lie--a legally sanctioned one, to be sure, but a lie nonetheless. It should surprise no one, then, that the same people who are subjected to this treatment regard the testimony and statements of police with suspicion, making it increasingly difficult for prosecutors to obtain convictions in any case that depends upon police testimony, as so many cases do. The result may be more cases that end in acquittals or hung juries, even factually and legally strong ones.

2. The Effect on the Guilty

As discussed above, one of the most important reasons that the "driving while black" problem represents an important connection to many larger issues of criminal justice and race is that, unlike many other Fourth Amendment issues, the innocent pay a clear and direct price. Citizens who are not criminals are seen as only indirect beneficiaries of Fourth Amendment litigation in other contexts because the guilty party's vindication of his or her own rights serves to vindicate everyone's rights. Law-abiding blacks, however, have a direct and immediate stake in redressing the "driving while black" problem. While pretextual traffic stops do indeed net some number of law breakers, innocent blacks are imposed upon through frightening and even humiliating stops and searches far more often than the guilty. But the opposite argument is important, too: "driving while black" has a devastating impact upon the guilty. Those who are arrested, prosecuted, and often jailed because of these stops, are suffering great hardships as a result.

The response to this argument is usually that if these folks are indeed guilty, so what? In other words, it is a good thing that the guilty are caught, arrested, and prosecuted, no matter if they are black or white. This is especially true, the argument goes, in the black community, because African- Americans are disproportionately the victims of crime.

But this argument overlooks at least two powerful points. First, prosecution for crimes, especially drug crimes, has had an absolutely devastating impact on black communities nationwide. In 1995, about one in three black men between the ages of 20 and 29 were under the control of the criminal justice system--either in prison or jail, on probation, or on parole. In Washington, D.C., the figure is 50% for all black men between the age of eighteen and thirty-five. Even assuming that all of those caught, prosecuted, convicted and sentenced are guilty, it simply cannot be a good thing that such a large proportion of young men from one community are adjudicated criminals. They often lose their right to vote, sometimes permanently. To say that they suffer difficulties in family life and in gaining employment merely restates the obvious. The effect of such a huge proportion of people living under these disabilities permanently changes the circumstances not just of those incarcerated, but of everyone around them.

This damage is no accident. It is the direct consequence of "rational law enforcement" policies that target blacks. Put simply, there is a connection between where police look for contraband and where they find it. If police policy, whether express or implied, dictates targeting supposedly "drug involved" groups like African-Americans, and if officers follow through on this policy, they will find disproportionate numbers of African-Americans carrying and selling drugs. By the same token, they will not find drugs with the appropriate frequency on whites, because the targeting policy steers police attention away from them. This policy not only discriminates by targeting large numbers of innocent, law abiding African-Americans; it also discriminates between racial groups among the guilty, with blacks having to bear a far greater share of the burden of drug prohibition.

3. The Expansion of Police Discretion

As the discussion of the law involving traffic stops and the police actions that often follow showed, police have nearly complete discretion to decide who to stop. According to all of the evidence available, police frequently exercise this discretion in a racially-biased way, stopping blacks in numbers far out of proportion to their presence on the highway. Law enforcement generally sees this as something positive because the more discretion officers have to fight crime, the better able they will be to do the job.

Police discretion cannot be eliminated; frankly, even if it could be, this would not necessarily be a desirable goal. Officers need discretion to meet individual situations with judgment and intelligence, and to choose their responses so that the ultimate result will make sense. Yet few would contend that police discretion should be limitless. But this is exactly what the pretextual stop doctrine allows. Since everyone violates the traffic code at some point, it is not a matter of whether police can stop a driver, but which driver they want to stop. Police are free to pick and choose the motorists they will pull over, so factors other than direct evidence of law breaking come into play. In the "driving while black" situation, of course, that factor is race. In other law enforcement areas in which the state has nearly limitless discretion to prosecute, the decision could be based on political affiliation, popularity, or any number of other things. What these arenas have in common is that enforcement depends upon external factors, instead of law breaking.

Arguments examining law enforcement discretion have great resonance in the wake of the impeachment of President Clinton. The President was pursued by Independent Counsel Kenneth Starr for four years. Starr had an almost limitless budget, an infinite investigative time frame, and an ever- expandable mandate to investigate a particular set of individuals for any possible criminal activity, rather than to investigate particular offenses. In other words, Starr had nearly complete discretion. This was foreseen in 1988 by Justice Scalia in his dissent in Morrison v. Olsen, the case in which the Supreme Court held the independent counsel statute constitutional. In a long final section of his opinion, Scalia decried the Independent Counsel Act not only as unconstitutional but also as bad policy, precisely because it gave the prosecutor nearly unlimited discretion. Among the words Justice Scalia chose to express this idea were those of Justice Robert Jackson, who, as Attorney General, talked about prosecutorial discretion in a speech to the Second Annual Conference of United States Attorneys. Jackson could just as easily have been discussing police discretion to make traffic stops; in fact, he used that very activity as an illustration.

"Law enforcement is not automatic. It isn't blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. . . . We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning. . . . If the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. . . . It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself."

By substituting "the police" for "the prosecutor" in this excerpt, one gets a strong sense of the unfairness of pretextual traffic stops. The person subjected to a pretextual stop is not targeted for his or her law breaking activity, but for other reasons--in this case, membership in a particular racial or ethnic group thought to be disproportionately involved in drug crimes. And the law leaves police absolutely free to do this.

4. Sentencing

"Driving while black" also distorts the sentences that African-Americans receive for crimes. Research shows that blacks receive longer sentences than whites for the same crimes. One might hope that, with the advent of guidelines systems designed to limit judicial discretion in sentencing through the use of strictly applied nonracial criteria, this discrepancy might begin to disappear, but it has not.

A recent federal sentencing decision illustrates the point. In December of 1998, Judge Nancy Gertner of the Federal District Court for the District of Massachusetts sentenced a defendant named Alexander Leviner for the crime of being a felon in possession of a firearm. Under the Federal Sentencing Guidelines, a major determinant of the sentence a defendant receives is his or her record of prior offenses. The worse the record, the greater the offender score; the greater the offender score, the longer the sentence. Judge Gertner found that Leviner's record consisted "overwhelmingly" of "motor vehicle violations and minor drug possession offenses." Since all of the available evidence indicated that African-Americans experience a proportionally greater number of traffic stops than whites, Judge Gertner reasoned that allowing Leviner's offender score to be inflated by these traffic stop-related offenses represented a continuation of the racial discrimination implicit in the prior offenses into the sentencing process. The judge felt this was improper, and as a result accorded Leviner a "downward departure"--a cut in the usual sentence he could expect, given his criminal record.

It is not clear whether Judge Gertner's decision will survive an appeal. It may be true that police, in general, discriminate against black motorists in their use of traffic stops. But this does not mean that any of the particular stops Leviner experienced in the past were the result of bias. Thus, an appellate court may not find Leviner deserving of the downward departure. Nevertheless, Judge Gertner's opinion points out something important, and not just in Leviner's case. "Driving while black" can have grave consequences not just immediately, when drivers may be at best irritated and at worst arrested or abused, but in the long term, as a minor criminal record builds over time to the point that it comes back to haunt a defendant by enhancing considerably the sentence in some future proceeding. This is simply less likely to happen to whites.

E. Distortion of the Social World

"Driving while black" distorts not only the perception and reality of the criminal justice system, but also the social world. For example, many African-Americans cope with the possibility of pretextual traffic stops by driving drab cars and dressing in ways that are not flamboyant so as not to attract attention. More than that, "driving while black" serves as a spatial restriction on African-Americans, circumscribing their movements. Put simply, blacks know that police and white residents feel that there are areas in which blacks "do not belong." Often, these are all-white suburban communities or upscale commercial areas. When blacks drive through these areas, they may be watched and stopped because they are "out of place." Consequently, blacks try to avoid these places if for no other reason than that they do not want the extra police scrutiny. It is simply more trouble than it is worth to travel to or through these areas. While it is blacks themselves who avoid these communities, and not police officers or anyone else literally keeping them out, in practice it makes little difference. African-Americans do not enter if they can avoid doing so, whether by dint of self-restriction or by government policy.

Another recent example shows even more clearly how "driving while black" can distort the social world. In 1998, the federal government launched "Buckle Up America" in an effort to increase seat belt use. The goal of this national campaign was to make the failure to wear seat belts a primary offense in all fifty states. In many states, seat belt laws are secondary offenses--infractions for which the police cannot stop a car, but for which they can issue a citation once the car is stopped for something else and the seat belt violation is discovered. If seat belt laws are made primary instead of secondary laws, the reasoning is that this would increase seat belt use, which would save thousands of lives per year. Since studies have shown that young African-Americans and Hispanics are more likely to die in automobile accidents than whites because of failure to wear seat belts, any effort to increase seat belt use would likely benefit the black and Hispanic communities more than any other groups.

Given that less frequent use of seats belts has a high cost in the lives and suffering of people of color, one would think that any responsible black organization would do everything possible to support efforts like Buckle Up America. And that is what made the position taken by the National Urban League on the issue so puzzling, at least at first blush. The Urban League told the Secretary of Transportation that its "affiliates' willingness to fully embrace [the] campaign began to stall" because of concern that primary seat belt enforcement laws would simply give police another tool with which to harass black drivers. The League said it could not sign on to the campaign without assurances "that the necessary protections will be put in to ensure that black people and other people of color specifically are not subject to arbitrary stops by police under the guise of enforcement of seat belt laws."

This is a truly disturbing distortion of social reality. Faced with a request to join a campaign to save lives through encouraging the use of a known and proven safety device, the use of which might require some greater degree of traffic enforcement, the decision is not easy for African-Americans. On the contrary, it presents an agonizing choice: encourage the seat belt campaign to save lives and hand the police another reason to make arbitrary stops, or oppose the campaign because of the danger of arbitrary police action, knowing that blacks will be injured and killed in disproportionate numbers because they use seat belts less frequently than others do. Stated simply, it is a choice whites do not have to make.

F. The Undermining of Community-Based Policing

Until recently, police departments concentrated on answering distress calls. The idea was to have police respond to reports of crime relayed to them from a central dispatcher. In essence, the practice was reactive; the idea was to receive reports of crimes committed and respond to them.

But over the past few years, modern policing has moved away from the response model. It was thought to be too slow and too likely to isolate officers from the people and places in which they worked. The new model is often referred to as community policing. Though the term sometimes seems to have as many meanings as people who use it, community policing does have some identifiable characteristics. The idea is for the police to serve the community and become part of it, not to dominate it or occupy it. To accomplish this, police become known to and involved with residents, make efforts to understand their problems, and attack crime in ways that help address those difficulties. The reasoning is that if the police become part of the community, members of the public will feel comfortable enough to help officers identify troubled spots and trouble makers. This will make for better, more proactive policing aimed at problems residents really care about, and engender a greater degree of appreciation of police efforts by residents and more concern for neighborhood problems by the police.

In many minority communities, the history of police/community relations has been characterized not by trust, but by mutual distrust. In Terry v. Ohio, the fountain head of modern street-level law enforcement, the Supreme Court candidly acknowledged that police had often used stop and frisk tactics to control and harass black communities. As one veteran African-American police officer put it, "Black people used to call the police 'the law.' They were the law . . . . The Fourth Amendment didn't apply to black folks because it only applied to white folks." For blacks, trusting the police is difficult; it goes against the grain of years of accumulated distrust and wariness, and countless experiences in which blacks have learned that police are not necessarily there to protect and serve them.

Yet, it is obvious that community policing--both its methods and its goals--depends on mutual trust. As difficult as it will be to build, given the many years of disrespect blacks have suffered at the hands of the police, the community must feel that it can trust the police to treat them as law-abiding citizens if community policing is to succeed. Using traffic stops in racially disproportionate numbers will directly and fundamentally undermine this effort. Why should law-abiding residents of these communities trust the police if, every time they go out for a drive, they are treated like criminals? If the "driving while black" problem is not addressed, community policing will be made much more difficult and may even fail. Thus, aside from the damage "driving while black" stops inflict on African-Americans, there is another powerful reason to change this police behavior: it is in the interest of police departments themselves to correct it.



The Legal Context

When they hear some of the personal stories concerning traffic stops, some lay people (almost always whites) are genuinely surprised. Aside from issues concerning the racial aspects of the problem, the same questions almost always come up: Can the police do this? Does the law allow police to stop any driver, any time they wish? Don't they have to have a reason, some rationale, to think the occupants of the car committed a crime? The answer usually surprises them. Yes, police need a reason to stop the car, but they virtually always have it, without seeing any criminal activity. And the law makes it very easy to proceed from the stop to questioning and searching, with no more evidence than a hunch.

For many years, the Supreme Court has allowed police to stop and search a vehicle without a warrant when they have probable cause to believe that it contains contraband or evidence of a crime. The Court reasoned that since automobiles were inherently mobile, it made no sense to require officers to leave and obtain a warrant because the suspect would simply drive away. Over the years, the Court has broadened the rationale for the "automobile exception," saying that in addition to mobility, the fact that cars are heavily regulated and inherently less private means that warrants should not be required.

But the automobile exception only represents the beginning of the Court's cases that allow police considerable discretion over cars, their drivers, and their passengers. In 1996, the Supreme Court addressed directly the constitutionality of pretextual traffic stops. The Court used Whren v. United States to resolve a circuit split, ruling that police can use traffic stops to investigate their suspicions, even if those suspicions have nothing to do with traffic enforcement and even if there is no evidence of criminal behavior by the driver upon which to base those suspicions. The officer's subjective intent makes no difference. This is true, the Court said, even if a reasonable officer would not have stopped the car in question. As long as there was, in fact, a traffic offense, the officer had probable cause to stop the car. The fact that traffic enforcement was only a pretext for the stop had no Fourth Amendment significance, and no evidence would be excluded as a result. Since no one can drive for even a few blocks without committing a minor violation-- speeding, failing to signal or make a complete stop, touching a lane or center line, or driving with a defective piece of vehicle equipment--Whren means that police officers can stop any driver, any time they are willing to follow the car for a short distance. In other words, police know that they can use the traffic code to their advantage, and they utilize it to stop vehicles for many nontraffic enforcement purposes.

But Whren does not stand alone. It represents the culmination of twenty years of cases in which the Court has steadily increased police power and discretion over vehicles and drivers. Once the police stop a car, utilizing Whren, the plain view exception may come into play. During the traffic stop, officers have the opportunity to walk to the driver's side window and, while requesting license and registration, observe everything inside the car. This includes not only the car and its contents, but the driver. If it is dark, the officers can enhance a plain view search by shining a flashlight into any area that would be visible if it were daylight. If the officers observe an object in plain view and it is immediately apparent, without further searching, that it is contraband, they can make an arrest on the spot. During this initial encounter, they can also have both the driver and the passenger get out of the vehicle, without any reason to suspect them of any wrongdoing.

If there is an arrest, the police can go further. They can do a thorough search of the passenger compartment and all closed containers inside. They can also "frisk" the car if there is anything resembling a weapon in plain view. Even if nothing is seen in plain view, police can question the driver and passengers without giving them Miranda warnings. The officers are likely to keep the tone of the questioning amicable, but this is more than just carside chit-chat. It is a purposeful, directed effort to get the driver talking. The answers may disclose something that seems suspicious.

Police may continue questioning even after a driver answers every question satisfactorily and in a way that does not raise any suspicion of guilt. The real goal of the questioning is to gather information and impressions that will help the officers decide whether they want to search the car. In the event that they do, the officers will try to obtain the driver's consent. A great number of vehicle searches begin with a request for consent. The initial friendly discussion helps put the driver in the frame of mind to respond to the troopers helpfully, making cooperation and consent more likely. And this technique usually works. Whether out of a desire to help, fear, intimidation, or a belief that they cannot refuse, most people consent. The police need not tell the driver that she has a right to refuse consent, or that she is free to go. As one veteran state trooper told a reporter, in two years of stops, "I've never had anyone tell me I couldn't search." And while a driver could surely limit consent-- "You can look through my car, but not my luggage"--most of the searches are in fact quite thorough and include personal effects.

But even if there is no contraband in plain view, and the driver refuses consent, the officers' quiver is still not empty: they may still use a dog trained to detect narcotics. Since the Supreme Court has declared that the use of these dogs does not constitute a search, police may use them without probable cause or reasonable suspicion of any kind. This makes them ideal tools for the "no consent and no visible evidence" situation, because no consent or evidence--in fact, no justification at all--is necessary. Any police department with the funds to pay for them has one or more "K-9 teams" available at all times. The dogs can be called in to search when there is a refusal. Better yet, officers might short circuit the whole process by using the dog as soon as a car is stopped, without even seeking consent. If the dog indicates the presence of narcotics by characteristic barking or scratching, that information itself constitutes probable cause for a full-scale search.

The upshot is that officers are free to exercise a vast amount of discretion when they decide who to stop. And as the statistics show, police stop African- Americans more often than their presence in the driving population would predict, since blacks and whites violate the traffic laws at about the same rate. There are two likely explanations for this. First, the decisions of the last twenty years surveyed here allowing police ever-greater power over vehicles, drivers and even passengers, come from the crime-control model of criminal procedure. One can see this in numerous decisions, but especially in the consent search cases, Schneckloth v. Bustamonte and Ohio v. Robinette. In both, the Court used the rhetoric of balancing, but in reality gave short shrift to any interest other than law enforcement. It would be "thoroughly impractical" to tell citizens they have a right to refuse to consent to a search, the Court said in Schneckloth, because this might interfere with the ability of the police to utilize consent searches. In other words, if people were told they did not have to consent, some might actually exercise this right and refuse. Because of law enforcement's interest in performing consent searches, it is preferable to enable the police to take advantage of citizens' ignorance of their rights. Robinette, decided more than twenty years later, sounded the same note. It would be "unrealistic" to tell citizens whom the police have no reason to detain that they are free to go before the police ask for consent to search. This statement is unaccompanied by even the barest explanation or analysis, save reference to Schneckloth. Years of cases like these make it obvious that the Court has control of crime at the top of its criminal law agenda, and it has decided cases in ways designed to enable the police to do whatever is necessary to "win."

Second, by making the power of the police to control crime its top priority in criminal law, the Court--whether intentionally or not--has freed law enforcement from traditional constraints to such a degree that police can use blackness as a proxy for criminal propensity. In other words, officers are free, for allpractical purposes, to act on the assumption that being black increases the probability that an individual is a criminal. The statistics presented here suggest that is exactly what the police are doing. But this means that all African-Americans get treated as criminal suspects, not just those who have committed crimes. And there are virtually no data that tell us just how many innocent people police officers stop for each criminal they catch.




Addressing the Problem

With the Supreme Court abdicating any role for the judiciary in regulating these police practices under the Fourth Amendment, leadership must come from other directions and other institutions. What other approaches might be fruitful sources of change?

A. The Traffic Stops Statistics Act

At the beginning of the 105th Congress, Representative John Conyers of Michigan introduced House Bill 118, the Traffic Stops Statistics Act of 1997. This bill would provide for the collection of several categories of data on each traffic stop, including the race of the driver and whether and why a search was performed. The Attorney General would then summarize the data in the first nationwide, statistically rigorous study of these practices. The idea behind the bill was that if the study confirmed what people of color have experienced for years, it would put to rest once and for all the idea that African-Americans who have been stopped for "driving while black" are exaggerating isolated anecdotes into a social problem. Congress and other bodies might then begin to take concrete steps to channel police discretion more appropriately. The Act passed the House of Representatives in March of 1998 with bipartisan support, and then was referred to the Senate Judiciary Committee. When police opposition arose, the Senate took no action and the bill died at the end of the session. Congressman Conyers reintroduced the measure in April of 1999.

The Traffic Stops Statistics Act is a very modest bill, a first step toward addressing a difficult problem. It mandated no concrete action on the problem; it did not regulate traffic stops, set standards for them, or require implementation of particular policies. It was merely an attempt to gather solid, comprehensive information, so that discussion of the problem could move ahead beyond the debate of whether or not the problem existed. Still, the bill attracted enough law enforcement opposition to kill it. But even if the Act did not pass the last Congress and subsequent bills also fail, it seems to have had at least one interesting effect: it has inspired action at the state and local level.

B. State Legislation

As important as national legislation on this issue would be, congressional action is no longer the only game in town. In fact, efforts are underway in a number of states to address the problem. For example, last year in California, Assembly Bill (A.B.) 1264, a bill patterned on Representative Conyers' federal effort, passed both houses of the state assembly. Weakening amendments were attached during the legislative process, but A.B. 1264 nevertheless represented the first state-level legislative victory on this issue. Unfortunately, then-Governor Pete Wilson vetoed the bill. A new bill was introduced in the California State Assembly in 1999. The bill passed both houses of the state legislature by large bipartisan margins, but it was vetoed by Governor Gray Davis, who then urged all California police departments to collect this data voluntarily.

This is not the only effort underway. By mid-1999, two state bills had become law: one in North Carolina and one in Connecticut. Bills have also been introduced in Arkansas, Rhode Island, Pennsylvania, Illinois, Virginia, Massachusetts, Ohio, New Jersey, Maryland, South Carolina, Oklahoma, and Florida. While all of these measures differ in their particulars, they are all variations on Representative Conyers' bill--they mandate the collection of data and analyses of these data. But it is important to remember that legislative efforts can take other approaches. There is no reason not to consider other options, such as the use of funding as either carrot or stick or both, to require the enactment of state law that mandates implementation of specific law enforcement policies, or the like.

C. Local Action

Of course, legislative action is not required for a police department to collect data and to take other steps to address the "driving while black" problem. When a department realizes that it is in its own interest to take action, it can go ahead without being ordered to do so. This is precisely what happened in San Diego, California. In February 1999, Jerome Sanders, the city's Chief of Police, announced that the department would begin to collect data on traffic stops, without any federal or state requirement. The Chief's statement showed a desire to find out whether in fact the officers in his department were engaged in enforcing traffic laws on a racially uneven basis. If so, the problem could then be addressed. If the numbers did not show this, the statistics might help to dispel perceptions to the contrary.

Thus far, San Diego, San Jose, Oakland, and Houston are the largest urban jurisdictions to do this, but they are not alone. Police in over thirty other cities in California, as well as departments in Michigan, Florida, Washington and Rhode Island, are also collecting data. Police departments, not courts, are in the best possible position to take action--by collecting data, by re-training officers, and by putting in place and enforcing policies against the racially disproportionate use of traffic stops. Taking the initiative in this fashion allows a police department to control the process to a much greater extent than it might if it is mandated from the outside. And developing regulations from inside the organization usually will result in greater compliance by those who have to follow these rules--police officers themselves. This represents a promising new approach to the problem. The police must first, of course, realize that there is a problem, and that doing something about it is in their interest.

D. Litigation

Another way to address racial profiling is to bring lawsuits under the Equal Protection Clause and federal civil rights statutes. In Whren, the U.S. Supreme Court said that under the Fourth Amendment of the U.S. Constitution courts can no longer suppress evidence in pretextual stop cases. But the Court did leave open the possibility of attacking racially-biased law enforcement activity under the Equal Protection Clause with civil suits. There are a number of such suits around the country that are either pending or recently concluded, including cases in Maryland, Florida, Indiana, and Illinois.

It is important not to underestimate the difficulty of filing a lawsuit against a police department alleging racial bias. These cases require an "attractive" plaintiff who will not make a bad impression due to prior criminal record, current criminal involvement, or the like. They also require a significant amount of resources. For this reason, organizations interested in this issue, particularly the American Civil Liberties Union, have taken the lead in bringing these cases. Last but not least, it takes a plaintiff with guts to stand up and publicly sue a police department in a racially-charged case. Most people would probably rather walk away from these experiences, no matter how difficult and humiliating, than get into a legal battle with law enforcement.

E. Search and Seizure Challenges Under State Constitutional Provisions, Case Law, and Statutes

Another possibility is the use of state constitutional provisions, cases and statutes to challenge these stops. For example, in the New Jersey case for which Lamberth conducted his study, the defendant brought his motion to dismiss under state case law that is different from Whren. New Jersey law affords more protection to its citizens than the federal Constitution does. Under New Jersey case law, a judge can grant a motion to suppress when there is evidence of racial bias, but the Fourth Amendment, as interpreted by the Supreme Court in Whren, would not allow this. A second example comes from New York. In People v Dickson, a New York state judge recently reaffirmed that New York's state constitution prohibits the use of pretextual stops, in direct contradiction to Whren. And in Whitehead v. State, the Maryland Court of Special Appeals ruled that even if the pretextual stop of the defendant met Whren's constitutional standard, the detention that followed the stop was too long, resulting in the suppression of evidence. All of these cases represent promising approaches spurred by state court hostility to pretextual traffic stops, which made these courts willing to consider creative state law-based legal theories.



Conclusion

Everyone wants criminals caught. Few feel this with more urgency than African-Americans, who are so often the victims of crime. But we must choose our methods carefully. As a country, we must strive to avoid police practices that impose high costs on law abiding citizens, and that skew those costs heavily on the basis of race.

African-Americans clearly feel aggrieved by pretextual traffic stops. It is virtually impossible to find black people who do not feel that they have experienced racial profiling. The statistics presented here show that this is more than just the retelling of stories based on isolated instances of police behavior. Rather, the patterns in the data are strong, even when the data are not ideal. These experiences have a deep psychological and emotional impact on the individuals involved, and they also have a significant connection to many of the most basic problems in criminal justice and race.

Surely a solution will not be easy to achieve. There are, after all, many among the law enforcement community and its supporters who disfavor even the most basic first steps toward an understanding of the problem through the collection of comprehensive, accurate data. Yet it is with these same people that the best hope for any solution rests. Changes in law enforcement policies, training, and supervision, and a determination from the top to end race-based policing are where the effort to come to grips with this problem will ultimately succeed or fail. And lest we lose hope, the first effort to legislate the collection of data--Rep. Conyers' H.R. 118--has spawned a dozen imitators on the state level.

The bottom line is that we--every citizen and every police officer--must realize that "driving while black" is a problem not just for African-Americans, but for every American who believes in basic fairness. When blacks feel like criminals whenever they do something as common as driving a car, and when they feel so distrustful of the police that they will not believe officers testifying in court, things have come to a dangerous point. "Driving while black" destroys the ideal that holds us together as a nation: equal justice under law. And when that goes, we are all in trouble.

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