Racial Profiling Litigation

Date01 May 2012
Published date01 May 2012
Subject MatterArticles
Journal of Contemporary Criminal Justice
28(2) 122 –145
© 2012 SAGE Publications
Reprints and permission: http://www.
DOI: 10.1177/1043986211425731
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
Brian L. Withrow1 and Jeffrey Doug Dailey2
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.
racial profiling, racial profiling lawsuits, racial profiling litigation
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
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

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