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Suzanne Leone

excerpted from: Massacuhsetts Addressses Racial Profiling Head On: the Efficiency of Chapter 228 of the Acts and Resolves of 2000 , 28 New England Journal on Criminal and Civil Confinement 335-376, 339-342 (Summer, 2002) (270 Footnotes)

Just as the anecdotal evidence of racial profiling was accumulating and being vocalized across the nation, the phenomenon was further compounded by the Supreme Court's 1996 decision in Whren v. United States to "remov[e] race from Fourth Amendment analysis." In Whren, petitioners asked the Court for a new Fourth Amendment test to deter pretextual traffic stops. Rather than requiring the existence of probable cause to justify a traffic stop, petitioners argued the standard should be "whether a police officer, acting reasonably, would have made the stop" for the actual traffic violation asserted by the police officer. They reasoned that, due to the vastly abundant and minutely technical regulation of automobile usage,

total compliance with traffic and safety rules is nearly impossible, [and, therefore,] a police officer will almost invariably be able to catch any given motorist in a technical violation .... [This opportunity,] creat[es] the temptation to use traffic stops as a means of investigating other law violations, as to which no probable cause or even articulable suspicion exists.

In Whren, probable cause was substantiated by the fact that the police officers observed the defendant violating several technical traffic violations of the state code. In response, the petitioner argued that a police officer can stop any motorist for probable cause based on a traffic violation. The police officer can choose to stop any motorist driving in his vicinity at any given time, provided that the motorist has committed a legitimate traffic infraction. A traffic violation can be as simple as an equipment failure, failure to signal, or driving above the speed limit. Petitioners argued that among the multitude of motorists, the officer is more likely to discriminately stop a motorist based on the race of the vehicle occupants. The Court agreed that, "the Constitution prohibits selective enforcement of the law based on considerations such as race." Nevertheless, the Court rejected the Fourth Amendment argument as the protection from selective law enforcement, and held, "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." Instead, the Court declared that when a motorist raises a selective enforcement defense, the proper basis for that argument is the Fourteenth Amendment Equal Protection clause. Consequently, the impact of Whren renders anecdotal evidence of racial profiling useless because it disables a claim that an unlawful, pretextual stop was made based on the defendant's race. "[B]y removing the subjective motivation of the arresting officer from the Fourth Amendment calculus, the Whren Court effectively stripped defendants of their ability to establish that unlawful considerations such as race played a part in the decision to stop and arrest ...."

Unfortunately, even though the Court prescribed the Fourteenth Amendment as a remedy, the Fourteenth Amendment argument has proven to be nearly impossible to litigate. Not being a viable means, the Court's prescribed remedy is rendered ineffective. This is because "[c]laims of selective prosecution brought under the Equal Protection Clause of the Fourteenth Amendment are hampered by the burden of proof .... To prove such a claim, plaintiffs must show both disparate impact and discriminatory intent." Proving disparate impact by conducting statistical surveys and analysis is possible, albeit time consuming and costly. But, proving discriminatory intent of the individual officer is nearly impossible.

The Supreme Court has construed the Equal Protection Clause to permit almost any government action that avoids explicit discrimination, unless it can be shown to be based on outright hostility to a racial or ethnic group. As a consequence, the Clause provides no protection against ... unconscious bias on the part of generally well-intentioned officers.

For a claimant to prove that an officer stopped him based on his race, the claimant would have to gather substantial evidence to prove the officer's discriminatory intent. For example, the claimant must produce documentation that shows the police officer was following an established "'de facto' departmental policy of selective enforcement against minorities." To do this, the claimant must acquire probative evidence from reports and testimonies showing that the officer has a record or a tendency to make stops based on race. Prior to state and municipality policies requiring the collection of data on traffic stops, there had been no documentation to help a claimant prove such tendencies on behalf of the officer, leaving the claimant with anecdotal evidence. Even "[i]n the unlikely chance that documentary proof of racial profiling is acquired by the victim, admitted by the court, and accepted by a judge or jury, a forceful and effective remedy for the underlying constitutional violation simply is not in place." "There is no Supreme Court precedent ... for relief. Instead, the Court has declined to state just what remedy, if any, a criminal defendant is entitled to if he establishes that he is the victim of racial profiling." Why then should a claimant risk the social ramifications of publicly accusing a law enforcement officer of such derogatory behavior?

In sum, the Whren decision buttressed the broad discretion exercised by law enforcement in making traffic stops and essentially licensed law enforcement officers to perform traffic stops based on subjective, discriminatory motivation. Individuals who believe they were stopped based on their race, rather than probable cause, are left with essentially no recourse.