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Student Work
Race, Racism and the Law
Spring, 2012

Statutes and Regulations

  • Title VI of Civil Rights Act of 1964, 42 U.S.C.A. § 2000d (West)
  • TX CRIM PRO Art. 2.131
  • W. Va. Code Ann. § 30-29-10 (West)

Cases

  • Alexander v. Sandoval, 532 U.S. 275 (2001)
  • Whren v. U.S., 517 U.S. 806 (1996)
  • U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975)
  • Com. v. Lora, 886 N.E.2d 688, 691 (Mass. 2008)
  • Terry v. Ohio, 392 U.S. 1, 27 (1968)

Law Review Articles

  • R. Richard Banks, Race-Based Suspect Selection and Colorblind Equal Protection Doctrine and Discourse, 48 UCLA Law Review 1075 (2001)
  • Floyd D. Weatherspoon, Racial Profiling of African-American Males: Stopped, Searched, and Stripped of Constitutional Protection, 38 John Marshall Law Review 439 (2004)
  • Kevin R. Johnson, How Racial Profiling in America Became the Law of the Land: United States v. Brignoni-Ponce and Whren v. United States and the Need for Truly Rebellious Lawyering, 98 Geo. L.J. 1005, 1009 (2010)
  • Wayne R. LaFave, The "Routine Traffic Stop" from Start to Finish: TooMuch"Routine," Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843, 1844 (2004)

 
Non-Legal Journals

  • Matthew Petrocelli, Alex Piquero, Michael Smith, Conflict theory and racial profiling: An empirical analysis of police traffic stop data, 31, Journal of Criminal Justice (2003)

  • Michael A. Ikner, Janice Ahmad, Alejandro Del Carmen, Vehicle Cues and Racial Profiling: Police Officers’ Perceptions of Vehicles and Drivers, 2, The Southwest Journal of Criminal Justice (2005)

Annotations:

Statute (Federal/State)

  • Title VI of Civil Rights Act of 1964, 42 U.S.C.A. § 2000d (West)

This Federal statute was enacted in July of 1964. It is part of the Civil Rights Act of 1964 that addressed acts of discrimination towards African Americans. The 1964 Act ended Jim Crow laws that were prevalent in many southern states throughout the Country. The statute specifically prohibits discrimination based on race, color, or national origin under any program or activity receiving Federal financial assistance. The statute is important in large part because it is Federal law and will thus trump State laws that are inconsistent with it. The statute will serve as a foundation to support the prohibition of racial profiling by police officers. It is a good indicator that the mindset of the lawmakers in this Country is shifting towards a nation that does not discriminate against any particular groups simply based on their race. The Federal statute served as a model for many State statutes that prohibited the same type of discrimination at the State level.

  • TX CRIM PRO Art. 2.131

This Texas state statute became effective September 1, 2001. This statute expressly prohibits the use of racial profiling by peace officers. The statute is brief and direct. It only addresses the issue of racial profiling and illustrates that a problem existed and that Texas is making strides to correct the problem. Texas is a state that borders Mexico and as a result has a large population of Mexican-Americans and Mexican aliens as compared to other states. The high number of Mexican-Americans and aliens may have increased the likelihood that police officers were engaging in the practice of racial profiling. This statute is useful to show that the practice of racial profiling is prevalent enough for states to begin to enact statutes to prohibit the practice. The statute also indicates that state governments and law makers believe that the practice is discriminatory and has a disparate impact on a group of individuals.

  • W. Va. Code Ann. § 30-29-10 (West)

This West Virginia state statute became effective June 11, 2010. The statute prohibits racial profiling by any law enforcement officer. The statute is very detailed and does not leave a lot of room for interpretation. It defines law enforcement officers “as 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.” It even goes a step further and defines what the legislature considered to be racial profiling. “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.” The statute is not ambiguous which will not lend it to litigation based on loopholes or semantics. The statute also gives guidance on how an officer who engages in racial profiling should be disciplined. The statute gives some legislative history and policy concerns in regards to the practice of racial profiling. It is a newly enacted statute that is addressing an ever more prevalent issue in the state. 


Cases (Federal/State)

    • Alexander v. Sandoval, 532 U.S. 275 (2001)

The Supreme Court of the United States decided this case in January of 2003. Respondent, a driver’s license applicant brought this class action suit to challenge the Alabama Division Public Safety’s policy of administering its driver’s license exam in English only. The respondent argued that the practice was in violation of Title VI of the Civil Rights Act of 1964 that prohibits discrimination in covered programs and activities. Respondent argued that administering the exam in English only was discriminatory towards non-speaking test takers. The District Court enjoined English only administration of the exam. The Court of Appeals affirmed. In reversing the Court of Appeals decision, the Supreme Court held that Title VI of the Civil Rights Act provides no private right of action to enforce disparate impact regulations. The Court went on to provide that Title VI only protects individuals against intentional acts of discrimination. The case is not directly relate to the above thesis statement but does address regulations that have a disparate impact on a minority group.  

    • Whren v. U.S., 517 U.S. 806 (1996)

The Supreme Court of the United States decided this case in June of 1996. Two plainclothes policemen who were patrolling a high drug area pulled over the petitioners in their jeep. The police officers relied on the suspicious driving of the petitioners to satisfy the probable clause requirement. Upon approaching the vehicle, the police saw bags of crack cocaine in the hands of the petitioner. They were arrested on federal drug charges. The District Court convicted the petitioners on the federal drug charges. The Court of Appeals affirmed. The petitioners argued that the crack cocaine should be suppressed as the grounds for the police officers’ traffic stop was pretextual and in violation of their fourth amendment rights. The case addresses the issue of non-white motorists being stopped for minor traffic violations that may not have resulted in the stopping of white motorists. The Court held that the stop was not in violation of the petitioners’ fourth amendment rights and that the “reasonable officer” test is not determinative of whether probable cause exists to stop a vehicle.

    • U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975)

The Supreme Court of the United States decided this case in June of 1975. Two police officers were observing traffic at the San Diego border. The officers stopped Brignoni-Ponce because, according to the officers, he and his two passengers looked like Mexicans. After the traffic stop, the officers discovered the two passengers were illegal’s and Brignoni-Ponce was convicted on two counts of transporting illegal immigrants. The Supreme Court examined whether race could be the sole factor for an officer to stop a vehicle. The Court held that under appropriate circumstances, a roving patrol may perform a limited search and seizure without having probable cause to arrest the person. These circumstances include information that the person may have drugs or weapons, a visual scan of the person’s vehicle reveals something suspicious or as in this case a visual reason to believe that the person is carrying illegal aliens in to the country. Although the court found that none of these circumstances were present in this case, the decision, in effect gave broad discretion to law enforcement agents to perform traffic stops in the absence of traditional probable cause.

    • Com. v. Lora, 886 N.E.2d 688, 691 (Mass. 2008)

This case was decided by the Supreme Court of Massachusetts in 2008. A Massachusetts state trooper followed a car for three-quarters of a mile until he was able to see that the two occupants of the vehicle were dark skinned. The state trooper pulled the vehicle over. The vehicle had been neither speeding nor swerving prior to being pulled over by the state trooper. Cocaine was discovered in the vehicle and the drive was charged with trafficking cocaine. The defendant moved to suppress the evidence of the cocaine on the basis that the stop was not warranted by probable cause. In the course of the defense, counsel studied the amount of traffic citations given to African Americans as opposed to whites. The number was significantly disproportionate to the racial make-up of the town. African Americans accounted for 0.6 percent of the town’s population and nearly 12 percent of the traffic citations given. The suppression of the evidence by the lower court was reversed by the Supreme Court which held that the burden was on the defendant to show that produce evidence that similarly situated persons were treated differently because of their race. This case set precedent that allowed evidence, produced from a traffic stop in which an officer admittedly pulled a vehicle over on the sole basis of the occupants’ race, to be used in court.

    • Terry v. Ohio, 392 U.S. 1, 27 (1968)

This case was decided by the Supreme Court in 1968. The case involved a Cleveland police detective who two men acting in a way he thought was suspicious. Acting on nothing more than his own suspicions, the detective approached the men and asked them their names. The detective eventually patted the men down and found a weapon on one of them. The defendants asserted that the search was a violation of the Fourteenth Amendment guarantee against unreasonable searches and seizures. The Supreme Court held police may perform a quick surface search of the person’s outer clothing for weapons if they have reasonable suspicion that the person stopped is armed. This reasonable suspicion must be based on "specific and articulable facts" and not merely upon an officer's hunch. This standard proved vital to the effort to stop racial profiling. It aimed to make sure that officers could not merely pull over, seize or search people based solely on their race but rather needed to have reasonable suspicion based on specific and articulable facts.


Law Review Articles

    • R. Richard Banks, Race-Based Suspect Selection and Colorblind Equal Protection Doctrine and Discourse, 48 UCLA Law Review 1075 (2001)

Richard Banks wrote this law review which was published in 2001. Mr. Banks is a law professor at Stanford Law School and has published several articles on the subject of racial injustice. This article discusses how the use of race-based suspect descriptions disparately impacts innocent members of society that happen to share the same race as suspects. The author discusses how racial profiling has been condemned but law enforcement is using the practice of race-based suspect description without any scrutiny. This article specifically focuses on the impacts this practice is having on African Americans. Mr. Banks calls into question the colorblindness of the equal protection doctrine. He asserts that race-based suspect descriptions lead law enforcement officers to limit their search based on race more so than they would based on every other suspect description. The results leads to race, rather than other physical features, being the predominant suspect description relied upon by law enforcement. The trickle down affect of this reliance is that law enforcement is selecting its suspects based on race without enough consideration of other physical descriptions. The article included a bibliography.

    • Floyd D. Weatherspoon, Racial Profiling of African-American Males: Stopped, Searched, and Stripped of Constitutional Protection, 38 John Marshall Law Review 439 (2004)

Floyd Weatherspoon wrote this law review article which was published in 2004. Mr. Weatherspoon is a law professor at Capital University Law School and is regarded as an expert on African American males, mediation and dispute resolution. This article explores a phenomena in which police officers have developed an idea of what is a prototypical criminal. The article discusses how stereotypical biases towards African American males have impacted law enforcements’ sentiment towards them. The article asserts that African American males are stopped while driving their vehicles and searched disproportionately. The author bridges the gap between the biases that law enforcement has developed towards African American males and the rate at which they are being pulled over. The disproportionate amount of stops transcends car stops to include airport stops. The author attempts to prove that airport security has also developed biases towards African American males. These stereotypes and biases include the notion that African American males are likely drug traffickers and thus are being stopped more in airports to be searched. The author attributes the lack of support from the state to lack of African American political clout. The Article does include a bibliography.

    • Kevin R. Johnson, How Racial Profiling in America Became the Law of the Land: United States v. Brignoni-Ponce and Whren v. United States and the Need for Truly Rebellious Lawyering, 98 Geo. L.J. 1005, 1009 (2010)

Kevin Weatherspoon wrote this law review article which was published in 2004. Mr. Johnson is the Dean of the UC Davis School of Law as well as a professor of public interest law. He is nationally respected as a scholar in civil rights and immigration law. This article explores the notion that racial profiling in law enforcement is permitted if not encouraged by Constitutional law. The essay examines two post civil rights movement decisions that affirmatively contributed to the predominance of racial profiling in modern law enforcement. United States v. Brigoni-Ponce and Whren v. United States were both decided after the civil rights movement of the 1960’s but each, in effect, allow for racial profiling in law enforcement to go unchecked. The author uses these cases to illustrate the difficulties that lawyers face when trying to bring social change and racial justice in regards to this law enforcement practice. The essay aims to promote victims of the practice to become empowered and become their own advocates. The author also challenges attorneys to empower poor clients as through grassroots advocacy programs facilitated by attorneys. The Essay concludes, by contending that, to truly root out racial profiling from law enforcement, the law must impose limits on the consideration of race in law enforcement, restrict law enforcement discretion in making stops, and afford a meaningful remedy for impermissible stops. The article does include a bibliography.

    • Wayne R. LaFave, The "Routine Traffic Stop" from Start to Finish: Too Much "Routine," Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843, 1844 (2004)

Wayne R. LaFave wrote this law review article which was published in 2004. Mr. LaFave is a law professor at the University of Illinois College of Law. He is an extremely active scholar and author and has published several works in this area of the law. This article focuses on how the war on drugs has impacted police behavior with respect to routine traffic stops as a pretext for search a person’s vehicle for drugs or drug paraphernalia. The author asserts that police officers have developed a new tactic to attempt to apprehend drug traffickers. Using the new technique, police officers will first develop a hunch based on arbitrary factors including race and then will find a technical or trivial offense to produce the necessary stop. The law refers to these sorts of stops as pretextual stops. The officer will then run the “routine” criminal history and outstanding warrant search. The officer will ask routine questions about the driver’s identity or what the driver is doing. The officers’ questioning may induce the driver to permit the officer to search the vehicle, the ultimate goal of the officers’ stop. The article examines the Fourth Amendment legalities to traffic stops of this sort and what can legally be done with evidence that is found during searches that occur after these sorts of stops.


Non-legal Journals

    • Matthew Petrocelli, Alex Piquero, Michael Smith, Conflict theory and racial profiling: An empirical analysis of police traffic stop data, 31, Journal of Criminal Justice (2003)

Matthew Petrocelli wrote this interdisciplinary article which was published in 2003. Mr. Petrocelli is an associate professor of criminal justice at Southern Illinois University. He holds a Ph.D in sociology and criminal studies. The article was published in volume 31 of the Journal of Criminal Justice. The article examines a compilation of data collected over a two-year period by a Virginia Police Department. The data collection was an effort to study the stop, search, and arrest practices that were employed according to the racial and socioeconomic factors of the driver of the vehicle. The article discusses the conflict theory that dominant groups will use their resources including the law and its mechanisms to minimize threats from minority groups whom they have labeled dangerous. The article postulates that culturally dissimilar groups are viewed as threats and that this may be a reason for police officers to disproportionately stop minority drivers. The article did include a detailed bibliography.

    • Michael A. Ikner, Janice Ahmad, Alejandro Del Carmen, Vehicle Cues and Racial Profiling: Police Officers’ Perceptions of Vehicles and Drivers, 2, The Southwest Journal of Criminal Justice (2005)

Michael Ikner wrote this interdisciplinary article that was published in 2005. The article was published in volume 2 of the Southwest Journal of Criminal Justice. The article centers on a study conducted at a North Texas police department. The study examined police officers’ perceptions of vehicle driver characteristics and the likelihood of individual officers to be involved in racial profiling based on the type of vehicle. The article examines police officers’ decisions to make traffic stops based on associating a particular type of vehicle with a specific racial group. The article asserts that the media has created a drug courier profile as part of the war on drugs phenomena. Part of this profile is the type of vehicle that the drug courier drives. Police officers, like the rest of us, are susceptible to developing preconceived notions. Ikner asserts that police officers have developed an idea of what a drug dealer should look like, act like and drive. Police officers then use this idea to seek out who potential suspects instead of relying on substantive probable cause which is required by law. The results of the study did not seem to support Ikner’s assertion. Ninety percent of the officers tested associated a white driver with the vehicle shown to him or her. This may have been a result of the officers’ suspicion of the test or overcompensation by the officers. The test has value and will be employed by other police departments in the future to try to curb the practice of racial profiling that unquestionably exists around the country.