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David A. Harris

84 Minnesota Law Review 265-326 (1999)
(Permission Requested, citations omitted)

With the Supreme Court abdicating any role for the judiciary in regulating these police practices under the Fourth Amendment, leadership must come from other directions and other institutions. What other approaches might be fruitful sources of change?

A. The Traffic Stops Statistics Act

At the beginning of the 105th Congress, Representative John Conyers of Michigan introduced House Bill 118, the Traffic Stops Statistics Act of 1997. This bill would provide for the collection of several categories of data on each traffic stop, including the race of the driver and whether and why a search was performed. The Attorney General would then summarize the data in 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 once and for all the idea that African-Americans who have been stopped for "driving while black" 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 with bipartisan support, and then was referred to the Senate Judiciary Committee. When police opposition arose, the Senate took no action and the bill died at the end of the session. Congressman Conyers reintroduced the measure in April of 1999.

The Traffic Stops Statistics Act is a very modest bill, a first step toward addressing a difficult problem. It mandated no concrete action on the problem; it did not regulate traffic stops, set standards for them, or require implementation of particular policies. It was merely an attempt to gather solid, comprehensive information, so that discussion of the problem could move ahead beyond the debate of whether or not the problem existed. Still, the bill attracted enough law enforcement opposition to kill it. But even if the Act did not pass the last Congress and subsequent bills also fail, it seems to have had at least one interesting effect: it has inspired action at the state and local level.

B. State Legislation

As important as national legislation on this issue would be, congressional action is no longer the only game in town. In fact, efforts are underway in a number of states to address the problem. For example, last year in California, Assembly Bill (A.B.) 1264, a bill patterned on Representative Conyers' federal effort, passed both houses of the state assembly. Weakening amendments were attached during the legislative process, but A.B. 1264 nevertheless represented the first state-level legislative victory on this issue. Unfortunately, then-Governor Pete Wilson vetoed the bill. A new bill was introduced in the California State Assembly in 1999. The bill passed both houses of the state legislature by large bipartisan margins, but it was vetoed by Governor Gray Davis, who then urged all California police departments to collect this data voluntarily.

This is not the only effort underway. By mid-1999, two state bills had become law: one in North Carolina and one in Connecticut. Bills have also been introduced in Arkansas, Rhode Island, Pennsylvania, Illinois, Virginia, Massachusetts, Ohio, New Jersey, Maryland, South Carolina, Oklahoma, and Florida. While all of these measures differ in their particulars, they are all variations on Representative Conyers' bill--they mandate the collection of data and analyses of these data. But it is important to remember that legislative efforts can take other approaches. There is no reason not to consider other options, such as the use of funding as either carrot or stick or both, to require the enactment of state law that mandates implementation of specific law enforcement policies, or the like.

C. Local Action

Of course, legislative action is not required for a police department to collect data and to take other steps to address the "driving while black" problem. When a department realizes that it is in its own interest to take action, it can go ahead without being ordered to do so. This is precisely what happened in San Diego, California. In February 1999, Jerome Sanders, the city's Chief of Police, announced that the department would begin to collect data on traffic stops, without any federal or state requirement. The Chief's statement showed a desire to find out whether in fact the officers in his department were engaged in enforcing traffic laws on a racially uneven basis. If so, the problem could then be addressed. If the numbers did not show this, the statistics might help to dispel perceptions to the contrary.

Thus far, San Diego, San Jose, Oakland, and Houston are the largest urban jurisdictions to do this, but they are not alone. Police in over thirty other cities in California, as well as departments in Michigan, Florida, Washington and Rhode Island, are also collecting data. Police departments, not courts, are in the best possible position to take action--by collecting data, by re-training officers, and by putting in place and enforcing policies against the racially disproportionate use of traffic stops. Taking the initiative in this fashion allows a police department to control the process to a much greater extent than it might if it is mandated from the outside. And developing regulations from inside the organization usually will result in greater compliance by those who have to follow these rules--police officers themselves. This represents a promising new approach to the problem. The police must first, of course, realize that there is a problem, and that doing something about it is in their interest.

D. Litigation

Another way to address racial profiling is to bring lawsuits under the Equal Protection Clause and federal civil rights statutes. In Whren, the U.S. Supreme Court said that under the Fourth Amendment of the U.S. Constitution courts can no longer suppress evidence in pretextual stop cases. But the Court did leave open the possibility of attacking racially-biased law enforcement activity under the Equal Protection Clause with civil suits. There are a number of such suits around the country that are either pending or recently concluded, including cases in Maryland, Florida, Indiana, and Illinois.

It is important not to underestimate the difficulty of filing a lawsuit against a police department alleging racial bias. These cases require an "attractive" plaintiff who will not make a bad impression due to prior criminal record, current criminal involvement, or the like. They also require a significant amount of resources. For this reason, organizations interested in this issue, particularly the American Civil Liberties Union, have taken the lead in bringing these cases. Last but not least, it takes a plaintiff with guts to stand up and publicly sue a police department in a racially-charged case. Most people would probably rather walk away from these experiences, no matter how difficult and humiliating, than get into a legal battle with law enforcement.

E. Search and Seizure Challenges Under State Constitutional Provisions, Case Law, and Statutes

Another possibility is the use of state constitutional provisions, cases and statutes to challenge these stops. For example, in the New Jersey case for which Lamberth conducted his study, the defendant brought his motion to dismiss under state case law that is different from Whren. New Jersey law affords more protection to its citizens than the federal Constitution does. Under New Jersey case law, a judge can grant a motion to suppress when there is evidence of racial bias, but the Fourth Amendment, as interpreted by the Supreme Court in Whren, would not allow this. A second example comes from New York. In People v Dickson, a New York state judge recently reaffirmed that New York's state constitution prohibits the use of pretextual stops, in direct contradiction to Whren. And in Whitehead v. State, the Maryland Court of Special Appeals ruled that even if the pretextual stop of the defendant met Whren's constitutional standard, the detention that followed the stop was too long, resulting in the suppression of evidence. All of these cases represent promising approaches spurred by state court hostility to pretextual traffic stops, which made these courts willing to consider creative state law-based legal theories.

Next: Conclusion