Ending Racial Profiling in Law Enforcement

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Go to: Page 2 ─ Page 3 ─Page 4 ─ Appendix A

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

Introduction

Changing police selection, training and supervision is the most effective way to defeat the use of racial profiling [1] in law enforcement. Redirection of this magnitude will require that:

(1) We reorient the police strategy and tactics to better balance social costs and benefits.

(2) We define honorable law enforcement service to include the belief that

police should focus their attention (a) equally, (b) fairly, and (c) in a freedom enhancing way.

(3) We hold law enforcement accountable via political means.

Starting at the police level, as opposed to the courts, makes sense for four reasons:

(1) Disparate contact, arrest and incarceration rates begin with police interventions and are difficult to fix afterward.

(2) Judicial remedies to racism in policing and criminal justice have foundered on biases unconsciously embraced by the courts themselves.

(3) It is impossible to articulate reasonable suspicion and probable cause in ways that reliably exclude racial profiling at the street level.

(4) The political power to effect local change already exists.

Assumptions Made

I assume the following. Inclusion of race as a factor in justifying investigative detention is inherently oppressive. [2] The evolution of racial profiling from airport to street demonstrates a mindless and cancer-like expansion of an already bad idea. [3] Resulting racial/ethnic disparities in sentencing and incarceration are real. [4] Fourth Amendment litigation is not going to protect the oppressed. [5] And Equal Protection litigation, given its requirement for proof of deliberate discrimination, provides no significant remedy. [6]

Points To Be Discussed: A Roadmap for This Paper

Most writing aimed at racial profile reform misunderstands policing. Consequently, proposed solutions are not likely to work. I suggest that:

(1) Substantial police discretion is required if law enforcement is to work at all.

(2) The most critical point in the criminal justice process is an officer's decision on where to focus her attention, because an inevitability results after her attention settles on a person or group.

(3) Limiting the legal bases justifying reasonable suspicion [7] will not significantly reduce the number of racially motivated stops.

(4) Probable cause [8] has an "on/off" nature that prevents elimination of pretext stops.

(5) It is impossible to distinguish pretext from non-pretext stops in a useful way.

(6) Consequently, police discretion to make investigative and pretext stops will continue.

(7) The solution is to change how police think about how they should focus attention and use discretion.

(8) This can be done by:

(a) revising the law enforcement mission to include an emphasis on the equal treatment of all groups;

(b) orienting police selection, training, and supervision to the new end;

(b) monitoring compliance by collecting and analyzing the demographics of traffic and pedestrian stops; and

The street policing incident discussed in Part I of this paper illustrates points (1) through (7). Part II tackles the legal difficulty of limiting the use of reasonable suspicion and probable cause or reducing the number of “pretext” probable cause-based stops. [9] It concludes that racial profiling cannot be effectively attacked in these ways. Part III redefines the law enforcement mission to consciously balance crime prevention/detection and the preservation of racial/ethnic freedom and dignity. Part IV looks at racial/ethnic data collection as a currently flawed, but promising way to monitor the profiling problem. Part V discusses the potential inherent in civilian input and oversight of police agencies.

Part I

Harm and Value in a Pretext Stop ─ An Illustrative Street Anecdote

This narrative illustrates the complexity of even the simplest street interaction. Consequences of police interventions are often unpredictable. Consequently, officers are sometimes selected for their ability to "wing it." A street officer's primary task is to bring temporary order to chaos. One critical decision involves selecting the threshold that justifies intervention on legal, strategic, and tactical grounds. Priorities for police action can shift from moment to moment, even in the same officer.

The jurisdiction in this anecdote comprised about thirty thousand people during daylight hours. It was geographically small, but represented a core district in a city of about eighty thousand. The city, in turn, was part of a metropolitan complex of more than a million people. People passing through our jurisdiction and those who deliberately targeted it committed most of the serious crimes. These characteristics influenced the way the police department operated.

Over the years, some of us proved that intense, interventionist patrol reduced rates for rape, felony theft, criminal mischief, dangerous driving, and disorderly conduct. There was a cost. Proactive patrol uncovers activity not visible on the surface. Sometimes one would prefer not to have overturned a particular stone. Nevertheless, once intervention begins, its momentum often can't be stopped.

Uncertainties in Policing—Not Looking for, but Finding Crack Cocaine

It was midweek. The night was cool, but warm enough for the auto parts thieves and the rapists to be active. This kind of night always made me nervous—too much could be going on beneath the surface. The most motivated officers take protecting the people and property in their jurisdiction personally. Being an experienced watch commander only heightened my sense of responsibility.

I was on the street within ten minutes of the start of third watch, [10] because shift change always presented a weakness in our patrol defenses. It does not take long to sexually assault a woman or to steal a car. It was my practice to make a quick circuit of the jurisdiction to get a feel for what was going on. Ordinarily, I tried to avoid interrupting this reconnaissance with non-emergency police action.

The first few minutes revealed that the city was quiet. As I rolled down one of the streets that bisected the core jurisdiction, I noticed a "beater" car roll through the stop sign exiting a university dormitory complex. The housing area and its parking lots were historically vulnerable to car break-ins and bicycle thefts.

A "beater" is an old car that costs a few hundred dollars. Students, young people, poor working people, and criminals use them despite their tendency to break down. They can afford nothing better. Bad guys use them, because they can be stripped of easy identifiers and abandoned at low cost.

There were people in the front and back seats of this particular sample of the breed. It was unusual to see a car so loaded with passengers in this area on such a quiet non-party night. As the car ran the stop at slow speed, my sixth sense forcefully kicked in. Over many years of policing, I had learned not to ignore it. Something wasn't right here, but I couldn't tell what it was. For me, that was unusual.

I was tempted to ignore the intuition. I didn't want to interrupt my reconnaissance with nonsense. Absent probable cause, if I couldn't articulate suspicion in legally acceptable terms, I never stopped people.

Police work teaches that nothing ever happens on your schedule. To be effective, you have to go with the flow of the night. And you need to do it now. Take your eyes off someone for even an instant and, more often than not, they're gone. I needed to properly evaluate this situation, before I blew it off.

The car pulled out in front of my patrol car. The rear license plate had a long-expired registration sticker on it. The plate number was from the metropolitan center forty minutes away. There were three apparently good-sized people squeezed into the back seat. The car sagged from the weight. There was probably a right front passenger as well. The sheer number of people added robbery, battery, criminal mischief, harassment, and disorderly conduct as possible causes for the nagging sense of wrongness.

The driver sped up to 37 mph in a 25 mph zone. I usually began stopping people for speeding at 12 over, and I usually stopped people for long-expired registrations. With the rolling stop, I had probable cause for three violations.

As I followed, the intuitive sense that something was amiss remained strong. I wanted to find out what the people in the car were doing. But I couldn't articulate what was triggering my uneasy feeling. I couldn't see the behavior of the people in the car. There was nothing visible that would seem suspicious, other than the "beater" nature of the car and its invalid registration. The hairstyles of the backseat passengers appeared to be male, but that was all I could tell.

I realized that the car was likely heading for the highway just two blocks away. Once on it, people resented being stopped for traffic violations committed on the low-speed side streets that feed it. I also knew that after completing a traffic stop there, it would take me some minutes just to return to the area I wanted to reconnoiter. Letting the car make it to the freeway was going to make the contact more wasteful of community relations and time than I wanted. I had to decide quickly what I was going to do. [11]

I made the stop. It was a pretext stop, because my primary motive was investigation, not traffic enforcement. On the other hand, I made the stop on the basis of violations I usually stop people for. It was just that, on this night, at this time, I was interrupting a reconnaissance that I thought even more important than the traffic violations the driver had committed.

We pulled over into the metered parking at the side of the street, well out of the traffic flow. I was surprised to find that the occupants were African American. My suspicion eased. I couldn't recall arresting an African American for auto parts theft and only very rarely for bike theft. These were the two offenses I thought the most likely cause of my intuition. Now, I thought I had made an error. I was relieved; this wouldn't take long. I told the driver about the speeding, the expired plates, and the rolling stop.

His reply shot my hope down. He didn't know who owned the car. He said he didn't have a registration. The center rear passenger suggested that "Joe" owned it. No one knew Joe's last name. Or where he lived. Or what his phone number was. Or the circumstances under which Joe had loaned them the car.

I suggested the driver check the glove box for a registration. He fumbled through it. I could tell from his movements that he knew it was futile. And I could tell from the passengers' practiced cooperation that they had been stopped, and probably harassed, by police before. They knew how to play that unfair game. But I was stuck. No cop can ethically let such a bogus tale of vehicle ownership slide. Sometimes we are all trapped by the system we operate in.

I tried to put them at ease by telling them there would be no speeding ticket if I could get the ownership of the car cleared up. I returned to the patrol car. A computer check showed no record of ownership for the plate. That was unusual, but it happened occasionally.

Now, the stop was going to escalate. I would have to do a parallel check for ownership by using the Vehicle Identification Number (VIN). The number is located on the dashboard at the left corner adjacent to the windshield on cars sold in the United States. It is not possible to read it and to keep an eye on the vehicle occupants at the same time.

Ordinarily, under suspicious circumstances with multiple passengers, a backup officer is called. She watches the car occupants while the first officer reads the VIN. Often the people are asked to step from the vehicle. The experience is humiliating for them. I tried to avoid this indignity by having the backup officer watch them from the driver's door while I wrote down the VIN. It wasn't the safest way to do it, but it was a valid compromise given the circumstances.

I noticed that the VIN plate did not look normal. It was more elevated than it should have been, as if someone had manufactured a new plate and crudely riveted it to the dashboard. My auto theft training kicked in. I knew, though, that I was not familiar with this old a model of this Japanese make. Perhaps all the VINs on these older cars looked hokey.

I ran a computer check on the number from my patrol car. The backup officer moved from the door of the stopped vehicle to its right rear. From the perspective of passers-by, that position has a higher level of psychological intrusiveness. It becomes another humiliation for the people in the car. However, the right rear backup position is much safer for the police. It keeps the people in the car in view and keeps the officers out of each other's line of fire.

"No record found." That was unusual. It was very rare to miss on both plate and VIN. This car and its identification number hadn't been registered for a very long time, if ever, in our state. The license plate might not even belong to this particular car. What had started as probable cause for traffic offenses was now building toward reasonable suspicion for something else.

I verified the VIN for the manufacturer's correct sequence of alpha-numerics and length. Our resource books did not include that model. A consistent result would have been inconclusive anyway. If it were a false VIN, surely the thieves would have ensured that it looked similar to the old.

The contact was taking far longer than I wanted. We now had two units tied up on something that might still be simple violations for expired plates and no proof of ownership. Minor or not, I was going to have to impound the car for proof of ownership. That meant we had to arrange for the safety of the five occupants. This would involve transporting them to a location where they could stay warm and safe while they arranged for rides home. We would have to pat them down for weapons prior to giving them rides, given the suspicious circumstances. With five people involved, taking them anywhere meant at least two patrol cars. If we took them to the police department, so they could use a free telephone, two of us would have to watch them there. An additional unit would have to do an inventory on the impounded car and wait for the tow truck. I could lose my whole watch deployment to this one stop. The incident was turning into a watch supervisor's briar patch.

I returned to the driver to explain the impound procedure. While we were talking, the backup officer radioed that the right rear passenger had just hidden something under the seat. The detention now had to escalate again. Whatever had been hidden was almost certainly contraband or a weapon. Given the possibility that the car was stolen, I suspected it was a gun or burglary tool. I knew the occupants were cop savvy. They would be anticipating pat downs prior to being given rides.

I called for a second backup unit. It is always safer (for citizens and police) to have too many police, rather than too few. A third officer was necessary, because once outside the car, the people would not be physically confined as they had been inside the car. Even with the second backup, we were still outnumbered five to three. If they ran, at least two would get away.

What had started out at low-level posture had now been elevated to a quasi-felony situation. People driving by would see three patrol cars in a string behind the stopped vehicle. What was going to happen now would appear to be racially motivated, even though race had not played a part in either the stop or the escalation.

Many officers would have elected to use a quasi-felony safety procedure to extricate the occupants. In that case, guns would be drawn, and officers would use their patrol cars for cover. At least one patrol car would be moved up to sit beside the lead patrol unit.

I did not want to take the detention to that level, but being less safe could burn me if things went wrong. In departments without situational guidelines, calls of this kind are pure judgment. Discretion balances citizen comfort and dignity against officer safety.

This night, if I were making an error, it could take someone's life and end my career.

I took a chance because my gut told me it would fly. [12] I explained to the group, speaking from my position beside their driver's door, that I was still concerned the car was stolen and that we had seen one of them hide something under the seat. We thought it might be a weapon, so we were going to have them exit the car on the right side onto the sidewalk. I asked them to keep their hands in view. I told them that we were going to keep the stop as low key as possible. If they didn't do what they were told, we would escalate to gunpoint.

One by one they came to stand in a line along the sidewalk. We patted their clothing for weapons. Though we allowed them to stand casually, there could be no mistake that this group was being investigated for something that went well beyond a traffic offense.

A search under the back seat revealed what looked to be a small amount of crack cocaine. A presumptive chemical test done at the scene confirmed the identification. We found no guns, nor any links to any obvious other crimes. We took the five people into custody and transported them to the police department. There, we tried to sort out who was going to take responsibility for the drug and who would use the telephone to find the vehicle owner.

Over the succeeding days, investigation revealed that four of the five were dealing drugs in the university dormitories. These four were gang members. An owner for the car was never found. Vehicles of its untraceable type, some stolen, were increasingly used for gang business. Detectives told me that this was the first arrest for crack cocaine possession in the county. The pretext stop had uncovered the first hint of gang-based drug dealing in our jurisdiction.

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Go to: Page 2 ─ 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