10 Best Practices for Writing Policies Against Racial Profiling
Why should we care about racial profiling?
Ending racial profiling in policing is essential to promoting justice, equality, and effective law enforcement and to end mass incarceration. Racial profiling violates the Constitution and perpetuates racial inequities in the criminal justice system by unfairly subjecting people of color to police surveillance, citations, and arrests.
Further, it undermines trust between law enforcement agencies and the communities they serve. When communities of color believe their residents are stopped, searched, and arrested or become subject to uses of force without a valid reason, solving crime becomes much more difficult. Individuals may be less willing to report crimes, provide tips to police, or otherwise cooperate with investigations for fear that police will misuse information or arrest people for low-level crimes. Precisely, because of the negative impact on trust between police and communities, national police leaders have denounced the involvement of state and local police in immigration enforcement as counterproductive.
In addition, racial profiling wastes police resources by leading police to over-scrutinize innocent people rather than focusing on people whose conduct poses a serious threat to public safety.
By highlighting best practices for developing policies against racial profiling, the Southern Poverty Law Center aims to provide a guide to help law enforcement agencies eliminate this pernicious and inefficient approach to law enforcement. At the same time, we recognize that an anti-profiling policy is only a first step. Agencies must implement training, supervision, data collection, and accountability measures to ensure that their policies are actually enforced.
How did the SPLC identify these best practices?
The SPLC consulted national experts in policing; reviewed bills and laws at the local, state, and federal levels; researched policies from police departments across the country; and examined academic literature and reports by civil rights organizations on the impact of racial profiling and how to prevent it.
This guidance does not constitute legal advice, nor is it intended to substitute for advice provided by your agency’s attorney or designed to provide an exhaustive overview of requirements under state and federal law. All law enforcement agencies must follow state and federal law.
Race and ethnicity should play NO role in an officer’s decision of whom to stop, interview, frisk, search, and arrest. Arkansas and California state laws, the New York City Police Department’s policy, and a federal bill known as the End Racial Profiling Act all provide useful model definitions. Including examples of scenarios in which an officer has engaged in racial profiling would increase the policy’s utility as a teaching tool.
The only exception to the rule that race and ethnicity should play no role in an officer’s decision-making is that race and ethnicity may be relevant factors when provided as part of a credible, timely, and specific suspect description. That said, agency policy must make clear that race and ethnicity may be used only in combination with other physical characteristics (e.g., gender, age, height, weight, and clothing) to match someone to a suspect description.
It is not sufficient for a policy to define racial profiling as occurring only when race or ethnicity is the “sole factor” underlying an officer’s decision or when the officer made a decision “based on” or “because of” a person’s race or ethnicity. Such definitions are flawed: as long as the officer can articulate any other neutral reason for the stop (e.g., the suspect failed to signal a turn), then the officer can argue s/he did not make the stop based “solely” on, “based on” or “because of” the person’s race or ethnicity – even if the officer was substantially motivated by the person’s race or ethnicity. Instead of prohibiting profiling, these defective definitions provide cover to officers to justify pretextual stops that have racially disparate impacts (see #4 below).
To detain a person, the Fourth Amendment requires either articulable reasonable suspicion that a person has committed, is committing, or is about to commit a crime or probable cause that a person has committed a driving infraction. Unless the officer believes the person matches a specific and credible suspect description that includes other physically identifying characteristics besides race and ethnicity, an officer may not use race or ethnicity to formulate reasonable suspicion. The fact that someone of a certain race is driving a certain car or walking in a certain area does not constitute reasonable suspicion. Even if a community member calls to complain about someone of a certain race doing something the caller finds suspicious, the police should not automatically treat the caller’s allegations as warranting a response by law enforcement. Police must make their own independent assessment of whether the situation gives rise to reasonable suspicion or probable cause to justify stopping or arresting someone.
In addition, the Fourteenth Amendment’s Equal Protection Clause prohibits officers from stopping a motorist or pedestrian – even if that person has committed a clear traffic or pedestrian violation – if the officer would not have stopped a person of a different race or ethnicity for the same violation. This constitutes unequal enforcement and violates the constitutional ban on racial and ethnic discrimination.
i.e., Those stops in which the officer has probable cause for a stop based on a minor traffic or pedestrian violation, but which the officer actually initiates to conduct a separate investigation unrelated to the stated reason for the stop. Officers should be prohibited from using a minor violation to justify a stop when the officer’s primary motivation is the belief that, because of the person’s race or ethnicity, s/he is probably involved in criminal activity. Because pretextual stops allow unconstitutional racial bias to affect officer decision making (#1 and #2), they should be limited to only those situations in which the officer can articulate specific and objective facts for why the officer believes the person stopped is involved in a serious crime.
Racial profiling and local law enforcement’s involvement in immigration enforcement erode trust in the police. As the International Association of Chiefs of Police and Major Cities Chiefs Association have recognized, a lack of trust makes it harder for police to solve crime because people are less willing to report crimes, provide tips, and otherwise cooperate with police.
e.g., Calls for officers to police “in a proactive manner” or to “aggressively investigate suspected violations of law.” These terms may be read as coded language that exhorts officers to cite and arrest people – especially people of color – for minor offenses while ignoring how increased enforcement exacerbates mass incarceration and racial disparities in the criminal justice system and damages trust in law enforcement. Under no circumstances should agencies establish arrest or ticket quotas or reward officers based on the number of arrests they make or tickets they issue. Such policies are illegal in many states.
Requires officers to explain the reason for the stop to the motorist or pedestrian as soon as practicable, since this helps ensure the officer can articulate probable cause or reasonable suspicion (as applicable) and helps legitimate the stop in the eyes of the person stopped.
Prohibits officers from detaining people longer than necessary to issue a citation or conduct legitimate law enforcement business.
Prohibits consent-based searches and requires officers either to have probable cause that a search of a person’s belongings will reveal evidence of a crime or reasonable suspicion that the person to be frisked is armed and dangerous. If your department does not prohibit consent-based searches, your policy should, at a minimum, require officers to secure the person’s voluntary and informed consent before performing a consent-based search (or frisk).
Restricts officers from making arrests for violations in which a citation is authorized unless “special circumstances” are present or the officer has probable cause to believe that a more serious offense has been committed.
Requires officers to completely fill out forms that record stops, searches, arrests, and uses of force (and disciplines officers for failing to fill out the forms and for using information the officer knows to be false) to ensure reliable data collection (see #9). Forms used to record pedestrian stops should require officers to articulate specific facts supporting reasonable suspicion or probable cause for the stop and explicitly prohibit officers from using canned, boilerplate, and conclusory language. Supervisors should periodically review field interview cards, citations, incident reports, and other forms to assess whether officers are properly documenting reasonable suspicion and probable cause for stops, frisks, and searches.
Officers who believe they have witnessed racial profiling or become aware of credible allegations of racial profiling should be required to report these incidents to their supervisors or an internal affairs unit. The supervisor and/or internal affairs unit should investigate all allegations and complaints the department receives regarding potential misconduct. Agencies should keep complainants advised of the status of their complaints and make publicly available data on complaints received (with personally identifiable information removed), the findings of investigations, and whether the officers involved were disciplined.
Training on the policy’s requirements, ethics, diversity, professional interactions with the public, and biased policing and its harms should incorporate specific, relevant examples of prohibited actions and how to conduct law enforcement activities in an unbiased manner.
Including, but not limited to, all traffic and pedestrian stops, uses of force, and complaints against officers. Collecting data on the race and ethnicity (as perceived by the officer) of people subjected to law enforcement action should be a top priority, because these data are necessary to determine whether people of color are disproportionately targeted for law enforcement activity.
To facilitate transparency and accountability, agencies should make available on their websites or the Police Data Initiative raw data in spreadsheet format for public download. Agencies should periodically analyze their data or partner with outside researchers at universities, think tanks, or non-profits to assist with the analysis to determine whether people of color are subjected to stops, searches, arrests, and uses of force at rates disproportionate to their presence in the driving (or local) population and whether individual officers or a particular squad or shift are responsible for a large share of any unjustified stops, searches, arrests, or uses of force.