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.