Racial profiling: a persistent civil rights challenge even in the twenty-first century.

• Author: Dunn, Ronnie A.
• Position: Whren at Twenty: Systemic Racial Bias and the Criminal Justice System

CONTENTS INTRODUCTION I. EMPIRICAL STUDIES OF RACIAL PROFILING II. STUDY SETTING & DESIGN A. Cleveland B. Shaker Heights C. Brook Park D. Westlake III. THE DATA IV. ANALYSIS OF TRAFFIC TICKETING DATA V. FINDINGS: THE RACIAL CHARACTERISTICS OF CITIES' DRIVING POPULATIONS & TICKETING PATTERNS A. Cleveland B. Shaker Heights C. Brook Park D. Westlake VI. DISCUSSION CONCLUSION INTRODUCTION

The death of Samuel Dubose, a forty-three-year-old, unarmed African American male shot in the head by a University of Cincinnati police during an off-campus traffic stop, is but the latest in a string of deadly police-involved encounters between police and citizens. (1) The list of such deadly encounters includes the shooting deaths of eighteen-year old Michael Brown in Ferguson, Missouri, in August 2014, (2) twelve-year-old Tamir Rice in Cleveland, Ohio, in November of 2014, (3) and fifty-year-old Walter Scott in North Charleston, South Carolina, in April of 2015. (4) There was also the case of forty-three-year-old Eric Garner, who died in Staten Island, New York, as a result of a chokehold applied by a white New York City police officer. (5) The Cleveland Police were also involved in the death of Tanisha Anderson, a thirty-seven-year-old mentally ill woman who died while in police custody during a crisis-intervention call made by her family a week prior to the shooting death of twelve-year-old Rice, (6) who was playing with an Airsoft replica BB gun in a city park that police mistook for a real gun. (7) And while the name and age of the decedents, region of the country, and circumstances in each case differ, there are at least two variables that remain relatively consistent: the race of the victim, primarily black, and that of the officer, overwhelmingly white.

Along with charges of excessive and deadly use of force, each of these cases entailed allegations of racial bias on the part of the police and thrust the issue of racial profiling once again into the national spotlight. Protests and demonstrations in several cities across the country in the wake of a Ferguson grand jury's decision not to indict the officer involved in the Brown case and in response to Gray's death in Baltimore turned violent resulting in millions of dollars in property damage and large numbers of arrests. (8) These cases have brought the issues of race, suspicion, the presumption of guilt, and the freedom of movement of people of color in public space--among the most persistent and seemingly obstinate social dilemmas in American society--to the forefront of the public consciousness and national discourse.

Germane to the issue of racial profiling is the freedom of mobility, which is an essential element of the concept of liberty, and a hallmark of citizenship in a democratic society. The ability for all citizens to move about freely in public space unfettered by undue laws, restrictions, or impediments, whether imposed by the state, social custom, or private citizens, is an inherent value embedded within America's founding principles. This understanding of liberty was recently expressed by the late Supreme Court Justice Antonin Scalia, in writing for the conservative bloc of the Court in an immigration case before the Court alleging violation of the plaintiff's constitutional right of "liberty." As one commentator summarized, "[T]he original understanding of the Constitution suggests a relatively narrow conception of liberty, which included a right not to be imprisoned or restrained, or to be prohibited from moving from one place to another." (9) And although the rights and freedoms of citizenship were not extended to all racial groups in America until the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution, which were specifically intended to ensure that all citizens, regardless of race, national origin, or "previous condition of servitude," fell heir to the rights, liberties, and privileges of full-citizenship. (10)

As noted by Kimberly Phillips in her discussion of the circumscribed movement of blacks during the Great Black Migration, "[geographic mobility may have been a hallmark of freedom for former slaves, but white planters (and far too often northern whites as well) perceived black mobility as a crime," and not as a right. (11) And in emphasizing the significance of the automobile in helping blacks escape the discriminatory indignities of Jim Crow segregation, Thomas Sugrue notes that, blacks who could afford to travel by car did so as a way of resisting the everyday racial segregation of buses, trolleys, and trains.... Driving gave southern blacks a degree of freedom that they did not have on public transportation or in most public places." (12) Ironically, despite the gains of various Civil Rights campaigns such as the Montgomery Bus Boycott, the Freedom Rides, the Supreme Court ruling in Brown v. Board of Education, (13) and the Civil Rights Act of 1964, (14) which ostensibly outlawed segregation and discrimination in public accommodations, including public and interstate conveyance, the problem of freedom of mobility for blacks and increasing segments of racial, ethnic, immigrant, and religious minority populations persists in the United States well into the twenty-first century.

The Supreme Court's 1996 ruling in Whren v. United States (15) held that even the most minor traffic offense provided police with the legal justification for a traffic stop and widened the use of police discretion. (16) Prior to Whren, officers needed "probable cause," to believe that illegal activity had or was about to occur in order to execute a traffic stop. Under Whren, this expanded use of "pretextual stops" became a tool used by law enforcement in the nation's War on Drugs. (17) Some legal scholars and civil rights and civil liberties groups, argued this expanded use of pretextual stops is an erosion of citizens' Fourth and Fourteenth Amendment protections against "unreasonable search and seizure" and "equal protection under the law," that exacerbates racial profiling. (18)

This problem is most evident in the growing body of empirical data and research on involuntary contacts or stops of citizens by police. While the issue regarding the frequency of involuntary contact between citizens and law enforcement and security personnel can occur in a variety of contexts, including at airports, United States border crossings, and while shopping, research in this area has primarily focused on police traffic stops of motorists, and more recently on pedestrian stops. (19) The occurrence of the latter two types of police stops of citizens of color happen with such frequency that distinct idioms have been coined to identify each, "DWB" "Driving While Black or Brown," and "Stopand-Frisk," respectively. And although much recent media attention and public debate has been focused on "Stop-and-Frisk" as of late, particularly in light of the landmark ruling in Floyd, et al. v. City of New York, (20) that the New York Police Department engaged in a pattern and practice of discriminatory policing (i.e., racial profiling (21) nationally the most frequent incidents of police-citizen contacts take place in the context of traffic stops. In 2005, 56.4% of all police-citizen encounters and, in 2008, 59.2% occurred as a result of a traffic stop. (22)

Despite the differences that exist in the social context within which involuntary encounters with law enforcement occurs or in the names associated with each, they are all forms of racial profiling. (23) In essence, racial profiling by law enforcement, or others including private citizens, is the use of a person's race or ethnicity as a proxy for suspicion of involvement in some form of criminal activity or threat. Some scholars, as well as critics and proponents of racial profiling, suggests the police will use a traffic stop for a minor traffic infraction, or the tactic known as "stop and talk" in relation to pedestrian stops, as a "pretext" to initiate further police actions such as a search of an individual's motor vehicle, person, or both for guns, drugs, or other types of contraband. (24)

1. EMPIRICAL STUDIES OF RACIAL PROFILING

   Since the majority of involuntary police stops of citizens occur within the context of traffic enforcement, a significant number of empirical studies of racial profiling have examined traffic stop patterns within a given police jurisdiction. These studies generally use sociodemographic data from official police records such as traffic citations or citizen contact forms to compare by race or ethnicity with some measure of the respective population eligible to be stopped or ticketed within the given jurisdiction. A key debate among scholars conducting research in this area has been, "what is the appropriate measure or 'benchmark' against which to compare the number of traffic citations or stops for each group?"

   Some researchers have used a measure of the driving population within a selected section of the municipality or geographic area in question as the base or denominator against which the ticketing demographic data is compared. (25) This measurement of the driving population is generally conducted through an observational survey or a census of the driving public in the respective area during particular time periods (e.g. rush hour or off-peak driving hours). Conducting a traffic census is the most precise method of measuring the driving population eligible to be stopped or ticketed within a particular geographic area. (26) Although this method can provide insight into potential problems with biased policing within the particular sub-area under observation, the driving and ticketing distribution patterns observed are limited in their generalizability to the larger jurisdiction. And while replicating these methods in a representative sample of sub-areas might enhance the generalizability of the findings, this approach would require considerable...