The Fourteenth Amendment: Equal ProtectionUnder the Fourteenth Amendment, “[n]o state shall ...deny to any person within its jurisdictionthe equal protection of the laws.”23In the wake of theWhrendecision, racialprofiling may besusceptible to two different kinds of equal protection challenges. First, claimants may argue thatthe conduct of an individual officer was racially motivated—that the officer stopped the suspectbecause of race. “If law enforcement adopts a policy, employs a practice, or in a given situationtakes steps to initiate an investigation of a citizen based solely upon that citizen’s race, withoutmore, then a violation of the Equal Protection Clause has occurred.”24Alternatively, the defendantmay argue that he was the victim of selective enforcement. Selective enforcement equalprotection claims frequently focus on the policies of departments, beyond the impact of particularenforcement actions on individual defendants.Racial MotivationProof of discriminatory intent is an essential element of any equal protection claim. “Determiningwhether invidious discriminatory purpose was a motivating factor” behind a law enforcementofficer’s actions “demands a sensitive inquiry into such circumstantial and direct evidence ofintent as may be available.”25The task is complicated afterWhrenbecause there may be anobjective, nonracially motivated basis for the stop or detention.In the case of a pretextual stop,the court must take the inquiry into illicit intent to the next level by addressing the officer’sreason for taking enforcement action. But if racially motivated decision-making is shown, or anagency policy employs explicit racial criteria, the claimant need not demonstrate statistically thatmembers of his racial or ethnic group were disproportionately targeted for enforcement. “[I]t isnot necessary to plead the existence of a similarly situated non-minority group when challenginga law or policy that contains an express racial classification.”

 

Rather, because the policy itself establishes a direct connection between the racial classification and the defendant’s enforcementaction, the policy is subject to strict scrutiny under the Equal Protection Clause.A challenge to the specific acts of a particular police officer is not unlike a claim of racialdiscrimination in the use of peremptory jury challenges, which also involves the acts of a singlestate actor—the prosecutor—in the course of a single transaction—the selection of a jury. TheSupreme Court has instructed that “all relevant circumstances” be considered in the constitutionalanalysis of such cases, including the prosecutor’s “‘pattern’ of strikes against black jurors,” andthe prosecutor’s questions and statements, which may “support or refute an inference ofdiscriminatory purpose.”27Similarly, a police officer’s pattern of traffic stops and arrests, hisquestions and statements to the person involved, and other relevant circumstances may support aninference of discriminatory purpose in this context.28But, usually, statistical evidence of disparateracial impact will not alone suffice to establish an illegal racial profiling operation.29Direct evidence of discriminatory intent was sufficient to avoid summary judgment on a Section1983 claim of selective enforcement in the Tenth Circuit decision,Marshall v. Columbia LeaRegional Hospital.30There the claimant was able to present evidence of the officer’s behaviorduring the events in question as well as his alleged record of racially selective stops and arrests indrug cases under similar circumstances. Further evidence was offered that the claimant did notcommit the alleged traffic violation and that the officer made eye contact with him prior toactivating his emergency lights. As soon as the officer approached the claimant, he accused himof being on crack, an accusation the officer repeated several times during the encounter. When theofficer filled out the citation form, he noted the claimant’s race, although the form called for nosuch designation. Most compellingly, it was shown that the officer had an extensive recordedhistory—or “modus operandi”—of similar misconduct during his prior employment as a policeofficer in another jurisdiction.31However, if race or ethnicity is “but one factor” and not the “sole basis” for a stop detention,there may be no Fourteenth Amendment violation. InUnited States v. Valenzuela,32a Hispanicmotorist traveling from Tucson to Denver was stopped for weaving in traffic by a Coloradotrooper. The officer then became “suspicious” that plaintiff may be a drug courier because of his“stiff and uncomfortable” behavior, a “fabricated” story about visiting a sister in a Denverhospital, a vehicle registration showing salvage title, and because Tucson was a known source ofillegal drugs, among other things. The driver ultimately consented to a search of his vehiclewhich uncovered large amounts of cocaine under the carpet and rocker panels. At trial, the troopertestified that beyond noted factors, he sometimes considered race or ethnicity in making probablecause determinations, in part because of information from the Drug Enforcement Administration(DEA) that the majority of area drug smugglers are Hispanic.

 

 

Cory Lewis
English 50
Racial Targeting and Profiling

The practice of targeting individuals for police investigation based on their race alone in the last few years has been an increasingly prominent issue in American society. Numerous magazines, newspapers, and journals have explored the issue of race-motivated police actions. Recently, the ABA Journal did a study of New Jersey and Pennsylvania traffic stops from 1998 to 2001, concluding that black drivers were more likely to be pulled over and arrested than whites. The study also delves into the legal ramifications of the 1996 United States Supreme Court ruling in the Whren v. United States case, which held that police officers subjective motivation for stopping a motorist on the highway was irrelevant as long as a probable cause was present - such as a traffic violation existed for making the stop. The Whren court decision validated the pretext stop, which occurs when police officers ostensibly stop motorists for traffic violations but are in fact motivated by the desire to obtain evidence of other crimes. Police officers, however, argue that racial profiling is common sense and is sensible, statistically based tool that enables them to focus their energies efficiently for providing protection against crime to law a-biding citizen.
In Taylor and Whitney, a study investigating the existence of an empirical basis for racial profiling and crime, they concluded that society must acknowledge the statistics behind crime rates in order to understand the concept of racial profiling; such information is available in annual crime reports. Statistics are facts and numbers which cannot be disputed and provide the experiential basis for racial profiling. The FBI Bulletin also addressed the necessity to consider statistics in addressing the issue of racial profiling.

 

 

 

 

 

Second NYPD officer testifies on stop-and-frisk quotas, racial targeting

 

 

Still, Serrano’s testimony did reveal direct evidence of racial targeting at least in his precinct. In one specific recording, a lieutenant urged officers to concentrate on a region in the south Bronx: "St. Mary's Park: go crazy in there. Go crazy in there. I don't care if everybody writes everything in there. That's not a problem."

Officer Serrano also provided recordings of an appeals meeting with Deputy Inspector Christopher McCormick, regarding his low numbers for writeups - which he was told would only have been “appropriate for Central Park.”

The same meeting became heated after McCormick indicated Serrano’s numbers demonstrated a lack of initiative, an issue he demanded be rectified by detaining “the right people at the right time.” “And who are the right people?” asks Serrano, to which McCormick replies “I don’t have any trouble telling you this: male blacks 14 to 20, 21.”

Serrano’s testimony was presented as part of Floyd v. City of New York, in which four plaintiffs claim they were racially profiled by the NYPD. Four police officers presented evidence for the prosecution.