Racial Profiling and the Police

By Deborah C. England

A distinguished Harvard professor and frequent television commentator returns home from a trip overseas. As he struggles with a sticky lock on his front door, Cambridge police officers who are cruising by stop and confront him. He identifies himself. You may imagine this story ends with the cops apologizing and maybe sharing an abashed chuckle with the professor. You would be wrong. The cops arrested the noted African-American scholar Henry Louis Gates, Jr., after he objected to them accusing him of breaking into his own house. A national uproar ensued, ending only after the president (of the U.S., not Harvard!) intervened. What can explain this bizarre turn of events? One answer offered by many observers is a common theme in American cities: Racial profiling by the police.

What is Racial Profiling?

Although the term is used widely after notorious events like the arrest of Professor Gates, there is no accepted definition. In general, the term is used to refer to police who target individuals for stops, searches, and arrest based on their race.

The beginnings of racial profiling

Behavioral scientists in the 1950s proposed psychological profiles for certain particularly heinous criminals, such as serial murderers. Beginning in the 1960s, a spate of airliner hijackings and large drug smuggling busts created the impetus for law enforcement to develop the tactic of “profiling” by the Federal Aviation Administration and the Drug Enforcement Agency. These agencies grouped together certain characteristics that they believed the targeted offenders shared. And, after the September 11, 2001, attacks in New York, Pennsylvania, and Washington, D.C., the CIA and other intelligence agencies, as well as the Transportation Security Administration, intensified their profiling programs.

“Good” profiling: applying police experience

Some behavioral scientists, intelligence officers, and law enforcement officials argue that profiling is simply part of good investigatory techniques. What some call “profiling” is just the application by law enforcement of the observational skills and intuition of effective police officers, they claim. These skills include noticing patterns of conduct by certain types of criminals (for example, the Cambridge officers who arrested Professor Gates pointed out that he had a large bag with him as he appeared to be jimmying the front door of the house, which they said could have indicated a robber breaking in to fill the bag with valuables).

As for police “intuition,” some studies have shown that certain officers possess the ability to make accurate spit-second judgments about suspects. Popular social science writer Malcolm Gladwell discussed this in his book, Blink.

And, of course, a criminal suspect’s race is one of the elements frequently included in the description given by witnesses and victims and used by authorities to search for and identify perpetrators.

Bad profiling: racial stereotyping

New York and other municipalities are wrestling with the dangers and uses of police department “stop-and-frisk” programs. Under these programs, officers have the authority to stop (technically, to arrest) anyone briefly and frisk them for weapons or other contraband. Police and supporters of the programs claim that the tactic helps keep guns off the streets and prevents gang violence before it can erupt. Opponents argue that the tactic is just racial profiling—cops choose the people they stop and frisk, and the choices are usually young males of color.

A 2002 study of vehicle searches by police on I-95, the interstate highway that runs along the eastern seaboard of the U.S. from Florida to New England, also paints a troubling picture. Although only 17 % of drivers on that stretch of highway were African-American drivers, 70% to 80% of the vehicles searched by police were driven by African-Americans.

Studies of this type have been criticized by law enforcement groups and some scholars because they do not take into account all of the factors involved, including relative “hit rates” for white and black drivers. A “hit rate” is the percentage of searches that uncover illegal drugs or other contraband. The argument is that, if police are targeting African-American drivers out of racist impulses, the hit rate for searches of blacks should be lower than for whites. The 2002 study does not address hit rates.

Legal Remedies for Racial Profiling

A person who believes that he has been subjected to a stop, search, or arrest based on his race has some legal options to invoke to address the wrong. One option may be used to keep out any evidence seized during an improper search. The other option may be used to obtain monetary damages for the violation of rights.

Equal protection and the exclusionary rule

When a person can show that police subjected him to arrest and search based on his race — instead of facts that would have lead a reasonable person to conclude that a crime had been committed (or was about to be) and the suspect was involved — he may be able to keep evidence gathered in the search out of court. The mechanism he can use is a motion to suppress, and the legal doctrine on which it is based is called the exclusionary rule. The purpose of the exclusionary rule is to enable courts to bar illegally seized evidence. Where evidence is seized during a search that police conducted based on a person’s race, the exclusionary rule may bar introduction of that evidence because the search violated the person’s Equal Protection rights under the U.S. Constitution.

Civil rights lawsuit

A person who believes that police targeted him based on race may also sue the officer, the department, and/or the municipality responsible for the conduct for violating his civil rights. Under federal law, law enforcement officers and other governmental authorities may not treat people of different races differently. (42 U.S.C. § 1981.)

Talk to a Lawyer

If you believe you have been subjected to improper police scrutiny or otherwise targeted based on race, talk to a lawyer with experience in police misconduct and/or civil rights law in your area. Although police have a lot of power, the individual citizen has certain tools to make sure they don’t abuse it.