The Role of Race in Law Enforcement: Racial Profiling or Legitimate Use? (Legal Digest)
Schott, Richard G., The FBI Law Enforcement Bulletin
On May 14, 2001, three young African-American males were pulled over by the Indianapolis, Indiana, Police Department. According to one of the passenger's stepfather, the stop was a blatant example of racial profiling. (1) According to the officers on the scene, it was a legitimate traffic stop for failure to signal a turn. Which one of these characterizations was correct? Were both viewpoints arguable?
Few issues in society today generate as much controversy as the issue of racial profiling. It was a recurrent topic of debate during the 2000 presidential campaign, and racial profiling remains a frequently debated and divisive issue in many local communities. The highway traffic practices of New Jersey and Maryland State Police troopers have been called into question as racially discriminatory. As a result, both departments have been required to compile exhaustive statistics on all future traffic stops. Other states have passed legislation requiring all law enforcement agencies within that state to maintain similar statistics. (2) But, what is racial profiling? Are there legitimate uses for racial characteristics during an investigation or other law enforcement activity? It is critically important for law enforcement officers to understand the difference between legitimate and illegitimate uses of race in their law enforcement activities to maintain credibility within their communities.
This article explores the historical perspective of the use of race in the law, examines the constitutional challenges available to victims of racial profiling, and offers suggestions to rebut allegations of improper racial profiling.
It is important to define what is meant by racial profiling in this article and also to distinguish between the legitimate use of profiling and unlawful racial profiling. Profiles based on officers' training and experience are legitimate tools in police work. For example, the "drug courier profile" (3) has long been recognized as an investigative technique used by narcotics investigators. (4) This "drug courier profile" has been described as "the collective or distilled experience of narcotics officers concerning characteristics repeatedly seen in drug smugglers." (5) Courts have held that matching a profile alone is not the equivalent of reasonable suspicion or probable cause necessary to conduct an investigative detention or arrest; (6) but, police officers are entitled to assess the totality of the circumstances surrounding the subject of their attention in light of their experience and training, which may include "instruction on a drug courier profile." (7) Therefore, profiles, combined with other facts a nd circumstances, can establish reasonable suspicion or probable cause.
On the other hand, while race or color may be a factor to consider during certain police activity, (8) race or color alone is insufficient for making a stop or arrest. (9) Therefore, for purposes of this article, the term "racial profiling" refers to action taken by law enforcement officers solely because of an individual's race. As the following discussion makes clear, this type of profiling has no place in law enforcement.
Historically, there have been two broad legal attacks upon laws on the basis of race. First, citizens have attacked statutes that clearly treat people differently on the basis of their race. Second, citizens have challenged laws that, on their face, are racially neutral, but are enforced in a way that causes an adverse impact upon only one racial group.
Laws that are clearly aimed at particular racial (or other protected classifications, such as sex or religion) groups are subject to exacting, strict scrutiny by the courts. The Supreme Court has said that "[l]egal restrictions which curtail the civil rights of a single racial group are immediately suspect." (10) Unless the government can show that distinguishing among racial groups serves a compelling governmental interest, the distinction is unconstitutional. …