Ending Racial Profiling in Law Enforcement

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Go to: Page 1 ─ Page 3 ─ Page 4 ─ Appendix A

Appendix B ─ Appendix C ─ Appendix D ─ Appendix E ─ Footnotes

What the Anecdote Reveals and Questions Raised

In the above example, a non-racial pretext vehicle stop revealed a new crime threat. The stop was motivated by an inarticulable sixth sense and legally justified by three significant traffic code violations—violations for which I routinely stopped and often ticketed people. When I initiated the stop, I did not know the race of the vehicle occupants.

This was ethical police work. It satisfied all legal requirements. I did not even step outside investigation of the traffic violations at issue, until one occupant of the car, on his own initiative, gave me probable cause to believe that he was concealing evidence or contraband. Racism was not an element in either the stop or the escalation.

The only possible objections to the detention illustrated in the anecdote are systemic. Should officers be allowed to do what I had done, given that a racist officer could make the same stop while denying racial bias? The pretext stop I made illustrates two prime points. I was motivated by a hunch. And I used substantial traffic probable cause to begin a mandatory interaction with the occupants of the car. The key analytical point is that, even absent a hunch, I would probably have made exactly the same stop for traffic reasons alone some 20 to 30 minutes later, after the reconnaissance of jurisdiction had been completed.

This observation raises some important questions in regard to managing reasonable suspicion, probable cause, and police hunches.

(1) On principled practicable grounds, how can one distinguish between

(a) the pre-reconnaissance pretext stop I actually made and

(b) the post-reconnaissance traffic stop I would have made?

(2) How can one distinguish between

(a) the 12 mph over the speed limit stop I would have made and

(b) an 8 mph stop another officer could have made?

(3) Can we say which violation is minor and which is not, between these pairs:

(a) license plates expired 16 months ago versus

(b) plates expired 1 month ago?

(d) one not working?

(e) no lane change signal in heavy traffic versus

(f) no lane change signal in moderate traffic?

(4) Is there a practical distinction between the validity of these competing enforcement motivations:

(a) Stopping and ticketing pedestrians and bicyclists in actual hazard for the enforcement effect on them personally versus

(b) stopping and ticketing pedestrians and bicyclists in historically congested zones for order maintenance and social effect?

(5) In regard to hunches legally acted upon, does it make sense to handcuff the motivations of officers who have legitimate intuitions of criminal activity? Is it practicable to do this, absent the ability to read minds?

(6) Isn't the better course to require legitimate reasonable suspicion or probable cause and to confine subsequent investigations to those grounds alone (absent the inadvertent appearance of additional suspicion or cause)?

(7) All things considered, is not the racial/ethnic bias involved in the directing initial police attention the core problem in racial profiling?

The problem with racial profiling is its illegitimate focus on race or ethnicity under circumstances in which those factors are not objectively enough to statistically enhance the likelihood that something criminal is afoot.

Part II

The Futility of Redefining Reasonable Suspicion and Probable Cause to Prevent Racial Profiling

The Core Truth: Substantial Police Discretion is Necessary in Police Work

Substantial police discretion is necessary if criminal justice is to work at all. Though racial profiling is an abuse of discretion, it is the abuse, not the discretion, that should be the target of reform. Without copious police discretion, criminal justice would collapse from (a) the volume of mandated, by-the-book, over-enforcement, or from (b) chronic under-enforcement aimed at avoiding oppression, or (c) an unpredictable, most probably indefensibly distributed, combination of both.

What commentators fail to grasp is the sheer volume of mid-level traffic and penal offenses police would send to prosecution every day if they were required to enforce the law without flexibility. What police provide is a fluid coupling between the letter of the law and the courts. Police discretion and selective enforcement clean up social frictions that society could not otherwise accommodate. Therefore, it is not the amount and fluidity of the discretion that is the evil, it is its misdirection. Simply mandating the enforcement of some laws and not others will not prevent the potential for an overlay of bigotry in who is targeted.

To get a visceral appreciation of these truths, one must either work as a police officer or accumulate a substantial number of hours accompanying on-duty patrol officers. Law enforcement is not a profession that can be evaluated in the abstract. The number of nuanced problems police confront every day are beyond the imagination of even the most able non-involved thinkers. In critical ways, policing parallels parenting. There is no way to remove substantial discretion without extinguishing what one is trying to do.

Reform Begins with Acknowledgement that the Focus of Police Attention Is Key

Stating the obvious, if substantial discretion is necessary to effective criminal justice, then equitable enforcement requires confronting the problem of how police initially select the targets of their attention. It is the attention, not the reasons that subsequently justify a detention, that begins the potential for a downhill slide into discrimination. If I am not looking at you, I will not detain you. And if I am, I will likely eventually observe you long enough to catch some illegality or potential illegality that legally justifies my intervention. This characteristic has caused reform-minded analysts to settle on limiting the currently accepted judicial justifications for detention.

Limiting the Reasons for Detention Will Not Work to Eliminate Profiling

Though the Supreme Court is often criticized for its Fourth Amendment decisions, [13] the realities posed by proactive police work are responsible for the result. The questions appended to the anecdote in Part I highlight a few. The true conflict over the Fourth Amendment revolves around its interpreters' willingness to accept the necessities of proactive, investigative policing. The current Court and, arguably, the majority of Americans support crime-preventive police work.

From an analytical point of view, what may discussions overlook is the fact that restricting the discretionary use of reasonable suspicion [14] will not much impact the ability of police to continue to engage in racial profiling. [15] Police simply substitute the probable cause standard. They use pretext traffic stops and municipal order maintenance violations to stop motorists and pedestrians for investigative ends.

Probable Cause Pretext Stops Can Become a Hiding Place for Racial Profiling

Probable cause pretext stops have become a hiding place for racial profiling due to the purported objectivity of the standard. Probable cause exists where circumstances are sufficient to warrant a reasonably cautious person's belief that an offense is being committed. [16] From the street officer's perspective, probable cause has some advantages over reasonable suspicion. Though it requires more certainty and a higher threshold than reasonable suspicion, once the standard is satisfied, the street officer knows the court will place fewer limits on the scope of detention and its intrusiveness.

Most officers prefer to use probable cause as a justification for their interventions. It is legally clearer than reasonable suspicion. It usually requires less refined judgment. For example, someone is either speeding or they are not. This is an easier determination to make than articulating reasons that justify investigative detentions. For example, it is difficult to articulate why a person's behavior reasonably leads to the inference that he is contemplating robbing a bank, breaking into a store, or carrying burglary tools with the required intent.

The lesser ambiguity of probable cause, as opposed to reasonable suspicion, has the advantage of diminishing the subsequent likelihood that the officer will be accused of an illegal detention. The probable cause standard also provides police with the psychologically satisfying option of citing or arresting someone who is “in your face” uncooperative.

In order to kill two birds with one stone, police use the probable cause afforded by a generally non-criminal violation to detain someone long enough to see whether they can detect criminal activity. These “pretext stops” use the probable cause created by a violation, usually of traffic law, to justify stopping someone for purposes other than correction of that violation. [17] Racial profiling finds a hiding place here that the courts have been unable to eradicate, because stops for probable cause of any kind satisfy the Fourth Amendment.

Pretext Stops Satisfy the Fourth Amendment

The Supreme Court approved the use of pretext stops in 1996. [18] It observed that the Fourth Amendment does not turn on the motivations of individual officers. [19] Nor does it make constitutional sense to inquire whether the officer acted in accord with usual police practices. [20] Police practices vary too much. [21] In sum, Fourth Amendment reasonableness "allows certain actions to be taken in certain circumstances, whatever the subjective intent.” [22] There is no realistic alternative to the fact that probable cause justifies a search or a seizure. [23] Consequently, a pretext stop cannot be distinguished from a non-pretext one. [24]

The Supreme Court addressed two commonly raised side issues. First, the fact that enforcement codes are voluminous and generate ample sources of probable cause was beyond the competence of the Court to assess. "[W]e do not know by what standard (or what right) we would decide...which particular provisions are sufficiently important to merit enforcement." [25] Second, in the case of racially motivated detentions, the Equal Protection Clause, not the Fourth Amendment, provides the appropriate ground for redress. [26]

The Utility of Pretext Stops in Law Enforcement

Police do not use pretext stops as a matter of bad faith. They know that policing is a numbers game—the more people contacted, the more crime detected. A police agency with a traditional view tries to boost the number of citizen contacts to take a bigger bite out of crime. It sees the reduction of criminal activity as the primary focus of the enforcement part of the police mission. Anything that negatively impacts criminal activity is automatically— sometimes mindlessly—seen as good. High numbers of traffic stops, arrests, and drug seizures are then used to justify the department budget.

The law enforcement logic proceeds as follows. Pretext stops are an easy way to intrude into the business of individual citizens without being second-guessed by the courts. Probable cause legitimates detentions whatever the true purpose of the stop. Traffic and municipal codes provide police with easily achieved probable cause. Traffic and municipal violations become the key to a door that allows police to investigate for criminal activity beyond the confines of the initial reason for the stop, provided that the officers tread carefully.

Being careful in legal terms means either:

(a) getting genuine consent for searches unrelated to the probable cause for the stop, or

(b) building an investigation that begins with

(i) the reason for the stop and

(ii) proceeds through further observation and consensual interview

(iii) to probable cause to believe that some other violation has been or is being committed.

Good officers master both techniques. Part I’s anecdote illustrates how this works.

In the probable cause pretext game, once an officer has lawful cause for the initial contact, the citizen is at a disadvantage. The officer may see what has been inadvertently left in plain view. It may also be psychologically difficult for people not to cooperate with police regarding the initial probable cause situation. That cooperation may then reveal concealed wrongdoing of something else.

For example, detentions for minor offenses often become a negotiation between officer and citizen as to whether a ticket/summons will be issued. Most citizens make the calculation that cooperation makes the ticket less likely. This is often true, but cooperation makes it difficult for the citizen to be "rude" in setting limits when the officer steps over the purported bounds of the original stop.

Lower socioeconomic groups are most disadvantaged in regard to setting appropriate bounds. They do not have the shield of the "don't mess with me" demeanor that wealthier people do. Nor do they have the education or experience that allows them to say "no" and make the "no" stick. Someone with ready access to a lawyer, or the wealth necessary to retain a competent attorney, has a good deal more clout than someone who does not. In light of this socioeconomic hierarchy, a just society should equitably balance police attention among races, ethnicities, and socioeconomic groups. Currently, we do not.

Law enforcement is in the best position to do this balancing. Cops know when they are taking advantage of someone's lack of social or economic status. Since police are not heartless, the motivation for discriminatory tactics is the war on crime, particularly the war on drugs. Our society values minority freedoms and dignity less highly than reduced levels of street and drug crime. A just balance should probably go in the other direction. Why, for example, are not more white-collar (caucasian) criminals arrested every day? They steal millions. Why is our law enforcement focus where it is? [27]

Insofar as street crime prevention and detection remain valid social goals, the numbers game will continue. One could improve its efficiency and diminish its disparate racial/ethnic impact by (a) elevating the standard for pretext stops to the sort of violations police in the same department would ordinarily enforce [28] and (b) consciously equalizing the proportion of contacts identifiable citizen groups must bear.

(This is page 2 of 4)

Go to: Page 1 ─ Page 3 ─ Page 4 ─ Appendix A

Appendix B ─ Appendix C ─ Appendix D ─ Appendix E ─ Footnotes

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Ending Racial Profiling in Law Enforcement