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Floyd Weatherspoon

Permission Pending: Floyd Weatherspoon , Ending Racial Profiling of African-Americans in the Selective Enforcement of Laws: in Search of Viable Remedies, 65 University of Pittsburgh Law Review 721 (Summer, 2004)(footnote omitted)


In theory, the American justice system is designed to ensure that each American's basic constitutional rights are preserved and protected. Most Americans, including African-Americans, believe that the justice system protects the constitutional rights of all Americans. However, the extent of this protection is viewed differently by whites and African-Americans. Indeed, African-Americans feel that their constitutional rights have been marginalized by the very systems in place to protect their rights.

The Constitution guarantees equal protection under the law, the right to travel, the right to vote, and the right to privacy. But for African-*723 Americans, these rights are merely a mirage of what white Americans receive and take for granted. Their constitutional rights are especially abridged in the enforcement of laws related to travel. Too often, race is the determinative factor used by law enforcement officers to justify a stop and search of African-Americans. Even though the Constitution prohibits such conduct by law enforcement agencies, these practices have become the norm, not the exception.

The American justice system has permitted, and in some cases sanctioned, the use of the immutable characteristic of race as the motivating factor in the enforcement of public laws. Such actions or inactions on the part of individuals entrusted with the enforcement of public laws have served as a detriment to the idea that all Americans have inalienable rights. In other words, in their zeal to enforce public laws, governmental officials have selected African-Americans and other minorities solely on the basis of their *724 race to stop, arrest, charge, prosecute, and incarcerate. This practice has been described as driving while black and racial profiling. Racial profiling involves the pre-disposition that minorities are engaged in criminal activities, which results in minorities being stopped and searched without probable cause.

*725 There is substantial evidence that racial profiling exists. Moreover, there is substantial jurisprudence written on racial profiling. What is lacking is jurisprudence on how Congress, state and federal law enforcement agencies, the courts, and the minority community can eliminate and remedy racial profiling by law enforcement officials. Therefore, this article focuses on how to eliminate and remedy such conduct.

Unfortunately, racial profiling of African-Americans appears to be ingrained in the minds of many law enforcement officers and has become a part of their standard operating procedures. A frontal attack must occur at all levels of government, the judiciary, by private citizens, and various community and civil rights organizations.

This article identifies various initiatives taken by all levels of the government, civil rights and community organizations, law enforcement organizations, and individual citizens to address the issue of racial profiling. The article also reviews the judiciary's response to this practice. In addition, this article presents a number of possibilities and considerations to address the issue, as well as an evaluation of the effectiveness of recently implemented programs. There is no one paradigm that will completely eradicate the practice of racial profiling. A holistic approach to remedying racial profiling has to be developed to address such infectious conduct by law enforcement officials.

*726 Part II of the article describes initiatives by the Executive Branch, Congress, and the U.S. Justice Department to address the issue of racial profiling and the effectiveness of certain programs. Part III describes state and local initiatives. Part IV outlines various legal actions that individual citizens may take when confronted by law enforcement officials who engage in racial profiling. Part V outlines various initiatives adopted by communities and organizations. Clearly, these remedies are not an exhaustive list of possible corrective actions, but only the beginning of a dialogue on how to end and prevent racial profiling by law enforcement organizations.