House Bill 1114: Eliminating Biased Policing

• Publication year: 2002
• Pages: 127
• Citation: Vol. 31 No. 7 Pg. 127

31 Colo.Law. 127 Colorado Lawyer 2002.

2002, July, Pg. 127. House Bill 1114: Eliminating Biased Policing

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127

Vol. 31, No. 7, Pg. 127

The Colorado Lawyer
July 2002
Vol. 31, No. 7 [Page 127]

Specialty Law Columns
Government and Administrative Law News
House Bill 1114: Eliminating Biased Policing
by Betty Tsamis

This column provides information to attorneys dealing with various state and federal administrative agencies, as well as attorneys representing public or private clients in the areas of municipal, county, and school or special district law

Column Editors

Carolynne C. White of the Colorado Municipal League - (303) 831-6411; Brad Bailey, Asst. City Attorney, City of LLittleton - (303) 795-3725; Tiffanie Bleau, Asst. City Attorney, City of

Arvada - (303) 431-3007; Column Ed. for Administrative Law Steven H. Denman of Kutak Rock LLP, Denver - (303) 297-2400

About TheAuthor:

This month's article was written by Betty Tsamis, Denver, an associate with Brooks & Schluter, LLP - (303) 297-9100; email: Btsamis@LawIn Colorado.com. Tsamis is a former prosecutor and a consultant/trainer with CRCPI, POST, ADL, and COPS; and teaches classes to law enforcement agencies throughout Colorado on H.B. 1114 and biased policing.

This article provides information on "biased policing" and liability associated with House Bill 01-1114, which deals with prohibiting profiling in law enforcement traffic stops.

On June 5, 2001, Governor Owens signed into law House Bill 01-1114 ("H.B. 1114"), which enacted CRS §§ 24-31-309 and 42-4-115. H.B. 1114 prohibits "profiling" by peace officers in traffic law enforcement. "Profiling" is defined as "the practice of detaining a suspect based on race, ethnicity, age, or gender without the existence of any individualized suspicion of the particular person being stopped," and declares the practice to be abhorrent.1 Although the General Assembly did not indicate whether H.B. 1114 is applicable to non-traffic law enforcement contacts with citizens, some municipalities are proceeding as though it applies to all contacts between law enforcement and citizens. All provisions of the bill became law in 2001 and are now effective.

As of October 2001, at least twenty states, including Colorado, had passed legislation to address profiling by law enforcement.2 H.B. 1114 was introduced in the Colorado General Assembly during a period of intense media scrutiny of law enforcement and its role in the growing problem of the profiling of citizens. The American Civil Liberties Union ("ACLU") also has been instrumental in creating a national dialogue on the topic of profiling and disparate treatment of minorities by law enforcement through the release of its watershed report, "Driving While Black."3 The ACLU report eloquently catalogs the frustrations of minority community members in dealing with individual representatives of law enforcement agencies.4

Although the report focuses on the problem of profiling, the growing trend is to engage in a dialogue about racially biased policing. "Racial profiling" has yielded a limited discussion because it typically refers to the practice of law enforcement activities initiated solely on the basis of race.5 The broader term, "biased policing," describes what happens when law enforcement inappropriately considers race or ethnicity in deciding with whom and how to intervene in a law enforcement capacity.6 The latter definition embraces more of the law enforcement actions that have been the subject of complaints by minorities. Such a definition does not focus only on law enforcement action that is solely motivated by race, ethnicity, age, and gender; moreover, it is not limited to police action in the context of traffic stops alone.

This article provides information on the constitutional underpinnings of H.B. 1114 and discusses case law on profiling and on Fourth Amendment search and seizure standards. It covers the requirements of H.B. 1114, and addresses training curriculum requirements and the potential liability associated with noncompliance.

Fourth Amendment
Basics

The Fourth Amendment guarantees citizens the right to be free from unreasonable searches and seizures. It provides that searches and seizures must be reasonable and that no warrant shall issue except on a showing of probable cause, supported by an oath or affirmation, and particularity describing the place to be searched and the persons or things to be seized.7 Over the years, the courts have developed numerous exceptions to the warrant requirement. Two of the most common exceptions are: (1) "Terry" stops and frisks; and (2) consensual encounters.

Terry Stops and Frisks

In Terry v. Ohio,8 the U.S. Supreme Court for the first time announced a distinction between an arrest, which requires probable cause, and a stop, which requires only reasonable, articulable suspicion. A "Terry" stop is often referred to as an investigatory stop. For a valid investigatory stop, there must be the existence of a specific and articulable basis in fact for suspecting that the person subjected to the stop has engaged in, is presently engaging in, or is about to engage in a criminal act.9 This suspicion must be particularized as to the individual the officer seeks to detain or "seize." Thus, reliance on a drug courier profile without more individualized suspicion is not enough.

Once a citizen is detained under Terry, a police officer must have separate and specific grounds under which to conduct a pat-down or frisk of the person during the stop. The frisk or pat-down must be justified by officer or community safety, not discovery of drugs, and must be limited in scope to the discovery of weapons. Moreover, a pat-down or frisk for weapons is justified only when the circumstances of an otherwise valid stop provide the officer with a reasonable basis to suspect that the person with whom the officer is dealing is armed and presently dangerous.10

Consensual Encounters

A truly consensual encounter is not a seizure under the Fourth Amendment.11 A consensual encounter consists of the voluntary cooperation of an individual to non-coercive questioning by a law enforcement officer.12 The test for determining whether an encounter is consensual is whether a reasonable person under the same circumstances would feel he or she was free to leave or disregard the officer's request for information.13 Although not dispositive on the issue of consent, courts will consider whether the officer informed the citizen that he or she was free to leave or...