Racial Profiling: Legal and Constitutional Issues

CRS Report for Congress
Racial Profiling:
Legal and Constitutional Issues
Updated November 21, 2004
Charles V. Dale
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

Racial Profiling: Legal and Constitutional Issues
Summary
Racial profiling is the practice of targeting individuals for police or security
detention based on their race or ethnicity in the belief that certain minority groups are
more likely to engage in unlawful behavior. The prevalence of the practice among
federal, state, and local law enforcement agencies has been highlighted by recent
legal settlements and data collected by governmental agencies and private groups,
suggesting that minorities are disproportionately the subject of routine traffic stops.
The issue has attracted considerable congressional interest, particularly in regard to
existing and proposed legislative safeguards. Several courts have considered
constitutional ramifications of the practice, as an “unreasonable search and seizure”
under the Fourth Amendment, and more recently, as a denial of equal protection of
the laws. A variety of federal and state statutes provide potential relief to individuals
who claim that their rights are violated by race-based law enforcement practices and
policies.

Contents
Constitutional Background......................................2
Fourth Amendment Issues...................................2
Equal Protection Issues.....................................4
Federal Statutes..............................................11
42 U.S.C. 1983...........................................11
The Violent Crime Control and Enforcement Act of 1994.........11
Omnibus Crime Control and Safe Streets Act of 1968............12
Title VI of the 1964 Civil Rights Act.........................13
Guidance Regarding the Use of Race by Federal Law Enforcement
Agenci es ...............................................13

Racial Profiling: Legal and
Constitutional Issues
Racial profiling is the practice of targeting individuals for police or security
detention based on their race or ethnicity in the belief that certain minority groups are
more likely to engage in unlawful behavior. The prevalence of the practice among
federal, state, and local law enforcement agencies is highlighted by recent legal
settlements and data collected by governmental agencies and private groups,
suggesting that minorities are disproportionately the subject of routine traffic stops.
The terrorist attacks by the Arab Muslim hijackers on September 11^th, and the
resultant backlash against persons of Middle Eastern and South Asian descent,
further underscore the tension between demands of national security and the need for
even-handed law enforcement. Some argue that racial profiling is a rational and
efficient method of allocating investigatory resources to safeguard the security of all.
Others would counter, however, that the practice is not a legitimate security measure,
but diverts investigatory scrutiny from real sources of potential threat, and that where
discrimination is concerned, liberty and security do not conflict. The issue has
garnered considerable interest in Congress, particularly with regard to existing and
proposed legislative safeguards.¹ Several courts have also considered constitutional
ramifications of the practice, as an “unreasonable search and seizure” under the
Fourth Amendment, and more recently, as a denial of equal protection of the laws.²
And in recent years, several major state and county law enforcement agencies, like

¹For a background on racial profiling legislation in the state and proposals before Congress,
see CRS Report RL31950, Racial Profiling and Traffic Stops in the States: Selected Issues
and Legislative Approaches.
²E.g. Farm Organizing Committee v. Ohio State Highway Patrol, 308 F.3d 523 (6^th Cir
2002)(affirmed denial of qualified immunity in § 1983 action against state trooper for
allegedly confiscating the immigration documents of Hispanic motorists solely because of
their race or national origin in violation of the Equal Protection Clause); Price v. Kramer,^th
200 F.3d 1237 (9 Cir. 2000)( affirming a jury verdict in favor of two black youths where
it was alleged that officers with racial bias stopped the plaintiffs’ vehicle without probable
cause or reasonable suspicion, conducted an illegal search, and used degrading and
excessive force on the plaintiffs); Daniel v. City of New York, 138 F.Supp.2d 562
(S.D.N.Y. 2001)(class certification granted to Black and Hispanic males in § 1983 action
for relief from alleged constitutional violation by Street Crime Unit of NYPD for conducting
repeated stops and frisks based on improper racial profiling).

the New Jersey State police,³ have resolved DOJ charges of racial profiling by its
officers by agreeing to extensive reform efforts and reporting requirements.
Constitutional Background
Fourth Amendment Issues. Racial profiling or consideration of race by
police and law enforcement is a subject that the courts have reviewed on both Fourth
Amendment unreasonable search and seizure, and more recently, federal equal
protection grounds. In its 1968 Fourth Amendment ruling, Terry v. Ohio,⁴ the
Supreme Court found that reasonable, articulable suspicion was sufficient grounds
for a police officer to briefly stop and question a citizen. Such suspicion must not be
based on the officer’s “inchoate and unparticularized suspicion or ‘hunch,’ but on the
specific reasonable inferences which he is entitled to draw from the facts in light of
his experience.” Terry employed a “totality of circumstances” test to determine the
reasonableness of police investigatory stops.
United States v. Brignoni-Ponce⁵ addressed the issue of race as a factor giving
rise to reasonable suspicion of criminal activity. “In this case the officers relied on
a single factor to justify stopping respondent’s car: the apparent Mexican ancestry of⁶
the occupants.” Neither this single factor nor the police officer’s belief that the
occupants were illegal aliens satisfied the constitutional minimum for an
investigatory stop. The Court conceded “[t]he likelihood that any given person of
Mexican ancestry is an alien is high enough to make Mexican appearance a relevant⁷
factor. . .” By itself, however, that factor did not support reasonable suspicion
necessary for a roving stop. The Court proposed a multi-factored analysis: “Officers
may consider the characteristics of the area . . .; usual patterns of traffic on the
particular road, and previous experience with alien traffic.”⁸ Additionally, erratic
behavior and evasive acts by those under the observation of the police officer, as well
as aspects of the motor vehicle, may support the reasonable suspicion necessary for
an investigatory stop.

³United States v. State of New Jersey, No. 99-5970, available at [http://www.us-
doy.gov/crt/split/documents/jerseysa]. Other settlements also have required the defendant
law enforcement agencies to collect and report demographic data on all motorists (or
pedestrians) stopped and searched. E.g. Wilkins v. Maryland State Police (Civ. No. MJG-
93-468 (D.Md. Jan. 5, 1995); NAACP v. City of Philadelphia (Civ. No. 96-CV-6045
(E.D.Pa.. Dec. 15, 1997).
⁴392 U.S. 1 (1968).
⁵422 U.S. 873 (1975).
⁶Id. at 885-86.
⁷Id. at 886-87.
⁸Id. at 884-85. See also United States v. Anderson, 923 F.2d 450, 455 (6^th Cir.
1991)(“Suspicions based solely on race of person stopped cannot give rise to a reasonable
suspicion justifying a Terry stop”).

Subsequent courts, however, have upheld stops of persons that were partially
based on race. Border patrol agents in United States v. Martin-Fuerte ⁹ referred
motorists selectively to a secondary inspection area on the basis of several factors,
including Mexican ancestry. Of 820 vehicles referred for secondary inspection over
the period in question, roughly 20 per cent included illegal aliens. On this basis, the
Court determined that “to the extent that the Border Patrol relies on apparent
Mexican ancestry at this checkpoint, . . . that reliance clearly is relevant to the law
enforcement need to be served.” Indeed, according to the majority, “even if it be
assumed that such referrals are made largely on the basis of apparent Mexican
ancestry, we perceive no constitutional problem.”¹⁰ But the Court cautioned against
extending the logic of border enforcement cases to situations remote from the border,
where the government interest in immigration policing may be less compelling.
Thus, a different conclusion might pertain “if, for example, reliance were put on
apparent Mexican ancestry at a checkpoint operated near the Canadian border.”¹¹
Another Fourth Amendment case, United States v. Weaver,¹² likewise affirmed the
conviction of a black drug courier suspect who was stopped at the Kansas City
Airport based, in part, on information that “a number of young roughly dressed black
males from street gangs in Los Angeles frequently brought cocaine into the Kansas
City area.”¹³ The court ruled that federal drug enforcement agents can rely on racial
characteristics if objective crime trend analysis validates use of these characteristics
as “risk factors” in predicting criminal behavior.
The Ninth Circuit, however, has determined that it is impermissible to take
Hispanic origin into account in stops in Southern California. In United States v.
Montero-Camargo,¹⁴ the appeals court noted both significant “demographic changes”
and “changes in the law restricting the use of race as a criterion in government
decision-making”¹⁵ as reasons for precluding any consideration of race.
The likelihood that in an area in which the majority — or even a substantial
part — of the population is Hispanic, any given person of Hispanic ancestry is
in fact an alien, let alone an illegal alien, is not high enough to make Hispanic
appearance a relevant factor in the reasonable suspicion calculus. . . . [F]actors
that have such a low probative value that no reasonable officer would have relied¹⁶

on them to make an investigative stop must be disregarded as a matter of law
⁹428 U.S. 543, 563 (1976).
¹⁰Id .
¹¹Id .
¹²966 F.2d 391, 392 (8^th Cir. 1992).
¹³Id. at 392-93.
¹⁴208 F.3d 1122 (9^th Cir. 2000).
¹⁵Id. at 1134.
¹⁶Id. at 1132.

The Supreme Court’s contrary dicta in Brignoni-Ponce (supra) that ethnic
appearance could be relevant was distinguished as relying “on now-outdated
demographic information.”¹⁷
A frequently criticized form of racial profiling involves the “pretextual” traffic
stop — that is, detaining minority group members for routine traffic violations in
order to conduct a more generalized criminal investigation. The U.S. Supreme Court
directly addressed the constitutionality of the practice in 1996. Defendants in Whren
v. United States¹⁸ were two motorists who were charged with drug offenses based on
evidence discovered after they were pulled over for pausing at a stop sign for an
unusually long time, turning without signaling, and taking off at an unreasonable
speed. The Whren Court held that the Fourth Amendment is not violated when a
minor traffic infraction is a pretext rather than the actual motivation for a stop by law
enforcement officers. In other words, the fact that suspects were stopped for
pretextual reasons did not, without more, constitutionally taint the police action or
evidence of drug crimes discovered as a consequence. Whren, however, did not hold
that the officers’ motivation is entirely irrelevant when probable cause for a stop is
based on a traffic violation. As explained by the Court, “[t]he Constitution prohibits
selective enforcement of the law based on considerations such as race. But the
constitutional basis for objecting to intentionally discriminatory application of laws
is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions
play no role in ordinary, probable-cause Fourth Amendment analysis.”¹⁹
In Atwater v. City of Lago Vista,²⁰ the Court appeared to reinforce Whren by
ruling that the Fourth Amendment did not prohibit the warrantless arrest and
custodial detention of a motorist for misdemeanor traffic offenses, including failure
to wear a seatbelt, punishable only by a fine. Citing the “recent debate over racial
profiling,” Justice O’Connor dissented, arguing for a Fourth Amendment principle
that would require “officers’ poststop action” in such cases to be reasonable and
“proportional” to the offense committed.
Equal Protection Issues. Racial profiling may be susceptible to two kinds
of equal protection challenge after the Whren decision. First, claimants may argue
that the conduct of an individual officer was racially motivated — that the officer
stopped the suspect because of race. “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 Equal²¹
Protection Clause has occurred.” Or the defendant may argue that he was the
victim of selective enforcement. Selective enforcement equal protection claims

¹⁷Id .
¹⁸517 U.S. 806 (1996).
¹⁹Id. at 813.
²⁰532 U.S. 318 (2001).
²¹United States v. Avery, 137 F.3d 343, 355 (6^th Cir. 1997).

frequently focus on the policies of departments, beyond the impact of particular
enforcement actions on individual defendants.
Racial Motivation. Proof of discriminatory intent is an essential element of
any equal protection claim. “Determining whether invidious discriminatory purpose
was a motivating factor” behind a law enforcement officer’s actions “demands a
sensitive inquiry into such circumstantial and direct evidence of intent as may be
available.”²² The task is complicated after Whren because there may be an objective,
nonracially motivated basis for the stop or detention. In the case of a pretextual stop,
the court must take the inquiry into illicit intent to the next level by addressing the
officer’s reason for taking enforcement action. But if racially-motivated decision-
making is shown, or an agency policy employs explicit racial criteria, the claimant
need not demonstrate statistically that members of his racial or ethnic group were
disproportionately targeted for enforcement. “[I]t is not necessary to plead the
existence of a similarly situated non-minority group when challenging a law or policy
that contains an express racial classification.”²³ Rather, because the policy itself
establishes a direct connection between the racial classification and the defendant’s
enforcement action, the policy is subject to strict scrutiny under the Equal Protection
Clause.
A challenge to the specific acts of a particular police officer is not unlike a claim
of racial discrimination in the use of peremptory jury challenges, which also involves
the acts of a single state actor — the prosecutor — in the course of a single
transaction — the selection of a jury. The Supreme Court has instructed that “all
relevant circumstances” be considered in the constitutional analysis of such cases,
including the prosecutor’s “‘pattern’” of strikes against black jurors,” and the
prosecutor’s “questions and statements,” which may “support or refute and inference
of discriminatory purpose.”²⁴ Similarly, a police officer’s pattern of traffic stops and
arrests, his questions and statements to the person involved, and other relevant
circumstances may support an inference of discriminatory purpose in this context.²⁵
But, usually, statistical evidence of disparate racial impact will not alone suffice to
establish an illegal racial profiling operation.²⁶

²²Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252,

266 (1977).

²³Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir. 2000). See also National Congress
for Puerto Rican Rights v. City of New York, 191 F.R.D. 52 (S.D.N.Y. 1999)( allegation
that police stopped and frisked Black and Latino men without reasonable suspicion based
on their race or national origin was sufficient to state equal protection claim,
notwithstanding that complaint failed to identify similarly situated non-minority individuals
who were not stopped and frisked, where complaint also alleged existence of discriminatory
policy which contained an express racial classification, i.e. “a regular policy of racial
profiling by law enforcement agencies — that is, making law enforcement decisions on the
basis of racial stereotypes. . .”).
²⁴Batson v. Kentucky, 476 U.S. 79, 96-97 (1986).
²⁵Marshall v. Columbia Lea Regional Hospital, 345 F.3d 1157 (10^th Cir 2003).
²⁶ See United States v. Chavez, 281 F.3d 479 (5^th Cir. 2002); Anderson v. Cornejo, 355 F.3d
(continued...)

Direct evidence of discriminatory intent was sufficient to avoid summary
judgment on a § 1983 claim of selective enforcement in the Tenth Circuit decision,
Marshall v. Columbia Lea Regional Hospital.²⁷ There the claimant was able to
present evidence of the officer’s behavior during the events in question as well as his
alleged record of racially selective stops and arrests in drug cases under similar
circumstances. Further evidence was offered that the claimant did not commit the
alleged traffic violation and that the officer made eye contact with him prior to
activating his emergency lights. As soon as the officer approached the claimant, he
accused him of being on crack, an accusation the officer repeated several times
during the encounter. When the officer filled out the citation form, he noted the
claimant’s race, although the form called for no such designation. Most
compellingly, it was shown that the officer had an extensive recorded history — or
“modus operandi” — of similar misconduct during his prior employment as a police
officer in another jurisdiction.²⁸
However, if race or ethnicity is “but one factor” and not the “sole basis” for a
stop detention, there may be no Fourteenth Amendment violation. In United States
v. Valenzuela,²⁹ an Hispanic motorist traveling from Tucson to Denver was stopped
for weaving in traffic by a Colorado trooper. The officer then became “suspicious”
that plaintiff may be a drug courier because of his “stiff and uncomfortable”
behavior, a “fabricated” story about visiting a sister in a Denver hospital, a vehicle
registration showing salvage title, and because Tucson was a known source of illegal
drugs, among other things. The driver ultimately consented to a search of his vehicle
which uncovered large amounts of cocaine under the carpet and rocker panels. At
trial, the trooper testified that beyond noted factors, he sometimes considered race
or ethnicity in making probable cause determinations, in part because of DEA
information that the majority of area drug smugglers are Hispanic. Affidavit
evidence in the case revealed a “large number of Hispanic arrestees,” but failed to
reveal “any stops made by [the trooper] in which no search was conducted or no
drugs were found” or that any stops were made for pretextual reasons. As a
consequence, the district court denied motions to suppress, there being “no
persuasive evidence that the Trooper targeted any of these suspects solely because
of their race.”
Similarly, the Second Circuit, in Brown v. City of Oneonta, concluded that
there was no violation of the Equal Protection Clause where plaintiffs charged that

²⁶(...continued)
1021, 1026 (7^th Cir. 2004)(“disparate impact does not imply disparate treatment” where
there was no evidence that supervisory official “sponsored, encouraged, or failed to stop”
alleged profiling practices).
²⁷345 F. 3d 1157 (10^th Cir. 2003).
²⁸Id. at 1170-71. See also Rodriguez v. California Highway Patrol, 89 F. Supp.2d 1131
(N.D. Cal. 2000)( allegations that state supervisors “acted with discriminatory intent and .
. .knew about but refused to stop racially discriminatory practices on the part of their
officers and by alleging the existence of statistical evidence and other facts which if proved
would support an inference of discriminatory intent.”).
²⁹United States v. Valenzuela, 2001 WL 629655 (D.Colo.).

they were questioned solely on the basis of their race, where the physical description
of the suspect provided by the victim of the crime included race among other factors.
The policy of the department, which included obtaining a description of the assailant
and seeking out persons matching that description, was found to be race-neutral on
its face.³⁰ Thus, only when race-based law enforcement decisions are a product of
racial stereotyping by police officials, as opposed to government’s response to
evidence developed from other sources, may constitutional issues arise.
Selective Enforcement. Absent an overtly discriminatory policy, or direct
evidence of police motivation, racial profiling claimants face additional evidentiary
burdens. A claimant alleging selective enforcement of facially neutral criminal laws
must demonstrate that the challenged law enforcement practice “had a discriminatory
effect and that it was motivated by a discriminatory purpose.” In United States v.
Armstrong,³¹ criminal defendants sought to attack their federal firearms and drugs
charges for crack cocaine as selective prosecution based on race. The Supreme Court
rejected the contention because there was no showing that similarly situated
defendants of another race were treated differently by criminal prosecutors. “To
establish discriminatory effect in a race case, the claimant must show that similarly
situated individuals of a different race were not prosecuted.” A claimant can satisfy
this requirement by naming an individual who was not investigated in similar
circumstances or through the use of statistical or other evidence “address[ing] the
crucial question of whether one class is being treated differently from another class³²
that is otherwise similarly situated.” This latter recourse calls for a reliable measure
of the demographics of the relevant population,³³ a standard for determining whether³⁴
the data represents similarly situated individuals, and relevant comparisons to the
actual incidence of crime among different racial and ethnic segments of the³⁵
population.
This framework has been applied in a number of proceedings involving
allegations of discriminatory police enforcement practices.³⁶ Armstrong was relied
upon by the Fourth Circuit in affirming the dismissal of a racial profiling action

³⁰195 F.3d 111, 119 (2d Cir. 1999)(distinguishing equal protection claims based on racially
neutral policies applied discriminatorily from claims based on policies containing express
racial classifications).
³¹517 U.S. 456 , 465 (1996).
³²Chavez v. Illinois State Police, 251 F.3d 612, 638 (7^th Cir. 2001).
³³Id. at 626
³⁴Id .
³⁵Armstrong, 517 U.S. at 469-70.
³⁶ E.g. Gardenhire v. Schubert, 205 F.3d 303 (6^th Cir. 2000)(When the § 1983 claim is
selective enforcement of the traffic laws or a racially motivated arrest, the plaintiff must
normally prove that similarly situated individuals were not stopped or arrested in order to^th
show the requisite discriminatory effect and purpose); Johnson v. Crooks, 326 F.3d 995 (8
Cir. 2003)(Despite the “seemingly impossible burden,” proof that a similarly situated person
was not stopped is required where motorists challenge their own stop on equal protection
grounds).

against Virginia Beach police. The district judge in Harris v. City of Virginia
Beach,³⁷ rejected statistical evidence of a “pattern, practice, or custom of racial
profiling” offered by a black driver who alleged that he was stopped for driving
under the influence without probable cause. Without evidence that the officer was
aware of plaintiff’s identity and race before stopping his vehicle, there was no proof
of illicit motivation. Moreover, even if plaintiffs could show that a disproportionate
number of minorities were stopped for traffic violations, they could not prove their
claim of discriminatory treatment absent a showing that similarly situated non-
minority drivers were treated differently. Since no record was kept concerning stops
where no citations were issued or searches conducted, the court found that plaintiffs
could not meet their burden. “Statistical evidence is generally not sufficient to show
that similarly situated persons of different races were treated unequally.”
Other courts have disagreed, however, and refused to apply the “similarly
situated requirement” in Armstrong to racial profiling by law enforcement officers
because the police “never have been afforded the same presumption of regularity
extended to prosecutors” and because “in the civil context, . . . such a requirement
might well be impossible to meet.”³⁸ In United States v. Duque-Nava, the court
concurred that application of the Armstrong standard to racial profiling cases would
require a § 1983 claimant to make an “impossible” showing “that a similarly situated
individual was not stopped by the law enforcement.”³⁹ For this reason, in the
Marshall decision,⁴⁰ the Tenth Circuit found that discriminatory effect could be
demonstrated either by showing a similarly situated individual, or by relying on
statistical evidence. And in Chavez v. Illinois State Police,⁴¹ the Seventh Circuit
similarly held that statistical evidence of discriminatory effect should be accepted as
proof of a selective enforcement claim based on a traffic stop.
While dispensing with Armstrong’s “similarly situated” requirement, however,
Chavez illustrates the difficulty of proving racial profiling claims based on statistical
evidence. The Seventh Circuit affirmed dismissal of a class action lawsuit
challenging Operation Valkyrie, a state police program to fight illegal drug trade by

³⁷11 Fed.Appx 212 (4^th Cir. 2001).
³⁸Rodriguez, supra n. 27 at 1140.
³⁹315 F.Supp.2d 1144, 1155 (D.Kansas 2004). Continuing, the district court noted:
It is virtually impossible to identify a ‘similarly situated’ individual who was not
stopped. The person cannot be identified at all, nor is there any recorded
information from which one can compare whether the motorists present similar
factors to an observing officer, such that there has been disparate treatment or
not. Because law enforcement agencies do not make or keep records on
individuals they do not stop, and certainly not on “similarly situated” individuals
they do not stop, imposing such a requirement on this defendant or any defendant
who challenges a traffic stop as selective enforcement, effectively denies them
any ability to discover or prove such a claim. Thus, the defendant challenging
a traffic stop for selective enforcement must be allowed to show discriminatory
effect in some other way.
⁴⁰Supra n. 27.
⁴¹251 F.3d 612 (7^th Cir. 2001).

focusing on traffic enforcement. After stopping a vehicle for a legitimate traffic
offense, Valkyrie officers were trained to request permission to search if any of 28
indicators of illegal drug trade unrelated to race were noted. Chavez was stopped for
failing to signal a lane change — after which he was questioned, his car searched,
and he was released with a warning — while a white female companion (from the
public defender’s office) driving in identical fashion immediately behind him was not
stopped. A second class member, Lee, claimed that he violated no traffic laws but
was nonetheless stopped, patted down, and subjected to a search of his car three
times in 1993. In their bid for class certification, the plaintiffs proffered statistics,
which they argued showed a disproportionate number of Blacks and Hispanics being
stopped and searched. The district court granted the state’s motion for summary
judgment on the equal protection claims, and the Seventh Circuit affirmed.
The appeals court found that Chavez did identify a similarly situated white
motorist who was treated differently, but that the Armstrong requirement was neither
necessary nor sufficient to satisfy the plaintiff’s burden of proving discriminatory
purpose and effect in an equal protection case. The Armstrong rule governing
selective prosecutions did not apply in racial profiling cases, first, because it would
be impossible to prove. “[P]laintiffs who allege that they were stopped due to racial
profiling would not, barring some type of test operation, be able to provide the names
of other similarly situated motorists who were not stopped.” Second, racial profiling
involves police conduct, not prosecutorial discretion, and is in a civil, not criminal,
context.
Despite its decision to permit statistical proof that minority class members
were treated differently than other motorists, the court concluded that the numbers
presented failed to support an inference of racial profiling. First, plaintiffs relied on
a “random sample” of Valkyrie field reports, without indication of the total number
of stops made during the relevant period. Secondly, the “benchmarks” for the
presence of various racial groups on Illinois roads was the 1990 census, which is
“widely acknowledged” to undercount certain groups, particularly Blacks and
Hispanics. Thus, without reliable data on whom Valkyrie officers stop, detain, and
search, or of a proper demographic benchmark for the motoring public on the Illinois
roads in question, the court “[could] not find that the statistics prove that the Valkyrie
officer’s action had a discriminatory effect on the plaintiffs.” Nor did “isolated
instances” of “racially insensitive remarks” made by troopers during stops provide
sufficient evidence of racial motivation in a racial profiling case.
Apart from problems of proof, established equal protection doctrine instructs
that where race or ethnicity is the sole or “predominant” factor behind the decision
to stop or arrest, “strict scrutiny” requires that government demonstrate a
“compelling” justification served by “narrowly tailored” means. “Strict scrutiny”
is not, however, a per se rule of invalidity — “strict in theory is [not] fatal in fact”⁴²
— but instead describes an analytical framework requiring the government to
demonstrate a “close fit” between any distinction in treatment of its citizens on the
basis of race and a “compelling” law enforcement or national security interest. The
government’s burden of justification for focusing upon race as a predominate factor

⁴²Adarand Constructors Inc. v. Pena, 515 U.S. 200, 227 (1995).

in the law enforcement process is undoubtedly a weighty one, unlikely to be met in
most circumstances. Nonetheless, much might depend on the “totality” of
circumstances, not the least of which may be the magnitude of any public safety or
national security interests at stake.⁴³ “In the end, . . .even when formally strict,
judicial scrutiny under the Equal Protection Clause must be ever sensitive to the
circumstances in which government seeks to act and to the methods by which it seeks
to achieve even its legitimate ends.”⁴⁴
The Equitable Standing Doctrine. Besides substantive proof requirements,
major procedural obstacles may limit the efficacy of private actions to end racial
profiling practices. First, there is the “equitable standing doctrine” that has been
applied by courts to deny an individual plaintiff the legal standing to seek injunctive
relief against unconstitutional police practices unless he can show a “substantial
certainty” that he will suffer similar injury in the future. In City of Los Angeles v.⁴⁵
Lyons, the Supreme Court reversed the grant of injunctive relief to a black motorist
permanently injured by a police chokehold applied during a routine traffic stop.
Notwithstanding his allegation that numerous other individuals had been injured or
killed as a result of the same practice, the plaintiff had not shown that he himself was
“realistically threatened by a repetition of his experience” with the LAPD. Although
he had standing to assert a damages claim, said the Court, the plaintiff could not
obtain an injunction because it was unlikely that he again would be subject to a
chokehold. Moreover, in order to show actual threat of future injury, Lyons “would
have had not only to allege that he would have another encounter with the police but
also to make the credible assertion . . . that all police officers in Los Angeles always⁴⁶
choke any citizen with whom they happen to have an encounter.” The Lyons
principle has been extended by lower courts to racial profiling cases, permitting
claims for damages to go forward while denying the plaintiffs standing to seek
injunctions against future police abuse. “[I]t is important to keep in mind that these
are two distinct inquiries, and that it is possible to have standing to assert a claim for
damages to redress past injury, while, at the same time, not having standing to enjoin⁴⁷
the practice that gave rise to those damages.” It could be argued, however, that a
damages remedy is a less effective deterrent to constitutional misconduct because

⁴³Cf. Hirabayashi v. United States, 320 U.S. 81 (1943); Korematsu v. United States, 323
U.S. 214 (1944).
⁴⁴Rubin, Peter J., “Reconnecting Doctrine and Purpose: A Comprehensive Approach to
Strict Scrutiny After Adarand and Shaw,” 149 U.Pa.L.Rev. 1, 5 (2000).
⁴⁵461 U.S. 95 (1983).
⁴⁶Id. at 105-06.
⁴⁷Farm Organizing Committee v. Ohio State Highway Patrol, 95 F. Supp. 2d 723, 730
(N.D.Ohio 2000) (Hispanic motorists’ claim of racial profiling by state highway patrol in
interrogating them about immigrant status and confiscating immigration documents based^th
on their Hispanic appearance). Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9 Cir.
1999)(Class of Hispanic motorists who alleged that they were stopped by the Border Patrol
along the United States border with Mexico because of their Hispanic appearance lack
standing to seek an injunction because of their inability to show that they would have
another encounter with federal enforcement officials).

individual officers are cloaked by qualified “good faith” immunity in most cases, or
may be indemnified against personal liability by their public employer.
Federal Statutes
42 U.S.C. 1983. Judicial decisions reflect the crucial role that racial
recordkeeping and statistics may play in mounting a successful legal challenge to
racial profiling. This is because the plaintiff must prove both racial motivation and
“discriminatory effect” of law enforcement practices in federal lawsuits under 42
U.S.C. § 1983. Section 1983 provides a monetary damages remedy for harm caused
by deprivation of federal constitutional rights — including equal protection of the
laws — by state or local governmental officials or those acting in concert with them,
i.e. under “color of law.” Claims against federal defendants — usually in the context
of border, customs, or airport searches — may be maintained directly under the
Constitution as a Bivens action,⁴⁸ or under the Federal Tort Claims Act.⁴⁹ Not every
violation of a Fourth or Fourteenth Amendment right is entitled to a damage remedy,
however. The qualified immunity doctrine broadly protects against individual⁵⁰
liability for damages where the right asserted was not “clearly established,” or
where a reasonably well-trained officer would not have known that his conduct⁵¹
violates the Constitution. Similarly, the Eleventh Amendment prohibits suit
against a state or state law enforcement agency for damages, and controlling § 1983
precedent only makes municipal employer’s liable for constitutional violations cause
by municipal “law, policy, practice, or custom.”⁵²
The Violent Crime Control and Enforcement Act of 1994. This act
included a provision, 42 U.S.C. § 14141, authorizing the Department of Justice
(DOJ) — but not private victims — to bring civil actions for equitable and
declaratory relief against any police agency engaged in unconstitutional “patterns or
practices.” DOJ’s Civil Rights Division has moved against state and local law
enforcement agencies engaged in a “pattern or practice” of police abuse under 42
U.S.C. § 14141, again relying on statistical evidence of discriminatory enforcement
patterns. A federal lawsuit against the State of New Jersey claimed that officers
patrolling the New Jersey Turnpike intended to discriminate on the basis of race and
that state police “criteria and methods of administration” had a racially
discriminatory effect. By failing to implement policies to properly discipline officers
for racially discriminatory conduct, the government’s complaint alleged, the New
Jersey State Police were responsible for the pattern of racial profiling.⁵³

⁴⁸Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971)(holding that plaintiffs can
sue federal defendants in federal court for Fourth Amendment violations).
⁴⁹Federal Tort Claims Act, P.L. 79-601, 60 Stat. 842 (codified as amended in scattered
sections of 28 U.S.C.).
⁵⁰Harlow v. Fitzgerald, 457 U.S. 800 (1982)
⁵¹Anderson v. Creighton, 483 U.S. 635 (1987)
⁵²Monell v. Department of Social Services, 436 U.S. 658 (1978).
⁵³See Complaint, United States v. New Jersey, Civ. No.99-5970 (MLC)(D.N.J.) at [http://
(continued...)

The suit was brought under § 14141, authorizing civil action by the Attorney
General to “obtain appropriate equitable and declaratory relief to eliminate the
pattern or practices” of racial discrimination by law enforcement agencies.
Settlement was reached in the case in January of 2000, providing that 1) unless
specific suspects are sought and are known to be of a certain race or ethnic or
national origin, troopers may not use such factors in deciding whether to stop an
automobile or investigate the automobile’s occupants or physical contents; 2) the
New Jersey State Police must implement a protocol that establishes criteria to be
followed by state troopers in determining which motorists are to be stopped; 3)
troopers may request consent to search an automobile only if they have reasonable
suspicion that a search will reveal evidence of a crime; and 4) a consensual search
may proceed only after the driver signs a written consent form (printed in English and
Spanish) that informs the motorist of the right to withhold consent, which contains
boxes to be checked indicating whether consent has been given and allows the
consenting party to limit the scope of the search. The consent decree further provides
that the state police shall continue to use in-car videotape equipment to record motor
vehicle stops and that statistics shall be maintained on the race of all persons from
whom consent to search is requested and of all persons searched in the absence of
consent. When consent is not given, officers must document the basis for the search;
whenever a drug dog is employed in a stop, officers are to document the reason.
Other elements of the decree require the state police to establish a twenty-four hour,
toll-free telephone number to receive complaints about police activities; to publicize
the number on informational materials and on all “consent to search” forms; to
investigate all complaints and to take appropriate disciplinary against any errant
officer, depending on “the nature and scope of the misconduct.”
The Law Enforcement Act has been employed by the Justice Department to
combat racial profiling by major law enforcement organizations around the country.
The statute allows the federal government to proceed to federal court when the facts
demonstrate not just a single or sporadic violations of the law, but a pattern of civil
rights deprivations by police over a sustained period. Besides the New Jersey case,
settlements in Pittsburgh, Los Angeles, Steubenville, Ohio and Montgomery County,
Maryland have resulted in police departments implementing comprehensive plans
and programs to address patterns and practices of police abuse, including racial
profiling. But while the law provides the federal government with an important tool
for dealing with police abuse, its efficacy may be limited for want of a private right
of action.
Omnibus Crime Control and Safe Streets Act of 1968.The Crime
Control Act was enacted to “aid State and local governments in strengthening and
improving their systems of criminal justice by providing financial and technical
assistance. . . .”⁵⁴ State and local governments receiving assistance are prohibited
from discriminating in programs or activities funded in whole or in part by the

⁵³(...continued)
www.usdoj .gov/crt/split/documents/j erseycomp.htm]
⁵⁴42 U.S.C. § 3789d.

federal largess.⁵⁵ The Civil Rights Division of Justice Department is responsible for
enforcing the statute which, in addition to authorizing civil actions by the federal
government, also allows individuals to pursue a private right of action.⁵⁶ The Law
Enforcement Assistance Administration (LEAA) was created to administer the grant
program to state and local governments and is authorized to terminate assistance to
fund recipients found guilty of discrimination.⁵⁷
Title VI of the 1964 Civil Rights Act. Title VI prohibits discrimination
because of race or ethnicity in all federally assisted programs and activities —
including law enforcement agencies that receive federal funds.⁵⁸ Racial profiling
cases have only infrequently included Title VI claims, which have not yet been
litigated to conclusion. While this avenue remains largely untested, courts have held
that Title VI permits a private right of action for individuals to seek injunctions
against recipients of federal funding, including police, for a policy or practice that⁵⁹
discriminates on account of race. Moreover, local police departments that receive
DOJ assistance are subject to agency regulations providing that recipients may not
“utilize criteria or methods of administration which have the effect of subjecting
individuals to discrimination . . . or have the effect of defeating or substantially⁶⁰
impairing” program objectives because of race. After the Supreme Court decision
in Alexander v. Sandoval,⁶¹ however, private parties no longer have a right to sue for
damages to enforce Title VI “disparate impact” regulations, and may have to rely on
administrative enforcement by federal agencies.
Guidance Regarding the Use of Race by Federal Law
Enforcement Agencies
In February 2001 — notably, before the events of September 11^th — President
Bush directed the Attorney General to the use of race by federal enforcement
agencies and “to develop specific recommendations to end racial profiling.” The

⁵⁵Id. at § 3789d(c)(1).
⁵⁶Id. at § 3789d(c)(4)(A); National Black Police Ass’n, Inc. v. Velde, 712 F.2d 569 (D.C.Cir

1983).

⁵⁷United States v. City of Los Angeles, 595 F.2d 1386 (1979)(holding that the LEAA was
justified in discontinuing funds to the Los Angeles Police Department when the Department
refused to abandon certain racially discriminatory practices).
⁵⁸42 U.S.C. § 2000d et seq.
⁵⁹See Rodriguez v. California Highway Patrol, 89 F. Supp.2d 1131, 1139 (N.D.Cal.
2000)(finding that plaintiffs adequately pled a Title VI claim by alleging that the police
department receives federal funding and engages in “racial discrimination by stopping,
detaining, interrogating and searching motorists on the basis of race”); Maryland State
Conference of NAACP Branches v. Maryland Dep’t of State Police, 72 F. Supp. 2d 560,
566-67 (D.Md. 1999)(finding that a private right of action exists under Title VI and that
plaintiffs alleging a practice of racial profiling have adequately stated a claim).
⁶⁰28 C.F.R. § 42.104(b)(2).
⁶¹532 U.S. 275 (2001).

Justice Department then undertook a study of policies and practices of federal law
enforcement agencies to determine the nature and extent of racial profiling. Two
years later, the Administration issued a ban on the practice by federal law
enforcement agencies — including the FBI, the Secret Service, the Drug Enforcement
Agency, and the Department of Homeland Security — but permitted exceptions for
the use of race and ethnicity to combat potential terrorist threats.⁶²
The policy prohibits the use of “generalized stereotypes” based on race or
ethnicity, and allows officers to consider racial factors in “traditional law
enforcement”activities only as part of a specific description or tip from an informant.
However, the guidance “do[es] not affect current Federal policy with respect to law
enforcement activities and other efforts to defend and safeguard against threats to
national security or the integrity of the Nation’s borders.” When federal law
enforcement officers are “investigating or preventing threats to national security or
other catastrophic events (including the performance of duties related to air
transportation security), or enforcing laws protecting the integrity of the Nation’s
borders,” they may consider both race and ethnicity “to the extent permitted by the
Constitution and laws of the United States.”
The likely impact of the guidance may be limited by several factors. First, it
applies only to federal agents, whereas the bulk of national law enforcement remains
a state and local matter. In addition, the guidance is largely advisory, since it
imposes no penalties and otherwise appears to lack legal force. Its numerous
exceptions, particularly for national security investigations, may in the present
climate invite broad circumvention where individuals of alien or Middle Eastern
origin are concerned. Similarly, profiling of Latinos to preserve “border integrity”
with Mexico would apparently be permitted by the current policy.

⁶²Guidance Regarding the Use of Race by Federal Law Enforcement Agencies, U.S. Dept
of Justice, Civil Rights Division (June 2003), available at [http://www.usdoj.gov.].