Floyd D. Weatherspoon
Permission Pending: Floyd D. Weatherspoon, Racial Profiling of African-American Males: Stopped, Searched, and Stripped of Constitutional Protection, 38 John Marshall Law Review 439 (Winter 2004) (181 Footnotes Omitted)
Every African-American male in this country who drives a vehicle, or has traveled by bus or plane, either knowingly or unknowingly has been the victim of racial profiling by law enforcement officials. Indeed, African-American males are disproportionately targeted, stopped, and searched by law enforcement officials based on race and gender. Those responsible for enforcement of public laws view African-American males as criminals. Unfortunately, the American justice system has condoned, supported, and in some instances encouraged such actions by law enforcement officials to stop, arrest, prosecute, and incarcerate African-American males. On the basis of race and gender, governmental officials have devised a profile of the typical criminal: black and male.
The term driving while black has been used to describe the practice of law enforcement officials to stop African-American drivers without probable cause. The practice particularly targets African-American males. African-American males are not only singled out while driving, but also while schooling, eating, running for political office, walking, banking, serving as a juror, getting a taxi, shopping, and just being black and a male. The mere fact of being black and male in America is sufficient cause for governmental and private law enforcement officials to abridge the rights of African-American males. This is not to suggest that law enforcement officers can never consider race when performing their job. Just the opposite, where a witness identifies the race and gender of a suspect, it is relevant evidence to consider in an effort to apprehend a criminal. Racial profiling, however, involves a pre-disposition held by law enforcement officers who are members of the majority, to believe that minorities, and particularly African-American males, are engaged in criminal activities; therefore, they are stopped and searched without probable cause or reasonable suspicion.
Racial profiling has been institutionalized into our American justice system, as well as other systems that disproportionately exclude, punish, and ostracize African-American males. For example, racial profiling on the part of governmental officials has encouraged and, to a certain extent, licensed individuals in the private sector to devise similar racial profiles based on stereotypical biases to selectively punish and exclude African-American males from employment opportunities.
This Article focuses on how African-American males have fallen prey to law enforcement agencies, as they use racial profiling as a technique to selectively enforce laws and regulations. There is a substantial amount of literature written on racial profiling, however, few specifically address how African-American males, in particular, are disproportionately impacted by such discriminatory practices.
Part II of this Article describes and substantiates that racial profiling is used against African-American males to stop and search. Regardless of their economic status or education, African-American males are disproportionately stopped by law enforcement officials. Part III describes how stereotypical biases are the primary reasons law enforcement officials engage in racial profiling against African-American males. Lastly, the assumption being that all African-American males are engaged in unlawful activities, Part IV identifies how racial profiling of African-American males is used to sanction traffic and airport stops, in violation of their constitutional rights. Unfortunately, it appears that the Supreme Court has sanctioned such treatment.
II. Racial Profiling of African-American Males
African-American males are the primary victims of racial profiling in this country. Moreover, African-American males believe they are the primary victims of racial profiling in this country. For example, surveys conducted by the Washington Post and the Black America's Political Action Committee (BAMPAC) determined that almost fifty percent of African-American males surveyed believed they had been victims of racial profiling. The practice of racial profiling is not limited to just urban areas. Indeed, it happens wherever African-American males live, work, or traverse; whether in cities, rural communities, East or West, North or South, they face closer scrutiny by law enforcement than white males. Racial profiling of African-American males is not a new phenomenon but a re-packaging of a twentieth-century form of racial discrimination toward black males. Justice Marshall said it best when he faced racial profiling in the 1960s:
[a] white man came up beside me in plain clothes with a great big pistol on his hip. And he said, Nigger boy, what are you doing here? And I said, Well I'm waiting for the train to Shreveport. And he said, There's only one more train comes through here, and that's the 4 o'clock, and you'd better be on it because the sun is never going down on a live nigger in this town.
At a different time and in a different place, African-American males were, and remain, singled out for harassment. Interestingly, racial profiling is not isolated to just black male youths in urban areas with a gangster or rapper appearance or demeanor. Racial profiling is applied in a non-discriminatory manner among African-American males, regardless of their economic status. African-American males who are lawyers, educators, sport figures, legislators, actors, news reporters, and business executives are stopped, questioned, and humiliated by law enforcement officers simply because they are black and male. One-thousand dollar Armani suits do not shield them from being perceived as drug-dealing thugs.
Negative stereotypical biases of African-American males overshadow any appearances that they are law-abiding citizens. Indeed, in the eyes of many law enforcement officers, an African-American male driving a Mercedes-Benz projects the presumption of illegal activity, not the presumption of a hard working citizen.
III. The Impact of Stereotypical Biases Toward African-American Males
Stereotypical biases directed at African-American males by law enforcement officials has resulted in a disproportionate number of African-American males being stopped and searched. It is pre-supposed by many law enforcement officials that African-American males are engaged in criminal activities, especially drug dealing. This sentiment by many law enforcement officers became evident when the New Jersey Chief of Troopers defended racial profiling by stating that mostly minorities were engaged in the trafficking of marijuana and cocaine. It should be obvious that if law enforcement agencies focus the enforcement of drug laws toward African-American males, and ignore whites based on stereotypical biases, African-American males will be disproportionately stopped and searched. Thus, it will appear they are the only segment of the country's population engaged in criminal drug activities. In turn, the data from one jurisdiction will be relied on by another to justify the racial profiling of African-American males; thus, the discriminatory conduct is perpetuated.
The mere appearance, talk, walk, and dress of African-American males are viewed in a negative light by many white Americans. Moreover, African-American males who travel through white neighborhoods may find themselves stopped and pulled over by law enforcement officials and investigated. An African-American male who drives a foreign sports or luxury car is almost certain to be stopped by law enforcement for suspicion of drug trafficking or car theft. As a result of discriminatory stops, African-American males are disproportionately arrested by law enforcement officers. Negative images of this group and stereotypical biases directed at its members may automatically lead to them being stopped and arrested. Due to such biases, law enforcement officials assume that every African-American male is a threat to them, and to society.
Racial profiling due to stereotypical biases also has a direct correlation to the high incarceration rate of African-American males, especially those between the ages of twenty and thirty nine. Moreover targeting minorities for traffic stops, especially African-American and Hispanic males, may enhance their sentence for other crimes, if the traffic violation is considered in determining their penalty. Unfortunately, the killing of African-American males by law enforcement officials may have a direct correlation to the percentage of African-Americans being stopped.
IV. Selective Enforcement
A. Traffic Stops: Driving While Black and Male
More than thirty years ago, the U.S. Supreme Court in Terry v. Ohio placed limitations on the ability of enforcement officers to stop and search individuals without reasonable suspicion that they were engaged in criminal activity. Reasonable suspicion must be based on something more than an inchoate and unparticularized suspicion or hunch. In addition, the Supreme Court held in United States v. Sokolow that police conduct carried out solely on the basis of imprecise stereotypes of what criminals look like, or on the basis of irreverent personal characteristics such as race violates the Fourth Amendment. Law enforcement officers are required to have specific and articuable facts.
Even though these limitations are part of the criminal justice jurisprudence and have been tested repeatedly in court, law enforcement officers use racial profiling as a means to routinely stop and search African-American males. African-American males who are stopped and searched will often allege that the search and seizure violated their Fourth Amendment rights, thus, the evidence seized must be suppressed at trial. Because the standard for an investigatory stop does not require probable cause, but only reasonable suspicion, courts have consistently denied the suppression of such evidence.
The use of racial profiling in the selective enforcement of public laws is most evident in traffic stops by law enforcement officers. It can also be a most humiliating and frightening experience for anyone, especially African-American males who may fear imminent harm from police officers. For example, in Flowers v. Fiore, an African-American male motorist alleged that law enforcement officers engaged in racial profiling when he was stopped, handcuffed, forced to his knees, and had his car searched. According to the police officers, they stopped Flowers because a resident called the police and stated that he received a call from someone who purported to be sending over two black guys with a gun. Shortly thereafter, the police observed Flowers driving past the caller's house. The police stopped him, searched his car, and then released him because there was no evidence that he was sent to harm the resident.
Flowers sued under various federal and state laws, alleging in part that the police engaged in racial profiling, stopping him in violation of his rights under the Equal Protection Clause of the Fourteenth Amendment. The court granted the defendants' motion for summary judgment because in the eyes of the court the search was reasonable. The court stated that innocent victims will be at times subjected to such stops by police officers and suggested that Flowers was entitled to a good explanation and an apology. The court failed to recognize that too often the innocent victims, who were being stopped and humiliated by law enforcement officers were African-American males.
The court in Washington v. Lambert acknowledged the following: In this nation, all people have a right to be free from the terrifying and humiliating experience of being pulled from their cars at gunpoint, handcuffed, or made to lie face down on the pavement when insufficient reason for such intrusive police conduct exists. However, too often African-American males are treated in this manner by law enforcement officials, without conscious of, or concerns about their constitutional rights.
One of the most egregious examples of racial profiling of African-American males occurred in 1998 when two New Jersey Troopers stopped and fired eleven times at a van traveling on the New Jersey Turnpike, wounding three of the passengers. The van was occupied by three African-American males and a Hispanic male, all from New York, who were en route to North Carolina to try out for a baseball team. The shooting brought national attention to the practice of stopping African-Americans, particularly African-American males, without probable cause or reasonable suspicion that they were engaged in a criminal activity.
Similarly, in State v. Soto, a superior court judge in Gloucester County, New Jersey, granted the defendant's motion to suppress evidence seized after being stopped on the New Jersey Turnpike. The court held that the seventeen minority defendants who were African-Americans, the majority of whom were males, established a case of selective enforcement based on race. In Soto, the defense conducted a study to determine if law enforcement officers were engaged in racial profiling. The study revealed that an adult black male was present in 88% of the cases where the gender of all occupants could be determined and that where gender and age could be determined, a black male 30 or younger was present in 63 of the cases.
Other examples of racial profiling include an incident involving the Maryland State Police, which settled a lawsuit following the discovery of an internal memo that encouraged state troopers to target African-American males driving east on I-68. The profile of the Maryland State Police suggested that being black plus male and driving on I-68 equaled criminal activity.
During the past five years, a number of studies support the conclusion that the race and color of drivers has been the basis for state law enforcement officers to stop and search cars driven by African-Americans, particularly African-American males. One of the most comprehensive and widely circulated studies on racial profiling was conducted in 1999 to determine whether the state police in New Jersey engaged in racial profiling on the New Jersey Turnpike. The study concluded that minorities were disproportionately stopped and treated differently than white motorists. Officials of the United States Department of Justice and the State of New Jersey ultimately signed a consent decree to prohibit and prevent racial profiling by New Jersey State Police.
Further, a study in Maryland revealed that during a three-year review of motorists stopped on I-95, African-Americans represented seventy percent of individuals stopped by the police, even though African-Americans make up only about seventeen percent of motorists. A similar study of traffic stops in Missouri also revealed that African-Americans were disproportionately stopped and searched. Additionally, a study by the Orlando Sentinel concluded that African-Americans and Hispanics represented a small percentage of motorists on a particular Florida highway, however they represented almost seventy percent of individuals stopped and eighty percent of those whose cars were actually searched. Lastly, in parts of Oklahoma, African-Americans are disproportionately stopped and convicted of traffic violations.
Similar studies of city law enforcement officials find that minorities are also disproportionately stopped. For example, the Salt Lake Tribune conducted a study of traffic tickets issued by the Salt Lake City Police Department. The survey revealed that African-Americans were twice as likely as white drivers to receive a traffic ticket. Another study, conducted by the San Diego Police Department, revealed that between January and December 2000, African- and Hispanic-Americans were more likely than whites, and Asian-Americans to be stopped.
These incidents support the suspicions held by African-American males, that their rendezvous with the police have not occurred by chance, but instead because of the darkness of their skin and their gender. Police officers may allege there is a legitimate reason for stopping African-American males, which in reality is a pretext to discrimination. An officer, for example, may use a state car seat belt law as a pretext to stop African-American males who may not use seat belts to the extent of white motorists. Officers also cite the failure to signal when changing lanes, or following too closely, as a basis for a stop, and ultimately a search.
Incidents of racial profiling of African-American men continue to be reported, as law enforcement officials exercise their authority to stop and search law-abiding African-American male motorists in a discriminatory manner. This was illustrated in testimony given by Rossano Gerald, a decorated sergeant of the Gulf War. Sergeant Gerald testified before a subcommittee of Congress on the End of Racial Profiling Act of 2001. Sergeant Gerald testified how he was handcuffed and humiliated by a State Trooper while driving with his son in Oklahoma. Sergeant Gerald filed suit against the Oklahoma Highway Patrol after he was stopped twice in the same day. During the second stop he was detained for almost two hours while officers searched his car for drugs. Finding no drugs, he was given a warning ticket for failure to signal when changing a lane. The case subsequently settled for $75,000.
Ironically, there is evidence that the use of racial profiling is also used by white police officers to stop African-American male police officers who are off-duty. There is also evidence that African-American male officers who refuse to engage in racial profiling may also face reprisal, including termination. Even more troubling is that there is evidence that the white officers pretend they don't know the African-American male officer, even though they may have worked together as partners.
The United States Supreme Court decision in Whren v. United States practically legitimizes the use of racial profiling by police officers. In Whren, two African-American males, driving a dark Pathfinder truck with temporary license plates, were pursued by plainclothes vice-squad officers after the driver failed to give a turning signal and sped off at an unreasonable speed. When the driver stopped at a red light, the officer approached the driver's door, and observed two large plastic bags of what appeared to be crack cocaine in the driver's hand. Both individuals were arrested and subsequently charged with violating various federal drug laws.
The petitioners challenged the legality of the stop and the seizure of the drugs. The district court denied the suppression motion and they were convicted. The court of appeals affirmed the convictions.
After reviewing a series of Fourth Amendment cases, the Supreme Court stated:
[W]e think these cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved. We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.
The Whren decision sanctions law enforcement officers to stop and question any motorist, ostensibly for an insignificant traffic violation, and subsequently charge them with other serious crimes, even though they have no reasonable cause to suspect the individual was engaged in a felony. It is irrelevant that the officer may have an ulterior motive or had subjective intention when making the stop. Even though it is difficult to prove, often the real reason for the stop is based on stereotypical biases that an African-American male is engaged in illegal drug activities. In Kearse v. State, Judge Griffen, in a concurring opinion denying the motions to suppress evidence seized at the stop, stated in part:
For countless African-American and Hispanic drivers, the prospect of being stopped for a traffic offense and asked to consent to a search of their vehicles has become part of the preparation for driving. . . . I hope that police agencies will voluntarily discontinue the highly disturbing practice of suspecting that African-American and Hispanic motorists are more likely to be drug dealers and couriers so as to warrant being stopped for traffic offenses[,] so that their vehicles can be searched and their cash seized.
Often, African-American males who are stopped based on a reasonable suspicion of a traffic violation are lined up along the highway, humiliated, and searched without probable cause. Such actions should undoubtedly be considered a violation of their Fourth Amendment rights. Furthermore, if the law enforcement officer detains the motorist longer than necessary to determine whether a traffic violation has occurred, or searches the car without consent or probable cause, the Fourth Amendment may be violated.
Unfortunately, the Whren decision can be compared with the Supreme Court's decision in Dred Scott v. Sanford. The Dred Scott decision resulted in African-Americans being denied their constitutional rights as citizens. Even though the cases are more than a hundred years apart, the impact of Whren on African-American males may be the same as Dred Scott. In Dred Scott, Judge Taney stated that a [black man] had no rights which the white man was bound to respect. The United States Supreme Court decision in Whren raises questions of whether African-American men have certain constitutional rights.
B. Airport Stops: Drug Courier Profile
The use of drug courier profiling is also used at airports, bus stations, and with other modes of transportation to stop and search African-American males. As an African-American male who travels by plane on a frequent basis, I am normally one of three or four African-Americans on the plane. My personal observation is that the percentage of airplane travelers that are African-American is extremely small. However, a review of statistics on African-Americans who are stopped and searched by the United States Drug Enforcement Administration (DEA) reveals that African-Americans are disproportionately stopped. The DEA has developed what is known as drug courier profiles. In United States v. Elmore, a DEA agent provided the following characteristics of a drug courier profile:
The seven primary characteristics are: (1) arrival from or departure to an identified source city; (2) carrying little or no luggage, or large quantities of empty suitcases; (3) unusual itinerary, such as rapid turnaround time for a very lengthy airplane trip; (4) use of an alias; (5) carrying unusually large amounts of currency in the many thousands of dollars, usually on their person, in briefcases or bags; (6) purchasing airline tickets with a large amount of small denomination currency; and (7) unusual nervousness beyond that ordinarily exhibited by passengers. The secondary characteristics are (1) the almost exclusive use of public transportation, particularly taxicabs, in departing from the airport; (2) immediately making a telephone call after deplaning; (3) leaving a false or fictitious call-back telephone number with the airline being utilized; and (4) excessively frequent travel to source or distribution cities. These characteristics appear to be race-neutral and had race been listed, it would have raised constitutional concerns (e.g., a violation of the Equal Protection Clause of the Constitution). Courts have consistently held that the discriminatory investigation of citizens on the basis of race certainly violates [the Constitution], engenders distrust of law enforcement officials, and perpetuates the perception among minority citizens that they are second-class citizens, and are likely to be suspected of wrongdoing solely because of their race or ancestry. African-American males, in particular, view law enforcement officials with suspicion and distrust. The practice of drug courier profiling of African-American men further perpetuates the conflict between African-American males and law enforcement officials.
Even though the profile appears to be neutral on its face, the question still remains whether there are code words within these neutral terms that law enforcement officers interpret and manipulate to reach African-American travelers, particularly African-American males.
The enforcement of the drug courier profile by law enforcement officers has resulted in African-American males being detained, searched, humiliated, and embarrassed while exercising their constitutional right to travel. Based on the disproportionate number of African-American males stopped, it appears that the government's profile of a drug courier has become in practice the black male drug courier profile.
Courts have become suspicious of the use of the drug courier profile, however, the Court has failed to address the disparity in a manner to ensure equity in the enforcement of drug laws. For example, in Jones v. United States Drug Enforcement Administration, the court stated [i]t is clear from the testimony that [the] officers approached [the travelers because of their race]. Moreover, Jones presented evidence of other incidents where African-Americans were stopped without probable cause; however, the court refused to grant Jones's request for injunctive relief against the DEA.
In United States v. Travis, the evidence clearly supported the conclusion that airport detectives targeted African-American travelers by using a race-based profile. The evidence presented by defendants indicated that in 1992, twenty of the twenty-one individuals arrested at the Kentucky airport were of African-American or Hispanic descent. Even though the court expressed concerns that African-Americans may be targeted for searches at the airport, it nevertheless upheld the search as being lawful.
Further, in United States v. Weaver, a DEA agent stopped an African-American male at the Kansas City International Airport, because he was a roughly dressed young black male who might be a member of a Los Angeles street gang that had been bringing narcotics into the Kansas City area. Even with this evidence, the Eighth Circuit Court of Appeals, nevertheless, affirmed the district court's decision denying Weaver's motion to suppress evidence obtained by the government when he was stopped. In affirming the lower court's decision, the court of appeals acknowledged that had the decision to stop the African-American male been based solely on his race, the Constitution would have been violated. The court, however, focused on the fact that the DEA agent also relied on race-neutral evidence to stop and question Weaver. Based on this analysis, law enforcement officers can easily circumvent the constitutional rights of African-American males by connecting racial factors with race-neutral factors in their decision to stop any individual. At the same time the Eighth Circuit stated that it agreed with the dissent, that large groups of our citizens should not be regarded by law enforcement officers as presumptively criminal based on race. Nevertheless, African-American males who travel by plane or other modes of transportation may automatically be suspected of engaging in illegal activities solely based on the color of their skin. Proving that the DEA or other law enforcement officials are engaged in racial profiling in the enforcement of drug laws is almost impossible.
The Supreme Court decision in Whren gave law enforcement officers the authority to stop African-American males, and other minorities, on the basis of their race, and the Supreme Court decision in United States v. Armstrong made it virtually impossible to prove that law enforcement officers were intentionally engaged in stopping African-American males. For all practical purposes, Armstrong gave law enforcement officials unfettered authority to profile, stop, search, and prosecute African-Americans, particularly black males during the war on drugs. If there was ever a case where the statistical data clearly supported a pattern and practice of selective enforcement on the basis of race, it would have been Armstrong.
In Armstrong, the Federal Bureau of Alcohol, Tobacco, and Firearms and the Narcotics Division of Inglewood, California, Police Department had infiltrated a suspected crack distribution ring by using three confidential informants. As a result of the drug sting, Armstrong and other African-American males were indicted. Defendants filed a motion for discovery or for dismissal of the indictment alleging that the government had engaged in selective prosecution on the basis of race. To support their claim, they submitted an affidavit of an employee of the office of the Federal Public Defender described as stating:
. . . in every one of the 24 841 or 846 [drug] cases closed by the office during 1991, the defendant was black. Accompanying the affidavit was a study listing the 24 defendants, their race, whether they were prosecuted for dealing cocaine as well as crack, and the status of each case.
Over objections by the Government the district court granted the motion for discovery. It ordered the Government:
(1) to provide a list of all cases from the last three years in which the Government charged both cocaine and firearms offenses, (2) to identify the race of the defendants in those cases, (3) to identify what levels of law enforcement were involved in the investigations of those cases, and (4) to explain its criteria for deciding to prosecute those defendants for federal cocaine offenses.
After appeals to the Ninth Circuit, the Supreme Court granted certiorari to establish the standard for discovery for a selective prosecution claim.
The Supreme Court acknowledged that the government is prohibited from using race as a basis to prosecute. From there, the Court established a heightened standard which ties the hands of defendants from discovering evidence to support their claim of selective enforcement. The Supreme Court held that to establish a selective prosecution claim the claimant:
Must demonstrate that the federal prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose. To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted.
The Supreme Court also held that this standard even applies when defendants are seeking discovery to prove their claim. The difficulty in selection cases is identifying whites who are treated more favorably by the prosecutor in the enforcement of drug laws. The Court incorrectly hypothesized that the similarly situated standard will not make selective prosecution claims impossible to prove. Subsequent selective enforcement cases, where a discovery motion to discover evidence to support similarly situated whites were treated more favorably, have been denied based on the Court's decision in Armstrong, thus leaving defendants, especially African-American male defendants, without sufficient evidence to support their claim.
The difficulty in meeting the Armstrong standard is illustrated in United States v. Barlow. Barlow, an African-American male, was stopped by DEA agents at Chicago's Union Station after he purchased two one-way tickets to Topeka, Kansas. The DEA agents indicated that Barlow and his companion were stopped because they kept glancing over their shoulders at the agents and whispering to one another. After receiving consent to search their bags, the DEA agents found drugs and weapons. Barlow and his companion were arrested.
In Barlow's motion for discovery under the Armstrong standard, he alleged that he had been pursued, stopped, interviewed, and investigated by Drug Enforcement Administration agents based on his race. Barlow presented preliminary statistical evidence which indicated that African-American males were singled out for stops, whereas white males were not. He requested the names and races of all individuals stopped by the agents during a five year period. In rejecting his motion, the court held that allegations of racial profiling are analyzed under the same standard of complaints of selective prosecution. The court stated that Barlow needed to demonstrate that the agents' actions had a discriminatory effect and that the agents had a discriminatory purpose when they approached him. . . . Without this evidence, Barlow could not meet the standard in Armstrong to obtain discovery on a claim of racial profiling.
African-American males continue to be victims of racial profiling, even with new safeguards developed by state and federal law enforcement organizations. The selective enforcement is based on stereotypical biases directed at African-Americans by law enforcement officials. Further remedies are needed to prohibit and punish law enforcement officers engaging in such discriminatory conduct. Unfortunately, African-American males lack the political clout to force Congress and other governmental officials to respond in a meaningful manner to prohibit the racial profiling of African-American males and other minorities. Moreover, the courts have failed to safeguard their constitutional rights to travel without fear of being stopped, searched, and arrested by law enforcement officials on the basis of their race and gender.
. © 2004, Floyd D. Weatherspoon, Professor of Law, Capital University Law School (Columbus, Ohio). B.S., North Carolina A&T State University, 1974; J.D., Howard University Law School, 1977.