Shauna Curphey - Writing

A Path to Curbing Racial Profiling
An Overview and a Call to Action
Oregon Civil Rights Newsletter, September 1, 2006

In early March of this year, Portland Mayor Tom Potter told a Somali immigrant who had been stopped four times in 18 months that the police actions “smacked of racism.” More egregious cases have come to the attention of the Northwest Constitutional Rights Center in recent months: in one case, a young African American male had been pulled over nearly 20 times in less than two years—and three times on a single day. The purported reason for the stops, according to police reports, were minor traffic violations, such as failing to signal a turn or having the front tires of his vehicle in the pedestrian crosswalk. Citywide statistics have revealed that these are not isolated cases of racial profiling by the Portland police.

The Portland Police Bureau recently released traffic stops data for 2004 and 2005. In the traffic stops in both years, African Americans and Hispanic/Latino drivers were overrepresented. Thirteen percent of the total number of stops in each year were of drivers who were African Americans, despite the fact that African Americans constitute only about 6% of the Portland population. By contrast, whites make up about 79% of the population but were stopped in only 69% of the traffic stops in 2005. Moreover, African Americans and Latinos/Hispanics were twice as likely to be searched during the stops as whites, despite the fact that whites were found to have contraband more often than either minority group. (Police found contraband in 10% of the stops of white drivers, compared to 8% of the stops of African American drivers and 7.3% of the stops of Latino/Hispanic drivers.)

Unfortunately, recent statewide research has revealed similar trends throughout Oregon. For example, 30% of Hispanics and 40% of African Americans in Oregon reported one or more traffic stops by police in the past year, compared to only 20% of Caucasians who reported one or more stops. Moreover, 21% of African American respondents reported being stopped by police two or more times within the past 12 months compared to only 6% of other respondents from the same geographical area. Finally, 40% of Hispanics and 73% of African Americans said that they thought police lied about the reason for the stop, compared with only 25% of whites.

Local anecdotal evidence supports these findings. The Portland chief of police admitted in a 2005 court affidavit that the department trains officers to make pretextual traffic stops. In 2004, Portland police shot and killed an unarmed African American man after pulling him over for failure to signal a turn. The shooting was the third time an unarmed African American person was shot by Portland police in three years. As recently as 2004, none of the 123 sheriff patrol deputies in Clackamas County, Oregon were minorities. In response to several complaints of profiling, the NAACP has raised concerns with the Salem Police Department. Incidents of racial profiling have also prompted calls for reform in Eugene.

These stories and statistics reflect what many Portland residents have experienced for decades. Before the Portland stops data were released, the community-based organization Oregon Action, along with the Northwest Constitutional Rights Center, organized a series of community listening forums to facilitate a dialogue about racial profiling between community members and the police in response to concerns. Both organizations have come up with policy recommendations that address community concerns. Achieving systemic reform, however, will require a concerted effort of political pressure and effective litigation in cases of racial profiling. This article is an overview of the current state of the law in the Ninth Circuit and in Oregon state courts, and we hope it will encourage Oregon attorneys to consider litigating such cases.

Federal Civil Rights Litigation: An Option to Effect Change

When city officials and law enforcement agencies fail to adequately address the issue, litigation may bolster community-based efforts to end racial profiling. Several developments make this an area ripe for impact litigation. First, there is growing recognition of the problem in Oregon, as evidenced by the passage of Senate Bill 415 (2001), which urges law enforcement agencies to establish voluntary traffic-stop data collection programs and created a state committee to analyze and report on the data collected. Second, local law enforcement agencies, including those in Portland and Eugene, now collect stop data. Finally, the Ninth Circuit has made several statements in dicta that suggest it is receptive to racial-profiling claims. United States v. Montero-Camargo, 208 F.3d 1122, 1135 n.24 (9th Cir. 2000) (“A significant body of research shows that race is routinely and improperly used as a proxy for criminality.”); Washington v. Lambert, 98 F.3d 1181, 1187 (9th Cir. 1996) (“We cannot help but be aware that the burden of aggressive and intrusive police action falls disproportionately on African-American, and sometimes Latino, males.”)

In the federal courts, victims of racial profiling can pursue legal action under 42 U.S.C. § 1983 on the basis that law enforcement officers’ conduct violated the Fourth Amendment and the equal protection clause of the U.S. Constitution. Plaintiffs may also pursue other civil rights actions, including actions under 42 U.S.C. §§ 1981, 1985, and 1986 and Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d). Because the burden of proof of discriminatory intent required to successfully allege a violation under these statutes is similar to that under § 1983, they are not discussed further here. See, e.g., Alexander v. Sandoval, 532 U.S. 275, 276 (2001) (Title VI plaintiffs must prove intentional discrimination); Caldeira v. County of Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989) (absence of a § 1983 violation precludes a § 1985 claim based on the same facts). This article focuses on Ninth Circuit and Oregon District jurisprudence on Fourth Amendment and equal protection claims for racial profiling and identifies the proof necessary to survive a motion for summary judgment.

Fourth Amendment Protections

The Fourth Amendment’s prohibition against unlawful searches and seizures grants broad discretion to police officers conducting stops in the field. A seizure occurs when a reasonable person would not feel free to end the encounter with the law enforcement officer. United States v. Mendenhall, 446 U.S. 544, 554 (1980). Such stops, however, need only be reasonable to withstand Fourth Amendment scrutiny. Terry v. Ohio, 392 U.S. 1, 9 (1968). Police officers meet this threshold if they have “a reasonable suspicion supported by articulable facts that criminal activity may be afoot.” United States v. Sokolow, 490 U.S. 1, 7 (1989). In Sokolow, the U.S. Supreme Court held that an officer’s reliance on a profile of criminal characteristics could lead to reasonable suspicion. Id. at 11.

Race or ethnic appearance alone is insufficient to justify a stop or arrest. United States v. Montero-Camargo, 208 F.3d 1122 (9th Cir. 2000). Courts will not inquire into the officer’s actual motive, however, if an officer observes any violation of law justifying the stop. Whren v. United States, 517 U.S. 806, 813 (1996). Thus, a plaintiff asserting a Fourth Amendment claim on the basis of racial profiling by the defendant officer may succeed if he or she can show that the law enforcement officer stopped him or her without reasonable suspicion of any traffic violation or other unlawful activity. United States v. Jimenez-Medina, 173 F.3d 752, 754 (9th Cir. 1999).

A victim of racial profiling may also assert a Fourth Amendment claim if police prolong the stop or otherwise act unreasonably in view of the reason for the stop. Florida v. Royer, 460 U.S. 491, 500 (1983). For example, under ordinary circumstances, when the police have only reasonable suspicion to make an investigatory stop, drawing weapons and using handcuffs and other restraints will violate the Fourth Amendment. Washington, 98 F.3d at 1187. See also United States v. Higareda-Santa, 826 F. Supp. 355, 358–59 (D. Or. 1993) (holding that the officer had reasonable suspicion that the driver was drunk to justify a stop but unlawfully prolonged the detention when he continued questioning after he knew the driver was not intoxicated).

Equal Protection Claims

In addition to Fourth Amendment claims, a victim of racial profiling may assert that an officer’s actions violated the Fourteenth Amendment guarantee of equal protection of the law. Unless there is an explicit policy authorizing stops based on race (which is unlikely), a plaintiff must prove that the police officer acted with intent to discriminate based on race. Bingham v. Manhattan Beach, 341 F. 3d 939, 948 (9th Cir. 2003). This is a high evidentiary hurdle.

In Bingham, the plaintiff pointed to the following facts as evidence of racial motivation: (1) he was African American and the officer was white, (2) the officer could see the plaintiff’s race prior to the traffic stop, (3) the stop occurred in a city that was predominantly white, and (4) the officer said that he pulled the plaintiff over for erratic driving but never issued a citation. Id. at 948. The court held that these facts failed to set forth sufficient evidence of racial motivation to survive a motion for summary judgment. Id.

On the other hand, in Jordan v. City of Eugene, the court distinguished Bingham and held that the plaintiff presented sufficient evidence to survive summary judgment—an officer stopped and frisked him, an African American man, but didn't didn’t stop nor frisk his four white companions. Jordan v. City of Eugene, No. 05-6164-TC, 2006 U.S. Dist. LEXIS 38839, at *24 (D. Or. June 12, 2006) (unpublished opinion).

An officer’s “racially tinged” statements can also provide sufficient evidence of discriminatory intent. See Serrano v. Francis, 345 F.3d 1071, 1083 (9th Cir. 2003). In Serrano, the plaintiff asserted an equal protection challenge to a prison disciplinary hearing on the ground that the hearing officer was racially biased. Id. at 1082. During the hearing, the officer said, “I do not know how black people think, and I’ll never know” and told the plaintiff that he was “not O.J. Simpson or Johnnie Cochran.” Id. at 1083. The Ninth Circuit found that the officer’s statements were sufficient evidence of discriminatory intent to survive a motion for summary judgment. Id. See also Christopher v. Nestlerode, 373 F. Supp. 2d 503, 519 (M.D. Pa. 2005) (holding that conflicting accounts of whether the officer recognized the plaintiff’s race before the stop, whether officer had a valid reason for the stop, and what was said during the stop made intent a question for the jury). These cases suggest that a victim of racial profiling will have to present similar “smoking gun” evidence in order to survive summary judgment.

Statistical evidence may bolster a claim of intentional discrimination when racial disparities “are very difficult to explain on nonracial grounds." Washington v. Davis, 426 U.S. 229, 242 (1976). A precinct-by-precinct analysis of the traffic stops data collected by the Portland police shows that African Americans are more likely to pulled over in precincts where African Americans account for a smaller percentage of the population than in other precincts. For example, an African American living in the Northeast Precinct, where African Americans constitute about 20% of the population, is 2.3 times more likely to be pulled over than a white driver in the same precinct. By contrast, in the Southeast Precinct, where only 2% of the population is African American, black drivers are 4.4 times more likely to be stopped than white drivers. This suggests that Portland police officers may be targeting African Americans driving through areas of Portland that are predominantly white.

However, only in “rare cases [has] a statistical pattern of discriminatory impact demonstrated a constitutional violation.” McCleskey v. Kemp, 481 U.S. 279, 293 (1987). In McCleskey, for example, the Court rejected evidence that the odds of a defendant receiving the death penalty in Georgia when the victim was white were 4.3 times higher when the victim was African American – even after controlling for nonracial variables. Id. at 286. The Court reasoned that it required proof beyond statistical patterns for Georgia as a whole to show that invidious discrimination led to the judgment in an individual case. Id. at 293–94.

Similarly, in United States v. Armstrong, 517 U.S. 456, 470–71 (1996), criminal defendants sought discovery on a selective prosecution claim based on the fact that in every one of the 24 crack-cocaine cases closed by the public defender’s office the prior year, the defendant was African American. Id. at 459. The Court rejected this evidence as insufficient to require further discovery because the plaintiffs “failed to show that the Government declined to prosecute similarly situated suspects of other races.” Id. at 458.

While neither the Ninth Circuit nor the District of Oregon has directly addressed the issue, other federal courts have distinguished Armstrong from civil racial-profiling cases. For example, in Chavez v. Illinois State Police, the court held that racial-profiling plaintiffs could use statistics to prove discriminatory effect in support of their equal protection claim. 251 F.3d 612, 640 (7th Cir. 2001). The court held that Armstrong did not apply because the racial profiling case involved police conduct, not prosecutorial discretion, and was a civil complaint, not a criminal, prosecution. Id. See also Rodriguez v. California Hwy Patrol, 89 F. Supp. 2d 1131, 1140–42 (N.D. Cal. 2000) (reaching the same conclusion). The Ninth Circuit has recognized that racial profiling is pervasive in law enforcement and that “[s]tops based on race or ethnic appearance . . . send a clear message that those who are not white enjoy a lesser degree of constitutional protection.” Montero-Camargo, 208 F.3d at 1135, n.24; see also Lambert, 98 F.3d at 1187. Thus, the court may be persuaded to distinguish Armstrong in civil cases and allow statistical evidence to support an equal protection claim.

Class Action Issues

Federal class actions against police departments showing that police violated federal constitutional or statutory rights can be a powerful remedial mechanism to address racial profiling. Litigators must go to court prepared, however, to win class certification and prove municipal liability. These issues are discussed briefly below.

Class certification requires proof that (1) the class is so numerous that joinder is impracticable, (2) there are questions of law and fact common to the class, (3) the claims of the representative parties are typical of the class, and (4) the representative parties will adequately protect the interests of the class. Fed. R. Civ. Proc. 23(a). Rule 23(b)(2) permits class actions for declaratory or injunctive relief when the defendant “has acted or refused to act on grounds generally applicable to the class.” Plaintiffs seeking a class action for damages may do so under Rule 23(b)(3) if they can show that common questions of law or fact predominate and class resolution is “superior to other available methods for the fair and efficient adjudication of the controversy." To establish numerosity, a plaintiff must demonstrate some evidence or reasonable estimate of the number of purported class members. See Siles v. ILGWU Nat'l Retirement Fund, 783 F.2d 923, 930 (9th Cir. 1986). The Ninth Circuit has suggested that a class with less than 40 plaintiffs could suffice. Jordan v. County of Los Angeles, 669 F.2d 1311, 1319 (9th Cir. 1982), vacated on other grounds, 459 U.S. 810 (1982). In addition, “the relatively small size of each class member's claim” supports a finding that joinder would be impracticable. Id. at 1320. This might prove helpful to racial-profiling plaintiffs since the harm suffered during a single illegal stop by police may not be sufficient to justify bringing an individual suit.

In Hodgers-Durgin v. De la Vina, for example, two named plaintiffs represented a class defined “as all persons of Latin, Hispanic or Mexican appearance who have been, are, or will be traveling by motor vehicle” on the highways in certain Arizona counties. 199 F.3d 1037, 1040 (9th Cir. 1999). Though the named plaintiffs lacked standing to seek injunctive relief because they failed to prove likelihood of future injury (since they had been stopped only once in ten years), the court noted that plaintiffs who had been stopped several times, had they been named plaintiffs, would have cleared this hurdle. Id. at 1044–45.

Even if plaintiffs are able to certify a class, however, they must prove municipal liability if they want to achieve citywide reform. Municipal liability under § 1983 requires proof of a policy or custom that led to the deprivation of the plaintiff’s constitutional rights. Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). The plaintiff must demonstrate that the official policy or custom is itself unconstitutional or that the city’s “deliberate indifference” to the plaintiff’s constitutional rights was the direct cause of the injury. Canton v. Harris, 489 U.S. 378, 389 (1989).

A municipality’s failure to train its employees may amount to “deliberate indifference” if lack of training reflects a conscious choice by city policymakers (that is, gross negligence will not meet the evidentiary burden). The lower courts have heeded the Supreme Court’s warning to avoid “second-guessing municipal employee-training programs” and have steered clear of evaluating whether employee trainings are sufficient. Id. at 391–92. Thus, it appears that any amount of training may be enough to rebut a charge of deliberate indifference on the part of the municipality.

A plaintiff may show deliberate indifference, however, if the municipality has failed to train its employees and there is “a pattern of violations from which a kind of ‘tacit authorization’ by city policymakers can be inferred.” Id. at 397 (J. O’Connor, concurring in part and dissenting in part.) To prevail under that theory, plaintiffs must show (1) a clear and persistent pattern of illegal activity; (2) notice or constructive notice on the part of the policymaking official; (3) the official's tacit approval of the unconstitutional conduct, such that their deliberate indifference amounts to an official policy of inaction; and (4) the inaction directly led to the constitutional deprivation. M.N.O. v. Magana, 2006 U.S. Dist. LEXIS 13042, at *27 (D. Or. March 6, 2006) (unpublished opinion). See also Merritt v. County of Los Angeles, 875 F.2d 765, 770 (9th Cir. 1989).

The Portland Police Bureau requires its officers to receive classes in “cultural competency” and to complete a computer-based course called “Perspectives in Profiling” which, according to the bureau, “allows officers to be introspective regarding unconscious biases that may factor in their decision-making.” Despite these trainings however, the traffic stop data show that Portland police officers continue to use race as a factor in their decisions to stop drivers. The Ninth Circuit has not considered whether any kind of training, including training that appears to have no effect in curbing unconstitutional practices within a police department, is sufficient for a municipality to defeat a charge of “deliberate indifference.”

State Claims: An Untested Option

The U.S. Constitution sets only the floor, not the ceiling, for individual rights and liberties. States are free to afford their citizens a higher level of protection from selective law enforcement. However, racial-profiling plaintiffs in Oregon have not yet availed themselves of potential state causes of action.

The Oregon Constitution and state laws offer several potential avenues to redress racial profiling. For example, seizures or searches for evidence to be used in a criminal prosecution that are conducted without a warrant or suspicion of wrongdoing violate Article I, § 9, of the Oregon Constitution. Nelson v. Lane County, 304 Or. 97, 101; 743 P.2d 692 (1997). In Nelson, the Oregon Supreme Court analyzed the legality of DUI roadblocks under state law separately from its Fourth Amendment analysis, indicating a willingness to depart from federal jurisprudence on search and seizure issues.

In addition, like the Fourteenth Amendment’s guarantee of equal protection, “Article I, section 20, of the Oregon Constitution prohibits disparate treatment of groups or individuals by virtue of invidious social categories.” Hewitt v. State Accident Ins. Fund Corp., 294 Or. 33, 43; 653 P.2d 970 (1982). Though the Oregon courts apply a suspect-class analysis similar to the federal courts’ jurisprudence under the equal protection clause, they have on occasion extended greater protections to Oregon citizens. See id. at 41–46 (holding that gender-based classifications are subject to strict scrutiny in Oregon even though the U.S. Supreme Court applied only intermediate scrutiny).

For example, in Tanner v. Oregon Health Sciences University, the Oregon Court of Appeals held that homosexuality was a suspect classification though federal courts have so far rejected that contention. 157 Or. App. 502, 524; 971 P.2d 435 (1998). In addition, the court stated intentional conduct is not required for discrimination to be actionable under Article 1, § 20. Id. at 525 (citing Zockert v. Fanning, 310 Or. 514, 523; 800 P.2d 773; (1990)). Rather, “what is relevant is the extent to which privileges or immunities are not made available to all citizens on equal terms.” Id. This holding, however, has yet to be tested in the context of law enforcement practices.

Finally, Oregon law provides a civil action for damages for violations of the state’s criminal anti-intimidation statute. ORS § 30.198 (2006). A prevailing plaintiff is entitled to attorney fees under the law. Id. A person violates the anti-intimidation law if he or she intentionally threatens or subjects another to offensive physical contact on the basis of race. ORS § 166.155 (2006). Though there is no case law on the issue, victims of racial profiling might try to assert this cause of action when law enforcement officers’ actions are particularly egregious.

A Call to Action

In the recent community listening sessions on racial profiling in Portland, one African American man who was stopped and questioned by police for no apparent reason simply asked of the detaining officer, “Give me the same respect you would give the next person.” Yet, despite the well-documented, nationwide problem of racial profiling, police continue to single people out based on their race. Litigation may be an effective tool to fight this practice, especially when plaintiffs can prove municipal liability.

Class actions present another avenue for litigation when a sufficient number of individuals have common questions of law and fact. While class certification and establishing municipal liability are significant hurdles, this litigation can have a positive effect in pressuring decision-makers to implement much-needed reform. Nevertheless, even cases against individual officers may force departments to take a hard look at how race plays a part in their tactics. Because racial-profiling litigation poses challenges, the Northwest Constitutional Rights Center has set aside resources to support collaborating attorneys with this type of public interest litigation in Portland, as part of its long-term effort to end this practice within the Portland Police Bureau.