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Suzanne Leone
excerpted Wrom: BIPBARHDMNNSKVFVWRKJVZCMHVIBGDADRZFSQH
Racial Profiling Head On: the Efficiency of Chapter 228 of the Acts and
Resolves of 2000 , 28 New England Journal on Criminal and Civil
Confinement 335-376, 339-342 (Summer, 2002) (270 Footnotes)
Just as the anecdotal evidence of racial profiling was accumulating
and being vocalized across the nation, the phenomenon was further
compounded by the Supreme Court's 1996 decision in Whren v. United
States to "remov[e] race from Fourth Amendment analysis." In
Whren, petitioners asked the Court for a new Fourth Amendment test to
deter pretextual traffic stops. Rather than requiring the existence of
probable cause to justify a traffic stop, petitioners argued the
standard should be "whether a police officer, acting reasonably,
would have made the stop" for the actual traffic violation asserted
by the police officer. They reasoned that, due to the vastly abundant
and minutely technical regulation of automobile usage,
total compliance with traffic and safety rules is nearly impossible,
[and, therefore,] a police officer will almost invariably be able to
catch any given motorist in a technical violation .... [This
opportunity,] creat[es] the temptation to use traffic stops as a means
of investigating other law violations, as to which no probable cause or
even articulable suspicion exists.
In Whren, probable cause was substantiated by the fact that the
police officers observed the defendant violating several technical
traffic violations of the state code. In response, the petitioner argued
that a police officer can stop any motorist for probable cause based on
a traffic violation. The police officer can choose to stop any motorist
driving in his vicinity at any given time, provided that the motorist
has committed a legitimate traffic infraction. A traffic violation can
be as simple as an equipment failure, failure to signal, or driving
above the speed limit. Petitioners argued that among the multitude of
motorists, the officer is more likely to discriminately stop a motorist
based on the race of the vehicle occupants. The Court agreed that,
"the Constitution prohibits selective enforcement of the law based
on considerations such as race." Nevertheless, the Court rejected
the Fourth Amendment argument as the protection from selective law
enforcement, and held, "[s]ubjective intentions play no role in
ordinary, probable-cause Fourth Amendment analysis." Instead, the
Court declared that when a motorist raises a selective enforcement
defense, the proper basis for that argument is the Fourteenth Amendment
Equal Protection clause. Consequently, the impact of Whren renders
anecdotal evidence of racial profiling useless because it disables a
claim that an unlawful, pretextual stop was made based on the
defendant's race. "[B]y removing the subjective motivation of the
arresting officer from the Fourth Amendment calculus, the Whren Court
effectively stripped defendants of their ability to establish that
unlawful considerations such as race played a part in the decision to
stop and arrest ...."
Unfortunately, even though the Court prescribed the Fourteenth
Amendment as a remedy, the Fourteenth Amendment argument has proven to
be nearly impossible to litigate. Not being a viable means, the Court's
prescribed remedy is rendered ineffective. This is because "[c]laims
of selective prosecution brought under the Equal Protection Clause of
the Fourteenth Amendment are hampered by the burden of proof .... To
prove such a claim, plaintiffs must show both disparate impact and
discriminatory intent." Proving disparate impact by conducting
statistical surveys and analysis is possible, albeit time consuming and
costly. But, proving discriminatory intent of the individual officer is
nearly impossible.
The Supreme Court has construed the Equal Protection Clause to permit
almost any government action that avoids explicit discrimination, unless
it can be shown to be based on outright hostility to a racial or ethnic
group. As a consequence, the Clause provides no protection against ...
unconscious bias on the part of generally well-intentioned officers.
For a claimant to prove that an officer stopped him based on his
race, the claimant would have to gather substantial evidence to prove
the officer's discriminatory intent. For example, the claimant must
produce documentation that shows the police officer was following an
established "'de facto' departmental policy of selective
enforcement against minorities." To do this, the claimant must
acquire probative evidence from reports and testimonies showing that the
officer has a record or a tendency to make stops based on race. Prior to
state and municipality policies requiring the collection of data on
traffic stops, there had been no documentation to help a claimant prove
such tendencies on behalf of the officer, leaving the claimant with
anecdotal evidence. Even "[i]n the unlikely chance that documentary
proof of racial profiling is acquired by the victim, admitted by the
court, and accepted by a judge or jury, a forceful and effective remedy
for the underlying constitutional violation simply is not in
place." "There is no Supreme Court precedent ... for relief.
Instead, the Court has declined to state just what remedy, if any, a
criminal defendant is entitled to if he establishes that he is the
victim of racial profiling." Why then should a claimant risk the
social ramifications of publicly accusing a law enforcement officer of
such derogatory behavior?
In sum, the Whren decision buttressed the broad discretion exercised
by law enforcement in making traffic stops and essentially licensed law
enforcement officers to perform traffic stops based on subjective,
discriminatory motivation. Individuals who believe they were stopped
based on their race, rather than probable cause, are left with
essentially no recourse. |
