Driving While Black: Racial Profiling On Our Nation's Highways

June 7, 1999

By David A. Harris,
University of Toledo College of Law

An American Civil Liberties Union
Special Report
June 1999

 

INTRODUCTION

On a hot summer afternoon in August 1998, 37-year-old U.S. Army Sergeant First Class Rossano V. Gerald and his young son Gregory drove across the Oklahoma border into a nightmare. A career soldier and a highly decorated veteran of Desert Storm and Operation United Shield in Somalia, SFC Gerald, a black man of Panamanian descent, found that he could not travel more than 30 minutes through the state without being stopped twice: first by the Roland City Police Department, and then by the Oklahoma Highway Patrol.

During the second stop, which lasted two-and-half hours, the troopers terrorized SFC Gerald's 12-year-old son with a police dog, placed both father and son in a closed car with the air conditioning off and fans blowing hot air, and warned that the dog would attack if they attempted to escape. Halfway through the episode – perhaps realizing the extent of their lawlessness – the troopers shut off the patrol car's video evidence camera.

Perhaps, too, the officers understood the power of an image to stir people to action. SFC Gerald was only an infant in 1963 when a stunned nation watched on television as Birmingham Police Commissioner "Bull" Connor used powerful fire hoses and vicious police attack dogs against nonviolent black civil rights protesters. That incident, and Martin Luther King, Jr.'s stirring I Have a Dream speech at the historic march on Washington in August of that year, were the low and high points, respectively, of the great era of civil rights legislation: the 1964 Civil Rights Act and the 1965 Voting Rights Act.

How did it come to be, then, that 35 years later SFC Gerald found himself standing on the side of a dusty road next to a barking police dog, listening to his son weep while officers rummaged through his belongings simply because he was black?

I feel like I'm a guy who's pretty much walked the straight line and that's respecting people and everything. We just constantly get harassed. So we just feel like we can't go anywhere without being bothered... I'm not trying to bother anybody. But yet a cop pulls me over and says I'm weaving in the road. And I just came from a friend's house, no alcohol, nothing. It just makes you wonder – was it just because I'm black?"
– James, 28, advertising account executive

Rossano and Gregory Gerald were victims of discriminatory racial profiling by police. There is nothing new about this problem. Police abuse against people of color is a legacy of African American enslavement, repression, and legal inequality. Indeed, during hearings of the National Advisory Commission on Civil Disorders ("The Kerner Commission") in the fall of 1967 where more than 130 witnesses testified about the events leading up to the urban riots that had taken place in 150 cities the previous summer, one of the complaints that came up repeatedly was "the stopping of Negroes on foot or in cars without obvious basis."

Significant blame for this rampant abuse of power also can be laid at the feet of the government's "war on drugs," a fundamentally misguided crusade enthusiastically embraced by lawmakers and administrations of both parties at every level of government. From the outset, the war on drugs has in fact been a war on people and their constitutional rights, with African Americans, Latinos and other minorities bearing the brunt of the damage. It is a war that has, among other depredations, spawned racist profiles of supposed drug couriers. On our nation's highways today, police ostensibly looking for drug criminals routinely stop drivers based on the color of their skin. This practice is so common that the minority community has given it the derisive term, "driving while black or brown" – a play on the real offense of "driving while intoxicated."

One of the core principles of the Fourth Amendment is that 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. But recent Supreme Court decisions allow the police to use traffic stops as a pretext in order to "fish" for evidence. Both anecdotal and quantitative data show that nationwide, the police exercise this discretionary power primarily against African Americans and Latinos.

No person of color is safe from this treatment anywhere, regardless of their obedience to the law, their age, the type of car they drive, or their station in life. In short, skin color has become evidence of the propensity to commit crime, and police use this "evidence" against minority drivers on the road all the time.

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DRUG TRAFFICKERS ARE NOT "MOSTLY MINORITIES"

Racial profiling is based on the premise that most drug offenses are committed by minorities. The premise is factually untrue, but it has nonetheless become a self-fulfilling prophecy. Because police look for drugs primarily among African Americans and Latinos, they find a disproportionate number of them with contraband. Therefore, more minorities are arrested, prosecuted, convicted, and jailed, thus reinforcing the perception that drug trafficking is primarily a minority activity. This perception creates the profile that results in more stops of minority drivers. At the same time, white drivers receive far less police attention, many of the drug dealers and possessors among them go unapprehended, and the perception that whites commit fewer drug offenses than minorities is perpetuated. And so the cycle continues.

This vicious cycle carries with it profound personal and societal costs. It is both symptomatic and symbolic of larger problems at the intersection of race and the criminal justice system. It results in the persecution of innocent people based on their skin color. It has a corrosive effect on the legitimacy of the entire justice system. It deters people of color from cooperating with the police in criminal investigations. And in the courtroom, it causes jurors of all races and ethnicities to doubt the testimony of police officers when they serve as witnesses, making criminal cases more difficult to win.

When we make a stop, it's not based on race or gender or anything of that nature. It's based on probable cause that some law is being broken, whether it's traffic or otherwise. We have to have a reason."
– Lincoln Hampton, spokesman for the Illinois State Police (Chicago Tribune 4/4/99)

Yet despite overwhelming evidence – including the police department's own statistics on traffic stops – officials in law enforcement continue to deny the reality of racial profiling on our nation's highways. Some deny that the phenomenon of racial profiling even exists, while others declare with indignation that their officers do not stop motorists on the basis of skin color.

Still others argue without apology that making disproportionate numbers of traffic stops of African Americans and other minorities is not discrimination, but rational law enforcement. But as one officer learned, such "honesty" can be a dangerous counterpoint to official denials of profiling.

Carl Williams, New Jersey's Chief of Troopers, was dismissed in March 1999 by Governor Christine Todd Whitman soon after a news article appeared in which he defended profiling because, he said, "mostly minorities" trafficked in marijuana and cocaine. Williams' remarks received wide media attention at a time when Whitman and other state officials were already facing heightened media scrutiny over recent incidents of profiling and public anger over police mistreatment of black suspects.

Whitman and her attorney general, Peter Verniero, recouped from Williams' remarks somewhat when they issued a statistical report on April 20, 1999, acknowledging that the problem of racial profiling is, as Verniero put it, "real, not imagined." The credibility of that admission was seriously undermined, however, when Whitman told The New York Times that evidence of racial profiling is "not something [the state] had any reason to anticipate."

Surely Whitman had not forgotten that, for the past five years, her legal department had fought a court ruling that a policy of racial profiling was in operation on the New Jersey Turnpike? The court had lambasted the "utter failure by the State Police hierarchy to monitor and control... or investigate the many claims of institutional discrimination." Can it be a coincidence that only a few hours before Whitman and Verniero issued their April 20 report – and one week before the state's appeal was to be argued in court – word came suddenly that the state had dropped its appeal?

As events in New Jersey demonstrate, even when faced with a lawsuit, statistical evidence from independent experts, public pressure and intensive news coverage, officials in law enforcement and government are not eager to acknowledge the problem of racial profiling.

The ACLU believes that addressing the problem will require a multi-faceted effort. Our state affiliates and other civil rights advocates have brought lawsuits based on showings of discrimination by law enforcement agencies, but legal action is only a beginning; these cases are always difficult, long-term efforts that take considerable resources and plaintiffs of unusual fortitude. For instance, a lawsuit filed in Oklahoma earlier this month on behalf of SFC Gerald and his son may take years to resolve.

Legislation at the federal and state levels and local voluntary efforts can advance the momentum to collect accurate data on the problem and rein in overzealous – and sometimes illegal – law enforcement practices.

Fighting crime is surely a high priority. But it must be done without damaging other important values: the freedom to go about our business without unwarranted police interference and the right to be treated equally before the law, without regard to race or ethnicity. "Driving while black" assails these basic American ideals. And unless we address this problem, all of us – not just people of color – stand to lose.

THE ROAD TO "DRIVING WHILE BLACK"

The pervasiveness of racial profiling by the police in the enforcement of our nation's drug laws is the consequence of the escalating the so-called war on drugs. Drug use and drug selling are not confined to racial and ethnic minorities in the U.S.; indeed five times as many whites use drugs. But the war on drugs has, since its earliest days, targeted people of color. The fact that skin color has now become a proxy for criminality is an inevitable outcome of this process.

The latest escalation of the war on drugs was declared officially in 1982, when

It is totally unacceptable to engage in racial profiling of any kind. We're proud of the record we have. It is really shocking that our department would be singled out as some kind of test case."
– Bob Ricks, Oklahoma Department of Public Safety Commissioner

President Ronald Reagan established the Task Force on Crime in South Florida under Vice President George Bush's direction. The primary mission of the Task Force was to intensify air and sea operations against drug smuggling in the South Florida area, but it was not long before the Florida Highway Patrol entered the fray. In 1985, the Florida Department of Highway Safety and Motor Vehicles issued guidelines for the police on "The Common Characteristics of Drug Couriers." The guidelines cautioned troopers to be suspicious of rental cars, "scrupulous obedience to traffic laws," and drivers wearing "lots of gold," or who do not "fit the vehicle," and "ethnic groups associated with the drug trade." Traffic stops were initiated by the state troopers using this overtly race-based profile.

The emergence of crack in the spring of 1986 and a flood of lurid and often exaggerated press accounts of inner-city crack use ushered in a period of intense public concern about illegal drugs, and helped reinforce the impression that drug use was primarily a minority problem. Enforcement of the nation's drug laws at the street level focused more and more on poor communities of color. In the mid- to late-1980s, many cities initiated major law enforcement programs to deal with street-level drug dealing. "Operation Pressure Point" in New York was an attempt to rid the predominantly Hispanic Lower East Side of the drug trade. Operation Invincible in Memphis, Operation Clean Sweep in Chicago, Operation Hammer in Los Angeles, and the Red Dog Squad in Atlanta all targeted poor, minority, urban neighborhoods where drug dealing tended to be open and easy to detect.

The goal of these inner-city efforts was to make as many arrests as possible, and in that respect, they succeeded. Nationwide, arrests for drug possession reported by state and local police nearly doubled from 400,000 in 1981 to 762,718 in 1988. Comparable figures for arrests for drug sale and manufacture rose from 150,000 in 1981 to 287,858 in 1988. Minorities were disproportionately represented in these figures.

According to the government's own reports, 80 percent of the country's cocaine users are white, and the "typical cocaine user is a middle-class, white suburbanite." But law enforcement tactics that concentrated on the inner city drug trade were very visibly filling the jails and prisons with minority drug law offenders, feeding the misperception that most drug users and dealers were black and Latino. Thus a "drug courier profile" with unmistakable racial overtones took hold in law enforcement.

The profile, described by one court as "an informally compiled abstract of characteristics thought typical of persons carrying illicit drugs," had been used in the war on drugs for some time. The first profile was reportedly developed in the early 1970s by a Drug Enforcement Administration (DEA) Special Agent named Paul Markonni while he was assigned to surveillance duty at the Detroit Metropolitan Airport. By 1979, Markonni's drug courier profile was in use at over 20 airports. The characteristics of the Markonni profile were behavioral. Did the person appear to be nervous? Did he pay for his airline ticket in cash and in large bills? Was he going to or arriving from a destination considered a place of origin of cocaine, heroin or marijuana? Was he traveling under an alias?

In the 1980s, with the emergence of the crack market, skin color alone became a major profile component, and, to an increasing extent, black travelers in the nation's airports and found themselves the subjects of frequent interrogations and suspicionless searches by the DEA and the U.S. Customs Service. These law enforcement practices soon spread to train stations and bus terminals, as well.

Sometimes the discriminatory nature of profile stops and searches was so blatant that judges took notice. In the early 1990s, one New York City Criminal Court judge, in dismissing the charges against an African American woman who had been stopped and searched in the Port Authority Bus Terminal, wrote: "I arraign approximately one-third of the felony cases in New York County and have no recollection of any defendant in a Port Authority Police Department drug interdiction case who was not either black or Hispanic."

In 1986, a racially biased drug courier profile was introduced to the highway patrol by the DEA. That year the agency launched "Operation Pipeline," a little known highway drug interdiction program which has, to date, trained approximately 27,000 police officers in 48 participating states to use pretext stops in order to find drugs in vehicles. The techniques taught and widely encouraged by the DEA as part of Operation Pipeline have been instrumental in spreading the use of pretext stops, which are at the heart of the racial profiling debate. In fact, some of the training materials used and produced in conjunction with Pipeline and other associated programs have implicitly (if not explicitly) encouraged the targeting of minority motorists.

The consequences of these law enforcement practices and sentencing policies are painfully evident today in the demographics of our prison population. According to an April 1999 report prepared for the U.S. Commission on Civil Rights by The Sentencing Project, there are now an estimated 400,000 inmates in the U.S. either awaiting trial or serving time for a drug offense, out of a total inmate population of 1.7 million. "The combined impact of increased drug arrests along with harsher sentencing policies has led to a vast expansion of drug offenders in the nation's prisons and jails," the report explains. "As these policies have been implemented, they have increasingly affected African American and Hispanic communities. The African American proportion of drug arrests has risen from 25 percent in 1980 to 37 percent in 1995. Hispanic and African American inmates are more likely than non-Hispanic whites to be incarcerated for a drug offense."

Today, blacks constitute 13 percent of the country's drug users; 37 percent of those arrested on drug charges; 55 percent of those convicted; and 74 percent of all drug offenders sentenced to prison.

WHREN v. U.S.: THE SUPREME COURT UPHOLDS PRETEXTUAL TRAFFIC STOPS

At the same time that racial profiling by law enforcement was expanding, the Supreme Court's sensitivity to Fourth Amendment rights was contracting. The constitutionality of pretexual traffic stops – using a minor traffic infraction, real or alleged, as an excuse to stop and search a vehicle and its passengers – reached the U.S. Supreme Court in 1996 in a case called Whren v. U.S.

Let me make this crystal clear. The Maryland state police has not ever, does not ever and will not ever condone the use of race-based profiling. It's against the law, and it will not be tolerated."
– Col. B. Mitchell, Maryland State Police Chief (The New York Times, 6/5/98)

The question before the Court 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? 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." The Court did not heed our warning, however, 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. For example, traffic codes define precisely how long a driver must signal before turning, and the particular conditions under which a driver must use lights. Vehicle equipment is also highly regulated. A small light bulb must illuminate the rear license plate. Tail lights must be visible from a particular distance. Tire tread must be at a particular depth. And all equipment must be in working order at all times. If the police target a driver for a stop and search, all they 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. In Ohio v. Robinette, the Court rejected the argument that officers seeking consent to search a car must tell the driver he is free to refuse permission and leave. Maryland v. Wilson (1997) gave police the power to order passengers out of stopped cars, whether or not there is any basis to suspect they are dangerous. And in Wyoming v. Houghton, decided on April 5, 1999, the Court ruled that after the lawful arrest of the driver, the police can search the closed purse of a passenger even though she had nothing to do with the alleged traffic infraction and had done nothing to suggest involvement in criminal activity.

NATIONWIDE COVERAGE OF A NATIONWIDE PROBLEM

Media coverage of racial profiling as a phenomenon in law enforcement has been simmering slowly over the past decade; in 1998 it finally began to boil over.

In the past year, front-page stories, editorials and columns have appeared in every major national newspaper and countless local dailies. The phrase "driving while black," used with bitter familiarity for years in magazines and newspapers targeted for African Americans, can now be found in the pages of Esquire, Newsweek and TIME.

Of course, media fascination with a social problem does not necessarily make it "real," any more than lack of media coverage makes it nonexistent. But the dozens of stories in the press and on the airwaves, combined with the statistical reports, the lawsuits, and recent legislative action, make a powerful argument that "driving while black" is not just an occasional problem.

It's time for our national leaders to realize that this is not about a few "bad apples." It's about the whole tree, right down to the roots. The following stories are just a small sampling:

In Arizona, the Phoenix New Times told the story of Larrel Riggs, a 42-year-old marketing executive who was pulled over on a highway by two officers from the Scottsdale Police Department in 1997. The police demanded to see his driver's license and registration. When Riggs handed over the documents, he was told to wait in the car. Then, instead of walking back to their car in the normal way, the officers slowly backed away from Riggs, watching him, hands on their guns. "I really got a fright," said Riggs. "It's broad daylight, I'm being polite, I've given them the information, I've complied with everything they asked me to do, and still they're treating me like a criminal."

In the end, Riggs received a citation for "an illegible license plate" and they let him go. The entire process had taken about a half-hour, and Riggs was so badly shaken that he couldn't sleep that night. "I feared for my life. It was nerve-racking. They looked like they'd have pulled their guns if I'd so much as sneezed." (Source: Phoenix New Times)

In California in 1997, San Diego Chargers football player Shawn Lee was pulled over, and he and his girlfriend were handcuffed and detained by police for half an hour on the side of Interstate 15. The officer said that Lee was stopped because he was driving a vehicle that fit the description of one stolen earlier that evening. However, Lee was driving a Jeep Cherokee, a sport utility vehicle, and the reportedly stolen vehicle was a Honda sedan. (Source: San Diego Union Tribune)

In 1996, two officers in police cruisers followed George Washington and Darryl Hicks as they drove into the parking garage of the hotel where they were staying in Santa Monica. The men were ordered out of the car at gun point, handcuffed and placed in separate police cars while the officers searched their car and checked their identification. The police justified this detention because the men allegedly resembled a description of two suspects being sought for 19 armed robberies and because one of the men seemed to be "nervous." The men filed suit against the officers and the court found that neither man fit the descriptions of the robbers and that the robberies had not even occurred in the City of Santa Monica. (Source: The Los Angeles Times)

In Colorado, officials in Eagle County paid $800,000 in damages in 1995 to black and Latino motorists stopped on Interstate 70 solely because they fit a drug courier profile. The payment settled a class-action lawsuit filed by the ACLU on behalf of 402 people stopped between August 1988 and August 1990 on I-70 between Eagle and Glenwood Springs, none of whom were ticketed or arrested for drugs.

One of the plaintiffs, Jhenita Whitfield, who is black, said she and her sister, who is in the Navy, were stopped May 5, 1989, while driving through Eagle County from San Diego with four small children. She said she was told that she failed to signal properly before changing lanes. The deputy then asked to search her car. She consented. "I didn't want any hassle," she said. "I didn't feel I had a choice. The kids were hungry and one had to go to the bathroom. I figured, let's do it and get the hell out of here."

The agreement called for the case's dismissal and required that police not stop, seize or search a person "unless there is some objective reasonable suspicion that the person has done something wrong." (Source: Rocky Mountain News)

In Connecticut, the issue of DWB has arisen in several incidents. Most prominent, perhaps, was the disclosure last year of a 1993 memo by the chief of an all-white police force in Trumbull, a suburb of Bridgeport. In the memo, Chief Theodore Ambrosini advised officers of a series of armed robberies in town and urged them to take the offensive. "One form of deterrence might be to develop a sense of proclivity toward the type of persons and vehicles which are usually involved in these crimes,'' the memo said. "Not only is it our obligation to enforce the motor vehicle laws, but in doing so, we are provided with a profile of our community and those who travel within its boundaries."

One prominent victim of the Trumbull profiling was Alvin Penn, an African American Bridgeport Democrat who is deputy president in the state Senate. On Mother's Day in 1996, a Trumbull police officer stopped Penn as he drove in a van through this predominantly white, suburban town, and asked to see his license and registration. As the officer gave the license back, he asked Penn if he knew which town he was in. Bridgeport, the state's largest city where blacks and Hispanics comprise 85 percent of the population, borders Trumbull – which is 98 percent white. "I asked why I was being stopped and why I needed to be aware of which town I was in. I wanted to know what difference that made,'' Penn said, recalling how he got lost and was turning around on a dead-end street when the officer blocked his van with a patrol car. "He told me he didn't have to give a reason for stopping me and said if I made an issue of it he would give me a ticket for speeding," Penn said.

Trumbull, which is now under investigation by the Federal Bureau of Investigation and the Department of Justice, is not the only Connecticut community to experience profiling. In suburban Avon, for example, former police officers corroborated the existence of the long-rumored "Barkhamsted Express," a slang term for the routine stopping of black and Hispanic motorists traveling through town from Hartford to the Barkhamsted reservoir. Sources: The Hartford Courant and The Boston Globe

In Florida in 1997, Aaron Campbell was pulled over by Orange County sheriff's deputies while driving on the Florida Turnpike. The stop ended with him being wrestled to the ground, hit with pepper spray and arrested. It turned out that Campbell was a major in the Metro-Dade Police Department and had identified himself as such when he was pulled over for an illegal lane change and having an obscured license tag. Said Campbell, "The majority of people they are searching and humiliating are black people. That's why I was so angry. I went from being an ordinary citizen and decorated officer to a criminal in a matter of minutes." (Source: The Washington Times)

In Indiana, Sgt. David Smith, an African American police officer, was pulled over while driving an unmarked car in the City of Carmel in 1997. Sgt. Smith was in full uniform at the time, but he was not wearing a hat which would have identified him as a police officer. According to a complaint filed with the ACLU, the trooper who stopped Smith appeared to be "shocked and surprised" when Sgt. Smith got out of the car. The trooper explained that he had stopped Smith because he had three antennas on the rear of his car and quickly left the scene. (Source: The Indianapolis Star)

In Kentucky, DeJuan Wheat, a former University of Louisville basketball star, was pulled over while driving in downtown Louisville late one night in 1998. The officers, who claimed they were looking for a truck like his, made Wheat get out of his vehicle while they searched it and ran warrant checks. When a black officer recognized Wheat, tensions eased and the officers let him go. (Source: The Courier-Journal)

In Maine, the Portland Press Herald last year reported that the city's minority residents feel the pressure of police bias. In a front-page article, the newspaper told the story of Michael Stovall, a 35-year-old lawyer who passed a police officer going in the opposite direction on a city street and watched as the patrolman did a U-turn and pulled up behind him. Stovall was followed for several blocks while the officer spoke into his radio. Finally, the newspaper said, the patrolman left, leaving Stovall to wonder.

Another African American, Judith Hyman, said she was stopped by a Portland police officer while driving on a city street with her son, who is black, and his girlfriend, who is white. "The officer pulled us over to see if we had our seat belts on," Hyman said. "We all were wearing seat belts and I wasn't speeding, so, really, why were we stopped?"

The newspaper also told the story of Mutima Peter, an immigrant from Congo and pastor of the African International Church, who said he was once questioned by an officer after parking his car. "When I got out, an officer asked me for my driving license and asked me who is the person I know in Portland," Mutima said. "I told him I know [Police Chief Michael] Chitwood and he said 'OK' and left. People said I should speak out, but this is a general thing for many people." (Source: The Portland Press Herald)

"I was like, 'Why are you guys handcuffing me about some tickets?' They had me standing outside with all these people passing by. It was so humiliating. I figured if I said anything, if I moved, that would just give them permission to beat me. And I did not want that to happen because I have a little boy."
– Karen, early thirties, licensed social worker

In Maryland, in 1997, Charles and Etta Carter, an elderly African American couple from Pennsylvania, were stopped by Maryland State Police on their 40th wedding anniversary. The troopers searched their car and brought in drug-sniffing dogs. During the course of the search, their daughter's wedding dress was tossed onto one of the police cars and, as trucks passed on I-95, it was blown to the ground. Mrs. Carter was not allowed to use the restroom during the search because police officers feared that she would flee. Their belongings were strewn along the highway, trampled and urinated on by the dogs. No drugs were found and no ticket was issued. The Carters eventually reached a settlement with the Maryland State Police. (Source: The Daily Record)

In 1998, Nelson Walker, a young Liberian man attending college in North Carolina, was driving along I-95 in Maryland when he was pulled over by state police who said he wasn't wearing a seatbelt. The officers detained him and his two passengers for two hours as they searched for illegal drugs, weapons, or other contraband. Finding nothing in the car, they proceeded to dismantle the car and removed part of a door panel, a seat panel and part of the sunroof. The officers found nothing and in the end handed Walker a screwdriver, saying, "You're going to need this," as they left the scene. (Source: The Raleigh News-Observer)

Gary D. Rodwell repeatedly refused to consent to a search of his vehicle when he was stopped for three hours on I-95 in 1998. He said that the officer threatened to arrest him and called in a canine unit to search the vehicle. When no drugs were found, the officer accused Rodwell of lying, took his keys and called a tow truck to impound the Pontiac Bonneville Rodwell was driving. Rodwell had to pay the tow truck driver to get his car back. He is now a part of a lawsuit brought by the ACLU of Maryland. (Source: The Baltimore Sun)

In Massachusetts, speaker after speaker, including black doctors and lawyers, testified before a legislative committee in April 1999 about being stopped by police officers, apparently because of the color of their skin. The speakers were supporting a bill that would require the state to collect traffic stop statistics to see if blacks were being stopped inordinately. "This is not a new thing for anyone that is black in this city," said Ajibola Osinubi, 44, a native of Nigeria who heads his own advertising and public relations firm in Boston. (Source: Associated Press)

Yawu Miller, a black reporter with the Bay State Banner, decided to find out how long two black men could drive at night in Brookline, a predominantly white community, before being pulled over by the police. It happened almost immediately. Three cruisers with flashing blue lights appeared in Miller's rear view mirror. One cruiser drew up along side Miller's car and asked, "Are you lost?" When Miller replied in the negative, the officer said, "You're from Roxbury. Any reason why you're driving around in circles?" (Source: Bay State Banner)

In Michigan last year invited officials African Americans and other minorities to air their grievances about police mistreatment at an all-day forum. Among those telling their stories was Alicia Smith of Oak Park, a 19-year-old African American who was driving to a movie with friends in her hometown when two white officers stopped her without explanation and asked where she was going. "There was no probable cause," said Smith, who wasn't ticketed. "It was just harassment."

Another African American woman told of her husband's experience of being stopped and warned about a "tilted license plate." Paul Worthy, a 59-year-old retiree, said he was stopped – and released without a ticket – by white officers in Detroit while driving a Cadillac. "I'm no criminal," Worthy told the Detroit News. "I worked at GM as a skilled tradesman for $25 an hour. I worked everyday just like that police officer did." (Source: The Detroit News)

In Nebraska, the Omaha Human Relations Board released a series of recommendations last year for improving relations between police and minority communities. Among the recommendations, the Omaha World-Herald reported, were that the Mayor's Office and City Council address complaints that police target minorities for traffic stops and subject them to other forms of harassment. Ron Estes, an African American firefighter, told of visiting a model home in a west Omaha subdivision. Although the homes were closed, Estes told the Human Relations Board that he spoke to a resident of the subdivision for about 30 minutes while sitting in his Chevrolet Blazer. A few days later, he stopped by his fire station to pick up his gear when he overheard an Omaha police officer asking other firefighters questions about his truck, which had a personalized license plate that read BSICBLK. Estes said he later learned that the subdivision resident he had talked with was a police officer who reported his visit as suspicious. Shortly thereafter, Estes bought a new personalized license plate. It reads SUSPECT. "That just lets you know how they look at us, as a threat, as a suspect, without even really knowing us," Estes said of some white police officers. (Source: The Detroit News)

In New Jersey in 1998, four young men – three African Americans and one Hispanic – en route to a basketball clinic in North Carolina were shot on the New Jersey Turnpike after their van was stopped for speeding and suspected drug trafficking. The men contend that they were not speeding, but were stopped because of their race. The two officers involved in the Turnpike shooting was subsequently indicted for falsely listing black motorists as white in their reports. (Source: Emerge Magazine)

In New York, Collie Brown was driving from Albany to Bethlehem with his young daughter asleep in the car in 1997 when he noticed that his headlights were dimming. He stopped the car and got out to see what was causing the problem. A Bethlehem police car pulled up behind him with its lights flashing, and the officer asked if he needed any help. When Brown replied that he did not need any assistance, the officer told him to get behind the car and proceeded to handcuff him. The officer informed Brown that the car had been reported as stolen, which was true. Brown had reported the car stolen many months earlier after it had been hot-wired in front of his home in Albany. The Albany police had recovered the car a week after it was reported stolen. At no point was Brown ever asked for his registration or driver's license prior to being handcuffed. The officer eventually retrieved Brown's wallet from the car and discovered that the car did belong to him, and Brown was released. (Source: The Albany Times Union)

In North Carolina, which recently became the first state in the nation to adopt legislation to help quantify the DWB problem, an analysis by the Raleigh News and Observer found that a highway drug unit ticketed black men at nearly twice the rate of other police units. In most cases, the newspaper reported, the drivers were charged with minor traffic violations and no drugs were found.

The story of Robert Gardner was typical. In 1995, Gardner was stopped while driving a 1990 Lexus on I-85. A laboratory technician at North Bronx Hospital in New York, Gardner was driving with his cousin to visit family in South Carolina when he was pulled over for speeding. The officer asked him to sit in the patrol car and peppered him with questions: Where are you going? What is your job? When are you going back? Then the officer went to Gardner's car and asked the same questions of his cousin, Sharon. He then got permission from Gardner to search his car.

"I thought he was just going to look in my glove compartment and trunk," Gardner said. But, he said, the officer opened the alarm system and compact disc player. He removed door panels, molding and seats. He let air out of the tires and rapped on them. Then he deflated the spare and bounced it on the road. He found nothing. Gardner told the newspaper that he left the scene with a $25 seat-belt ticket, an annoying vibration in his Lexus and the belief that he had been treated unfairly. "He claimed I was speeding, but never gave me a speeding ticket," Gardner said. "I think they stopped me because I'm black." (Source: Raleigh News-Observer)

In Pennsylvania, Jonny Gammage was pulled over while driving his cousin's Jaguar at 2 A.M. in 1996. As Gammage pulled over, a total of five Brentwood police cars arrived on the scene. One of the officers said that Gammage ran three red lights before stopping after the officer flashed his lights at him. The officer ordered Gammage out of the car and saw him grab something that was reportedly a weapon, but in reality was just a cellular phone. The officer knocked the phone out of Gammage's hand and a scuffle followed. The other officers beat Gammage with a flashlight, a collapsible baton and a blackjack as one put his foot on Gammage's neck. Jonny Gammage died, handcuffed, ankles bound, facedown on the pavement shortly after the incident began. He was unarmed. (Source: People Magazine)

In Rhode Island, the Providence Journal-Bulletin reported last year that as far back as 1990, the Rhode Island ACLU has been investigating complaints from Hispanics that they were being unfairly targeted on I-95. At the time, U.S. attorney Lincoln Almond (now Governor of Rhode Island) claimed that Hispanics were dominating the cocaine and heroin trades in the United States and were defendants in more than 90 percent of drug cases.

A bill to explore whether minorities are targeted by police failed last year in the state legislature, but has been reintroduced. While the state police oppose the measure, saying it is a waste of their time, the Rhode Island ACLU and the Urban League of Rhode Island are aggressively lobbying for its passage. (Source: Providence Journal-Bulletin)

In Oregon, leaders of the State Police, along with 23 Portland-area police departments and police unions, recently signed a resolution taking a strong stand against race-based profiling. Portland Police Chief Charles Moose said the resolution was intended to reassure citizens that race-based policing would not be allowed.

Another chief, Ron Louie, told the Portland Oregonian that in his 25 years as a police officer, he's seen the hurt and resentment in the faces of minority motorists who feel they've been stopped because of their race. And as a Chinese American, he told the newspaper, he understands those feelings. "I know what it was like to be with a carload of kids in San Francisco," he said, "and get yanked over by police officers because we all had black hair."

LeRon Howland, the Oregon State Police Superintendent, said that the resolution means that "if you have a police officer out there who uses his badge for racially motivated conduct, it will not be tolerated by police agencies or the leadership of the unions." (Source: The Portland Oregonian)

In Oklahoma, the ACLU filed a lawsuit last month on behalf of Sgt. First Class Rossano V. Gerald, 37, and his son Gregory, 13, claiming violations of federal civil rights law and of their constitutional rights to equal treatment and to be free from unreasonable searches and seizures. SFC Gerald, whose story is chronicled in the opening pages of this report, said he is bringing the lawsuit to assure his son that authority figures who abuse their power are brought to justice. "I'm an authority figure myself," said SFC Gerald, a career Army officer who received a Bronze Star for his outstanding performance in Desert Storm. "I don't want my son thinking for one minute that this kind of behavior by anyone in uniform is acceptable."

In South Carolina, La-Prell and Tammie Drumming were driving down a street in January 1999, when they noticed a vehicle closing in on their bumper. Moments later, a man with a baton was smashing 26-year-old La-Prell's car window and dousing her with pepper spray. "I absolutely feared for my life," said La-Prell, saying she suffered a concussion after being hit by the officer's baton three times. "You expect this kind of thing in Atlanta, but not in a small, quiet town like Aiken." The police officer, who was off-duty at the time of the incident, was fired by the Aiken Public Safety Department after the incident. (Source: The Augusta Chronicle)

In Tennessee, at a May 1999 meeting with the Nashville Human Relations Commission, Mansfield Douglas, a Metro councilman, reported that two months earlier he had been pulled over by a police officer in the very district he represents. "He told me there were a lot of people in this area driving without valid licenses and he wanted to make sure mine was valid," Douglas said. "There was no reason at all for him to have done that anyway. It really gives you a sense of outrage, but it can be stopped."

In Texas, a 1995 analysis of more than 16 million driving records by the Houston Chronicle found that minority drivers who strayed into the small white enclaves in and around the state's major urban areas were twice as likely as whites to be ticketed for traffic violations. The study found that Hispanics were ticketed most often, though blacks overall faced the sharpest disparities, particularly in the suburbs around Houston where they were more than three times as likely as whites to receive citations. Bellaire, a mostly white city surrounded by southwest Houston, had the widest disparity in ticketing minorities of any city statewide, with blacks 43 times more likely than whites to receive citations there. (Source: The Houston Chronicle)

In Wisconsin, a hearing in Madison in 1996 on the issue of racially biased traffic enforcement turned into an emotional outpouring, as African American residents shared accounts of harsh experiences with the Madison police. "It's a lot deeper than a ticket," Semell Williams told members of the city's Equal Opportunities Commission. Williams said that the previous summer he had been followed from the Darbo neighborhood by a convoy of police cars that grew to 11 by the time he was pulled over. Before the crowd that had gathered to watch, he was forced to lay face-down in the street as officers trained their guns at him. "Do you know how belittling that was?" asked Williams. "And to have 11 guns drawn on you for traveling through the city – I could have been dead." Although the police eventually gave him permission to leave, they offered no explanation or apology, nor was any citation issued. (Source: Capital Times (Madison, WI))

THE DATA ARE IRREFUTABLE

To date, the ACLU has filed lawsuits challenging the police practice of racial profiling in eight states. The statistical evidence collected in the course of this litigation shows a clear pattern of racially discriminatory traffic stops and searches. In some instances, the law enforcement agency sued has denied the ACLU's allegations and has vigorously defended the lawsuit. But the numbers tell a different story. A detailed description of the data from three of the lawsuits is described below.

Chavez v. Illinois State Police

This class action lawsuit was originally filed in federal court in 1994 after the ACLU of Illinois received hundreds of complaints from black and Hispanic motorists who believed that the Illinois State Police were singling them out for highway drug searches. The case is still in litigation, and in April 1999, the ACLU submitted to the court several analyses completed by a team of statistical experts who analyzed databases maintained by the Illinois State Police. The experts concluded that state troopers, especially those assigned to a drug interdiction program called "Operation Valkyrie," singled out Hispanic motorists for enforcement of the traffic code1:

  • While Hispanics comprise less than eight percent of the Illinois population, and take fewer than three percent of the personal vehicle trips in Illinois, they comprise approximately 30 percent of the motorists stopped by ISP drug interdiction officers for discretionary offenses such as failure to signal a lane change or driving one to four miles over the speed limit. For example, in ISP District 13, which covers seven counties southeast of St. Louis, Hispanics comprise less than one percent of the local driving-age population, yet they represent 29 percent of all people stopped by these officers for speeding less than five miles above the speed limit.
  • Troopers assigned to Valkyrie teams stop Hispanic motorists for traffic violations two or three times more frequently than other ISP troopers patrolling the same highways and charged with enforcing the same laws. This problem is particularly severe in the case of discretionary offenses such as failure to signal. One example is warnings for improper lane use in ISP District 17, where Hispanics comprise less than three percent of the local driving-age population. Hispanics make up 25 percent of the persons stopped by Valkyrie officers for the offense, while the rate for non-Valkyrie officers is only eight percent.

When it comes to searches of vehicles, the state's data did reflect the races of those searched. Analysis of the data reveals that the state troopers single out Hispanic and African Americans motorists for searches of their vehicles:

  • While Hispanics comprise less than eight percent of the Illinois population, and take fewer than three percent of the personal vehicle trips in Illinois, they comprise 27 percent of the searches conducted by Valkyrie officers. This problem is severe in many ISP districts. For example, in District 11, the area surrounding East St. Louis where Hispanics comprise less than one percent of the local driving-age population, they comprise 41 percent of the searches.
  • While African Americans comprise less than 15 percent of the Illinois population and take approximately 10 percent of the personal vehicle trips in Illinois, they comprise 23 percent of the searches conducted by Valkyrie officers. In District 4, where African-Americans comprise 24 percent of the local driving-age population, but are the targets of 63 percent of the searches.
  • While troopers ask a higher percentage of Hispanic motorists than white motorists for consent to search their vehicles, they find contraband in a lower percentage of the vehicles of Hispanic motorists. This demonstrates that searches are based on race, not results.
Minorities Stopped on Illinois Highways Based on field reports filed from 1987-1997

  African Americans
Percentage of:
Hispanics
Percentage of:
District
Includes drug interdiction unit
Area Motorists Area Motorists stopped by drug unit Area Motorists Area Motorists stopped by drug unit
4 23.8% 61.4% 11.8% 8.0%
5 8.4% 27.5% 4.7% 17.4%
6 4.1% 23.6% 4.2% 17.4%
7 5.3% 14.10% 3.6% 11.3%
9 1.2% 24.7% .06% 22.6%
10 6.6% 30.9% 1.1% 15.3%
11 13.6% 23.3% 1.1% 28.4%
12 1.2% 12.5% 0.4% 34.1%
13 4.5% 18.9% 0.8% 23.8%
17 0.8% 11.4% 2.4% 39.15%
18 1.0% 14.0% 0.4% 13.3%

(Source: American Civil Liberties Union)

 

NAACP v. City of Philadelphia

In the early 1990's, the U.S. Justice Department began an investigation into the systematic abuse perpetrated by a number of white police officers in the 39th Police District of Philadelphia based on evidence that these officers were planting drugs on African Americans, assaulting them during arrest, and wrongfully obtaining their prosecution and conviction. Ultimately, six officers were tried, convicted and incarcerated for their criminal activities.

The ACLU of Pennsylvania believed that the problem in Philadelphia was considerably larger than the actions of six police officers, and that racial bias in law enforcement was rampant. Under threat of ACLU litigation, the city entered into negotiations which, for the first time in the country, required a detailed racial analysis of police data. A case filed in federal court resulted in a settlement which required the city to record information about all vehicle stops, including the reason for the stop, any police action taken, and the race of the driver stopped.

In July 1998, the ACLU issued its Fourth Monitoring Report: Pedestrian and Car Stop Audit. The report was based on data derived from all incident reports of car stops initiated by the Philadelphia police in four specific police districts during the week of October 6, 1997, and by the officers of the Narcotics Unit during the month of August, 1997.

The police districts chosen for analysis encompassed communities that are relatively integrated. The incident reports disclosed that where a reason is given for a car stop, in virtually all cases the precipitating event was an alleged traffic violation.

According to the 1995 census, Philadelphia's population is 42.2 percent African American, 54.1 percent Caucasian, and 19.6 percent Latino. The minority population that operates motor vehicles in Philadelphia is highly unlikely to be any greater than these numbers, and in all likelihood is less. The Philadelphia suburbs are predominantly white and many suburban drivers come into the city on a daily basis. Notwithstanding this and other possible factors, the ACLU assumed that driving patterns were consistent with population (by race).

Since there is no study or data that supports the view that racial minorities violate traffic laws in any greater number than whites, one would expect that traffic stops in Philadelphia would be largely consistent with the census race data, and that no more than 40-45 percent of the stops would be of African Americans and roughly no more than 60 percent of all minorities.

The data, however, reflect stops of minority drivers at a highly significant disparate rate. For the week of March 7, 1997, of the 516 incident reports which were generated pursuant to police car stops, 262 contain racial and/or ethnic data about the individual(s). Of these 262 stops, 85.9 percent were of minorities as shown below:

All Car Stops With Known Race of Suspect for the Week of March 7, 1997

Asian Afr. Am. Latino White Total
11 207 7 37 262
4.2% 79.0% 2.7% 14.1% 100.0%



With slightly twice as much data to work with for the week of October 6, 1997 (as a result of requesting incident reports from an additional district), of the 1,083 car stops, race was recorded for 524 instances. Of these 524 stops, 71.1 percent were of minorities as shown below:

All Car Stops with Known Race of Suspect for the Week of October 6, 1997

Asian Afr. Am. Latino White Total
14 233 125 152 524
2.7% 44.5% 23.9% 29.0% 100.0%

 

Wilkins v. Maryland State Police

In 1993, the ACLU brought a class-action lawsuit against the Maryland State Police (MSP) on behalf of Robert L. Wilkins, an African American attorney who was stopped, detained and searched by the MSP for no apparent reason. A court decree was entered in settlement of the lawsuit which included a requirement that the state maintain computer records of motorist searches so as to permit monitoring for any patterns of discrimination.

In November 1996, the ACLU of Maryland asked the court to hold the MSP agency in contempt of court on the grounds that the state police were violating the earlier court decree by continuing a pattern of race discrimination in drug interdiction activities carried out along the I-95 corridor. With the assistance of Dr. John Lamberth, a Temple University Professor of Psychology with extensive expertise in statistics, the ACLU presented the following analysis of its traffic survey to the court:

A. Traffic Survey Results

Five thousand, seven hundred and forty one cars were observed in a "rolling survey" designed to identify the race of the driver over the course of approximately 42 hours2. In the vast majority of cases, 96.8 percent, it was possible to identify the race of the driver of the vehicle. Nine hundred and seventy three, or 16.9 percent of the cars, had black drivers. Four thousand three hundred and forty one, or 75.6 percent of the cars, had white drivers. The great majority of drivers – 5,354 of 5,741, or 93.3 percent – were violating traffic laws and thus were eligible to be stopped by State Police. Of the violators, 17.5 percent were black, and 74.7 percent were white. Overall results of the traffic survey and the count of violators are shown in Table 1.



Table 1: Drivers and Traffic Law Violators by Race from I-95 Corridor Study

  White Black Other Unknown All Minority
Number of
Drivers Observed
4,314 973 241 186 1,214
Number of
Violators Observed
4,000 938 232 184 1,170
Percent of Drivers
(by race)
75.6% 16.9% 4.3% 3.2% 21.1%
Percent of Violators
(by race)
74.4% 17.5% 4.4% 3.4% 21.8%



B. Record of Searches by the MSP

Between January 1995 and September 1996, the Maryland State Police reported searching 823 motorists on I-95, north of Baltimore. Of these, 600, or 72.9 percent, were black. Six hundred and sixty-one, or 80.3 percent, were black, Hispanic, or other racial minorities. Only 19.7 percent of those searched in this corridor were white. Most of the I-95 searches – 646, or 85.4 percent – were conducted by 13 troopers. Search breakdowns for those troopers are listed in Table 2.



Table 2: Individual Troopers Who Made 10 or More Searches Along the I-95 Corridor and the Numbers and Percent of Blacks and Minorities Searched

Trooper Name Total Number Searched Blacks Seached Total Minorities Searched Percent Blacks Searched Percent Minorities Searched
John E. Appleby 68 51 58 75.0% 85.3%
Melvin Fialkewicz 12 12 12 100% 100%
John R. Greene 30 23 27 76.7% 90.0%
Steven L. Hohner 65 53 55 81.5% 84.6%
David Hopp 37 8 11 21.6% 39.7%
David B. Hughes 150 125 131 83.3% 87.3%
Michael T. Hughes 70 57 59 81.4% 84.3%
Steven O. Jones 32 19 26 59.4% 81.3%
James Nolan 54 45 47 83.3% 87.0%
Paul J. Quill 70 41 52 58.6% 74.3%
Christopher Tideberg 26 23 23 88.5% 88.5%
Ernest S. Tullis 40 39 39 97.5% 97.5%
John Wilhelm 46 15 26 32.6% 56.5%



Based on his analysis of the data, Professor Lamberth concluded:

"The evidence examined in this study reveals dramatic and highly statistically significant disparities between the percentage of black Interstate 95 motorists legitimately subject to stop by Maryland State Police and the percentage of black motorists detained and searched by MSP troopers on this roadway. While no one can know the motivations of each individual trooper in conducting a traffic stop, the statistics presented herein, representing a broad and detailed sample of highly appropriate data, show without question a racially discriminatory impact on blacks and other minority motorists from state police behavior along I-95."

THE PERSONAL AND SOCIETAL COSTS

"When I see cops today, I don't feel like I'm protected. I'm thinking, 'Oh shoot, are they gonna pull me over, are they gonna stop me?' That's my reaction. I do not feel safe around cops."

– Emmanuel, early 30's, financial services executive

Race-based traffic stops turn one of the most ordinary and quintessentially American activities into an experience fraught with danger and risk for people of color. Because traffic stops can happen anywhere and anytime, millions of African Americans and Latinos alter their driving habits in ways that would never occur to most white Americans. Some completely avoid places like all-white suburbs, where they fear police harassment for looking "out of place." Some intentionally drive only bland cars or change the way they dress. Others who drive long distances even factor in extra time for the traffic stops that seem inevitable.

Perhaps the personal cost exacted by racially-biased traffic stops is clearest in the instructions given by minority parents to their children on how to behave if they are stopped by police, regardless of economic background or geographic region. African American parents know that traffic stops can lead to physical, even deadly, confrontations. Karen, a social worker, says that when her young son begins to drive, she knows what she'll tell him:

"The police are supposed to be there to protect and to serve, but you being black and being male, you've got two strikes against you. Keep your hands on the steering wheel, and do not run, because they will shoot you in your back. Let them do whatever they want to do. I know it's humiliating, but let them do whatever they want to do to make sure you get out of that situation alive. Deal with your emotions later. Your emotions are going to come second – or last."

Christopher Darden, the African American prosecutor in the O.J. Simpson case,

Each one of those stops had nothing to do with breaking the law. It's like somebody pulls your pants down around your ankles. You're standing there nude, but you've got to act like there's nothing happening. The worst thing you can do in a situation like that is to become emotionally engaged, because if you do something, maybe they're going to do something else to you. It doesn't make a difference who you are. You're never beyond this, because of the color of your skin."
– Michael, 41, chief executive of municipal agency

says that to survive traffic stops, he "learned the rules of the game years before... Don't move. Don't turn around. Don't give some rookie an excuse to shoot you." The perspective of Mr. Darden – who spent 14 years working closely with police to prosecute accused criminals – is not unique. And for people of color, it continues to be reinforced by far too many real-life experiences.

Widespread DWB practices deeply undermine the legitimacy – and, therefore, the effectiveness – of the criminal justice system. Pretextual traffic stops fuel the belief that the police are not only unfair and biased, but untruthful as well. Each pretextual traffic stop involves an untruth, and both the officer and the driver recognize this. The alleged traffic infraction is not the real reason that the officer has stopped the driver. This becomes obvious when the officer asks the driver whether he or she is carrying drugs or guns and seeks consent to search the car. If the stop was really about enforcement of the traffic code, there would be no need for a search. Stopping a driver for a traffic offense when the officer's real purpose is drug interdiction is a lie – a legally sanctioned one, to be sure, but a lie nonetheless.

What happens when law enforcement embraces a tactic that is based on the systematic and transparent deception of overwhelmingly innocent people? And, what happens when that tactic is employed primarily against people of color? It should surprise no one that those who are the victims of police discrimination regard the testimony and statements of police with suspicion. If jurors don't believe truthful police testimony, crimes are left unpunished, law enforcement becomes much less effective, and the very people who need the police most are left less protected.

Pretext stops capture some who are guilty but at an unacceptably high societal cost. The practice undermines public confidence in law enforcement, erodes the legitimacy of the criminal justice system, and makes police work that much more difficult and dangerous.

PUTTING AN END TO RACIAL PROFILING

Although this decades-old problem cannot be solved overnight, it is time to launch an all-out frontal assault on DWB. The ACLU calls on the U.S. Justice Department, law enforcement officials and state and federal legislators to join us in a comprehensive, five-part battle plan against the scourge of racial profiling.

FIRST: End the use of pretext stops

Virtually all of the thousands of complaints received by the ACLU about DWB – and every recent case and scandal in this area – seem to involve the use of traffic stops for non-traffic purposes, usually drug interdiction. Although the U.S. Supreme Court failed to declare searches subsequent to a pretextual stop unconstitutional, that does not mean that such a tactic is wise or effective from a law enforcement perspective.

It is time for law enforcement professionals to use their own best professional judgment in scrutinizing the wisdom of the pretextual stop tactic. All the evidence to date suggests that using traffic laws for non-traffic purposes has been a disaster for people of color and has deeply eroded public confidence in law enforcement. Using minor traffic violations to find drugs on the highways is like asking officers to find needles in a haystack. In 1997 California Highway Patrol canine units stopped nearly 34,000 vehicles. Only two percent of them were carrying drugs. Law enforcement decisions based on hunches rather than evidence are going to suffer from racial stereotyping, whether conscious or unconscious.

SECOND: Pass the Traffic Stops Statistics Study Act

At the beginning of the 105th Congress, Rep. John Conyers (D-MI) introduced H.R. 118, the Traffic Stops Statistics Act, requiring the collection of several

Do you know how belittling that was? And to have 11 guns drawn on you for traveling through the city – I could've been dead."
– Semell, 25, salesman

categories of data on each traffic stop, including the race of the driver and whether a search was performed. The Attorney General would then conduct a study analyzing the data. This would be the first nationwide, statistically rigorous study of these practices. The idea behind the bill was that if the study confirmed what people of color have experienced for years, it would put to rest the idea that African Americans and other people of color are exaggerating isolated anecdotes into a social problem. Congress and other bodies might then begin to take concrete steps to channel police discretion more appropriately.

The Act passed the House of Representatives in March of 1998 by a unanimous vote and was then referred to the Senate Judiciary Committee, but the Committee never voted on the measure or held any hearings.

In April 1999, Congressman Conyers reintroduced the Traffic Stops Statistics Study Act (HR 1443), sponsored in the Senate (S.821) by Frank Lautenberg (D-NJ) and Russell Feingold (D-WI). Passage of the Act should be viewed as a first step toward addressing a difficult problem. While it does not regulate traffic stops, set standards for them, or require implementation of particular policies, it does require the gathering of solid, comprehensive information, so that discussion of the problem might move beyond the question of whether or not the problem exists, to the question of how to fix the problem.

THIRD: Pass Legislation on Traffic Stops in Every State

Even if the Traffic Stop Statistics Study Act does not become federal law, it has already inspired action at the state and local level. The ACLU calls upon legislators in every state to pass laws that will allow the practice of traffic enforcement to be statistically monitored on an ongoing basis.

In North Carolina, a bill requiring data collection on all traffic stops was passed by overwhelming majorities in both houses of the state legislature and signed into law by the governor on April 21, 1999. This became the first law anywhere in the nation to require the kind of effort that will yield a full, detailed statistical portrait of the use of traffic stops.

Similar bills have been introduced in Pennsylvania, Illinois, Virginia, Massachusetts, New Jersey, Maryland, Arkansas, Texas, Connecticut, Rhode Island, Florida, and California. Efforts are under way in a number of other states to have bills introduced this year.

FOURTH: The Justice Department Must Take Steps to Ensure that Racial Profiling is Not Used in Federally Funded Drug Interdiction Programs

The U.S. Department of Justice has a moral and legal responsibility to ensure

I'd be having lawsuits ad nauseam at me... If we're the 'good ol' boys,' some people make us out to be... they should look at the statistics."
– Col. David B. Mitchell, Maryland State Police Superintendent (The Washington Post 5/5/98)

that Operation Pipeline, and every other federally funded crime fighting program, is not encouraging or perpetuating racially biased law enforcement. Drug interdiction goals – important as they may be – do not outweigh the government's obligation to root out racially discriminatory law enforcement practices. Attorney General Reno has stated it is "very important to pursue legislation" on data collection. But to date, the Justice Department has not taken a position on the pending federal bills. The Justice Department should actively support the passage of the federal Traffic Stops Statistics Study Act and take the following additional steps:

  • Restrict future federal funding for Operation Pipeline and other highway drug interdiction programs to local, state and federal agencies that agree to collect and report comprehensive race data on who they stop and who they search.
  • Conduct a systematic and independent review of Operation Pipeline and all other drug interdiction training programs supported directly or indirectly with any federal funding, to root out any implicit or explicit racial references that encourage improper profiling.
  • Restrict future federal funding for Operation Pipeline and other highway drug interdiction programs to agencies that agree to implement a series of preventive measures, such as an early warning system that tracks officer behavior and identifies officers who engage in discriminatory practices, a ban on extending the length of a non-consensual traffic stop in order to have drug-sniffing dogs brought to the scene, and the use of written "consent to search" forms that inform drivers of their right to refuse consent to a search.

FIFTH: The 50 Largest U.S. Cities Should Voluntarily Collect Traffic Stop Data

Jerry Sanders, San Diego's Chief of Police, announced in February of this year that his department would begin to collect race data on traffic stops without any federal or state requirement or any threat of litigation. In March, Chief William Lansdowne of the San Jose Police Department announced that his department would follow suit, and in April, Portland Police Chief Charles Moose spearheaded an anti-profiling resolution signed by 23 Oregon police agencies – including the State Police – that included a commitment to gather traffic stop data.

These efforts should be replicated in all 50 of the largest cities in the U.S.

CONCLUSION

In April of this year, the ACLU of Northern California established a statewide toll-free hotline for victims of discriminatory traffic stops. The hotline number has been publicized on billboards and through a 60-second radio spot. In the first forty-eight hours, the hotline received 200 calls. As of this writing, the count stands at over 1,400.

In mid-May, the national ACLU set up a nationwide DWB hotline – 1-877-6-PROFILE. Although the number is just beginning to be publicized through an ad in Emerge magazine and the airing of a radio public service announcement, the calls have started to pour in.

Although some police officials are still in denial, we have presented strong and compelling evidence, of both an anecdotal and statistical nature, that racial profiling on our nation's roads and highways is indeed a nationwide problem. As such, it demands a nationwide solution.

The ACLU will continue to monitor incidents of racial profiling closely and will, where appropriate, bring new cases to court. But elected and police officials would be wise to act sooner rather than later. The steps towards a solution are clear:

  1. End the use of pretext stops as a crime-fighting tactic;
  2. Pass the Traffic Stops Statistics Study Act;
  3. Pass remedial legislation in every state;
  4. Ban racial profiling in all federally funded drug interdiction programs;
  5. Collect city-by-city traffic stop data on a voluntary basis.

 

ENDNOTES

  1. Because the races of those stopped were not recorded by the Illinois State Police, this analysis was performed by calculating the incidence of Hispanic surnames among those who were stopped. This data cannot be analyzed for African Americans since they do not comprise a cohesive set of surnames.
  2. Observers rode in cars at a constant 55 or 65 miles per hour (depending upon the posted speed limit) northbound from exit 67 of I-95 to the last exit in Maryland, exit 109. They were instructed to count the cars they passed (i.e., non-speeders) and classify them as non-violators, unless they were violating some other traffic law. They were also to classify each car as to the race of its driver.

 

Credits

This report has been prepared by the American Civil Liberties Union, a nationwide, nonpartisan organization of 275,000 members dedicated to preserving and defending the principles set forth in the Bill of Rights.

Driving While Black: Racial Profiling on our Nation's Highways was written by David Harris, Professor of Law at the University of Toledo College of Law. Professor Harris has authored numerous scholarly articles on the subjects of racial profiling and search and seizure. He is currently working with Members of Congress and state legislators throughout the country on solutions to the problem of "driving while black."

Additional reporting was provided by John Crew, Director of the Police Practices Project of the ACLU of Northern California; Phil Gutis, Director of Legislative Communications for the ACLU Washington National Office; Loren Siegel, Director of Public Education for the ACLU; and Emily Whitfield, Media Relations Director for the ACLU.

Prepared by the Department of Public Education, Loren Siegel, Director; Rozella Floranz Kennedy, Editorial and Marketing Manager; Sara Glover, Graphic Designer.

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