Court of Appeals
State of New York
THE PEOPLE OF THE STATE OF NEW YORK,
Respondent,
- against-
JERRY GLENN, a/k/a JEFFREY WILLIAMSON
Defendant- Appellant.
BRIEF AMICUS CURIAE OF 100 BLACKS IN LAW ENFORCEMENT WHO CARE
Roslyn Powell Kirsten D. Levingston E. Joshua Rosenkranz
Brennan Center for Justice at NYU School of Law 161 Avenue of the Americas 12th Floor New York, NY 10013 (212) 998-6730 (212) 995-4550 (Facsimile)
Attorney for Amicus 100 Blacks in Law Enforcement Who Care TABLE OF CONTENTS
Table of Authorities………………………………………………………………... ii-v
Interest of Amicus …………………………………………………………………. vi
Summary of Argument……………………………………………………………. 1
If Police are Immunized from Any Inquiry Into Their Motive for Making Traffic Stops, They Will Inevitably Use That Freedom to Make Stops on the Basis of Race, A Practice That Undermines the Goals of Effective Law Enforcement……………………………………………………………………….. 2
A. Unbridled Police Discretion to Stop Drivers for Traffic Violations Leads to Stops Based on Race………………………………………... 3
B. Racially Biased Law Enforcement Practices Are Ineffective in Fighting Crime…………………………………………………………. 9
1. Research Proves that Race-Based Pretext Stops, and Other Forms of Racial Profiling, Are Utterly Ineffectual in Detecting Crime…………………………………………………………… 9
2. Sham Stops Undermine Police-Community Relations, A Key to Effective Policing…………………………………………… 12
C. The Court Should Play a Role in Addressing the Problem of Racial Bias in Law Enforcement………………………………………………. 16
Conclusion…………………………………………………………………………. 21 TABLE OF AUTHORITIES
FEDERAL CASES
City of Chicago v. Morales, 527 U.S. 41 (1999)…………………………………... 8
Delaware v. Prouse, 440 U.S. 648 (1979)……………………………………..…... 8, 9
Illinois v. Gates, 462 U.S. 213 (1983)……………………………………….…….. 19
Maryland v. Wilson, 519 U.S. 408 (1997)……………………………………...….. 9
Michigan v. Long, 463 U.S. 1032 (1983)………………………………………..… 19
Whren v. United States, 571 U.S. 806 (1996)……………………………………… 16
United States v. Berrios, 501 F.2d 1207 (2d Cir. 1974)……………...……………. 15
United States v. Brigoni-Price, 422 U.S. 873 (1975)……………………………… 9
United States v. Leon, 468 U.S. 897 (1984)……………………………….……… 19
STATE CASES
People v. Bigelow, 66 N.Y.2d 417 (1985)……………………………………..…. 19
People v. Camarre, 171 A.D.2d 1002 (4th Dep’t 1991)……………………….… 16
People v. Laws, 213 A.D.2d 226 (1st Dep’t 1995)…………...………...……….…. 16
People v. Llopis, 125 A.D.2d 416 (2d Dep’t 1986)……...………………………… 16
People v. Griminger, 71 N.Y.2d 635 (1988)……………………………….……… 19
People v. McIntosh, No. 81, 2001 N.Y. LEXIS 1978 (N.Y. Ct. App. June 28, 2001)……………………………………………………………………………….. 8
People v. P.J. Video, 68 N.Y.2d 296 (1986)………………………..…………… 3, 19
People v. Robinson, 74 N.Y.2d 773 (1989)………………………………………... 4, 9
People v. Torres, 74 N.Y.2d 224 (1989)…………………………………………… 19
People v. Washington, 238 A.D.2d 43 (1st Dep’t 1998)………….……………… 16
ii People v. Young, 241 A.D.2d 690 (3rd Dep’t 1997)…………………………….. 16
State v. Ladson, 979 P.2d 833 (Wash. 1999)…………………………………….… 20
State v. Soto, 734 A.2d 350 (N.J. Super. Ct. Law Div. 1996)…………..…………. 6
STATE STATUTES
N.Y. State Constitution Article I § 12………………………………………...…… 19
V.T.L § 146………………………………………………………………………… 4
V.T.L § 375 (1)…………………………………………………………………… 4
V.T.L § 375 (30)…………………………………………………………….……. 4
V.T.L § 1129 (a)……………………………………………………….…………. 3
V.T.L § 1163 (a)…………………………………………………………………… 3
V.T.L § 1172……………………………………………………………..……….. 4
V.T.L § 1180 (a)………………………………………………….………….…… 3
MISCELLANEOUS
Poll: Citizens Believe Cops Engage in Racial Profiling, Times Union (Albany), May 4, 2001……………………………………………………………………… 14
Abraham Abramovosky and Jonathan I. Edelstein, Pretext Stops and Racial Profiling After Whren v. United States: The New York and New Jersey Responses Compared, 63 Alb. L. Rev. 725 (2000)………………………………………….… 16
Jeff Brazil & Steve Berry, Color of Driver is Key to Stops in I-95 Videos; The Tapes Show that Most Stops and Searches by Volusia County’s Drug Squad Involve Minorities, Orlando Sentinel Trib., Aug. 23, 1993…..…………….…….... 7
Fox Butterfield, Cities Reduce Crime and Conflict Without New York Style Hardball, N.Y. Times, Mar. 4, 2000………….………………………………....… 13, 15
Diane Cardwell, Statistics Will Be Required On Police’s Stop and Frisk, N.Y. Times, Aug. 23, 2001……………………….……………………………………… 17
iii David Cole, No Equal Justice: Race and Class in the American Justice System (1999)…….………………………………………..……………………………. 6, 9
Henry Pierson Curtis, Statistics Show Pattern of Discrimination, Orlando Sentinel Trib., Aug. 23, 1993……………………………………………………...………… 7
Kevin Flynn, Police Union Backs Plan on Rapport: Community Leaders Say Commissioner’s Approach is a Good Step, N.Y. Times, Jan. 16, 2001…………………………………..……………………………………….….… 14
Jeffery Goldberg, The Color of Suspicion, N.Y. Times, June 20, 1999…………… 4
David A. Harris, Addressing Racial Profiling in the States: A Case Study of the “New Federalism” in Constitutional Criminal Procedure, 3 J. Const. Law 367 (2001)………………………………………….……..………. 17, 18
David A. Harris, Car Wars: The Fourth Amendment’s Death on the Highway, 66 Geo. Wash. L. Rev. 556 (1998)………………………………..………………… 4
David A. Harris, Driving While Black: Racial Profiling Our Nation’s Highways, An American Civil Liberties Special Report (June 1999)……………...……..…… 7
David A. Harris, The Stories, the Statistics, and the Law: Why “Driving While Black” Matters, 84 Minn. L. Rev. 265 (1999)……………………………………... 11
Human Rights Watch, Punishment and Prejudice: Racial Disparities in the War on Drugs (2000) ..………………………………………………………...………... 12
Robert Jackson, Eagle County Must Pay for Stopping Motorists: ACLU Wins $800,000 Settlement for Drivers Stopped Because They Fit A Drug Courier Profile, Denver Rocky Mountain News, Nov. 10, 1995…………………………… 10
Randall Kennedy, Race, Crime and the Law (1997)…………………………...….. 5
Patrick A. Langan, Lawrence A. Greenfeld, Steven K. Smith, Matthew R. Durose, and David J. Levin, Contacts Between Police and the Public, Findings From the 1999 National Survey (2001)…………………………………………………….… 14, 15
Leadership Conference on Civil Rights, Justice on Trial: Racial Disparities in the American Criminal Justice System (2001)…………………………….………...…. 11
Kenneth Lovett, Assembly Gets Race-Profiling Bill, N.Y. Post, May 25, 2001…… 17
Heather Mac Donald, The Myth of Racial Profiling, City Journal (Spring 2001).… 9
Lori Montgomery, New Police Policies Aim to Discourage Racial Profiling, Wash. Post, June 28, 2001…………………………………………………………. 12
iv New York State Attorney General, The New York City Police Department’s “Stop and Frisk” Practices, A Report to the People of New York from the Office of the Attorney General (1999)…………………………………………………...………. 6, 10, 11
Wesley MacNeil Oliver, With An Evil Eye and Unequal Hand: Pretextual Stops and Doctrinal Remedies to Racial Profiling, 74 Tul. L. Rev. 1409 (2000)….…..… 10
Tim O’Neil, Missouri Study on Traffic Stops Mirror Others; But Few States Have Gathered Such Detail on Racial Profiling; Issue Gains Steam Nationwide, St. Louis Post-Dispatch, June 3, 2001…………….…………………………..…… 7
Lydia Polgreen, Police to Collect Race Data in Stops, The Times Union (Albany) June 8, 2001……………….…………………………………………..…………… 17, 18
Deborah Ramirez, Jack McDevitt, Amy Farrell, Northeastern University, U.S. Dep’t of Justice, A Resource Guide on Racial Profiling Data Collection Systems: Promising Practices and Lessons Learned (2000)………………………………. 14, 15
William K. Rashbaum, Broad Plan Aims to Improve Police Rapport with Public, N.Y. Times, Jan. 15, 2001………………………………………..…………...…. 13, 14
Kit R. Roane, A Risky Trip through ‘White Man’s Pass’, U.S. News & World Report, Apr. 16, 2001………………………………………………………....…… 10
F. Romall Small, New Commissioner Outlines Strategy for Mount Vernon, N.Y. Times (Westchester County), Nov. 25, 1996…………………………………….… 13
Wendy Ruderman, Troopers Slow to End Racial Profiling, The Record (Bergen County N.J.) Apr. 4, 2001………………………………………...……………...… 18
Anthony C. Thompson, Stopping the Usual Suspects: Race and the Fourth Amendment, 74 N.Y.U. L. Rev. 956 (1999)……………………………..……….. 5, 6
Gary Webb, DWB; Police Stop Motorists to Check for Drugs, Esquire, Apr. 1, 1999……………………………………………………………………..…. 8
Jerry Zremski, Safer Streets: New Figures Show Violent Crime Fading, Buffalo News, May 21, 1998………………………………….……………………………. 13
v INTEREST OF AMICUS
Formed in 1995, 100 Blacks in Law Enforcement Who Care is a New York-based organization of African-American law enforcement professionals dedicated to ensuring justice for those who traditionally have no voice in society. Its members are committed to aggressive, but fair law enforcement and to contributing to the increased vitality of the communities they serve by vigorously challenging racism, sexism and other forms of discrimination. As a core part of its mission, 100 Blacks in Law Enforcement regularly works with community organizations, offering them financial support and training to improve community-police relations.
As police officers with firsthand experience in law enforcement, members of 100 Blacks in Law Enforcement understand as well as anyone that police officers must retain considerable discretion and latitude to carry out their duties effectively and that law enforcement has a responsibility to exercise this discretion in a manner that is fair and free of racial bias. We also know, from firsthand experience, that police officers are human beings, subject to the same foibles and biases – conscious or unconscious – that pervade society. In fashioning rules governing police conduct, it is therefore crucially important that police discretion be cabined in a way that minimizes the opportunity for invidious discrimination, and that any such discrimination be exposed when it does leach in. A ruling immunizing pretextual traffic stops from judicial inquiry in New York will make it easier for police officers to misuse their discretion, while simultaneously making it difficult for courts to identify and sanction abuse.
Meanwhile, ongoing abuse of discretion will continue to strain already tense relationships between communities and the police, preventing them from joining forces to fight crime effectively. SUMMARY OF ARGUMENT
The problem of racially biased law enforcement is of considerable concern to all New
Yorkers. While no one would disagree that law enforcement practices should be free of racial biases, the sad reality is that they are not. Police officers, like all Americans, operate in a society in which negative perceptions about people of color abound. In particular, assumptions about the criminality of people of color have created an environment in which police officers often use race as the determinative–sometimes even sole– factor in deciding whom to target for criminal investigation. Nowhere is this more in evidence than in the context of the traffic laws, where the discretion conferred by the traffic code has created enormous potential for arbitrary and discriminatory enforcement.
As police officers who utilize discretion on a daily basis, we realize that guidelines play an important role in helping officers exercise their authority fairly. If police are neither offered guidance, nor asked to explain the bases for their discretionary actions, we fear that already existing racial biases will infect law enforcement even more. Racially biased policing is ineffective – it does not lead to the detection of more crime. Moreover, its corrosive effects drive a wedge between communities of color and the police – parties that should be joined by their common interest in stopping crime.
Due to the ill-effects of racially biased law enforcement, we urge the Court to uphold
New York’s long-standing prohibition against pretext stops, and to continue using the existing set of manageable, objective factors that enable courts, police officers, and the public to identify
and assess the validity of police stops. ARGUMENT
IF POLICE ARE IMMUNIZED FROM ANY INQUIRY INTO THEIR MOTIVE FOR MAKING TRAFFIC STOPS, THEY WILL INEVITABLY USE THAT FREEDOM TO MAKE STOPS ON THE BASIS OF RACE, A PRACTICE THAT UNDERMINES THE GOALS OF EFFECTIVE LAW ENFORCEMENT.
Some police officers are racist. It’s sad but true. For some, the racism is open and flagrant, manifesting itself in horrifying slurs they hurl around freely or, worse, in grotesquely violent behavior against people of color. For others, the racism is more subtle, rearing its head as unexamined, even unconscious, assumptions about the propensity of certain groups to commit crimes. But whatever the form, racism exists in law enforcement across the state. To deny this truth is to blind oneself to the realities of the world in which we live. We ignore this reality at our peril, particularly when it comes to fashioning a rule that will govern police conduct in a myriad of circumstances well into the future.
Such a rule is before this Court in three consolidated cases: People v. Glenn, People v.
Reynolds and People v. Robinson. As a matter of legal doctrine, the cases are about the extent to
which we immunize police officers from judicial inquiry into their motive in making a traffic
stop. But as a matter of practical reality, race looms barely below the surface in these cases. The
racial dimension is there even though none of the defendants explicitly alleged racial
discrimination and none of the lower courts acknowledged it. It is there because when we
absolve police officers of any obligation to account for their motive, we invite the worst among
them, consciously or not, to indulge their most invidious instincts. The result, inevitably, is a
criminal justice system that detains innocent people of color at a higher rate, and prosecutes and
imprisons people of color at a higher rate. Our own anecdotal experience, bolstered by
mountains of empirical evidence, bear out this claim. We submit this brief mainly to expose the unexplored racial dimensions of this case.
While such a perspective might seem unorthodox in the context of other criminal cases, it has a
place here. After all, among the criteria this Court must assess in deciding this case –
specifically, in deciding whether to adhere to the constitutional interpretation adopted by New
York courts or to accede to an intervening U.S. Supreme Court analysis – is “any distinctive
attitudes of the State citizenry toward the definition, scope or protection of the individual right.”
People v. P.J. Video, 68 N.Y.2d 296, 303 (1986).
We acknowledge right up front that this brief is somewhat untraditional. We leave it to the various parties and other amici in these consolidated cases to describe the legal landscape and develop analyses and taxonomies about when it is appropriate to read the New York State
Constitution to provide greater protection than federal law and what peculiar New York State constitutional interests are at stake. Our goal instead is to describe how pervasively race shapes the conduct of law enforcement officers when we grant them unbridled discretion to choose their targets, and how deleterious it is to law enforcement goals to allow race to play such a role.
A. Unbridled Police Discretion to Stop Drivers for Traffic Violations Leads to Stops Based on Race.
Any police officer can catch any car committing a traffic violation. It doesn’t take much creativity or patience. The officer simply has to watch long enough to see the speedometer creep a hair past the speed limit; or go faster than is “reasonable” for the conditions, whatever that means, N.Y. Veh. & Traf. Law § 1180(a) (McKinney 1996 & Supp. 2001); or switch lanes abruptly, id. § 1163(a); or follow another car “too closely,” id. § 1129(a); or inch ever so slowly
past a stop sign, id. §§ 146, 1172(a). Failing that, with only a tiny bit more creativity, an officer
could nab the most cautious, law-abiding driver unwittingly committing any number of
infractions, from hanging an evergreen air freshener on his rear view mirror, id. § 375(30), to sporting a college decal or a “for sale” sign on a windshield, id. § 375(1). In short, the Vehicle &
Traffic Law is chock full of sometimes byzantine rules, any one of which could be the basis for
beckoning a motorist to the side of the road. Police officers will be the first to acknowledge that
they could conjure up a reason to stop any vehicle just by tailing it for a few minutes. See David
A. Harris, Car Wars: The Fourth Amendment’s Death on the Highway, 66 Geo. Wash. L. Rev.
556, 567-68 (1998); Jeffrey Goldberg, The Color of Suspicion, N.Y. Times, June 20, 1999, § 6
(Magazine), at 51 (comments by police officers on the facility of using the traffic code to stop motorists).
Put another way, a license to stop any car that commits a motor vehicle violation is a license to stop anyone anytime. If an officer is permitted to exercise that power, regardless of whether he has the slightest interest in enforcing traffic laws, no one is truly protected from police intrusion the moment she turns her ignition key. Under the rule proposed by the People, a police officer would be completely free to stop any car, and ask both the motorist and any passenger to step out of the car, see People v. Robinson, 74 N.Y.2d 773 (1989), even while expressly acknowledging that the putative reason for the stop was a pretext. The pretext stop is just a perch from which to fish around for some other indeterminate criminal activity, whether by peering into the car, scanning the occupants’ clothes for telltale bulges, or seeking consent to search them and their cars. If the People’s position were adopted such a pretext stop wouldn’t be unconstitutional, or even unscrupulous. It would simply be an additional tool in the law enforcement arsenal. The real reason for the stop might be that the officer witnessed something strange, or didn’t like the looks of the driver, or had a hunch, or was just plain killing time, but we would never know because the People’s “don’t ask, don’t tell” rule would prevent us from finding out. As long as the officer can cite to the Vehicle & Traffic Law, the stop would be legitimate.
Of course, the police will not stop everyone. Rather, each officer would make idiosyncratic choices about whom to stop and whom to let pass, choices that would be constrained by nothing but their own unfettered discretion and their own intuition on what sorts of people are most likely to commit crimes. And that is where the grave danger of racial discrimination arises. Each officer brings to the enterprise his own preconceived notions about race and crime. Some of them would declare in the most matter of fact way that people with particular skin color, or of particular ethnic heritage or alienage, are more likely to commit certain types of crimes. Others would believe it, with or without even being aware of their own perceptions. Inevitably, unbridled discretion to make pretext stops is a license to engage in racial profiling.
It is not that police officers are a particularly bad bunch though there is reason to believe that some may be more prone than others to making race-based assumptions about criminal behavior. See, e.g., Randall Kennedy, Race, Crime and the Law 136-67 (1997) (discussing use of race in police investigative practices); Goldberg, supra. It is that police are human – and they are as subject to societal forces, including stereotypes and biases, as all other human beings.
Among the stereotypes that pervade our society is that people of color have a greater propensity to commit crimes. See Anthony C. Thompson, Stopping the Usual Suspects: Race and the
Fourth Amendment, 74 N.Y.U. L. Rev. 956, 988 (1999). It is a scientific fact that individuals remember more positive features about members of their own group than about members of other groups. Id. Social scientists attribute this phenomenon to the “principle of least effort,” the tendency to favor thought patterns that consume less mental energy. Their perception and judgment necessarily play a role in their decisions about whom to target for a stop and search.
This prediction is neither speculative nor anecdotal. It is scientifically provable: Study after study confirms that when police forces anywhere in the nation are given unbridled discretion on whom to stop, they will disproportionately target people of color. Let’s start here in
New York: A December 1999 report by the New York State Attorney General found that in a 15- month period between January 1998 and March 1999, police officers stopped and frisked
175,000 New York City residents, almost 84% of whom were African-American or Latino despite the fact that those groups comprise less than half of the City’s population. New York
State Attorney General, The New York City Police Department’s “Stop and Frisk” Practices, A
Report to the People of New York from the Office of the Attorney General 88, 94-95 (1999). In contrast whites, who make up 43% of the City’s population, comprised only 13% of the stops.
Id. at 94-95.
The pattern persists throughout the nation. Here are some examples:
I. A study of traffic stops on the New Jersey Turnpike found that 46.2% of the stops and arrests made by the state police were of black motorists, although only 13.5% of the drivers on the road had a black driver or occupant. State v. Soto, 734 A.2d 350, 352-54 (N.J. Super. Ct. Law Div. 1996).
1• In an examination of traffic stops on I-95 over a three-year period (1995 to 1997), 70% of the drivers stopped and searched by the police were African Americans although only 17.5% of the drivers and speeders there were black. David Cole, No Equal Justice: Race and Class in the American Criminal Justice System 36 (1999) (citing Complaint in Northern Division of Maryland State Conference of NAACP Branches v. Dept. of Maryland State Police, Civ. Action No. CCB-98-1098, at 30-32 (D.Md.)). Remarkably, this was after the Maryland state police, as part of a settlement in a racial profiling case, issued a written policy barring the use of racial profiling in traffic stops.
1• In a 1992 study, the Orlando Sentinel found that nearly 70% of motorists stopped by the police and 80% of motorists searched on an interstate highway in Volusia County, Florida were African American or Latino, even though they made up only 5% of the drivers on the highway. Henry Pierson Curtis, Statistics Show Pattern of Discrimination, Orlando Sentinel Trib., Aug. 23, 1992, at A11. The vast majority of the stops were for minor infractions such as following too closely, having a burned-out license plate light, or changing lanes unsafely. Of these stops, only 1% resulted in a traffic ticket. Jeff Brazil & Steve Berry, Color of Driver is Key to Stops in I-95 Videos; The Tapes Show that Most Stops and Searches By Volusia County’s Drug Squad Involve Minorities, Orlando Sentinel Trib., Aug. 23, 1992, at A1.
1• A study of drivers in Illinois found that although Latino motorists make up less than 8% of that state’s population and take less than 3% of personal vehicle trips, Latinos accounted for nearly 30% of all stops for minor traffic violations (e.g. failure to signal a lane change or driving one to four miles above the speed limit). David A. Harris, Driving While Black: Racial Profiling On Our Nation’s Highways, An American Civil Liberties Union Special Report, 18 (June 1999) (visited Sept. 19, 2001)
1• A few months ago, the Missouri State Attorney General issued a report on traffic stops in the last four months of 2000. The study found that police were 30% more likely to stop African Americans than whites, and 70% more likely to search them. Tim O’Neil, Missouri Study on Traffic Stops Mirrors Others; But Few States Have Gathered Such Detail on Racial Profiling; Issue Gains Steam Nationwide, St. Louis Post-Dispatch, June 3, 2001, at A1.
This horrifying record of police discrimination is directly attributable to law enforcement’s misuse of the traffic code to uncover evidence of unrelated crimes. The police use the discretion afforded them under the traffic laws to make pretext stops because they believe it is a powerful tool in ferreting out other crimes, particularly drug crimes. Since drugs are often transported in automobiles, the classic argument goes, police ought to be able to use traffic stops as a ruse to catch motorists with contraband. The more discretion we give the police to stop cars, question drivers, and search vehicles, the rationale continues, the greater the chance that they will apprehend criminals. See, e.g., Gary Webb, DWB; Police Stop Motorists to Check for Drugs,
Esquire, Apr. 1, 1999, at 118.
As an initial matter, the “search and you will find” supposition is almost certainly false, as we will demonstrate shortly. More to the point, though, this rationale completely misses the point of the constitutional freedom from unreasonable searches and seizures. One can always construct an argument that police could detect more crime if only we gave them power to be more intrusive. The police could catch more criminals if only they were permitted to erect
roadblocks and flag down drivers randomly, see Delaware v. Prouse, 440 U.S. 648 (1979), or approach a citizen on the street without any reason, see City of Chicago v. Morales, 527 U.S. 41
(1999), or demand identification and destination information from all bus passengers bound from New York City, “known as a source city for narcotics,” see People v. McIntosh, No. 81,
2001 N.Y. LEXIS 1978, at *9 (N.Y. Ct. App. June 28, 2001) . But our right to be free from random or whimsical police intrusions – which New York law guards especially jealously – trumps the law enforcement interest in fishing for criminality in each of those circumstances. As the Supreme Court has observed, traffic stops “interfere with freedom of movement, are inconvenient, . . . consume time,” and “may create substantial anxiety,” Prouse, 440 U.S. at 657.
That is exactly why the police should not be permitted to stop anyone they want – or, to be more accurate, anyone other than the utterly hypothetical driver who can drive for extended periods of time under police scrutiny and do nothing that a creative officer could construe as a traffic violation. It is antithetical to the very notion of a constitutional freedom to suppose that a driver and his passengers submit themselves to “unfettered governmental intrusion every time [they enter] an automobile.” Prouse, 440 U.S. at 663; see Maryland v. Wilson, 519 U.S. 408 (1997)
(police officers can lawfully order not only drivers but also passengers out of a vehicle pursuant
to a legitimate stop); Robinson, 74 N.Y.2d. at 775 (same).
B. Racially Biased Law Enforcement Practices Are Ineffective in Fighting Crime.
1. Research Proves that Race-Based Pretext Stops, and Other Forms of Racial Profiling, Are Utterly Ineffectual in Detecting Crime.
Underlying the practice of racial profiling is an assumption that people of color are more
likely to commit crimes. Any such assumption could never be squared with our current
constitutional jurisprudence – if the assumption ever came under judicial scrutiny. See United States v. Brigoni-Price, 422 U.S. 873. (1975). But that does not change the fact that there are
police officers, distressingly many, who are convinced this is true. Take, for example, the
officers in Brigoni-Price. Those officers relied solely on the apparent Mexican ancestry of a car’s
driver and passengers to justify pulling it over in a misguided effort to investigate the vehicle’s
occupants, whom they believed were undocumented aliens. Id. at 885-86. Similarly outrageous, the Louisiana State Police Department developed a training film explicitly directing new officers to use pretext traffic stops to conduct drug searches of “males of foreign nationalities, mainly
Cubans, Colombians, Puerto Ricans, and other swarthy outlanders.” Cole, supra, at 41.
In fairness, as shocking as such a supposition is to enlightened judges and others, the
police officers who share this view root it in a mix of anecdote and logic illustrated by comments
like this by a retired chief of the NYPD narcotics division: “The hard-core sellers are where the
hard-core users are – places like 129th Street in Harlem. It’s not white kids from Rockland
County who are keeping black sellers in business.” Heather Mac Donald, The Myth of Racial
Profiling, 11 City-Journal, 14, 23 (Spring 2001) (emphasis added). While law enforcement
practices and attitudes may be a function of zip code or skin-color, criminal activity most
certainly is not. It happens everywhere–even in Rockland County.
It should be no surprise, then, that as a tool for ferreting out evidence of criminality,
racially motivated traffic stops, as well as other racially biased law enforcement methods, have
proven to be woefully inadequate. If race were a proxy for criminal propensity, it would follow
that the targeting of motorists of color would likely result in a high percentage of arrests for
criminal activity. However, the opposite is true, as is demonstrated by many of the same reports
enumerated above. 1• The New Jersey Attorney General found that police officers were almost twice as likely to find contraband on white drivers (25%) than on blacks (13%). Kit R. Roane, A Risky Trip Through ‘White Man’s Pass,’ U.S. News & World Report, Apr. 16, 2001, at 24.
1• In Maryland, the police discovered contraband in vehicles at exactly the same rate for whites (28.8 %) and for blacks (28.4 %). Wesley MacNeil Oliver, With An Evil Eye and Unequal Hand: Pretextual Stops and Doctrinal Remedies to Racial Profiling, 74 Tul. L. Rev. 1409, 1424 (2000). Even though the probability of finding contraband was the same for blacks and whites, police disproportionately targeted minority motorists for stops.
1• In Eagle County, Colorado, 400 African-American and Latino drivers brought a discrimination lawsuit against the sheriff’s routine practice of using pretext stops against motorists of color. Each of the 400 had been stopped, but not a single stop yielded a drug arrest. Robert Jackson, Eagle County Must Pay for Stopping Motorists: ACLU Wins $800,000 Settlement for Drivers Stopped Because They Fit A Drug Courier Profile, Denver Rocky Mountain News, Nov. 10, 1995, at 4 A.
The pattern of complete ineffectiveness of racial profiling extends outside the context of traffic stops. The New York Attorney General’s report on stop-and-frisk activity by the police found that frisks were more likely to yield evidence of crimes, and lead to arrest, in whites
(12.6%) than in blacks (10.5%) or Latinos (11.3%). New York State Attorney General, supra, at
111. These differences were even more significant for stops made by the New York Police
Department’s plainclothes Street Crimes Unit, which stopped 16.3 African-American and 14.5
Latino New Yorkers for every arrest, but only 9.6 whites per arrest. Id. at 117.
These kinds of statistics replicate themselves in a variety of other contexts both here in
New York and elsewhere. The United States Custom Service revealed that although 43% of the individuals searched were black or Latino, the hit rates where contraband was actually found were higher for whites (6.7%) than for either African Americans (6.3%) or Latinos (2.8%).
David A. Harris, The Stories, the Statistics, and the Law: Why “Driving While Black” Matters,
84 Minn. L. Rev. 265, 296 (1999) (citing U.S. Customs Service, Personal Searches of Air
Passengers Results: Positive and Negative, 1 (1998)). The General Accounting Office conducted a study of the U.S. Customs Service demonstrating in the most concrete way how objective guidelines for officer discretion can actually increase the agency’s effectiveness at finding contraband. The GAO discovered that, although African-American female U.S. citizens were nine times more likely than white female
U.S. citizens to be subjected to x-ray searches by customs officials, African-American women were less than half as likely to be found carrying contraband as white women. Leadership
Conference on Civil Rights, Justice on Trial: Racial Disparities in the American Criminal
Justice System 6 (2001) (citing U.S. Accounting Office, U.S. Customs Service: Better Targeting of Airline Passengers for Personal Searches Could Produce Better Results 2 (2000)). In response to charges that it was inappropriately targeting passengers of color, the Customs Service recently changed its policies on passenger searches in ways that guided officer discretion.
Consequently, x-ray and other body searches plummeted from more than 40,000 in 1998 to fewer than 10,000 in 2000. More significantly, seizures of drugs and other contraband increased from
4% of searches in 1998, to nearly 18% by mid-2001. Lori Montgomery, New Police Policies
Aim to Discourage Racial Profiling, Wash. Post, June 28, 2001, at A01. That means that contraband seizures increased from 1,600 a year under the old “search and you will find” approach, to a rate of about 1,800 per year.
The low “hit rates” yielded by racial profiling prove that the practice is a supremely ineffective method of policing. To be sure, when a police force aggressively and disproportionately targets people of color, it will inevitably arrest more of them, thus fueling the sense among police officers that profiling works. But they miss the point the data prove: That the targeted population actually does not have a greater propensity to commit crimes.1 This Court must prevent this vicious cycle from embedding itself in New York constitutional law, and the only way to do it is to maintain current protections against pretext stops.
2. Sham Stops Undermine Police-Community Relations, A Key to Effective Policing.
The police and the communities they serve have something in common: A shared role in fighting crime. In order to be effective at their jobs, the police need the cooperation and trust of those who live and work in the community they serve. Police depend on community members to report crimes, identify suspects, provide witness testimony in court and serve on juries.
However, if community members, lacking confidence, challenge the legitimacy of the police officers who protect them, they are less likely to come forward during police investigations, testify at trials or believe police testimony. In other words, without the support and confidence of the communities they serve, police officers cannot do their jobs.
This confidence is so central to effective law enforcement that the focus on “community policing” has become the single most important shift in law enforcement policy over the past decade. For example, when a new commissioner was named to head the Mount Vernon police department, he stressed his intention of expanding the concept of community-police partnerships to the entire department. F. Romall Small, New Commissioner Outlines Strategy for Mount
Vernon, N.Y. Times, Nov. 25, 1996, § 13 (Westchester County), at 1. Similarly, a drop in
Buffalo’s crime rate in the last few years has been attributed in part to its police commissioner’s emphasis on “community policing.” Jerry Zremski, Safer Streets: New Figures Show Violent
1For example, although whites are five times more likely to use drugs than African-Americans, African-Americans, who make up 12% of the United States population, represent 62.7% of drug offenders in state prisons, due in part to law enforcement’s concentration of drug interdiction efforts in low income and communities of color. Human Rights Watch, Punishment and Prejudice: Racial Disparities in the War on Drugs 1-2 (2000) (visited Sept. 19, 2001)
Crime and Conflict Without New York Style Hardball, N.Y. Times, Mar. 4, 2000, at A1
(discussing the Boston and San Diego police departments’ success in fighting crime while using strategies that rely on close cooperation between the police and the community). Earlier this year, New York City Police Commissioner Bernard Kerik announced a police initiative to improve police-community relations. William K. Rashbaum, Broad Plan Aims to Improve Police
Rapport With Public, N.Y.Times, Jan. 15, 2001, at A1. Patrick Lynch, President of the
Patrolmen’s Benevolent Association, explained the concept this way: “Even the most active cops know you need the community’s input to get the job done. We had crossed a line where everything had become a numbers game. How much crime had gone down. How many summons had been given out. This puts a face on the individual police officer and why he is doing the job.” Kevin Flynn, Police Union Backs Plan on Rapport: Community Leaders Say
Commissioner’s Approach is a Good Step, N.Y. Times, Jan. 16, 2001, at B3. Although
Commissioner Kerik stressed that the department’s main goal would still be fighting crime, he echoed this theme, observing that “any further gains in these areas will be hollow without the full support of the communities we serve” and that police officers would be more effective if they built trust and understanding with residents. Rashbaum, supra.
Pretext stops undermine the full support Commissioner Kerik and others need to do their jobs. The prevalence of racial profiling means that any particular person of color has a higher chance than a white person of being stopped by the police. See Patrick A. Langan, Lawrence A.
Greenfeld, Steven K. Smith, Matthew R. Durose, and David J. Levin, Contacts Between Police and the Public, Findings From the 1999 National Survey 13 (2001). And the public knows it.
Already, most Americans, regardless of race, believe that racial profiling is a significant social problem. According to a December 1999 national Gallup poll, more than half of the public believes – or should we say, knows – that police officers engage in racial profiling; more significantly, 81% disapprove of the practice. See Deborah Ramirez, Jack McDevitt, Amy
Farrell, Northeastern University, U.S. Dep’t of Justice, A Resource Guide on Racial Profiling
Data Collection Systems: Promising Practices and Lessons Learned 4 (2000) (citing Gallup Poll
Organization, Racial Profiling is Seen as Widespread, Particularly Among Young Black Men 1
(Dec. 9, 1999)). Closer to home, as of this past May a poll showed 65% of New Yorkers realize that police engage in racial profiling. Poll: Citizens Believe Cops Engage in Racial Profiling,
Times Union (Albany), May 4, 2001, at B2.
Why should citizens trust the police and cooperate with their investigations if they know that at any time they go for a drive they could be subjected to a racially motivated traffic stop?
Indeed, since most Americans’ primary contacts with the police are through traffic stops, see
Langan et al., supra, at 7, there is a danger that many Americans will view the entire system as unfair due to their perception of bias in traffic law enforcement. With Americans of all races aware that African Americans face racism at the hands of the police, see Ramirez et al., supra, at
4, the continued problem of racially disproportionate traffic stops will only increase this perception and undermine the public’s confidence in the police and the justice system. As the
Second Circuit noted, “nothing can corrode respect for a rule of law more than the knowledge that the government looks beyond the law itself to arbitrary considerations, such as race . . . as the basis for determining its applicability.” United States v. Berrios, 501 F.2d 1207, 1209 (2d
Cir. 1974).
Effective crime fighting alone simply will not mend the damage to community-police relations caused by incidents like the killing of Amadou Diallo and the beating of Abner Louima. While we have all benefitted from dramatic decreases in the crime rate over the last several years,2 many communities of color feel that they have been singled out and forced to make unjust and unconstitutional sacrifices– including their liberty on the roads– for that “success.” While police departments across the state have recognized the importance of better relationships with communities, such strategies will not go far if law abiding community members feel police officers are constitutionally permitted to treat them like suspects each time they enter a car.
C. The Court Should Play a Role in Addressing the Problem of Racial Bias in Law Enforcement.
For many years, New York courts in all four departments held that pretextual traffic stops were invalid under New York law. See, e.g., People v. Young, 241 A.D.2d 690, 692 (3d Dep’t
1997); People v. Laws 213 A.D.2d 226, 227 (1st Dep’t 1995); People v. Camarre, 171 A.D.2d
1002, 1002 (4th Dep’t 1991); People v. Llopis, 125 A.D.2d 416, 417 (2d Dep’t 1986). See also,
Abraham Abramovosky and Jonathan I. Edelstein, Pretext Stops and Racial Profiling After
Whren v. United States: The New York and New Jersey Responses Compared, 63 Alb. L. Rev.
725, 734-38 (2000) (discussing New York case law on pretextual traffic stops). In determining the validity of traffic stops, New York’s lower courts developed a body of law outlining workable, objective factors to be used in determining whether a traffic stop was permissible.
Considerations such as whether the officer followed normal traffic stop procedures, issued a summons, observed the automobile for an extended period of time before making the stop, or made traffic stops as a regular part of his duties were used to ascertain if a stop was pretextual.
See People v. Washington, 238 A.D.2d 43, 50 (1st Dep’t 1998) (citations omitted). Under this
2Cities such as New York, San Diego and Boston have experienced tremendous declines in crime since crime began dropping nationally in 1991. For example, between 1991 and 1998, the murder and robbery rates in New York City fell 70.6% and 60.1 % respectively. Nationwide, the respective drops in murder and robbery rates were 36.1% and 39.4 %. See Butterfield, supra. rubric, the courts had at their disposal a variety of factors that they could readily administer to
assess the validity of a stop; police officers had standards to gauge their own actions; and the
public had some assurances that they would be protected from illegitimate traffic stops. In short,
these factors provided the courts, the police, and the public with a pragmatic framework to ensure
that the arbitrary and unreasonable use of the traffic laws against motorists of color would not go
unchecked.
In the wake of the Supreme Court’s decision in Whren v. United States, 571 U.S. 806
(1996), however, the Court of Appeals now must determine whether it will abandon New York’s
longstanding prohibition against pretext stops, or maintain its functional approach to examining
police behavior. The Court will make this determination against a backdrop of increased public
attention on the problem of racial profiling and various efforts to remedy it. Rather than adopt a
rule that might very well exacerbate the problem of racial profiling, the Court should adhere to an
approach that, at the very least, will limit the ability of police officers to use the traffic laws as a
subterfuge for discriminatory conduct.
To be sure, New Yorkers’ growing concern about the problem of racial profiling requires
the political branches to respond as well. And they are at least taking initial steps. This spring,
the New York State Assembly introduced legislation specifically outlawing racial profiling.
Kenneth Lovett, Assembly Gets Race-Profiling Bill, N.Y. Post, May 25, 2001, at 18. In August, the New York City Council enacted legislation requiring the police department to release information on the race and gender of individuals stopped and frisked by the police. Diane
Cardwell, Statistics Will Be Required On Police’s Stop-and-Frisks, N.Y. Times, Aug. 23, 2001, at B2. Similarly, the Albany Public Safety Commissioner John C. Nielsen recently announced that his department would begin collecting data on race in traffic stops, Lydia Polgreen, Police to Collect Race Data in Stops, The Times Union (Albany) June 8, 2001, at B1, a practice adopted by hundreds of other police departments across the country including San Diego, San Jose,
Houston and state police forces in Washington, Florida, and Michigan. David A. Harris,
Addressing Racial Profiling in the States: A Case Study of the “New Federalism” in
Constitutional Criminal Procedure, 3 J. Const. Law 367, 389-90 (2001). Even before the
Albany Police Department announced its data collection policy, Albany’s Citizen’s Police Review Board had passed a resolution calling for the department “to eliminate the potential for
‘bias-based policing’ and [to establish] a system to make sure it wasn’t taking place.” Polgreen,
supra. With a similar goal in mind, several state legislatures have passed legislation mandating
data collection and analysis of traffic stops.3
But these legislative measures can only go so far. While they may be effective at defining
the scope of the problem and addressing community concerns at the broadest level, they do
nothing to protect the individual motorist subjected to a racially biased traffic stop. New Jersey,
a state that has adopted Whren, is a case in point. Despite a tremendous amount of publicity and
action on the policy level, New Jersey continues to experience problems with racial profiling on
the Turnpike. At hearings before New Jersey’s Senate Judiciary Committee, Attorney General
John Farmer testified that state troopers patrolling the New Jersey Turnpike continued to search motorists of color more than whites in 2000 despite promises of reform. Farmer, calling the practice “bad law enforcement,” pointed out statistics showing that when white drivers were searched they were more likely to be carrying contraband than motorists of color. Wendy
Ruderman, Troopers Slow to End Racial Profiling, The Record (Bergen County N.J.), Apr. 4,
2001, at A1.
Big fixes to the problem of racial profiling, even if successful, are not meant to address the specific incidents when they occur, but rather to provide a mechanism for limiting their occurrence in the first place. But when they do occur, which they inevitably will, it is up to the courts to provide a remedy for the aggrieved motorist. By maintaining manageable rules that limit the ability of police officers to act on their worst instincts in the guise of fighting crime,
3 For example, Connecticut and North Carolina recently passed legislation requiring data collection on traffic stops. See Harris, Addressing Racial Profiling in the States: A Case Study of the “New Federalism” in Constitutional Criminal Procedure, supra, at 386-88. courts can play a crucial role in protecting individuals from racially biased law enforcement practices.
By maintaining New York’s prohibition against pretextual traffic stops and its functional framework to identify them, the Court will necessarily depart from the federal standard.
However in so doing, the Court will be following a long tradition of interpreting New York’s constitution to define a broader scope of protection of individual rights than that accorded under the Federal Constitution. P.J. Video, 68 N.Y.2d at 303. In its search and seizure jurisprudence, the Court has often relied on a non-interpretive analysis of Article I § 12 of the New York
Constitution to provide New Yorkers with greater protections from unlawful searches and seizures than under the Fourth Amendment “when doing so best promotes ‘predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens.’” Id. at 304 (quoting People v. Johnson, 66 N.Y.2d 398, 407 (1985)). See, e.g.,
People v. Torres, 74 N.Y.2d 224 (1989) (police officer’s search of interior of car after driver has exited not reasonably related to officer’s safety under Article I § 12, rejecting Michigan v. Long,
463 U.S. 1032 (1983)); People v. Griminger, 71 N.Y.2d 635 (1988) (re-affirming Aguilar-
Spinelli two-prong test for determining whether search warrant based on probable cause, and rejecting Illinois v. Gates, 462 U.S. 213 (1983)); People v. Bigelow, 66 N.Y.2d 417 (1985)
(declining to find “good faith” exception to warrant requirement, rejecting United States v. Leon,
468 U.S. 897 (1984)). The Court should maintain this tradition by protecting New Yorkers from pretextual traffic stops.
The Washington Supreme Court has recognized its role in protecting its citizens from pretext stops. In State v. Ladson, 979 P.2d 833 (Wash. 1999) that court rejected Whren, finding - quite simply - that under state law the ultimate test of the constitutionality of a traffic stop is its reasonableness, and that “in the case of pretext, the actual reason for the stop is inherently
unreasonable, otherwise the use of pretext would be unnecessary.” Id. at 839. It went on to characterize pretext stops as “triumph over substance; a triumph of expediency at the expense of reason.” Id. at 838.
As law enforcement officers who care deeply about aggressive and fair policing, we do not want to sacrifice reason and justice for expediency. Through continued, vigilant review of police traffic stops New York courts can help ensure that this state maintains both. CONCLUSION The police cannot and should not be required to cite everyone who commits a traffic infraction. Instead we must use discretion. Just as the state trains police on how to use firearms before issuing us guns, so must the state guide officers in how to use the powerful force of our discretion to pull over motorists. New York courts have already outlined the contours of this discretion, but if this Court adopts Whren those contours will be erased – creating an environment in which neither police nor judges will have a standard by which to assess the validity of traffic stops. We urge this Court to continue to promote effective and just policing by maintaining a prohibition on pretext stops and a practical, manageable framework within which to evaluate the legitimacy of traffic stops.
Respectfully submitted,
______ROSLYN POWELL KIRSTEN D. LEVINGSTON* E. JOSHUA ROSENKRANZ Attorneys for Amicus 100 Blacks in Law Enforcement Who Care Brennan Center for Justice at NYU School of Law 161 Avenue of the Americas, 12th Fl. New York, NY 10012 (212) 998-6730 (212) 995-4550 (facsimile) *Admitted to practice in California and the District of Columbia September 19, 2001