Racial Profiling by California Cops – How to bring a Lawsuit

Legal References:

1. Our California Civil Rights Lawyers have local offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, San Diego, San Francisco, Torrance, Van Nuys, West Covina, and Whittier.
2. California Penal Code Section 13519.4 defines racial profiling as “the practice of detaining a suspect based on a broad set of criteria which casts suspicion on an entire class of people without any individualized suspicion of the particular person being stopped.”
3. See U.S. Department of Justice, A Resource Guide on Racial Profiling Data Collection Systems (November 2000) (“When seeking to determine whether allegations of racial profiling are accurate, any analysis concerning the nature and scope of the problem depends on the definition of racial profiling used. For this guide, racial profiling is 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.  There is almost uniform consensus on two corollary principles that follow from adopting this definition of racial profiling:  police may not use racial or ethnic stereotypes as factors in selecting whom to stop-and-search, and police may use race or ethnicity to determine whether a person matches a specific description of a particular suspect.” Id at 3.)
4. Discrimination based on race can also arise in other law enforcement contexts like immigration enforcement, gang injunctions, prison segregation, jury selection and anti-terrorism efforts.
5. See Yong Ho Choi v. Randall Gaston City of Anaheim (9th Cir. 2000) 220 F.3d 1010 [case involving claims of racial profiling against Korean man]  The case ultimately settled for $50,000.
6. But see Washington v. Lambert (9th Cir. 1996) 98 F.3d 1181 [involving Fourth Amendment violations arising out of detainment of two African-American men in Santa Monica on unreasonable notion they might have been armed robbery suspects] (“The only basis for linking Washington and Hicks to the supermarket robberies was the purported general similarity of their physical characteristics to those of the actual suspects:  two African-American males, one reasonably short and one reasonably tall.  Not only were the descriptions exceedingly vague and general — there were, for example, no specific descriptive features such as facial hair or scars — but Washington and Hicks did not even match the few physical details that did accompany the general physical descriptions.  The differences in weight were more than significant and exceedingly difficult to ignore.  For example, the difference in appearance between a short man of 170 to 190 pounds and a short man of 135 to 140 pounds is substantial.  If the general descriptions relied on here can be stretched to cover Washington and Hicks, then a significant percentage of African-American males walking, eating, going to work or to a movie, ball game or concert, with a friend or relative, might well find themselves subjected to similar treatment, at least if they are in a predominantly white neighborhood.”)  See also Choi v. Anaheim, infra, 220 F.3d 1010 (“At the factual center of the case is the ease with which a member of a minority in a community may be confused with other persons – not even of the same race or ethnicity – who in the eyes of the majority look like him.  Here a Korean in his thirties, short and slim, was confused with a Vietnamese teenager, who was taller and heavier, apparently because to the community majority they looked ‘Asian’ or ‘Oriental.’  Only stereotyping of this sort can account for the firm identification of Choi by those who had seen the actual murderer.  We cannot hold them accountable for their convention-bound vision.  We can, however, expect more of police moving in a community of many ethnicities.”)  See also U.S. v. Montero-Camargo, infra, 208 F.3d 1122; Price v. Kramer (9th Cir. 2000) F.3d 1237.
7. See ACLU Northern California news release (Feb 27, 2003) (“The settlement establishes the CHP as the first law enforcement agency in the nation to prohibit their officers from asking motorists for consent to search their cars or persons.  The ACLU contended in its lawsuit that giving officers the discretion to seek consent when they did not have probable cause to search resulted in a disproportionate number of motorists of color being subjected to extensive searches, and was a critical component of racial profiling.. The settlement agreement also bans drug-related pretext stops, which means that CHP officers cannot use minor traffic violations as an excuse for stopping and searching a car for illegal drugs unless the officers have probable cause or reasonable suspicion of drug activity.”)
8. See Ian Ayres (Yale Law School) and Jonathan Borowsky for the ACLU of Southern California, A Study of Racially Disparate Outcomes in the Los Angeles Police Department (October 2008) (“Per 10,000 residents, the black stop rate is 3,400 stops higher than the white stop rate, and the Hispanic stop rate is almost 360 stops higher.  Relative to stopped whites, stopped blacks are 127% more likely and stopped Hispanics are 43% more likely to be frisked.  Relative to stopped whites, stopped blacks are 76% more likely and stopped Hispanics are 16% more likely to be searched.  Frisked African Americans are 42.3% less likely to be found with a weapon than frisked whites and that frisked Hispanics are 31.8% less likely to have a weapon than frisked non-Hispanic whites…” Abstract, p. i.)  It is important to note that the same data can be interpreted in different ways and it is thus not surprising that when the LAPD analyzed this data it came to a different conclusion than the ACLU.
9. Id at 27.  Allegations and inquiries have also been made in respect of racial profiling in other California cities.  See 2005-2006 Santa Clara County Civil Grand Jury Report, Racial Profiling by San Jose Police Department – Perception vs Reality [finding that “there are legitimate concerns regarding individual police excesses” but “no systematic sanctioned program of racial profiling being implemented by the SJPD administration]  See also Legislative Analyst Office, An Evaluation of Racial Profiling Data Collection and Training (August 2007) [finding apparent racial disparities in law enforcement stops in San Diego, San Jose, Sacramento and Riverside but noting that such disparities may be explained by non-race factors, such as age or time of day or other reasons, and in general concluding that assessment is difficult — despite the fact that nearly 100 law enforcement agencies collect such data in the state — because of inconsistent definitions and standards].  The Torrance Police Department drew ire from racial justice groups after an alleged racially motivated traffic stop of an African-American minister who was picking up his daughter from school.  See also Earl Ofari Hutchinson, Racial Profiling Rears its Ugly Head in Torrance, CA (March 15, 2010).  But a jury found Torrance cops did not racially profile in a 2003 case.
10. California Penal Code Section 13519.4(f).
11. California Penal Code Section 13519.4(d).  See also strong language used by US Department of Justice (“`Racial profiling” at its core concerns the invidious use of race or ethnicity as a criterion in conducting stops, searches and other law enforcement investigative procedures.  It is premised on the erroneous assumption that any particular individual of one race or ethnicity is more likely to engage in misconduct than any particular individual of another race or ethnicity.  Racial profiling in law enforcement is not merely wrong, but also ineffective.  Race-based assumptions in law enforcement perpetuate negative racial stereotypes that are harmful to our rich and diverse democracy, and materially impair our efforts to maintain a fair and just society.”) See USDOJ Guidance Regarding the Use of Race by Federal Law Enforcement Agencies (June 2003).
12. California Penal Code Section 13519.4 (“(a) The commission shall develop and disseminate guidelines and training for all law enforcement officers in California as described in subdivision (a) of Section 13510 and who adhere to the standards approved by the commission, on the racial and cultural differences among the residents of this state.  The course or courses of instruction and the guidelines shall stress understanding and respect for racial and cultural differences, and development of effective, noncombative methods of carrying out law enforcement duties in a racially and culturally diverse environment.  (b) The course of basic training for law enforcement officers shall include adequate instruction on racial and cultural diversity in order to foster mutual respect and cooperation between law enforcement and members of all racial and cultural groups.  In developing the training, the commission shall consult with appropriate groups and individuals having an interest and expertise in the field of cultural awareness and diversity.  (c) For the purposes of this section the following shall apply:  (1) “Disability,” “gender,” “nationality,” “religion,” and “sexual orientation” have the same meaning as in Section 422.55.  (2) “Culturally diverse” and “cultural diversity” include, but are not limited to, disability, gender, nationality, religion, and sexual orientation issues.   (3) “Racial” has the same meaning as “race or ethnicity” in Section 422.55.  (d) The Legislature finds and declares as follows:   (1) Racial profiling is a practice that presents a great danger to the fundamental principles of a democratic society.  It is abhorrent and cannot be tolerated.  (2) Motorists who have been stopped by the police for no reason other than the color of their skin or their apparent nationality or ethnicity are the victims of discriminatory practices.  (3) It is the intent of the Legislature in enacting the changes to Section 13519.4 of the Penal Code made by the act that added this subdivision that more than additional training is required to address the pernicious practice of racial profiling and that enactment of this bill is in no way dispositive of the issue of how the state should deal with racial profiling.  (4) The working men and women in California law enforcement risk their lives every day.  The people of California greatly appreciate the hard work and dedication of law enforcement officers in protecting public safety.  The good name of these officers should not be tarnished by the actions of those few who commit discriminatory practices.  (e) “Racial profiling,” for purposes of this section, is the practice of detaining a suspect based on a broad set of criteria which casts suspicion on an entire class of people without any individualized suspicion of the particular person being stopped.  (f) A law enforcement officer shall not engage in racial profiling.  (g) Every law enforcement officer in this state shall participate in expanded training as prescribed and certified by the Commission on Peace Officers Standards and Training.  (h) The curriculum shall utilize the Tools for Tolerance for Law Enforcement Professionals framework and shall include and examine the patterns, practices, and protocols that make up racial profiling.  This training shall prescribe patterns, practices, and protocols that prevent racial profiling. In developing the training, the commission shall consult with appropriate groups and individuals having an interest and expertise in the field of racial profiling.  The course of instruction shall include, but not be limited to, adequate consideration of each of the following subjects:  (1) Identification of key indices and perspectives that make up cultural differences among residents in a local community.  (2) Negative impact of biases, prejudices, and stereotyping on effective law enforcement, including examination of how historical perceptions of discriminatory enforcement practices have harmed police-community relations.  (3) The history and the role of the civil rights movement and struggles and their impact on law enforcement.  (4) Specific obligations of officers in preventing, reporting, and responding to discriminatory or biased practices by fellow officers.  (5) Perspectives of diverse, local constituency groups and experts on particular cultural and police-community relations issues in a local area.  (i) Once the initial basic training is completed, each law enforcement officer in California as described in subdivision (a) of Section 13510 who adheres to the standards approved by the commission shall be required to complete a refresher course every five years thereafter, or on a more frequent basis if deemed necessary, in order to keep current with changing racial and cultural trends.  (j) The Legislative Analyst shall conduct a study of the data being voluntarily collected by those jurisdictions that have instituted a program of data collection with regard to racial profiling, including, but not limited to, the California Highway Patrol, the City of San Jose, and the City of San Diego, both to ascertain the incidence of racial profiling and whether data collection serves to address and prevent such practices, as well as to assess the value and efficacy of the training herein prescribed with respect to preventing local profiling.  The Legislative Analyst may prescribe the manner in which the data is to be submitted and may request that police agencies collecting such data submit it in the requested manner.  The Legislative Analyst shall provide to the Legislature a report and recommendations with regard to racial profiling by July 1, 2002.”)
13. See Whren v. U.S. (1996) 517 U.S. 806 [involving arrest of African-Americans in a known drug area of the District of Columbia where initial stop was for traffic violations] (“We think these cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.  We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race.  But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.  Subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis.”) See also USDOJ Guidance Regarding the Use of Race by Federal Law Enforcement Agencies, infra (“As the Supreme Court has held, this constitutional prohibition against selective enforcement of the law based on race draw[s] on ordinary equal protection standards.  Thus, impermissible selective enforcement based on race occurs when the challenged policy has a discriminatory effect and . . . was motivated by a discriminatory purpose [citations and internal quotations omitted])  See also U.S. v. Montero-Camargo (9th Cir. 2000) 208 F.3d 1122 [involving an arrest of Hispanics near the California-Mexican border] (“Stops based on race or ethnic appearance send the underlying message to all our citizens that those who are not white are judged by the color of their skin alone.  Such stops also send a clear message that those who are not white enjoy a lesser degree of constitutional protection — that they are in effect assumed to be potential criminals first and individuals second. We decide no broad constitutional questions here.  Rather, we are confronted with the narrow question of how to square the Fourth Amendment’s requirement of individualized reasonable suspicion with the fact that the majority of the people who pass through the checkpoint in question are Hispanic.  In order to answer that question, we conclude that, at this point in our nation’s history, and given the continuing changes in our ethnic and racial composition, Hispanic appearance is, in general, of such little probative value that it may not be considered as a relevant factor where particularized or individualized suspicion is required.  Moreover, we conclude, for the reasons we have indicated, that it is also not an appropriate factor.”)
14. See Terry v. Ohio (1968) 392 U.S. 1 (“And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”)
15. See Illinois v. Wardlow (2000) 528 U.S. 119 (“In this case, moreover, it was not merely respondent’s presence in an area of heavy narcotics trafficking that aroused the officers’ suspicion but his unprovoked flight upon noticing the police. Headlong flight – wherever it occurs – is the consummate act of evasion:  it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.  In reviewing the propriety of an officer’s conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists.  Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.”)
16. See U.S. v. Montero-Camargo, infra, 208 F.3d 1122.  But see Whren v. U.S., infra, 517 U.S. 806, in which Court shifts certain pretext-based arguments (at least in traffic stop cases) away from Fourth Amendment analysis to Equal Protection analysis.