Tuesday, July 16, 2019

Anthony Scott Washington, Civil Rights/Liberties Seminar by Professor Vernellia Randall, The University of Dayton School of Law (Nov. 15, 2003)

Sscott WashingtonIntroduction

There is a historical nexus between reinforced images of blacks as a deviant population and the "racial ideology of crime." Race is often used as the determining factor in criminal profiles, reasonable suspicion, and detention.(1)

A basic aspect of the construction of race and crime in America is that law enforcement officers often view race as an important, if not determinative, factor in identifying criminals. Importantly, Courts have held that probable cause and reasonable suspicion may include race in the assessment of the likelihood of an individual's involvement in crime.(2) Thus, the use of race to identify criminals and to define crime has in effect created a legal system that makes race a prima facie indication of criminality.(3) Most significantly, the racially selective manner in which justice is administered in the United States violates the elemental principles enshrined in the United States Constitution.(4)

Airport and customs stops where individuals are subject to investigatory law enforcement

contacts on the basis of race are acknowledged in this paper; however, the primary focus here will be on discriminatory stops on the highways and roads of this country. Specifically, this paper will examine the phenomenon of singling out black drivers for minor traffic stops as pretext to conduct extensive searches of vehicles. In addition, a thorough analysis of law enforcement practices in the context of this nation's "war on drugs" will be conducted. Particularly, police discretion in arresting drug offenders and prosecutorial discretion in charging criminal defendants based on race will be the focus. The traditional remedies that are available for individuals who have been subject to racial profiling, and selective law enforcement practices will also be presented. Finally, in presenting the future of accountability as it pertains to police misconduct based on race, this paper will examine and analyze the case of the "State of Ohio" and recent developments in civil rights jurisprudence.

Section I. will examine the background and history of racial profiling and selective law enforcement practices. In particular, police stops on our nation's highways and streets, and drug law enforcement will be analyzed. Section II. will present the traditional framework for contemporary civil rights Jurisprudence. Section III. will explore the current approach to racial profiling, recent efforts to craft new remedies, and specific attacks on racial profiling and police misconduct in the State of Ohio particularly.

I. Background and Historical Analysis of the Problem

Racial profiling occurs whenever a law enforcement officer questions, stops, arrests, searches, or otherwise investigates a person because the officer believes that members of that person's racial or ethnic group are more likely than the population at large to commit the sort of crime the officer is investigating.(5) Racial profiling is further defined as the explicit or implicit use of race in law enforcement decisions such as, for example, the decision to stop and investigate a suspect, or the decision to police a specific neighborhood. Race is used explicitly when it is among expressed criteria relied on by a police officer when conducting an investigatory stop.(6) Race is used implicitly when law enforcement is being targeted toward a racial group in greater proportion than that group's representation in the population--such as, for instance, when police officers stop-and-frisk young black men in proportion to their purported contribution to crime rather than their representation in the general population.(7) In both instances, racial profiling occurs when the police conduct an investigatory stop based primarily on an individual's race.

a.Police Stops

In 1968, the United States Supreme Court handed down the landmark decision of Terry v. Ohio.(8) Terry definitively established that the Fourth Amendment does not prohibit the police from stopping a person for questioning when they have a reasonable suspicion that the person may be armed and dangerous, even when that suspicion does not amount to the probable cause necessary to make an arrest. Terry would eventually become an important source of authority in racial profiling and Fourth Amendment jurisprudence.

In deciding Terry, the Court focused on the safety of the police officer, and did not take the race of the suspects into account. In doing so, it gave a clear articulation of a reasonableness standard that was decidedly race-ignorant. Terry established core principles of the Fourth Amendment; that is, the police cannot stop and detain an individual without some reason - probable cause, or at least reasonable suspicion - to believe that he or she is involved in criminal activity.(9)

More recently, another facet of "stop and frisk" law enforcement practices has emerged. Racial profiling on our highways has long been a secret to most Americans, and from virtually all white Americans. Troublesome is that among African Americans there seems to be almost no one who has not been victimized by this practice or who does not know somebody close to them who has.(10)

Although it has received heightened media coverage of late, racial profiling in law enforcement is not a new trend. It can be traced, in part, to street-level law enforcement, and the renewed campaign against drug trafficking. The zealous efforts of police to record more busts on the nation's roads has created both spoken and unspoken policies for targeting racial minorities. This phenomenon has resulted in the coining of the phrase "Driving While Black," or "DWB." DWB describes abusive police stops and searches of people of color on America's highways.(11)

Another Supreme Court decision of particular interest in "stop and search" cases is Whren v. United States.(12) In Whren, the Supreme Court held that "a police officer's subjective motivation for stopping a motorist on the highway was irrelevant as long as an objectively reasonable basis - such as a traffic violation - existed for making the stop."(13) In other words, the Whren Court validated one of the most common methods by which racial profiles are put into effect - the pretext stop. Pretextual stops occur when police officers ostensibly stop motorists for traffic violations but are in fact motivated by the desire to obtain evidence of other crimes. Pretextual stops are a frequently used means of investigating suspected drug couriers on the highways and are often conducted in conjunction with race-based courier profiles. Although Whren reaffirmed that racially-motivated traffic stops were invalid, it "espoused a standard that would effectively ban examination of such motives."(14)

The question before the Court in Whren was, is a search constitutional if it would never have taken place if the police were not looking for an excuse to get around the requirements of the Fourth Amendment?(15) In its friend-of-the-court brief, the ACLU argued that pretextual searches violate the core principles of the Fourth Amendment, and warned that to sanction such searches was to "invite discriminatory enforcement."(16) The Court did not heed the ACLU's warning, and instead declared that any traffic offense committed by a driver was a legitimate legal basis for a stop, regardless of the officer's subjective state of mind.

In practice, the Whren decision has given the police virtually unlimited authority to stop and search any vehicle they want. Every driver probably violates some provision of the vehicle code at some time during even a short drive, because state traffic codes identify so many different infractions. Taken a step further, all the police have to do to come up with a pretext for a stop is follow the car until the driver makes an inconsequential error or until a technical violation is observed. Since Whren, the Court has extended police power over cars and drivers even further.(17)

Whren permits police to stop anyone driving a car whenever they observe the ever-present violations of the traffic code, the question then becomes; who is being stopped. Whren certainly makes it possible for the police to stop anyone, the fact is that police will not stop just anyone. In fact, police use the immense discretionary power Whren gives them mostly to stop African Americans. Information uncovered in the last few years has begun to shed light on the use of pretextual traffic stops. This data reveals several patterns, which African Americans understand quite well already: police use traffic regulations to investigate many innocent citizens; these investigations, which are often quite intrusive, concern drugs, not traffic; and African Americans are the target of choice for law enforcement.(18)

In practical terms, an officer's subjective motivation in conducting a traffic stop can no longer be the subject of federal constitutional inquiry - and even though race-based stops remain constitutionally impermissible, this is of little benefit to defendants who now have no mechanism for proving that such motivation exists.(19)

Equally, if not more significant than these stop and searches is that racial profiling reflects itself in every aspect of law enforcement including, but not limited to, this nation's War on Drugs.

b.Drug Laws and Racial Profiling

Intricately linked with police enforcement, drug laws themselves represent another instance of racial profiling resulting in the prosecution of a disproportionate number of African Americans.(20) The development and implementation of racially biased cocaine sentencing laws has resulted in intolerable discrimination. African Americans are disproportionately arrested and, receive heavier penalties imposed for possession and possession with intent to distribute cocaine. Under the current drug laws, African-Americans (particularly men) are unfairly targeted at every level of contact within the criminal justice system.(21)

1.Prosecutorial Discretion

Racial imbalance in sentencing resulting from the crack/powder disparity represents only one specific example of the racial profiling embedded in the War on Drugs. Drug law enforcement statistics illustrate the targeting of African Americans inequitably in prosecution. Since the United States declared its War on Drugs in the early 1980s, African Americans have been incarcerated for nonviolent drug crimes much more often than Caucasians. Between 1976 and 1989 the total number of drug arrests of Caucasians grew by 70%, compared to a 450% increase among African Americans. Furthermore, between 1986 and 1991, the number of Caucasians incarcerated for drug offenses increased by only 50%, whereas the number of African-American inmates incarcerated for drug offenses increased 350%. These disproportionate increases are accompanied by a rapid rise in incarceration for nonviolent drug use. Notwithstanding the fact that violent criminals make up more than half of the nation's prison population, the rate at which drug offenders fill prisons has risen more than ten times faster than that of violent offenders in the last two decades.(22)

African Americans constitute approximately 13% of the U.S. population and 13% of its drug users; however, African Americans constitute 35% of drug arrests, 55% of drug convictions, and 74% of drug imprisonments. These results indicate that through the enforcement and prosecution of the drug laws, the United States is, in effect, waging a War on Blacks.

This occurs in part because law enforcement policies single out certain neighborhoods as "high-drug areas" or "high-crime areas." These neighborhoods are typically poor, in the inner city, and contain large minority populations.(23)

Racial disparities are also found in motions from prosecutors to depart from the sentencing guidelines. Downward departures are most frequently granted to Whites, who receive lower sentences for providing substantial assistance(24) in 25% of their cases, compared to 18.3% of Blacks. Nearly 33% of powder cocaine defendants received a departure for substantial assistance, compared to 28% of crack cocaine cases.

An additional source of hidden disparity exists in the ability to prosecute drug offenders under either federal or state law. This potential disparity results from the fact that both state and federal jurisdiction exist over the majority of drug arrests because they typically involve joint jurisdiction between local police agencies and federal law enforcement agencies. Thus, in cases where there is joint jurisdiction, prosecutors have the discretion to select either state or federal charges.(25) In addition to discretion in jurisdictional selection, prosecutorial discretion is further heightened under the current system due to the fact that prosecutorial power to manipulate a defendant's sentence through charging decisions and through grant or denial of departure recommendations is virtually unreviewable. (26)

Although the professed priority of federal drug law enforcement authorities is targeting major trafficking organizations, drug kingpins and their supporting infrastructure, the reality is law enforcement and prosecutorial practices have been primarily waged against low level street dealers. In fact, the data reveals that the geographic scope for crack cocaine cases is primarily limited to the local level (76.8%). This is a rate nearly twice that of powder cocaine (39.0%). Interstate activity by crack cocaine defendants is uncommon (14.6%) and international activity is extremely rare (1.3%). The exercise of prosecutorial discretion is a substantial factor as to whether a defendant will be prosecuted in federal or state court in cocaine cases. (27) This decision often has dramatic results. U.S. Sentencing Commissioner Wayne Budd touched upon this issue during his Congressional testimony:

The depth of the adverse impact becomes that much more evident when you consider that on many, many occasions, there is discretion in law enforcement as to whether to take cases to the state courts, where crack and powder penalties are almost invariably less severe and typically the same, or to the federal courts where crack penalties are staggeringly more steep. (28)

As mentioned above the nationwide statistics on federal crack cocaine prosecutions by race are rather stark. Quite frankly, crack defendants who are black are more likely to be prosecuted federally (and therefore are subject to harsher penalties under the Sentencing Guidelines and mandatory minimums), while whites are more likely to be prosecuted by state law enforcement.(29) This is precisely why the Department of Justice is extremely concerned about charges of selective prosecution on the basis of race in the federal criminal justice system.(30)

Crack statutes and mandatory sentencing, alone, may not have produced the stark disparities present today, absent the manner in which the laws have been enforced.

2. Police Discretion

Sentencing discretion, taken out of the hands of judges, is not only extended to prosecutors, but also further relegated to police officers on the streets, whose actions are nearly unreviewable. Under a system of mandatory sentencing, the court must honor an undercover police officer's direction to a defendant to turn cocaine powder into crack as a condition of the purchase. The sentence, in essence, is at the mercy of the policeman. In United States v. Shepherd,(31) the U.S. District Court for the District of Columbia observed that the "control of sentencing--from time immemorial in common law countries a judicial function--has effectively slipped, at least in some cases, not only to the realm of the prosecution but even further to that of the police. This development denies due process and is intolerable in our Constitutional system."(32)

Unfortunately, it is not rare for undercover agents to insist on the conversion of powder cocaine to crack cocaine knowing that crack convictions will result in substantially longer sentences. In Shepherd, the evidence was conclusive that on both occasions in which the defendant was charged with distribution of crack, she was prepared to sell cocaine powder to an undercover law enforcement officer but, upon the officer's insistence that she first convert the powder to crack, she complied by "cooking" the powder in a microwave for a few minutes. The agent then purchased the cocaine in its converted state. The agent's purpose in causing the conversion was to expose the defendant to the more severe crack sentence, that is, to double the time she must spend in the penitentiary for the drug offenses. The court in Shepard acknowledged the inevitability of this situation:

Having become versed in the distinction under the guidelines between powder and crack for sentencing purposes, it was probably inevitable that some police officer would begin to abuse it. That distinction presents an unparalleled opportunity for law enforcement to increase the sentence of a defendant with relatively little effort. . . . The conversion of cocaine powder to crack, . . . is easily accomplished by anyone with access to a stove or microwave oven. Moreover, it only takes a matter of minutes.(33)

In the years since the enactment of the crack statutes it has become clear that minorities, more specifically young, black males, are being targeted by police officers. These law enforcement officers have used their power and discretion to exacerbate sentencing laws that were biased at their conception. With continued mandatory sentencing, judges will be unable to curb all but the most flagrant abuses of police discretion.(34)

From the outset, the war on drugs has in fact been a war on people and their constitutional rights, with minorities, and in particular, African Americans bearing the brunt of the damage. It is a war that has, among other depredations, spawned racist profiles of supposed drug couriers. Police ostensibly looking for drug criminals routinely stop drivers based on the color of their skin.(35) Challenges to selective law enforcement and prosecution have traditionally been considered within the framework of the Equal Protection Clause of the Constitution.

II. Racial Profiling, Selective Law Enforcement Practices, and Traditional Civil Rights Jurisprudence

A victim of racial profiling or selective law enforcement practices may raise a claim pursuant to 42 U.S.C. 1983. Under Section 1983:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.(36)

A potential 1983 plaintiff is often restricted by the prevailing understanding of Equal Protection that has developed over the last few decades. As a result, the present state of Equal Protection law as it pertains to law enforcement and prosecutorial misconduct has serious adverse consequences for individuals that have been arrested, prosecuted, and often times sentenced to prison as a result of a racially motivated pretextual stop. Ideally, victims of racially discriminatory police and prosecutorial misconduct would have the Equal Protection Clause to protect their constitutional rights. However, a case under the Equal Protection Clause is extremely difficult to prove because the motorist will have to prove discriminatory intent, and that similarly situated individuals of a different race or group were not stopped.(37)

Consider what is likely the most notable Equal Protection case based on selective prosecution in the context of drug law enforcement. In United States v. Armstrong,(38) the defendants were Black men charged in federal court with selling crack cocaine. The defendants had convinced the district court to order the government to provide certain information relevant to the defendants' claim of selective prosecution. The district court found the defendants' evidence disturbing - a sample of twenty-four recent crack prosecutions in which all defendants were Black - and opined that discovery was necessary to determine the true explanation for this pattern. The Supreme Court, however, ruled eight to one that the district court was not permitted to order such discovery unless the defendants first provided more and better evidence: namely, evidence that the government failed to prosecute "similarly situated" members of other races. The Court rejected as "anecdotal" and "hearsay" the evidence of the sort that defendants had offered.(39)

Significantly, in Armstrong, the Supreme Court stated:

The requirements for a selective prosecution claim draw on "ordinary equal protection standards. . . ." The claimant must demonstrate that the . . . prosecutorial policy "had a discriminatory effect and that it was motivated by a discriminatory purpose.

As a result of Armstrong, selective prosecution claims are extremely difficult for defendants to prove given the stringent discovery threshold that defendants must now overcome. Defendants are disadvantaged for the simple reason that selective prosecution claims most often are an ineffectual gamble to defeat criminal charges, with the odds usually weighing heavily in the government's favor.

The Armstrong ruling merely ensures that defendants frequently will fail to demonstrate a successful selective prosecution claim just as defendants have failed consistently in the past. The Court in Armstrong back-handedly stated that "the similarly situated requirement does not make a selective-prosecution claim impossible for a defendant to prove."(40) However, a defendant is in a precarious situation regarding the discovery of governmental materials given the necessity of demonstrating similarly situated offenders. To be entitled to discovery, a defendant must present evidence of similarly situated offenders who were treated differently. Defendants usually will need the assistance of government materials in the first instance because evidence of selective prosecution typically lies in the hands of the government. Thus, to obtain discovery of government materials to bolster the defendant's selective prosecution claim, a defendant first must present evidence of similarly situated offenders, which is also usually under government control. The selective prosecution defense, therefore, will remain, for most defendants, only an illusory opportunity to defeat criminal charges open to those with good fortune to discover the necessary "similarly situated" evidence.(41) Thus, the Court in Armstrong, having deployed what the Court referred to as "traditional equal protection principles," essentially stripped the concept of "selective prosecution" of virtually any real-world effect: they defined away the right and the remedy simultaneously.(42)

Stemler v. City of Florence(43) is a case that illustrates the applicability of 1983 to Equal Protection claims. Although, not based on racially discriminatory police practices, Stemler provides a clear understanding of the difficulty of raising a 1983 claim pursuant to the Equal Protection Clause of the Constitution. In holding that a viable selective prosecution claim existed, the Stemler court noted "that although certainly violative of the Equal Protection Clause, selective prosecution is one of the most difficult equal protection cases for a plaintiff to prove."(44) In Stemler, the Sixth Circuit set out the elements of a selective prosecution claim: (1) the state actor must single out a member of an identifiable group for prosecution even though in similar situations, the actor has decided not to prosecute persons not belonging to that group; (2) the state actor must initiate the prosecution with a discriminatory purpose; and (3) the prosecution must have a discriminatory effect on the group to which the claimant belongs.(45) Significantly, the court in Stemler determined that a viable 1983 claim could exist pursuant to the Equal Protection clause of the Constitution.

Although a 1983 claim could be brought pursuant to the Equal Protection Clause, a typical 1983 claimant will experience procedural impediments that are particularly problematic. First, the doctrine of qualified immunity serves to make the civil rights plaintiff's burden almost insurmountable.(46) Qualified immunity will be available as a defense for an officer when a reasonable official would not have known that his actions would violate a constitutional right that was "clearly established" at the time of the incident.(47)

Second, the interlocutory appellate mechanism, created by the United States Supreme Court, facilitates review of a denial of summary judgment, in favor of qualified immunity for an official. Such an appeal significantly delays litigation and may require the plaintiff to overcome a claim of immunity with only minimal opportunities to engage in discovery. Thus, rather than establishing that the allegedly guilty officers have operated within the bounds of the law, this mechanism impedes discovery to such an extent that the court is never formally apprised of the officers' inappropriate, or even criminal, action.(48)

Third, to demonstrate liability for racial profiling under 1983, plaintiffs must then allege, following Monell v. Department of Social Services,(49) that police engage in a policy, practice, or custom of stopping persons solely based on race. Next, plaintiff must obtain class certification. Recent decisions indicate that plaintiffs alleging racial profiling should satisfy Rule 23 certification requirements. Finally, plaintiffs face an uphill battle to prove that police follow a consistent policy of racial profiling. They must marshal evidence from spotty statistics, thousands of different encounters, and little pre-discovery access to information about the activities of police officers.(50) Most importantly, establishing that a municipality has a policy, custom, or longstanding policy-like practice of abuse is an extremely high hurdle for the 1983 plaintiff to overcome.

Fourth, the doctrine of sovereign immunity is often applied to police misconduct cases. Suits against state officials in their official capacities are considered suits against that official's office, and are therefore treated as suits against the state itself.(51) Because sovereign immunity prevents plaintiffs from recovering damages against a state, which is prohibited by the Eleventh Amendment of the United States Constitution, plaintiffs are limited to securing equitable remedies.(52)

Importantly, in the drug law context, often times, contraband is indeed discovered following a stop. Where contraband is discovered and a criminal prosecution initiated, any civil case must normally await the outcome of the criminal process, and may be precluded by findings and judgments made in the criminal litigation.(53) Even if there is no legal preclusive effect, the fact of the criminal conviction may undermine any civil suit. Moreover, even where the criminal case is disposed of favorably to the defendant, if the contraband can still be fairly attributed to him, juries are unlikely to provide compensation, even for clear constitutional violations.(54)

In order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.(55) A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under 1983.(56)

In the traditional context, 1983 has done little to remedy racial profiling and selective law enforcement practices. Moreover, generations of legal commentators have sounded alarms over 1983's ineffectiveness as a civil remedy for police misconduct.(57) The persistence of misconduct, and the ineffectiveness of 1983 to stem the tide, underscore the need for a new approach.

III. Remed(58)ing Racial Profiling: the Case of Ohio

Although, 1983 supplies an adequate forum for victims of tangible offenses, such as excessive force, false arrest, and illegal search and seizure, it's application has been mostly unsuccessful in attacking less obvious patterns of offensive state action; such as, racial profiling and selective law enforcement practices.

Recently, the United States Court for the Southern District of Ohio has concluded that Title 42 Section 14141 (The Violent Crime Control and Law Enforcement Act of 1994) of the United States code is essentially the injunctive counterpart of 1983.(59) Section 14141 sets forth the following provisions:

(a) Unlawful conduct

It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.

(b) Civil action by Attorney General

Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1) has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.(60)

Section 14141 diverges from 1983 on several important points. First, any citizen can raise a 1983 claim, whereas only the Attorney General can raise a 14141 claim. Second, 1983 provides for monetary, as opposed to only injunctive relief. Compared to 14141, one disadvantage of 1983 is that it requires plaintiffs to illustrate racist motivation in proving discriminatory enforcement.(61) Importantly, 14141 simply requires a showing of a pattern or practice of misconduct.

When police and prosecutors abuse their power and discretion by racial profiling and

engaging in selective enforcement practices, a remedy as provided for in the Violent Crime Control and Law Enforcement Act of 1994 may be the sole method for addressing discriminatory patterns and/or practices of prosecutors and police.(62)

Most significantly here, there appears to be a large progressive movement to remedy police misconduct through alternative remedies that are comprehensive in nature, rather than to pursue repeated 1983 suits.

The Case of OhioRecently, police practices in two of the largest metropolitan regions of the State of Ohio have attracted the attention of the Department of Justice (DOJ). The DOJ, concerned with racial profiling and police misconduct in Ohio, deployed the Special Litigation Section of the Justice Department's Civil Rights Division to investigate the law enforcement practices of the Columbus and Cincinnati police departments respectively.(63)

1.United States v. City of Columbus

In the United States of America vs. City of Columbus the DOJ set forth the following in its complaint:

The United States brings this action under 42 U.S.C. 14141 to remedy a pattern or practice of conduct by law enforcement officers of the Columbus, Ohio Division of Police that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. Defendant City of Columbus has engaged in a pattern or practice of subjecting individuals to excessive force, false arrests and charges, and improper searches and seizures. The City has tolerated this conduct through its failure to adequately train, supervise, and monitor police officers, and its failure to adequately accept citizen complaints of misconduct, investigate alleged misconduct, and discipline officers who are guilty of misconduct.(64)

The DOJ further pled in its complaint, three individual factual allegations, composed of thirteen individual circumstances of police misconduct setting forth the following Cause of

Action:

Through the actions described in [the complaint], the City of Columbus has engaged in and continues to engage in a pattern or practice of conduct by CDP officers that deprives persons in Columbus of rights, privileges, or immunities secured or protected by the Constitution (including the Fourth and Fourteenth Amendments) or the laws of the United States, in violation of 42 U.S.C. 14141.(65)

Columbus officials reacted very negatively when the Department attempted to add to its allegations evidence of racially disparate stops.(66) Conversely, the original letter the Department of Justice sent Columbus, indicated that there were serious and long-lasting problems in the city of Columbus.(67)

The U.S. Department of Justice argued that statistics from the Columbus Police Division show that black drivers are stopped in numbers that exceed their proportion of the local population. From this, the Justice Department concluded that Columbus police are deliberately and unfairly pulling motorists over because they are minorities. Critics pointed out, however, that the Justice Department deliberately excluded more than 168,000 reports on police stops of suburban drivers in order to skew the statistics.(68)

As a result of the DOJ investigation, a series of changes occurred within the Columbus Police Division, including safeguards to protect people's rights. Eventually, federal attorneys dropped the 3-year-old lawsuit against the city.(69) The Justice Department's decision to drop the suit meant Columbus would avoid a costly trial that could have resulted in outside monitoring of the 1,700-member Police Division. The dismissal marks the first time the Justice Department has walked away from a battle with a police department over civil-rights violations.(70) At the request of all sides, U.S. District Judge John D. Holschuh issued a one-paragraph dismissal order ending months of discussions among attorneys for the City, FOP and Justice Department.(71)

On the same day, the Department of Justices circulated the following press release (in

pertinent part):

WASHINGTON, D.C. - The Department of Justice today announced that it has reached agreement with the city of Columbus, Ohio to resolve its police misconduct lawsuit against the Columbus Division of Police (CDP).

Under the agreement, the United States will review CDP training classes, the documentation of alleged misconduct and internal investigations. Today's agreement allows the Department to review CDP procedures through December 2003. If the Justice Department determines that a pattern or practice of misconduct exists, it has the authority to re-file the lawsuit.

"We are pleased that a resolution of this matter has finally been reached," said Assistant Attorney General Ralph F. Boyd, Jr. "We believe this agreement will help protect everyone's constitutional rights without compromising the effectiveness of the CDP in carrying out its critical law enforcement responsibilities."

***

Today's agreement is the eighth settlement under the 1994 Crime Bill.(72)

2.In Re Cincinnati Policing

The most notable of the Ohio cases is In Re City of Cincinnati Policing.(73) A federal lawsuit alleging racial profiling was filed in the wake of the riots that occurred following the April 7, 2000, fatal police shooting of Timothy Thomas, an unarmed black man. The Cincinnati Black United Front ("CBUF"), and the American Civil Liberties Union of Ohio Foundation Inc. (ACLU), on behalf of a class of Plaintiffs(74) filed a federal law suit naming the City of Cincinnati ("City") and the Fraternal Order of Police (FOP) as defendants.

The initial complaint was filed by Plaintiff Bomani Tyehimba.(75) Tyehimba filed suit in the United States District Court for the Southern District of Ohio in the Western Division on April 30, 1999 against the City of Cincinnati and two police officers, in both their individual and official capacities.(76) On March 14, 2001, the Plaintiff moved to file an amended complaint. The amended complaint attached to that motion alleged racially discriminatory police practices by the Cincinnati Police Department in violation of the federal and state constitutions and other federal law. Also on March 14, 2001, the Plaintiff moved to certify a plaintiff class and for a preliminary injunction. The motion for class certification sought the appointment as class representatives of the CBUF and the ACLU; the motion also sought the appointment as class counsel of Kenneth L. Lawson, Scott T. Greenwood, and Alphonse A. Gerhardstein.

The three parties to the action expressed interest in a collaborative procedure to address the issues raised by the proposed amended complaint: the City of Cincinnati, proposed counsel for the putative plaintiff class, and the Fraternal Order of Police ("FOP"), whose counsel was representing the two police officers sued in their individual capacity. The City of Cincinnati agreed to the participation of the CBUF and the ACLU for purposes of such a collaborative procedure, and these three parties also agreed to the participation of the FOP. By order of May 3, 2001, the Court established the collaborative procedure contemplated by these parties. The Court also retained the services of Dr. Jay Rothman, President of The ARIA Group (ARIA), a private mediation consulting firm, to manage the collaborative procedure as a special master. On March 25, 2002, the Court referred this action to Magistrate Judge Michael Merz, as special master to complete the negotiations referenced in the Order Establishing Collaborative Procedure and a scheduling order of February 8, 2002.

On April 3, 2002, counsel for the putative plaintiff class, the City of Cincinnati, and the Fraternal Order of Police reached an agreement to resolve the issues raised by the proposed amended complaint (the "Collaborative Agreement"). This Collaborative Agreement calls for certification of a plaintiff class and would settle the class claims for injunctive and declaratory relief in the amended complaint attached to the March 14, 2001 motion for leave. Subsequently, the CBUF, the City of Cincinnati, the FOP, and the ACLU ratified the Collaborative Agreement.(77)

In addition to the efforts of the CBUF, the City, FOP, and the ACLU, the Mayor of Cincinnati and other interested parties requested that the DOJ review the Cincinnati Police Departments's (CPD) use of force. This request indicated the City's commitment to minimizing the risk of excessive force in the CPD and to promoting police integrity. The DOJ decided to conduct an investigation pursuant to its authority under 14141.(78)

Crucial in the "Collaborative" effort was the DOJ. According to Vaughn Crandall, "Action Evaluation Project Manager" with ARIA, the overlooming "presence of the DOJ investigation assisted in the process significantly." "It is unlikely that the parties would have had any real incentive to compromise and advance the negotiation process without the participation of the DOJ," said Crandall.(79)

Finally, history was made in Cincinnati on April 11, 2002, when representatives of the City of Cincinnati, its police officers, and its citizens signed an agreement that set a path for a new era of cooperation between the police and the community. The DOJ investigation resulted in an agreement as well. The City of Cincinnati and the DOJ reached a "Memorandum of Agreement"(80) that ended the Department's investigation of the Cincinnati police and established procedures for improving police operations.(81) This agreement granted declaratory or equitable relief to remedy a pattern or practice of conduct by law enforcement officers that deprived individuals of rights, privileges or immunities secured by federal law. The process by which In Re Cincinnati Policing confronted Cincinnati's persistent problems of police and community relations should become the model for the future of civil rights litigation.

In the wake of the collaborative agreement, there have been several instances that have tested the commitment of all parties to the agreement.

On Sunday February 9, 2003, a fatal police involved shooting of an African American man occurred on Cincinnati's Northside.(82) Cincinnati's Mayor proclaimed "the system worked."(83) The aftermath of this shooting offered hope that Cincinnati's racial wounds might be healing. According to the Cincinnati Enquirer ("Enquirer"), city officials did the right thing following the fatal shooting. After the 4:10 a.m. shooting, city officials swiftly came forward with what they knew. They calmed the neighborhood, and showed some compassion. Within hours of the shooting, members of the city's Human Relations Commission were walking the streets of Northside. They gauged the mood of the community and discussed the shooting with residents. Police officials met with deceased's mother and sister. By almost all accounts, the way the city handled the shooting showed it has learned its lesson. The collaborative agreement, designed to improve the police force while ending racial profiling, provided guidelines on how the city should respond in such situations. The city followed those guidelines. In the words of neighborhood activist Stefanie Sunderland, the mood following the shooting in Northside was "anxious and tense, but hopeful. People see hope in the city's efforts that stem from the collaborative process. The proactive police, and the members of the Human Relations Commission walking the street are doing what people want to see happen. They are serious about making this work."(84)

On the same day as the fatal shooting in the Northside neighborhood, the Cincinnati Enquirer reported the latest 48-hour crime sweep by Cincinnati Police produced 116 arrests. According to the Enquirer, "the Cincinnati Police were implementing a promising new strategy that first maps out drug dealing hotspots, identifies offenders, then mobilizes a combined force to make round-the-clock arrests."(85) The two-day "strike force" also included FBI and Secret Service agents, state liquor control officers and state parole officers. "Patrol officers and detective types are collaborating more and partnering with residents to identify drug dealers. It's heartening to see more than just reactive policing. Residents in Avondale and other Cincinnati neighborhoods already report improvement at some sites. The new strategy is hailed as a CPD culture change." "The new strategy grew out of community problem-oriented policing adopted last year in collaborative settlements of the racial profiling lawsuit and Justice Department investigation, said the enquirer."(86)

III. Conclusion

The Supreme Court dealt a blow to African American and drivers by expanding the discretionary power of the police and removing race from Fourth Amendment protection.As a result, a police officer's subjective mind-set is irrelevant in determining whether a stop was based on that officer's biases and preconceived notions regarding minority citizens.

Racial profiling and selective law enforcement practices are prevalent manifestations of racism in this country. Although 1983 appears to be a potentially effective tool that purportedly protects claimants from racial discrimination generally, 1983 is procedurally ineffective when applied against police officers.

Unfortunately, for victims of racial profiling, bringing a successful equal protection claim is nearly an insurmountable task. Traditional equal protection analysis requires that the defendant prove that an officer intentionally engaged in discriminatory conduct based on race. The defendant must show that prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose. It is extremely difficult to show that a minority motorist was detained on the basis of race. Moreover, it is highly unlikely that overt, purposeful discrimination will ever again be a component of an official written policy. As such 1983 and the Equal Protection Clause of the Constitution are essentially hollow as to affecting change in the area of discriminatory police practices.

In order to affect change as to discriminatory police practices, lawmakers should craft legislation that mandates a more comprehensive approach to civil rights reform. This comprehensive approach should include DOJ investigations pursuant to 14141, and alternative dispute resolution processes involving government officials, community and advocacy groups, and other interested parties. This comprehensive approach should become this nation's primary tool in fighting racial profiling and selective law enforcement practices. Therefore, In Re Cincinnati Policing should become the model for contemporary civil rights jurisprudence.

Endnotes

1. Noel C. Richardson, Is There a Current Incarceration Crisis in the Black Community? An Analysis of the Link Between Confinement, Capital, and Racism in the United States, 23 New Eng. J. on Crim. & Civ. Confinement 183, 197-198 (1997)

2. Dorothy E. Roberts, Crime, Race, and Reproduction, 67 Tul. L. Rev. 1945, 1947-1950 (1993)

3. Richardson, Supra note 1 at 198

4. Nkechi Taifa, Codification or Castration? The Applicability of the International Convention to Eliminate All Forms of Racial

Discrimination to the U.S. Criminal Justice System, 40 How. L.J. 641, 642 (1997)

5. Samuel R. Gross, Racial Profiling Under Attack, 102 Colum. L. Rev. 1413, 1415 (2002)

6. Bernard E. Harcourt, Shaping of Chance: Actuarial Models and Criminal Profiling at the turn of the turn of the Twenty-First Century,

70 U. Chi. L. Rev. 105, 118 (2003)

7. Id.

8. 392 U.S. 1 (1968) (holding that an officer acted reasonably when he approached two suspicious individuals in front of a store, identified himself as an officer, asked for their names, and when his suspicions were not dispelled, seized the individuals, patted down their outer clothing without placing his hand in their pockets, and removed their guns for his safety).

9. Peter A. Lyle, Note, Racial Profiling and the Fourth Amendment: Applying the Minority Victim Perspective to Ensure Equal Protection

Under the Law, 21 BC Third World LJ 243, 252 (2001)

10. Remarks of Ira Glasser As Executive Director of the American Civil Liberties Union ("ACLU"), Ira Glasser, Speech: American Drug

Laws: The New Jim Crow: The 1999 Edward C. Sobota Lecture, 3 Alb. L. Rev. 703, 705 (2000).

11. Supra note 9 at 248

12. 517 U.S. 806 (1996)

13. See Abraham Abramovsky & Jonathan I. Edelstein, Pretext Stops and Racial Profiling after Whren v. United States: The New York and New Jersey Responses Compared, 63 Alb. L. Rev. 725, 726 (2000).

14. Id.

15. David Harris, Driving While Black Racial Profiling On Our Nation's Highways, An American Civil Liberties Union Special Report June 1999, 7-8, Available Online: http://archive.aclu.org/profiling/report/

16. Id.

17. Id.

18. David A. Harris, Driving While Black" and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544, 545 (1997)

19. Supra note 14 at 733

20. D.J. Silton, U.S. Prisons and Racial Profiling: A Covertly Racist Nation Rides a Vicious Cycle, 20 Law & Ineq. 53, 60-61 (2002) (reporting that between 1976 and 1989 the total number of drug arrests of Caucasians grew by 70%, compared to a 450% increase a among African Americans and that the number of Caucasians incarcerated for drug offenses increased by 50% from 1986 to 1991, while (the number of African Americans incarcerated increased by 350%)).

21. Id.

22. See Silton note 20 at 61

23. Id. at 62

24. Providing "substantial assistance" means cooperating with officers and prosecutors in the present case or cases involving other drug traffickers.

25. Laura A. Wystma, Comment, Punishment for "Just Us" - A Constitutional Analysis of the Crack Cocaine Sentencing Statutes, 3 Geo, Mason Indep. L. Rev. 473, 480 (1995)

26. Id.

27. See Taifa, Supra note 4 at 665-669

28. Id.

29. See Drew S. Days III, Race and the Federal Criminal Justice System: A Look at the Issue of Selective Prosecution, 48 Me. L. Rev. 1 181, 187 (1996).

30. Id.

31. 857 F. Supp. 105 (D.D.C. 1994).

32. See Wytsma, Supra note 27 at 482-484

33. Id.

34. Id.

35. See Harris, Supra note 15 at 2

36. 42 U.S.C. 1983

37. See Tracey Maclin, Race and the Fourth Amendment, 51 Vand. L. Rev. 333 (1998)

38. 17 U.S. 456 (1996).

39. See Id. at 467.

40. Marc Michael, Selective Prosecution-A Futile Defense and its Arduous Standard of Discovery, 47 Cath. U. L. Rev. 675, 714-717

41. Id. at 717

42. Pamela S. Karlan, Article Race, Rights, and Remedies in Criminal Adjudication, 96 Mich. L. Rev. 2001, 2005 (1998)

43. 126 F.3d 856, (6th Cir. 1997) (holding violation of equal protection, alleging that officers arrested her solely

because they believed her to be lesbian. After officers' motion to dismiss on qualified immunity grounds was granted, actions were

consolidated, and summary judgment was granted for city and county. Plaintiffs appealed. The Court of Appeals, Boggs, Circuit Judge,

reversed holding that: ***(5) plaintiff motorist stated claim [under 1983] for selective prosecution in violation of equal protection.)

44. Id.

45. Judge Alice M. Batchelder, J Clegg Ivey III, Revecca C. Lutzko, The Sixth Circuit year in Review-Leading Cases of 1997, 28 U. Mem. L. Rev. 345, 422-426 (1998)

46. James C. Harrington, The ADA and Section 1983: Walking Hand in Hand: Using the Americans with Disabilities Act to Re-open the Civil Rights Door, 19 Rev. Litig. 435, 438 (2000)

47. Anderson v. Creighton, 483 U.S. 635, 639, (1987)

48. Thorne Clark, Protection for Protection: Section 1983 and the ADA's Implications for Devising a Race-Conscious Police Misconduct Statute, 150 U. Pa. L. Rev. 1585, 1599-1602 (2002)

49. 436 U.S. 658 (1978)(holding (1) local government units were "persons" for purposes of 1983, the Civil Rights Act of 1871; (2) local governments could not be held liable under a theory of respondeat superior but rather could be held liable only when the constitutional deprivation arises from a governmental custom; (3) the Tenth Amendment did not impose any impediment to liability; (4) the Eleventh Amendment did not preclude imposition of liability except with respect to local government units which are part of the state for Eleventh Amendment purposes; (5) local government officials sued in their official capacity are "persons" under 1983 in those cases in which local government is suable in its own name, and (6) the deprivation complained of in the instant case arose out of official policy.)

50. Brandon Garrett, Remedying Racial Profiling, 33 Colum. Hum. Rts. L. Rev. 41, 42 (2001)

51. See Clark, Supra note 49 at 1601

52. See Harrington, Supra note 46 at 439-40

53. David Rudovsky, Law Enforcement by Stereotypes and Serendipity: Racial Profiling and Stops and Searches Without Cause, 3 U Pa. J. Const. L. 296, 354 (2001)

54. Id.

55. John Stanfield Buford, When the Heck Does This Claim Accrue? Heck v. Humphrey's Footnote Seven and 1983 Damages Suits for Illegal Search and Seizure, 58 Wash. & Lee L. Rev. 1493

56. Id.; See also Heck v. Humphrey, 512 U.S. 477, 487 (holding when state prisoner seeks damages in 1983 suit, district court must consider whether judgment in favor of prisoner would necessarily imply invalidity of his conviction or sentence; if it would, complaint must be dismissed unless prisoner can demonstrate that conviction or sentence has already been invalidated.)

57. Steven P. Ragland, Using the Master's Tools: Fighting Persistent Police Misconduct with Civil Rico,15 The American University Law Review 139, 167 (2001)

58. 857 F. Supp. 105 (D.D.C. 1994).

59. See Silton, Supra note 20 at 74

60. 42 U.S.C.A. 14141

61. See Silton, Supra note 20 at 76.

62. Id.

63. Id.

64. United States of America v. City of Columbus Ohio, Complaint (Civil No. C2-99-1097) Available at:

http://www.usdoj.gov/crt/split/documents/columbuscomp.htm

65. Id.

66. Feds Injecting Race into Lawsuit Against Police, Dayton Daily News, July 20, 2000, at 3B (describing how the Columbus, in its request to deny the Department of Justice permission to introduce evidence of racial profiling, stated that the DOJ "has chosen to inject race into the case at this time in a transparent effort to "turn up the heat' on the defendants")

67. End to Columbus police lawsuit may mean policy change, Columbus Dispatch (Ohio) September 8, 2002 Sunday, Home Final Edition

68. Editorial and Comment: Racial Profiling, Columbus Dispatch (Ohio) April 20, 2002 Saturday, Home Final Edition

69. Civil Rights Suits Dropped, Columbus Dispatch (Ohio) September 5, 2002 Thursday, Home Final Edition

70. Id.

71. Id.

72. WASHINGTON, D.C. - DOJ PRESS RELEASE: JUSTICE DEPARTMENT REACHES AGREEMENT TO RESOLVE POLICE MISCONDUCT CASE AGAINST COLUMBUS POLICE DEPARTMENT Available Online: http://www.usdoj.gov/opa/pr/2002/September/02_crt_503.htm

73. , 209 F.R.D. 395 (S.D.Ohio Aug 05, 2002)

74. In Re Cincinnati Policing (Plaintiff Class) Tyehimba v. City of Cincinnati; Antonio Johnson v. City of Cincinnati; Mathew Shaw v. City of Cincinnati; Mark A. Ward v. City of Cincinnati; Charles A. Wiley v. City of Cincinnati; Lisa Youngblood-Smith v. City of Cincinnati; Elsie Carpenter v. City of Cincinnati; Nathaniel Livingston v. Thomas Streicher; Lasha Simpson v. Thomas Streicher; Claim of Vinnie Clarke and Terry Horton; Claim of William Haysbert; Claim of John E. Harris; Claim of Ms. Stephanie Keith; Claim of Enrico Martin; Claim of Roderick Glenn; Claim of Arnold White; Claim of Tony Stillwell; Claim of Sheila Barnes; Claim of Iweka Okaraocha; Claim of Patricia Watkins

75. Bomani Tyehimba v. City of Cincinnati, et, al, Case No. C-1-99-317, S.D. Ohio, May 3, 2001 (Unreported)

76. 209 F.R.D 395, 397 (S.D. Ohio Aug 5, 2002)

77. Id. at 397

78. U.S. Department of Justice Agreement with the City of Cincinnati, Section II, General Provisions. 2

79. Interview with Vaughn Crandall, Action Evaluation Project Manager, The ARIA Group, Tuesday, March18, 2003. 10:00 AM

80. Memorandum of Agreement Between the United States Department of Justice, and the City of Cincinnati, Ohio and the Cincinnati Police Department (April 2, 2002) Available at: http://www.usdoj.gov/crt/split/cincmoafinal.htm

81. Improving Police-Community Relations in Cincinnati: A Collaborative Approach (Section 1)

82. Mistakes weren't repeated, The Cincinnati Enquirer February 11, 2003 Tuesday Final Edition: Headline

83. Id.

84. Id.

85. All out Offensive, The Cincinnati Enquirer, February 11, 2003 Tuesday Final Edition, Headline

86. Id.

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