Saturday, August 17, 2019

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

Article Index

III. State and Local Initiatives

A number of states and local communities have taken a proactive approach to addressing the issue of racial profiling by promulgating statutes, ordinances, and policies prohibiting such conduct by law enforcement officers. Although the federal government's effort to promulgate legislation to require the collection of traffic stop data has lingered on for more than five years, states and local authorities have aggressively proceeded to enact such laws.

The focus of racial profiling legislation has been directed at state police, e.g. troopers. However, racial profiling of minorities is not limited to state police. Law enforcement officials in municipalities, towns, and villages also participate in racial profiling. Thus, state racial profiling legislation should be broad enough to cover municipal officers, as well as state police.

A. Local Ordinances

A growing number of municipalities have passed local ordinances prohibiting racial profiling by law enforcement officials. For example, in 2001, Cincinnati passed one of the first and most aggressive local ordinances outlawing all forms of racial profiling. Cincinnati police are required to record the race, color, ethnicity, gender, and age of individual motorists stopped by the police. Failure to comply with the ordinance could result in the termination of employment.

A few cities have either passed or considered local ordinances criminalizing racial profiling. Those cities conclude that individuals who engage in racial profiling are engaged in a crime against the public; thus such conduct is a criminal offense and should be punished. Similar initiatives have resulted in several states passing legislation which makes racial profiling a crime. For example, in New Jersey, a violation of the state's racial profiling law is a third-degree offense that could result in three to five years imprisonment. Criminalizing racial profiling is the next logical step that states and municipalities should take to end such conduct. If cities and states are serious about ending racial profiling, criminal sanctions may be needed to punish those who continue to intentionally engage in racial profiling. When an officer's intention is to violate the constitutional rights of citizens, criminal penalties are justified. In addition, law enforcement officers found guilty of engaging in racial profiling should permanently be removed from their positions, as individuals with criminal records normally are disqualified from *740 serving in law enforcement positions. A combination of being charged with a crime and being removed from employment would serve as a deterrent to unlawful and unethical behavior by those law enforcement officers who intentionally violate the law.

B. State Legislation

A majority of states have passed legislation either prohibiting racial profiling and/or requiring law enforcement agencies to collect racial data on traffic stops. Inconsistencies exist among the states regarding what data should be recorded at traffic stops; however, their goals of determining if racial profiling occurs and how to correct it are similar. For example, the Governor of Wisconsin issued an executive order prohibiting state law enforcement agencies from using any form of racial profiling to determine who will be stopped or searched. The executive order also [r]equires all enforcement agencies in the State of Wisconsin to enact a policy prohibiting the practice of racial profiling. Prior to issuing the executive order, the Governor of Wisconsin created the Governor's Task Force on Racial Profiling to study racial profiling during traffic stops in Wisconsin. The Task Force also recommended training, community input, and the collection of data on traffic stops in communities. The study makes a number of recommendations on how to prevent racial profiling when officers are conducting stops.

*741 The State of Missouri has an extensive racial profiling statute which requires the recording of racial data and the reason why the motorist was stopped. All law enforcement agencies are also required to provide the data to the State Attorney General's Office to ensure that law enforcement agencies across the state comply with the statute. Additionally, there is a provision which allows the Governor to withhold state funds from law enforcement agencies who fail to comply with the statute.

Other states have enacted legislation similar to Missouri and Wisconsin. For example, in North Carolina, the Traffic Enforcement Statistics SC 76 was signed by the Governor on April 22, 1999. On August 10, 2000, Massachusetts enacted a law requiring the collection of data on stopped motorists. A bill was introduced in the Ohio legislature that would require law enforcement agencies to collect racial, ethnic, and gender data on all traffic stops. In Texas, the criminal code prohibits the use of evidence that may be admitted in a criminal trial if that evidence was obtained illegally, e.g. racial profiling.

The highways in New Jersey have become synonymous with racial profiling. In 1994, seventeen defendants convinced a state judge that their arrest by the New Jersey State Police was racially motivated. In State v. Pedro Soto, the court held:

*742 [W]here objective evidence establishes that a police agency has embarked upon an officially sanctioned or de facto policy of targeting minorities for investigation and arrest any evidence seized will be suppressed to deter future insolence in office by those charged with enforcement of the law and to maintain judicial integrity.

Four years later in 1998, New Jersey was again faced with even more egregious allegations of racial profiling when three African-American men and one Hispanic man were fired upon eleven times after being stopped for an alleged traffic violation. The four men were traveling to North Carolina to try out for a basketball team. After an investigation of the shooting and other allegations of racial profiling, the Attorney General of New Jersey conducted an investigation which revealed that racial profiling was indeed being practiced by state law enforcement officials. The issue of racial profiling was ultimately resolved when the U.S. Justice Department entered into a consent decree with New Jersey. Even with a comprehensive agreement between the Justice Department and New Jersey, there is evidence that racial profiling continues to occur in the state.

Other states, which are serious about eradicating the practice of racial profiling, must take a proactive approach to address the issue in their state. Moreover, states should avoid the protracted internal and external investigations, lawsuits, negative press, and citizen distrust of state public *743 officials by aggressively studying racial profiling and implementing safeguards to prevent and correct such behavior.

C. Collection of Data

A number of municipalities and states are collecting statistical data on motorists who are stopped, detained, and searched by law enforcement officers. Cities such as Columbus, Sacramento, and Los Angeles have begun to collect and analyze such data. Similarly, in Florida, the highway patrol volunteered to collect race and gender statistics on every motorist with whom troopers come in contact while performing their duties.

In addition to collecting data on traffic stops by race, organizations should implement plans to determine whether the data is statistically valid, whether *744 the data will be used to support disciplinary actions, and how the data will be evaluated. Failure to anticipate these issues prior to passing such legislation will leave the data open to criticism and attacks.

In recording such data, it is also crucial to identify the law enforcement officer recording it and to give individuals who are stopped a copy of the form indicating why they were stopped. The requirement of identifying the officer making the stop and recording the data has caused tension between law enforcement agencies and the Fraternal Order of Police. Nevertheless, states and municipalities continue to collect traffic stop data which includes the name of the law enforcement officer making the stop. When implementing such procedures that require the collection of traffic stop data, law enforcement agencies should ensure that the new policies and procedures do not violate the collective bargaining agreement.

Without identifying the individual recording the data, it would be difficult to determine whether the respective officer has disproportionately stopped any particular racial group. The mere fact that a particular officer has *745 disproportionately stopped a racial or ethnic group should not result in automatic disciplinary action. Further, training and development may be the appropriate remedy.

Individuals who are stopped should be requested to verify not only their name and address, but also their race and gender. Further, a copy of the form should be given to the motorist to ensure that the officer has properly identified the motorist's race and ethnicity. This would address the issue of whether the officer is recording the personal data correctly. Because there are concerns that African-American and Hispanic males are the targets of such stops, the data should reflect the race and gender of the individuals. Such a policy was implemented by the Village of Mount Prospect. After litigation and a settlement agreement between two police officers who were allegedly instructed to target Hispanic drivers for traffic stops, the Village of Mount Prospect proposed the following policies and procedures to address the issue of racial profiling:

the Village has promised to enact a formal policy banning racial profiling, has eliminated ticket quotas for its officers, and will require officers to note the race of all drivers they stop. Additionally, the Village will create a computer database to track the racial and ethnic information collected by officers making traffic stops and aggressively recruit minorities for its police force. Finally, the Village will create a human rights review board, made up of a village manager, a resident, and a clergy member, to monitor racial profiling complaints as well as the information generated by the other reform efforts.

Many other cities have developed similar policies and procedures to eradicate racial profiling in the enforcement of traffic laws. It is imperative that city officials understand that the collection of traffic-stop data is not the only answer to ending racial profiling. If the data reveals that racial profiling is practiced by officers, the data should be used to develop policies, internal *746 procedures, training programs, and community partnerships to remedy such practices.

Cities and states that have already collected data on traffic stops should closely review it to determine whether law enforcement officials are engaging in unlawful conduct. For example, the New York State Attorney General reviewed 175,000 UF-250 forms that were completed by the New York Police Department (NYPD). The review covered a period from January 1998 through March 1999 and showed that African Americans and Hispanics were disproportionately stopped and frisked by NYPD officers. The study also revealed that a sample of the forms did not state facts sufficient to meet the legal definition of reasonable suspicion. These numbers clearly showed disparity in the enforcement of stop and frisk laws by the NYPD. In response to the study, the Attorney General stated that the next step was to identify possible reforms; in other words, remedies to address the issue of racial profiling.

*747 Other cities and states which have collected data on traffic stops report that African-Americans and other minorities are disproportionately stopped by law enforcement officials; however, the reports stop short of concluding that such disparities are the result of racial profiling. The data, though not conclusive, illustrates that law enforcement officials have engaged in racial profiling.

*748 Understandably, for liability reasons, cities and states will not acknowledge that the data proves that law enforcement officials are engaged in racial profiling. However, where the evidence clearly supports that minorities are disproportionately stopped and searched, the cities and states should develop a plan to address why the disparity has occurred and how it should be addressed.

D. Training and Development

In addition to collecting statistical data on motorist stops and passing ordinances and legislation that prohibit racial profiling, such laws should also include a provision mandating racial profiling training for law enforcement officers involved in the enforcement of traffic laws. Law enforcement officers should also receive sensitivity training on how their stereotypical biases regarding minorities, particularly African-Americans, may cause them to engage in racial profiling. Some local enforcement agencies have taken the initiative to develop training programs to prevent officers from engaging in racial profiling. Simultaneously, greater emphasis must be placed on recruiting and training new law enforcement officers. Officers must be *749 trained on how to enforce laws in a respectful non-discriminatory manner. Officer recruitment may require new testing devices to eliminate applicants who are predisposed to developing racist tendencies. State and local governments should seek federal funds to assist with new training programs and initiatives.

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