Saturday, September 19, 2020


Article Index

II. Racial Profiling and the Latino Population

A. Racial Profiling Defined

Racial Profiling is the discriminatory practice some law enforcement officials engage in when they target individuals for suspicion of crime based on the individual's race, ethnicity, religion, or national origin. Criminal profiling generally involves stereotyped and inexplicable or unreasonable reliance on a group of characteristics that police associate with criminal activity. For example, racial profiling utilizes the race of a person to determine which drivers to stop for minor traffic violations, practices commonly referred to as driving while black or brown.

One of the nation's earliest anti-Latino racial profiling enactments appeared as the 1855 California Vagrancy Act, popularly known as the Greaser Act. The statute targeted only persons commonly known as Greasers' or the issue of Spanish and Indian blood . . . and who go armed and are not peaceable and quiet persons. One glossary of ethnic terms defines greaser as an epithet for mestizo, Mexican, or Spanish-speaking.

Anti-profiling policies traditionally prohibit focusing on a person as a suspect on the basis of her race, color, ethnicity or national origin. An exemplary profiling law today bars law enforcement agencies from reliance on ethnicity, color, national origin, political affiliation, language, sexual orientation, gender, gender identity, disabilities or medical conditions as reasons to stop or search people. When a police stop is based on suspect classifications such as race and ethnicity, the constitutional protections of the Fifth Amendment's due process clause (federal agents) and the Fourteenth Amendment's equal protection clause (state agents) are triggered.

In an amicus curiae brief presented to the Supreme Court, lawyers for the Mexican American Legal Defense & Educational Fund (MALDEF) described the Latino racial profiling issue in the following language:

It is not a crime to be of Mexican descent, nor is a person's Mexican appearance a proper basis for arousing an officer's suspicions. Those broad descriptions literally fit millions of law abiding American citizens and lawfully resident aliens. . . .

A person's racial or ethnic background or appearance is a neutral factor in appraising probable cause or reasonable suspicion, and to permit law enforcement officers to base their decision to stop or search an automobile on the racial or ethnic appearance of the occupants would be to sanction the very same discriminatory law enforcement condemned in Yick Wo v. Hopkins, as violative of the Equal Protection Clause of the Fourteenth Amendment. . . . This discrimination is inevitable if Border Patrol agents enjoy unfettered discretion to search whatever vehicles they choose, since they will naturally continue to focus on drivers of Mexican descent or who are of Mexican appearance, or whose passengers meet these criteria, as the most likely targets for routine or random vehicle searches.

Later discussions will detail some horrific experiences, which American citizens and resident aliens have suffered as profiling victims.

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