By Sara Rose, Staff Attorney, ACLU of Pennsylvania
Almost four years after Philadelphia agreed to reform its policing practices to reduce racial profiling, little improvement has been made. Philadelphia police still stop and frisk African-American and Hispanic pedestrians at rates substantially higher than whites. Philadelphia, unfortunately, is not alone in targeting minorities for stops and pat-downs. Most cities that keep data on pedestrian stops show similar disparities. Perhaps more troubling, however, is that few police departments require their officers to record any data on pedestrian stops or pat-down searches, making it impossible to know the breadth of the problem.
Racial profiling refers to the practice of targeting people for stops, interrogations and searches without evidence of criminal activity and based on individuals’ perceived race, ethnicity, nationality or religion. The U.S. Supreme Court has held that stopping an individual on account of his or her race, even if there is another legitimate reason for the stop, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
Twenty years ago, much of the focus on racial profiling was on traffic stops following the I-95 “turnpike” studies, which showed huge disparities in the number of African-American drivers stopped by police compared to whites. Many law enforcement agencies, including the Pennsylvania State Police, now require officers to record data, including the race of drivers, when they conduct traffic stops. But there is no federal or Pennsylvania law that requires local police departments to keep data on traffic or pedestrian stops, even when police search the vehicle or person.
This lack of data leads to the perception that racial profiling is an urban myth. At a recent community forum in Pittsburgh, a police commander actually responded to a question about racial profiling by stating that “racial profiling does not exist.” But he had no way of knowing whether his officers engaged in racial profiling because Pittsburgh does not require its officers to record data on pedestrian stops.
Statewide legislation is needed to ensure that police departments track the race or ethnicity of individuals stopped by police and the reasons for those stops. The Fourth Amendment requires police officers to have reasonable suspicion that crime is afoot and that the individual stopped is involved in it before detaining that person on the street. To frisk the person, the police officer must have reasonable suspicion to believe that he or she has a weapon.
Our review of pedestrian stops in Philadelphia shows that 37 percent of the over 200,000 pedestrian stops in 2014 were made without reasonable suspicion to believe that the individual was involved in a crime, and only 47 percent of the frisks were made based on reasonable suspicion that the individual was armed. In 95 percent of all frisks, no evidence was seized.
These stops and frisks also disproportionately targeted minorities. Although Philadelphia’s population is 42.26 percent white, 43.22 percent black, and 8.5 percent Hispanic, 80.23 percent of stops were of minorities. The disparity was even greater for frisks, with minority residents accounting for 89.15 percent of frisks.
It is highly likely that similar rates of racial disparities and suspicionless stops would be found in other Pennsylvania cities if the data were available. A 2002 study that looked at vehicle and pedestrian stops by the Erie police over a six-month period found a significant racial disparity in vehicle stops, pedestrian stops, and searches. Indeed, essentially all studies of racial profiling find evidence of racial disparity. This had led to requirements that police departments collect and analyze data on stops. Seventeen states require police to collect data on traffic stops and thousands of police departments across the country collect pedestrian-stop data, including Chicago, Cincinnati, Dallas, Los Angeles, Miami, Milwaukee, New York, and San Francisco.
In addition to mandating that police departments collect and analyze data on stops, the Pennsylvania legislature can require police departments to implement practices that promote fair and impartial policing, including:
- Having a detailed written policy that prohibits racial profiling and clearly defines acts constituting racial profiling;
- Informing individuals that they have the right not to consent to a search; and
- Barring the use of agency funds, equipment or personnel for the purpose of detecting noncitizens who are in violation of immigration laws and prohibiting officers from asking individuals about their immigration status.
The state can also mandate police officer training on racial profiling, both as part of officers’ initial training and their mandatory in-service training.
While these steps will not eliminate racial profiling, they will reveal where it is occurring and counter the “racial profiling does not exist” mindset of many in law enforcement. After all, choosing who to stop or search based on race or ethnicity is not an effective law-enforcement strategy. Although African Americans and Latinos are more likely to be stopped and searched by police than whites, they are less like to have weapons or contraband than whites who are searched. Law enforcement should be based on best practices, not stereotypes. Thirty other states have adopted laws addressing racial profiling. Pennsylvania should join them.
This blog post is part of a series for Black History Month.
Sara J. Rose is a staff attorney in the organization’s Pittsburgh office. Before joining the ACLU of Pennsylvania, she was a legal fellow with Americans United for Separation of Church and State.