Wednesday, September 18, 2019

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II. Federal Initiatives to End Racial Profiling

A. Presidential Initiatives

To have a meaningful plan at the federal level to address the issue of racial profiling, the directive must come from the highest position in the executive office-the President. In 1999, President Clinton called racial profiling morally indefensible and issued a directive to federal law enforcement agencies to collect and report data on the race, ethnicity, and gender of individuals stopped, questioned, and searched. Similarly, President Bush raised the issue of racial profiling in his speech to Congress on February 27, 2001. Further, President Bush directed the U.S. Attorney General to develop specific recommendations on how to end racial profiling.

*727 In a news conference on March 1, 2001, Attorney General Ashcroft announced two initiatives to fulfill the President's directive. First, the Attorney General announced that he would work with members of Congress for passage of legislation to address the President's directive. Second, the Attorney General stated that he would issue a directive requiring his office to explore the extent of racial profiling in federal law enforcement agencies and provide guidance to address such conduct. Unfortunately, the Attorney General and Congress have failed to pass any federal legislation prohibiting racial profiling.

In response to the second directive, the Justice Department conducted a study on the extent of racial profiling by law enforcement agencies. Recommendations were presented to President Bush on eliminating racial profiling by federal law enforcement officials. President Bush accepted the recommendations and directed that the policy guidance be distributed to law enforcement agencies. On June 17, 2003, the Department of Justice issued a policy guide entitled: Guidance Regarding the Use of Race By Federal Law Enforcement Agencies [hereinafter Guidance Policy] to prohibit racial *728 profiling by federal law enforcement officials. The policy was distributed to major law enforcement agencies.

The Guidance Policy prohibits racial profiling in traffic stops and during investigations of criminal activities where no trustworthy evidence related to race has been presented. The Guidance Policy states in part:

Racial profiling at its core concerns the invidious use of race or ethnicity as a criterion in conducting stops, searches and other law enforcement investigative procedures. It is premised on the erroneous assumption that any particular individual of one race or ethnicity is more likely to engage in misconduct than any particular individual or another race or ethnicity.

The Guidance Policy acknowledges that acts of racial profiling violate the constitutional rights of individuals who are selectively stopped on the basis of their race or ethnicity. Moreover, the Guidance Policy provides guidance on when law enforcement activities, such as stops and investigations, are permissible acts of racial profiling. The Guidance Policy permits the use of race by law enforcement when it relates to national security. Without further clarifications and guidelines, this broad exception may result in a continuation of racial and ethnic profiling.

The Guidance Policy is an excellent tool for law enforcement officials to follow in performing their day-to-day traffic duties. However, the Department of Justice's Guidance Policy fails to provide mandatory guidelines which set forth uniform standards for federal law enforcement officials to follow. More definitive guidelines and standards would have a greater impact on eliminating racial profiling by federal law enforcement officials, as well as establishing a model for state and local enforcement agencies.

B. Congressional Legislation: Racial Profiling Act of 2001

Congress has attempted to pass federal legislation to address the issue of racial profiling; however, these attempts have been futile. Representative John Conyers, Jr. first introduced the Traffic Stops Statistics Act in 1997. The purpose of the Act was to end the use of racial profiling based on stereotypical biases, particularly directed at African-American and Hispanic motorists. The Act passed the House of Representatives but the Senate Judiciary Committee failed to vote on it. Representative Conyers again proposed similar legislation in 1999. In 2001, Representative Conyers, for the third time, proposed federal legislation to end racial profiling [hereinafter The End Racial Profiling Act of 2001]. The Senate proposed similar legislation; however, the sponsors failed to garner sufficient support for passage. Representative Conyers testified that since he first proposed this legislation in 1997, the pervasive nature of racial profiling has gone from anecdote and theory to well documented fact.

The End Racial Profiling Act of 2001 would have banned racial profiling and required federal, state, and local enforcement agencies to develop and implement programs to eliminate the use of racial profiling in the enforcement of local and state laws. As an incentive to comply with the Act, federal funds would have been barred from state and local enforcement agencies for non-compliance.

*730 All attempts by Representative Conyers and other sponsors of federal legislation to ban racial profiling have failed. If the issue of racial profiling continues to be prevalent in our country, Congress will inevitably promulgate some modified version of Representative Conyers' proposal to collect data on traffic stops. It appears that the events of September 11th have derailed Congress's motivation to pass federal legislation banning racial profiling. Congress has a responsibility to protect the rights of all citizens, even in the midst of acts of terrorism. Without federal legislation banning such conduct, African-American citizens are without federal protection from racial profiling. It is imperative that Congress make the passage of racial profiling legislation a priority. Whether it is an act of Congress, a state statute, or a local ordinance, such laws must include certain provisions to ensure that the data collected is correct, validated, and credible.

C. Racial Profiling Education and Awareness Act of 2002

In addition to collecting statistical data on police traffic stops, legislators have proposed educational and awareness programs on preventing racial profiling by law enforcement officers. The Racial Profiling Education and Awareness Act of 2002 would have authorized the U.S. Attorney General to carry out a racial profiling education and awareness program within the Department of Justice and to assist state and local law enforcement agencies in implementing such programs. The proposed Act would have acknowledged that racial and ethnic profiling exists and has not been an effective tool to uncover criminal activity, in part because those who have been profiled were law-abiding citizens. By acknowledging that racial profiling exists, state and local enforcement agencies can focus on how to address the issue, rather than taking a defensive position that their organization does not engage in racial profiling.

The Act was designed to foster a relationship with local communities and law enforcement agencies. It encouraged education programs to bridge the *731 gap with trust and respect. This in turn would have allowed an open dialogue on issues of policing and racial profiling. The Act also provided funding for implementing internal training programs designed to combat racial profiling.

Promulgation of this legislation would have complemented the End Racial Profiling Act of 2001 by providing training to state and local law enforcement officers on how to correct and prevent the profiling of African-Americans. The legislation would have provided funds to further enhance community programs designed to address the issue of racial profiling, especially in those areas where traffic stop statistics indicate that particular racial or ethnic groups are disproportionately stopped by law enforcement officers. The passage of the Racial Profiling Education Awareness Act of 2002, without the End Racial Profiling Act of 2001, would have been ineffective in addressing racial profiling. Educating law enforcement officers about racial profiling is a positive means of heightening their awareness of the issue; however, federal legislation, such as the Racial Profiling Act of 2001, would make racial profiling illegal with serious consequences. It would have been the impetus for law enforcement officials to cease such conduct. Unfortunately, Congress has failed to pass either Act.

D. U.S. Justice Department, Civil Rights Division

The U.S. Justice Department is in a unique position to address the issue of racial profiling by public entities. A number of federal laws give the Justice Department authority to proceed with litigation to combat racial profiling. For example, the Violent Crime Control and Law Enforcement Act of 1994 provides a mechanism for the Justice Department to bring pattern or practice cases against law enforcement organizations who engage in racial profiling. In addition, the Justice Department may pursue an investigation of racial profiling under Title VI of the Civil Rights Act of 1964 and the Omnibus Crime Control and Safe Streets Act of 1968.

1. The Violent Crime Control and Law Enforcement Act of 1994

The Violent Crime Control and Law Enforcement Act of 1994 [hereinafter the Law Enforcement Act] gives the U.S. Justice Department authority to seek declaratory and equitable relief to remedy a pattern or practice of conduct by law enforcement officers that deprives individuals of their rights under the Constitution. Pursuant to the Law Enforcement Act, the Justice Department may initiate an investigation of management practices within a police department when complaints have been filed alleging a violation of a citizen's constitutional rights. If the Justice Department is unable to reach an agreement with the municipality, the Justice Department may proceed with an action in federal court against the police department.

*733 The Justice Department has filed five lawsuits under this Act. In 1994, the Justice Department filed a pattern or practice suit against the City of Steubenville, Ohio Police Department. On September 3, 1997, the City of Steubenville and the Justice Department entered into a consent decree. Among the ninety-nine stipulations, the city agreed that it would maintain race and gender data on all persons involved in a stop, search, or seizure. The second case pursued by the Justice Department was filed in 1997 against the City of Pittsburgh, Pennsylvania. In the third case, the City of Columbus, Ohio was sued in 1999 for police misconduct including racial profiling. After a number of reforms by the Columbus Police Department, the Justice Department asked the court to dismiss the action. The most notable case filed by the Justice Department was in 1999 involving the New Jersey State Police. The Justice Department alleged that the State of New Jersey and its Police Department engaged in a pattern or practice of conduct by troopers of the New Jersey State Police that deprives persons of rights . . . under the Constitution. In 1999, the parties reached an agreement which resulted in *734 a consent decree requiring the State of New Jersey and its police departments to implement a number of policies to combat racial profiling. The fifth case was brought against the City of Los Angeles in 2000. The lawsuit alleged that the City's Police Department engaged in a pattern of civil-rights abuses, including racial profiling. The Justice Department reached an agreement with the City of Los Angeles in 2001.

The Justice Department's use of the Law Enforcement Act has been a viable tool to address racial profiling by major law enforcement organizations around the country. The five suits brought by the Justice Department under the Law Enforcement Act resulted in police departments implementing comprehensive plans and programs to address patterns and practices of police abuse, including racial profiling. The Justice Department has used this federal statute effectively, but sparingly, to address an issue that appears to be widespread throughout many other law enforcement organizations around the country. Additional resources, such as budgets and staff, should be made available to the Justice Department's Special Litigation Section to expand their efforts for further enforcement of this statute.

 2. Omnibus Crime Control and Safe Streets Act of 1968

The Omnibus Crime Control and Safe Streets Act of 1968 [hereinafter the Crime Control Act] was promulgated to aid State and local governments in strengthening and improving their systems of criminal justice by providing financial and technical assistance . . . . The Crime Control Act prohibits state and local governments, who receive federal funds, from discriminating in programs or activities funded in whole or part by the federal government. The Civil Rights Division of the U.S. Justice Department is responsible for enforcing this statute. In addition to granting the Justice Department authority to bring a civil action, the Crime Control Act also allows individuals to pursue a private right of action.

The Law Enforcement Assistance Administration (LEAA) was created to administer the funding and awarding of grants to state and local governments under the Crime Control Act. The LEAA also has authority to process complaints that allege discrimination on the part of recipients of funds awarded by LEAA. For those states and municipalities that permit law enforcement officials to engage in racial profiling, federal funds should be denied.

3. Title VI of the Civil Rights Act

Acts of racial profiling by state and local law enforcement agencies, which receive federal funds, may be adjudicated under Title VI of the Civil Rights Act of 1964. This statute was promulgated to prohibit organizations, who receive federal funds, from discriminating on the basis of race, color, or national origin. Racial profiling typically involves these three bases of discrimination, e.g. African-American men and Latino men. The Justice Department coordinates enforcement of Title VI among all federal agencies that provide financial assistance to state and local governments. Under Title VI, the primary remedy given when the recipient engages in discriminatory conduct is the termination of federal funds.

The Justice Department has also issued implementing regulations that establish a private cause of action based on Title VI. Further, the United States Supreme Court in Alexander v. Choate and Guardians Ass'n v. Civil Service Commission of New York City recognized a cause of action under Title VI and upheld the regulations when federal recipients engaged in discrimination. Thus, a private citizen can sue state and local enforcement agencies to obtain either injunctive relief or monetary damages for intentional discrimination. The Supreme Court in Alexander v. Sandoval prohibited *737 a private right of action under the regulations where only disparate impact discrimination is alleged. The Court did not find that the regulations were void; therefore, federal agencies should be able to pursue both disparate impact and intentional discrimination claims against state and local enforcement agencies who engage in racial profiling.

Even though the Supreme Court has recognized a cause of action under Title VI and the regulations, it is difficult for a plaintiff to prove intentional discrimination under the statute. Plaintiffs have had some success with their claims of intentional discrimination in the racial profiling context. For example, in Rodriguez v. California Highway Patrol, the plaintiffs were able to establish a prima facie case that policies of the California Highway Patrol and the Bureau of Narcotics Enforcement had intentionally violated Title VI and violated Title VI regulations. Similarly, in Wilson v. Department of *738 Public Safety, the court granted the plaintiff's motion to proceed with a Title VI claim because the plaintiff adequately alleged that the state trooper made a traffic stop because of his race.

A review of traffic stop data which indicates that African-Americans are disproportionately stopped by governmental officials, may support a claim of intentional discrimination. The plaintiff may seek both damages and equitable relief for intentional discrimination. The Justice Department could seek remedies under both theories of discrimination; intentional and disparate impact.

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Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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