NOT
A BLACK & WHITE
ISSUE: The Arizona Experience
Racial Profiling has been defined as “any police – initiated action
that relies on the race, ethnicity, or national origin rather than the behavior
of an individual or information that leads the police to a particular individual
who has been identified as being, or having been, engaged in criminal activity.” Two
corollary principals follow from this definition: 1) Police may not use racial
or ethnic stereotypes as factors in selecting whom to stop – and
search, and 2) Police may use race or ethnicity to determine whether
a person matches
a specific description of a particular subject.
The racial profiling phenomenon has been well documented in the national media
in recent years. Allegations of racial profiling have become so common now
that people of color frequently refer to this problem as “driving while
black” or “driving while brown”. National surveys
have confirmed that most Americans, regardless of race, believe that
racial
profiling is a
significant social problem. According to one Gallup poll, more than
half of Americans polled believe that police actively engage in the
practice
of racial
profiling and, more significantly, 81% of them said they disapprove
of the practice.
PROVING ALLEGATIONS OF RACIAL PROFILING
Proving that racial profiling has occurred in the context of a criminal or
civil case is extremely difficult. Ultimately, it requires proof of the officer’s
intent to discriminate. To prove intent it is normally necessary to focus on
the exercise of the officer’s discretion. This analysis involves examining
both the officer’s decision to stop a vehicle as well as the
actions of the officer during the stop. Ultimately one must determine
if people
of color are being treated differently than similarly situated Whites.
Were the
driver and/or passengers ordered to step out of the vehicle? Were the
persons treated with respect? Was a warning rather than a citation
issued? Were the
occupants questioned about subjects unrelated to the traffic-stop violation?
Was the stop made by a drug interdiction officer rather than a patrol
officer? Were drug-sniffing dogs summoned to the scene? Was backup
requested prior to
the stop? Did the officer request permission to search the car and
its contents? How long did the encounter last? The answers to these
and other
similar questions
are critical in establishing disparate treatment and intent.
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