Racial Profiling Litigation

• DOI: 10.1177/1043986211425731
• Date: 01 May 2012
• Published date: 01 May 2012
• Subject Matter: Articles

Journal of Contemporary Criminal Justice

28(2) 122 –145

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DOI: 10.1177/1043986211425731

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28210.1177/1043986211425731Withrow and Dailey Journal of Contemporary Criminal Justice

1Texas State University-San Marcos, TX, USA

2Angelo State University, San Angelo, TX, USA

Corresponding Author:

Brian L. Withrow, Texas State University, Hines Academic Center, 601 University Drive, San Marcos,

TX 78666

Email: Bw32@txstate.edu

Racial Profiling

Litigation: Current

Status and Emerging

Controversies

Brian L. Withrow1 and Jeffrey Doug Dailey2

Abstract

The racial profiling controversy is now about a decade and a half old and has developed

into a bona fide research agenda. Hundreds of police departments have conducted

studies and scores of researchers have written articles and books on the topic. The

controversy came to prominence during a high-profile litigation involving the New

Jersey State Police. Since then, with the exception of a few local cases, the courts have

been relatively silent at the national level. Even so, a litigation pattern is beginning to

emerge. This article documents this pattern and provides evidence that racial profiling

litigation is likely to increase in the very near future.

Keywords

racial profiling, racial profiling lawsuits, racial profiling litigation

Introduction

Within the past 15 years, the racial profiling controversy has developed into a distinct

research agenda, and continues to capture the attention of social commentators, politi-

cians, advocacy groups, scholars, policing practitioners, and of course attorneys.

Hundreds of police agencies have conducted racial profiling studies. More than half

the states require police departments to routinely record information about the stops

they make, most notably information about the race and ethnicity of the drivers. The

racial profiling controversy, which began within the context of traffic stops, is

Article

Withrow and Dailey 123

encroaching into other areas like, transportation security, shoplifting, immigration and

quality of life enforcement.

It was inevitable that racial profiling allegations would eventually become a cen-

tral issue in litigation. Initially, the controversy found its voice and place in the

American lexicon when a New Jersey judge commissioned a study to determine

whether state troopers working on the New Jersey Turnpike were guilty of racial

profiling (State of New Jersey v. Pedro Soto, 1996). Although similar cases have

arisen in other states, the most common racial profiling litigant today is a criminal

defendant who alleges racial profiling (e.g., a violation of the 14th Amendment) as

the motivation for a traffic stop that led to a search and seizure of contraband (see for

example, United States v. Alcaraz-Arellano, 2004; United States v. Lindsey, 2003;

and United States v. Mesa-Roche, 2003). The central legal issue in most of these

cases is whether the police enforced the law “to the benefit of all members of society”

or placed racial minorities at a “special disadvantage” (Tomaskovic-Devey, Mason,

& Zingraff, 2004, p. 4). This body of litigation has not yet produced a consistent

pattern on which future litigants can rely, however, there is enough of an emerging

pattern to reveal several important trends.

The purpose of this article is to evaluate the effectiveness of racial profiling

litigation. By “effectiveness,” we mean from the plaintiff’s perspective. In general, we

ask to what extent are individuals or groups alleging racial profiling successful in

the courthouse? The article begins with an instructive typology offered as means to

organize the rather robust racial and ethnic discrimination litigation history that is

relevant to the racial profiling controversy. Although there has been considerable

litigation on racial discrimination, much of this is only tangentially related to the racial

profiling controversy. Following this, our analysis is organized with respect to the

laws or regulations that either have been or most likely could be the basis of a racial

profiling lawsuit. Within each section we discuss: (a) what this body of law or regula-

tion allows and/or requires a litigant to claim; (b) how this particular body of law or

regulation might be used as the basis of a racial profiling claim; (c) the outcome of

litigation (so far) based on this law or regulation; and (d) the challenges the litigants

either overcame or failed to overcome when making their claims. In the next to last

section, we summarize the factors that appear to differentiate between “successful”

and “unsuccessful” racial profiling cases, from the plaintiff’s perspective. This section

also includes a brief discussion on the litigation trends that might improve a plaintiff’s

success. We conclude with some predictions relating to the future of racial profiling

litigation within the context of the Obama Administration’s desire to focus the attention

of the U.S. Department of Justice on this important controversy.

Analysis of Prior Litigation Related to the Racial

Profiling Controversy

There has been considerable litigation over the past half century relating to racial and

ethnic discrimination. Within the contexts of hiring, education, housing, lending, and