Supervisory Challenges Arising from Racial Profiling Legislation
| Published date | 01 September 2002 |
| DOI | 10.1177/109861102129198200 |
| Author | Michael E. Buerger |
| Date | 01 September 2002 |
| Subject Matter | Articles |
POLICE
OFILING:
QU
SUPER ARTERL
VISORY Y (Vol. 5, No. 3,
CHALLENGES September 2002)
SUPERVISORY CHALLENGES
ARISING FROM RACIAL
PROFILING LEGISLATION
MICHAEL E. BUERGER
Bowling Green State University
This article addresses problems faced by police supervisors who must ensure
compliance with legal and organizational requirements of new laws concern-
ing racial profiling. Newresponsibilities and difficulties can be expected in
six main areas: (a) equipping officers to deal with new public expectations
(and misunderstandings) about racial profiling, (b) dealing with instances of
“monkey-wrenching” resistance, (c) mediating disputes and citizen com-
plaints, (d) handling cases of discipline and morale problems, (e) selling the
program to subordinates (perhaps the most important duty of all), and (f) “man-
aging up” within the organization to provide appropriate resources. In some
jurisdictions, supervisors will face a seventh requirement: attending at the
scene of any consent search. The article looks only briefly at the distinction
between intentional targeting of minorities for unequal treatment and the
more insidious influence of cultural biases and stereotypes: The focus is
rather on the day-to-day ensuring of compliance. By extension, the article
addresses the concerns of street-level officers.
The material presented here is an outgrowth of a series of police in-service training sessions on the Mas-
sachusetts racial profiling law primarily attended by supervisors who came from municipal and county
departments. The sessions were conducted by the author from summer 2000 to late spring 2001 for the
Massachusetts Criminal Justice Training Council and the Plymouth County Police Chiefs’ Association.
Some of the statutory details presented here are specific to the Massachusetts law and may not have
analogs in other jurisdictions. I am particularly grateful to my friend and colleague Amy Farrell for her
insightful critique of an earlier draft and for directing me to new relevant materials when they became
available. Thanks also to Mike Steeves, Andre’ Belotto, Ray Eugenio, Director Jack McDevitt of the
Center for Criminal Justice Policy Research at Northeastern University, Director John Degudis of the
Plymouth Training Academy, John M. Collins of the Massachusetts Chiefs Association, the Massachu-
setts Criminal Justice Training Council, and the men and women of the many southeast Massachusetts
police agencies who shared their concerns and observations during the training sessions.
POLICE QUARTERLY Vol. 5 No. 3, September 2002
380–408
© 2002 Sage Publications
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In the wake of racial profiling scandals arising from drug interdiction efforts
in Maryland and New Jersey, legislation or policies designed to “prevent
racial profiling” have been adopted in 21 states. Voluntary efforts have been
undertaken by at least another 35 cities and agencies in addition to 7 juris-
dictions known to be doing so under legal settlement or consent decree. In
large part, these efforts aim to replicate the data analysis of highway users
and police activity that formed the basis for the judgments in the case of
State of NewJersey v. Pedro Soto, et al. (1996) and the civil case of Wilkins v.
Maryland State Police (American Civil Liberties Union [ACLU], n.d.;
Meeks, 2000). In the wake of an April 1998 shooting on the New Jersey
Turnpike (Kifner & Herszenhorn, 1998), a review of state police activity in
New Jersey added a more focused—though numerically less comprehen-
sive—analysis of stop-and-search data (Farmer, 1999; Verniero & Zoubek,
1999).
A consent decree between the state of New Jersey and the U.S. Depart-
ment of Justice specified several levels of review including quarterly inter-
nal review of stop-and-search statistics. Throughout the Soto and Turnpike
shooting cases, the scarcity of usable data was problematic (only one third
of the stops reviewed as part of the Soto analysis recorded the race of the
driver, for instance). The Soto court stated that the “disproportionate traffic
stops against African-American motorists established de facto policy of tar-
geting blacks for investigation and arrest [thus] violat[es] the equal protec-
tion and due process clauses.” In granting motions to suppress the evidence,
the court laid a foundation for future cases:
Once defendants expose a prima facie case of selective enforcement of criminal
law . . . the state must introduce specific evidence showing that either there actually
are defects which bias the results or the missing factors, when properly organized and
accounted for, eliminate or explain the disparity. (Soto, citing Bazemore v. Friday, 478
U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2s 315 [1986])
Soto established that racial disparities in stops constituted a prima facie case
of discrimination, but the bare fact of disparity was less important than the
failure of the State to provide a substantive explanation for the disparities.
The Soto court laid out the template for justifying particular police actions
in the ongoing effort to suppress the drug trade.
Unfortunately, in their response to the public outcry against racial profil-
ing, legislatures and agencies failed to provide the tools (and more impor-
tant, the resources) to support a comprehensive analysis of the issue. Most
simply established laws and regulations that required police officers to do
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POLICE QUARTERLY (Vol. 5, No. 3, September 2002)
something that many of them (though certainly not all) had been doing all
along: record the race, sex, and other information of the drivers of vehicles
they stopped.
The policy expectation is twofold. First, it assumes that officers who do
deliberately target by race will be less inclined to do so if they know that
their work will be formally reviewed (and alternatively, that those who fail
to bring their work habits into compliance with the law will be identified and
dealt with appropriately). Second, it creates a mechanism to identify other
patterns of disproportionate impact by race. Agencies can correct inadver-
tent problems and rebut claims of racial profiling with a fact-based explana-
tion of justifiable racial disparities.
Whereas this places a new, though marginal, burden on some officers’
street work, for the many agencies and officers who already record race, sex,
and other demographic data on vehicle drivers, the laws require no new
work.1 Rather, it is the threat of examination of their work in a highly politi-
cized atmosphere (and against an unknown standard) that officers find
unsettling. They view such examination as potentially harmful both in
terms of their ability to discharge their professional duties and in terms of
potential personal liability to lawsuit. In addition, working officers resent
the implications of the laws, which are introduced with rhetorical flourishes
that imply, and sometimes baldly claim, that the police are engaged in
wholesale racial profiling.
More problematic are the limitations of the laws, which are not attuned to
the critical elements of context. The Soto and Wilkins formulae dealt with a
narrow activity: point-to-point driving on interstate highways. The new
laws apply to all police vehicle stops, in neighborhoods as well as on high-
ways, for criminal investigative work as well as for traffic enforcement and
responding to complaints as well as officer-initiated activities. Racial pro-
filing laws generally impose a simplistic data-collection template over the
multifaceted and nuanced activities of policing and place the state at a dis-
advantage for explaining any patterns of disparity that might emerge (for a
cogent summary of studies and issues, see Engel, Calnon, & Bernard,
2002).
THE ORIGINAL PROFILE
Revelations in the Soto and Wilkins cases, and the less publicized
Whitfield v. Board of Commissioners of Eagle County, Colorado (1993)
case, identified the source of racial profiling as the “drug courier profile”
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originally promulgated by the U.S. Department of Customs as a screening
device to identify airline passengers who might be drug “mules” (anony-
mous couriers with no formal connection to a drug network, paid on a one-
time basis to smuggle uncut drugs into the country). In 1986, the Drug
Enforcement Administration (DEA) adapted it for postimport enforcement
under the name Operation Pipeline. Pipeline was designed to intercept bulk
drugs in transit from import points in the south before they could reach their
destinations in the distribution cities in the north.
The courier profile was composed of a series of behavioral and condi-
tional factors indicative of drug transportation. Those elements included a
rental car (or a car with one key) with fast-food wrappers, sleep-in-the-car
paraphernalia, strong-smelling substances to conceal the aroma of drugs
from human or canine senses, evidence of concealed hiding spots, and the
like. Because the drug mules of the day were being recruited in the lower
income areas of Florida’s cities, “Black or Latino male, aged 18-25” was a
prominent part of the profile.
The profile was not promoted as probable cause to search the car but as a
red flag that the individuals might be transporting drugs. Pipeline-trained
...
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