How to Stop the ‘Third Wave’ of Racial Profiling

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Mural in Detroit, Michigan. Photo by Ricardo Martinez/TCR

On April 29, 2018, a white woman in Oakland, Ca., called police after watching  a family of African Americans in a public park prepare a barbecue. She claimed the family was using the “wrong type” of grill. No one was arrested, but members of the family were detained and questioned for an hour.

Just two weeks earlier, two African-American men were arrested in a Starbucks in Philadelphia, after the barista called the police with a complaint that the men were suspiciously idling without purchasing anything. (They were waiting for a friend.)

The second event made national headlines as a result of a video of the incident that went viral; but both incidents amount to a type of racial profiling as insidious as the more overt types—but often much harder to prevent, according to a professor at the University of Pittsburgh School of Law.

“I call this new phenom­enon profiling by proxy,” writes David A. Harris, in a paper published by Criminal Justice.

 “White civilians, seeing African Americans in places in which the white people don’t feel the African Americans belong, summon police as their proxies, to investigate the behavior of the (to them) out-of-place and therefore suspicious blacks.”

The “extra police attention” provoked by such incidents is more difficult to legislate against or train law enforcement to avoid than the more well-known forms of racial profiling, Harris says.

He identifies two earlier “waves” of racial profiling, with the first identified in the 1980s as the result of systematic police stops of African-American drivers on the suspicion they were carrying drugs or involved in some form of criminal activity. The real ‘offense’ has been tartly dubbed “Driving While Black.”

The second emerged after the Sept. 11, 2001 terror attacks in New York City, when law enforcement, airport immigration and customs officers, and even ordinary citizens assumed anyone of Arabic, Middle Eastern or Muslim background was a potential terrorist and required special interrogation.

Although state police authorities at first denied their troopers practiced racial profiling, statistics proved otherwise.

One New Jersey study cited by Harris noted African Americans represented 35 percent of traffic stops by state troopers although they represented less than 14 percent of those travelling on the road.

The second wave of racial profiling received unabashed support from the general public. In one poll taken just after the Sept. 11 attacks, “by a nearly two-to-one margin, Americans believed that the government should subject people of ‘Arab descent’ to profiling in airports,” Harris wrote.

While the first two types of profiling have eased to some extent as a result of spotlighting by the media, widespread protests, and changes in law enforcement training, profiling by “proxy” represents a harder target, the study said.

The difficulty is that police, wittingly or unwittingly, become the instruments of racial biases held by ordinary citizens. They cannot refuse to answer a complaint, without prior evidence of whether the complaint is valid or not.

And once they are on the scene, the tensions fueled by their presence can escalate into a more serious incident.

“What we know is that the practice must be curtailed, even if we cannot seem to end it,” wrote Harris. “We’ve long had infor­mation proving that the practice does not help police and does injure communities.”

Harris acknowledged that versions of “profiling by proxy” were not necessarily a new experience for people of color, who have historically been the targets of unsubtle efforts by whites to enlist law enforcement to keep them away from neighborhoods or areas where they “don’t belong.”

But what led to its emergence as a newer “third wave” of the practice was the connection with new technology that had brought it  wider attention,  Cellphone videos of the Starbucks incident, for example, went viral, and in response the company issued an immediate apology and closed many of its stores briefly several months later to hold special training sessions for employees.

The police response, however, was that they did nothing wrong.

Then-Philadelphia Police Commissioner Richard Ross said his officers responded as they should have to a trespassing complaint.

“If you think about it logically, [when] a business calls and they say that someone is here that I no longer wish to be in my business, [police] now have a legal obligation to carry out their duties,” said Ross, who is African American.

Based on Harris’ analysis, such responses don’t address the root of the problem. He recommended two steps that could help curtail the practice.

The first would require law enforcement and other authorities to maintain a comprehensive data record of such stops, in the same way that the Traffic Stops Study Act, enacted in 1998, required authorities to collect information on the “race, ethnicity and age” of all those caught in routine traffic stops, along with details of the reason for the stop.

The information produced by that Act was a major factor in revising the practice and training of law enforcement across the country, Harris wrote.

In the same way, a compilation of police actions that fit the “profiling by proxy” category could help inform future training, he said.

Harris’ second recommendation involves rethinking statutes governing police searches and questioning.  Numerous Supreme Court rulings require police to get verbal consent before a search.

But such a requirement is often meaningless in what can be a tense interaction between an officer and a civilian, he said.

“Ninety percent of the time…the vast majority of people will not defy the authority of the requesting officer or are afraid that refusing the request will make them ‘look guilty,’” he wrote.

Repeated studies have shown how consent searches are disproportionally skewed towards people of color, Harris wrote, suggesting that there needs to be a more direct limitation that will prevent police from conducting the kind of humiliating tactics used on the black family members in Oakland who were just trying to enjoy their barbecue.

“Taking away the ability to search, absent probable cause or reasonable suspicion to believe an offense has been committed, would go a long way toward curtailing these practices,” Harris wrote.

“State lawmakers can make this happen with the passage of statutes that prohibit police searches or requests to search without probable cause (and) law enforcement lead­ers can do it themselves, by creating police department rules and regulations that do the same thing.

“We need not wait for the U.S. Supreme Court to act.”

Additional Reading: How the 911 System Turns Police into ‘Proxies’ for Racial Bias 

The full paper can be downloaded here.

TCR staff writer Andrea Cipriano contributed to this summary.

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