S. 989/H.R. 2074, the "End Racial Profiling Act"

Analysis by Grand Lodge, Fraternal Order of Police

The Grand Lodge does not condone or support any police practice in which race is used as the sole reason to initiate a stop or trigger a search. The resolution adopted by the Grand Lodge in September 2000 in support of that position is online for your information and review.

This legislation, however well-intentioned, creates a number of serious problems for law enforcement and for public safety. We have outlined the reasons that the Fraternal Order of Police is opposed to this legislation in this document. Unless and until these concerns are addressed, we will be working to defeat the S. 989/H.R. 2074.

The legislation unnecessarily defines and bans so-called "racial profiling."

The United States Supreme Court has already made it very clear that "the Constitution prohibits selective enforcement of the law based on considerations such as race," and that "the constitutional basis for objecting to intentionally discriminatory application of the laws is the Equal Protection Clause." Whren v. United States, 517 U.S. 806, 813 (1996). Further, as one Court of Appeals has explained, "citizens are entitled to equal protection of the laws at all times. If law enforcement adopts a policy, employs a practice, or in a given situation, takes steps to initiate an investigation of a citizen based solely upon that citizen's race, without more, then a violation of the Equal Protection Clause has occurred." United States v. Avery, 137 F.3d 343, 355 (6th Circuit 1997).

The United States Constitution itself prohibits "racial profiling," making Federal legislation defining or prohibiting such activity unnecessary.

The legislation's definition of "racial profiling" is far too broad.

The bill prohibits the use of race "to any degree" in selecting individuals to be subject to even the most routine investigatory action, excepting only those situations in which race is used "in combination with other identifying factors when the law enforcement agent is seeking to apprehend a specific suspect whose race, ethnicity or national origin is part of the description of the suspect." (emphasis added).

This means that, absent an eyewitness or other description of a specific suspect's race or ethnicity, law enforcement officers can never use race as a factor—even if it would help them to identify a suspect. The proposed legislation would therefor ban a whole range of activities beyond the already unconstitutional, purely race-based activity. The legislation would also apply to Customs and immigration-related enforcement activities, as well as criminal law enforcement efforts.

The legislation assumes that "racial profiling" has occurred solely on the basis of statistical disparity.

Section 102(c) of the bill provides that demonstrating that law enforcement activities disparately impact racial or ethnic minorities constitutes prima facie evidence of illegal activity. The legislation thus presumes illegal activity solely from evidence of a statistical disparity, notwithstanding the bill's finding that "[t]he vast majority of law enforcement agents nationwide discharge their duties professionally, without bias, and protect the safety of their communities."

The effect of this presumption is not expressly spelled out in the legislation, but it is very clear to law enforcement. The resulting litigation burden on law enforcement agencies will be dramatic—after all, once a statistical disparity is demonstrated, it will be up to the law enforcement agency to somehow prove itself innocent of engaging in the unlawful use of race in its procedures and practices.

The legislation focuses on protecting racial and ethnic minorities, rather than protecting all individuals from discrimination on the basis of race and ethnicity.

Unlike all other Federal antidiscrimination statutes, which generally protect all individuals from discrimination on the basis of race, portions of this legislation are geared to protecting only racial and ethnic minorities. For example, the "disparate impact" provisions found in section 102(c) of the bill are available only to racial and ethnic minorities. Any legislation that specifically targets only members of certain races, while excluding members of other races, presents very real equal protection problems.

The legislation misstates current law.

The legislation reads the U.S. Supreme Court's decision in Whren v. United States (1996) to hold that "the racially discriminatory motive of a police officer in making an otherwise valid traffic stop does not warrant the suppression of evidence." To the contrary, according to the unanimous decision in Whren, "the Constitution prohibits selective enforcement of the law based on considerations such as race," and that "the constitutional basis for objecting to intentionally discriminatory application of the laws is the Equal Protection Clause." 517 U.S. at 813.

The legislation also states that "[r]acial profiling is not adequately addressed through suppression motions in criminal cases," implying that suppression motions are currently the sole legal remedy available against so-called "racial profiling." However, numerous remedies do exist under current law to redress constitutional equal protections violations, including actions for money damages as well as prospective relief under 42 U.S.C. Section 1983, 42 U.S.C. Section 2000(d) et. seq., and 42 U.S.C. Section 14141.

The legislation imposes a number of mandates on State and local governments in violation of the principles of Federalism.

The bill mandates that all State and local governments collect data, pursuant to Federally established standards, to determine whether "racial profiling" is taking place, as a condition of receiving Federal monies, even if there is no evidence or complaint that a particular agency has engaged in such activity. Noncompliance with this mandate is punishable by the withholding of Federal funds. These provisions may even violate the constitutional limits of the ability of Congress to regulate State and local governments as a condition of Federal funding. On a number of occasions, the Supreme Court has expressed a narrow view with respect to Federal power to regulate State and local governments pursuant to Section 5 of the Fourteenth Amendment, absent substantial evidence that constitutional rights are being violated.

For further information or elaboration, please feel free to contact the National Legislative Office at (202) 547-8189 or via e-mail.