IV. Individual Citizen Response
A. Citizen Complaints
African-Americans, as well as other disenfranchised groups, should file complaints against individual police officers and governmental entities when they believe they were stopped without probable cause and suspect that their race was the motivating factor for the stop. Individual citizens must take on the role of a Rosa Parks when traveling the highway, the airport, or when shopping at the local mall. This entails filing a complaint with the local police department, contacting the newspaper, notifying the local civil rights *750 organization, and the U.S. Justice Department. Minorities cannot solely rely on the courts and Congress to address this highly political issue.
B. Civil Suits Under 1983
African-Americans who are victims of racial profiling can pursue legal action under 42 U.S.C. 1983 on the basis that the state law enforcement officer's conduct violated the Fourth Amendment and the Equal Protection Clause (Fourteenth Amendment) of the United States Constitution. The analysis for a Fourth and Fourteenth Amendment violation under 1983 are quite different. Under the Fourth Amendment, a traffic stop must only be reasonable. For example, did the officer observe a traffic violation or was there reasonable suspicion of a violation? However, reaching a reasonable suspicion should be based on individualized suspicion and not on stereotypical biases or profiles directed at African-American citizens. Because this standard is a fairly easy standard to meet, law enforcement officers may engage in racial profiling without violating the Fourth Amendment.
*751 The U.S. Supreme Court has held that the practice of racial profiling violates the Equal Protection Clause of the Constitution. For a Fourteenth Amendment claim, the plaintiff must present evidence that the law enforcement official was motivated by race. To prevail under 1983, the plaintiff must prove that their constitutional rights have been violated. Without a violation of a constitutional right, there can be no violation of 1983. In proceeding under 1983, the plaintiff has to prove that the articulated reasons for the stop were pretextual and that the stop was motivated by race. To prove pretext, the plaintiff has the difficult burden of proving that the law enforcement officer would not have stopped the plaintiff but for their race.
The difficulty of prevailing in a 1983 case where racial profiling is alleged is illustrated in Flowers v. Fiore. In Flowers, an African-American motorist was mistakenly stopped, handcuffed, and his car was searched while police officers pointed their guns at him. A resident had called the police after he received threatening telephone calls that someone was sending two African-American men over with a gun. Flowers was merely driving his car in the neighborhood. In dismissing all the claims against the city and the officers, the court held that [t]hey had good reason to believe that Flowers *752 was armed and dangerous . . . . The court further indicated that it was an unfortunate incident and that [u]nder such circumstances, any citizen would be understandably upset and entitled to both a good explanation and an apology.
As the court stated in United States v. Saucedo, the alleged victim has the burden of presenting direct, circumstantial, or statistical evidence that he [or she] was a target of racial profiling. In determining whether there is an Equal Protection violation, the officer's subjective motivations may be explored. Further, in Von Herbert v. City of St. Clair Shores, the court stated that [m]ere speculation that police operatives had selected a suspect because of racial bias is inadequate to support a racial profiling charge.
Individuals may also pursue other civil rights actions similar to 1983; however, courts are often unwilling to permit additional claims if a 1983 claim has been brought. For example, in White v. Williams, the plaintiff alleged that the defendants had not only violated 1983, but also 1981, *753 1985, and 1986. In dismissing the 1981 complaint, the court in White stated that, [a]lthough Section 1981 is a federal civil rights statute it is more appropriately analyzed in terms of a tort remedy.
C. Class Action
The procedural device of class action can be an effective tool to address the issue of racial profiling. Under Federal Rule of Civil Procedure 23, a class action can be certified by a federal court to enable a class of motorists to sue a municipality that engages in or permits racial profiling by law enforcement officers. For example, in Wilson v. Tinicum Township, the court certified two classes and two sub-classes:
*754 Class I: Injunctive classes certified pursuant to Fed. R. Civ. P. 23(b)(2) consisting of (a) all individuals who travel or will travel I-95 through Tinicum Township and (b) all African American and Hispanic individuals who travel or will travel I-95 through Tinicum Township. Class II: Damage classes certified pursuant Fed. R. Civ. P. 23(b)(3) consisting of (a) all individuals traveling I-95 who have been stopped or subjected to searches and seizures by the defendants since November 18, 1990 as a result of defendants alleged customs and policies of stopping travelers on I-95 for pretextual traffic violations with the intent of coercing consent or improperly searching the stopped vehicles for drugs and (b) all African American and Hispanic individuals traveling on I-95 since November 18, 1990 who have been stopped or subjected to searches or seizures as a result of defendants' alleged policy or custom of stopping and searching minority individuals on I-95 because of their minority status.
In Wilson, four African-Americans returning from a church celebration were stopped along I-95 by officers of Tinicum Township. The individuals were lined up on the shoulder of the road and searched by a police dog. The police officer admitted that the motorists were stopped because they were young, black, and in a high drug-traffic area, driving a nice car. Plaintiffs provided sufficient evidence to justify the certification of a class action involving African-American and Hispanic individuals who had been stopped and subjected to searches as a result of policy. The following year, the case was settled for monetary damages. A consent decree was also signed which included language that the police would not stop, detain, search or arrest any person due to race, ethnic identity or without probable cause. More recently, in Daniels v. City of New York, plaintiffs sought class certification under Rule 23 when they alleged that a unit of the NYPD known as the Street Crime Unit (SCU) had repeatedly conducted stops and frisks of African-American and Latino men between the ages of twenty-three and thirty-seven years old who resided in the Bronx, Brooklyn, Manhattan, and the City of Rochester. In certifying the class, the court stated in part:
*755 The classes of persons which plaintiffs here propose are challenging the same alleged illegal conduct of the defendants namely, the unconstitutional policy of stopping, detaining, and searching cars and their occupants without cause or proper consent. In addition, the minority classes which plaintiffs propose allege that they have been targeted for special attention in implementing the alleged unconstitutional policy. The claims plaintiffs assert, therefore, involve a common central issue: whether the defendants engaged in violations of the proposed class member's rights under the Fourth and Fourteenth Amendments of the United State Constitution and the laws of the Commonwealth of Pennsylvania.
Based on the court's analysis of Rule 23 in Wilson and Daniels, plaintiffs may successfully proceed with a class action suit against a municipality for racial profiling. Once a class action has been certified by the court, defendants are more likely to seek resolution of the dispute in lieu of a full trial. Class action settlements not only benefit the plaintiffs, but other minorities who may be impacted by discriminatory practices in the future.