Racial and other types of profiling continues to plague our nation despite the constitutional guarantee of equal treatment under the law.
In a 2011 report on racial profiling, the Leadership Conference on Civil Rights summarized a variety of evidence, from federal Bureau of Justice Statistics data on contacts with police to numerous state-wide studies of traffic stop data, showing that African Americans and Hispanics are disproportionately likely to be stopped and searched by police, even though those stops and searches do not reveal crimes or contraband in comparable measure.
Similarly, researchers analyzing New York City stop-and-frisk data in the Floyd v. City of New York case demonstrated to a federal judge that NYPD was engaged in racial profiling, based on data showing disproportionate levels of stop-and-frisk targeting of Black and Latino New Yorkers.
Civil rights groups have also documented profiling of Americans who are Arab, Muslim or South Asian in post 9/11 national security and other law enforcement investigations.
Likewise, excessive force by police persists despite the Constitution’s prohibition on unreasonable searches and seizures.
In lawsuits and investigations, the U.S. Department of Justice has concluded that a number of major police departments, including Seattle, New Orleans, Portland, Newark, Albuquerque and most recently Cleveland, have engaged in a pattern or practice of excessive force.
The DOJ has recommended, among other things, revising and clarifying written policies regarding appropriate uses of force, improving officer training and supervision, and implementing rigorous internal accountability systems.
Whatever else we have learned from the recent tragedies of police violence, it is clear that we need comprehensive federal, state, and local policies that outlaw racial and other types of profiling in order to rein in police excessive force, harassment, and other misconduct.
Profiling undermines public safety and strains police-community trust. When law enforcement officers target community members based on race, religion or national origin rather than behavior, crime-fighting is less effective, and community distrust of police grows.
A study that examined community sentiments toward the Los Angeles Police Department showed that minority communities who had been unfairly targeted in the past continue to experience greater mistrust and fear of police officers.
To root out racial profiling, we need stronger policies at the state and local levels, as well as more effective training and oversight of police officers. State-level policies vary widely. In fact, a recent September 2014 report from the NAACP titled Born Suspect found 20 out of the 50 states do not have laws that prohibit racial profiling by law enforcement.
Only 17 states require data collection on all police stops and searches, and only 15 require analysis and publication of other racial profiling data. Remedies for racial profiling incidents also vary from state to state.
Earlier this week, the U.S. Department of Justice unveiled a newly revised policy on law enforcement profiling, entitled Guidance Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation or Gender Identity, which is a useful model for state and local law enforcement agencies.
The policy distinguishes between legitimate uses of characteristics such as race, for example in a suspect description, and illegitimate uses, such as criminal stereotypes.
The policy further explains that legitimate uses of race and other characteristics are based on particularized and trustworthy information relevant to the specific investigation, rather than generalized stereotypes. The policy also provides general provisions on training, data collection and accountability.
It is a revision for which civil rights groups have been waiting for years. The expansion of the policy to include national origin, religion, gender, sexual orientation and gender identity is positive, and based on complaints and studies showing that each of these characteristics have been the bases of bias in policing.
Civil rights advocates had also sought the elimination of loopholes for national security and border enforcement, which the DOJ unfortunately did not adopt.
The DOJ policy, however, is far clearer and stronger than policies held by many states and localities. As the NAACP found, some states and localities ban the use of pretextual traffic stops, others explicitly prohibit racial profiling, and still others require mandatory data collection, but few contain all of the elements of an effective racial profiling ban.
Some states lack profiling laws altogether. Since Americans encounter local police in far greater numbers than any federal law enforcement officers, the adoption of state and local laws and policies banning profiling is critical.
While racial profiling can end in tragic police killings of unarmed individuals, such as with Eric Garner or Michael Brown, studies cited in the Leadership Conference on Civil Rights and NAACP reports along with the Floyd case show that profiling also results in unnecessary stops and searches, harassment and intimidation, and even confiscation of property without due process.
If we have learned anything from the recent tragic deaths of Garner and Brown, and the experiences of numerous other African American victims of police violence going back decades from Rodney King to Abner Louima to Amadou Diallo and Tamir Rice it is that excessive force and racial profiling are two destructive modes of police misconduct that require concerted, vigilant action to reduce and eliminate.
Now that the federal government has renewed its commitment to root out bias in federal law enforcement, state and local law enforcement agencies should follow suit.
Through the adoption of clear anti-profiling laws and policies, training of officers on the elimination of explicit and implicit bias, data collection on traffic stops and other police-community contacts, and development of internal and external accountability systems, police departments across the country can rebuild public trust and ensure that policing methods reinforce rather than undermine our democratic values.
Ranjana Natarajan is a clinical professor and director of the Civil Rights Clinic at The University of Texas School of Law.
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