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«I. INTRODUCTION Until the day she was stopped in March 1997, Gail Atwater never considered herself anti-cop.1 As a white woman living in the suburbs, ...»

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THROWING THE BABY OUT WITH THE BATHWATER: HOW

CONTINENTAL-STYLE POLICE PROCEDURAL REFORMS CAN

COMBAT RACIAL PROFILING

AND POLICE MISCONDUCT

Eric Manch*

I. INTRODUCTION

Until the day she was stopped in March 1997, Gail Atwater never

considered herself anti-cop.1 As a white woman living in the suburbs, she was not the type to complain about police misconduct. Her encounter that day with Officer Turek of the Lago Vista, Texas police department, however, led to one of the most controversial decisions of the Supreme Court’s 2001 term. Atwater was driving her pickup truck in Lago Vista with her two children, a three-year-old son and a five-year-old daughter. She unbuckled their seat belts after one of the children dropped a toy. At the time, Atwater claims she was driving about fifteen miles per hour.2 Noticing the passengers of the truck were not wearing their seatbelts, Officer Turek pulled over Atwater. The events that followed could scarcely be more shocking to the average suburban parent. After verbally berating Atwater for failing to wear her seat belt, Turek handcuffed Atwater and drove her to the local police station. She was then booked and placed in a holding cell for one hour before finally being released on $310 bond. She ultimately pled no contest to several minor seatbelt offenses and paid a $50 fine.3 She posed no physical threat to Officer Turek, nor was she possessing any illegal weapons or drugs.4 Atwater subsequently filed suit against the City of Lago Vista under 42 U.S.C. § 1983, alleging that her Fourth Amendment rights against search and seizure had been violated.5 In a 5-4 opinion written by Justice Souter – an unexpected member of the majority – the Supreme Court ruled that there was no seizure.6 The Justices had little trouble concluding Officer Turek had probable cause to make the arrest, given that the officer spotted Atwater’s children without their seatbelts fastened.7 Furthermore, the Court showed little sympathy for what * Candidate for J.D. in May, 2003 from the University of Arizona James E. Rogers College of Law.

1. The Early Show (CBS television broadcast, Dec. 4, 2000).

2. Id.

3. Atwater v. City of Lago Vista, 532 U.S. 318, 318 (2001).

4. See id.

5. Id. at 325.

6. Id. at 326.

7. Id. at 354.

1026 Arizona Journal of International and Comparative Law Vol 19, No. 3 2002 many might consider a clear abuse of police authority, noting that she suffered no more indignity than the normal custodial arrest.8 The Atwater case poses a complex constitutional dilemma. To the lay observer, this appears to be a cut-and-dry abuse of police power. Such an observer would undoubtedly expect some sort of redress, either at the state or federal level. But Texas law explicitly authorizes a police officer to arrest a person found committing a seatbelt violation.9 Moreover, since Officer Turek was found to have met the standard of probable cause, the arrest did not violate the Fourth Amendment. Without a constitutional violation, a civil rights action under § 1983 cannot succeed.10 As the law stands, a rogue police officer like Officer Turek can selectively choose when to arrest scofflaws based on his own whims.

Officer Turek’s arrest of Atwater was in this case motivated by a strange personal vendetta,11 but an officer may choose to arrest based on the scofflaw’s skin color or personal creed. The Atwater decision leaves state and federal law at an impasse when it comes to curbing objective, individual abuses of discretion committed by police officers.

The Atwater decision also threatens to erode the trust citizens have in their police departments. Traditionally, white Americans like Gail Atwater have been among the most supportive of the police.12 However, after an experience like hers turns her “anti-cop,” it is worth considering what consequences will result from this abrogation of trust. Police officers rely on the good-faith cooperation of the communities they serve in order to fight crime.13 When this important link of trust is broken – as it already has been in many American minority communities14 – the impact on the effectiveness of law enforcement can only be negative.

8. Id.

9. TEX. TRANSP. CODE ANN. § 543.001 (1999).

10. See Whren v. United States, 517 U.S. 806, 817 (1996) (“[I]n principle every Fourth Amendment case, since it turns upon a reasonableness determination, involves a balancing of all relevant factors. With rare exceptions... the result of that balancing is not in doubt where the search or seizure is based upon probable cause.”).

11. Officer Turek had previously stopped Atwater for a seatbelt violation. Atwater, 532 U.S. at 341 n.1. According to Atwater, Officer Turek‘s behavior was unusually aggressive; as he approached the car, Atwater claimed that he “yelled” that she was “going to jail” and that they had “met before.” Id. at 341.

12. After considering herself a liberal, Atwater now wants to “limit the government's power as much as possible.” Ross E. Milloy, Public Lives; For Seat-Belt Violator, a Jam, a Jail, and Unmoved Justices, N.Y. TIMES, Apr. 28, 2001, at A9.





13. See generally James Forman Jr., Arrested Development: The Conservative Case Against Racial Profiling, NEW REPUBLIC, September 10, 2001, at 24 (arguing that racial profiling subtly discourages young black students from achieving).

14. The author acknowledges that there are many different groups of people who may identify with the term “minority,” many of which are paradoxically no longer minorities in certain regions of the United States. The term might adequately describe Native Americans, Asian Americans, Arab Americans, African Americans, Latinos, people How Continental-Style Police Procedural Reforms Can Combat Racial Profiling 1027 Although the type of “legal” police misconduct tolerated in Atwater is worrisome, official police misconduct is a much larger and amorphous problem.

“Official police misconduct” is conduct endorsed by the police either formally or informally that leads to harassment and constitutional violations of citizens’ rights – one of the most publicized examples of which is the phenomenon known as “racial profiling.”15 Challenges to the practice have largely failed in the courts,16 but complaints persist.

In the most benign cases, racial profiling yields only minor indignities – an unnecessary roadside stop or a few minutes of inconvenience. In the more serious cases, African-Americans have been severely inconvenienced, humiliated, beaten, and even killed. Police stopped Erroll McDonald, a Pantheon Publishing executive, while he was driving a rented Jaguar to ask him to, in his words, “show cause why [he] shouldn’t be deemed a problematic Negro in a stolen car.”17 Robert Byrd, an eleven-year veteran of the D.C. police, tried to stop a carjacking while out of uniform and was beaten by white police who believed he was the carjacking suspect.18 A number of African-American celebrities have complained of the problem, including R. Kelly,19 Marcus Allen, LeVar Burton, Johnnie Cochran, Christopher Darden, Miles Davis, Walter Mosley, Wesley Snipes, Blair with disabilities, and lesbian, gay and transgendered people. In the interest of clarity, the author shall use the term “minority” to refer to persons of African-American and Latino descent, two ethnic groups that have historically suffered the most from racial profiling.

Additionally, following the events of September 11, 2001, law enforcement officials have increasingly and unjustly targeted Americans of Arab and Middle Eastern descent in antiterrorism policing efforts.

15. The term “racial profiling” has only come into popular use within the past decade or so, but the practice of targeting minorities for harassment dates back to post-colonial America. See Tracey Maclin, Race and the Fourth Amendment, 51 VAND. L. REV. 333, 336 (1998) (racial profiling practice carried out in a manner “reminiscent of the slave patrols of colonial America”). This Note uses the term “official police misconduct” both to contrast it with the “unofficial police misconduct” exhibited in the Atwater case, and to suggest that both types of misconduct have a similar impact on society.

There are many other types of conduct that would fall under the banner of official police misconduct as defined in this Note, such as evidence tampering, report falsifying, and corruption. This Note will focus solely on the peculiar phenomenon of racial profiling, a practice which is presumptively legal, yet which raises a host of Constitutional problems.

16. See Whren v. United States, 517 U.S. 806 (1996).

17. Forman, supra note 13, at 25.

18. Id.

19. Adero S. Jernigan, Note, Driving While Black: Racial Profiling in America, 24 LAW & PSYCHOL. REV. 127 (2000) (citing Ashley Bach, Singer R. Kelly Ticketed, Put in Lineup and Cleared, CHI. TRIB., July 10, 1999, at 6). Police evidently stopped Kelly and his two companions on grounds that their 1998 silver Mercedes matched the description of a vehicle identified in a robbery, and were not released until after an eyewitness failed to identify them.

1028 Arizona Journal of International and Comparative Law Vol 19, No. 3 2002 Underwood, and Cornel West.20 In 1998, Sergeant First Class Rossano V. Gerald alleges that he and his twelve-year-old son Gregory were stopped by police on the Oklahoma border and were forced to wait in a squad car for two hours while the officers searched the car simply because they were black.21 Most tragic of all these stories is the tale of Amadou Diallo, a 22-year-old immigrant from West Africa who was gunned down by a New York City police task force outside his apartment building after the police mistook Diallo’s wallet for a gun.22 The decision in Whren v. United States23 added to the cumulative toll of countless racial profiling incidents across the country, and has had even a more grievous effect on Americans’ trust in law enforcement than the Atwater decision.

Most young African-Americans have more reasons to fear the police than to trust them, much less cooperate with them.24 Young African-Americans are regularly subject to indignities that few Anglo-Americans would tolerate.25 Ironically, much of this mistrust stems from policies intended to increase the public’s trust in their officers, which tend to encourage racial profiling.26 If American policymakers wish to combat racial profiling, they must focus part of their efforts upon rebuilding the trust of minority communities in the police.

The mistrust that many minorities bear toward the police extends deep into the criminal justice system. Just as minorities are discouraged in practice from cooperating with the police for various objective reasons – the constant air of suspicion born against them, random searches in the street, capricious traffic stops – they are equally discouraged from participating in the trial process. In the constitutionally guaranteed American adversarial system with its constitutional guarantees, defendants are often discouraged from taking the stand in their own defense.27 Furthermore, the American emphasis on plea-bargaining tends to avoid

20. Katheryn K. Russell, “Driving While Black”: Corollary Phenomena and Collateral Consequences, 40 B.C. L. REV. 717, 720 n.15 (1999).

21. Sean P. Trende, Why Modest Proposals Offer the Best Solution for Combating Racial Profiling, 50 DUKE L.J. 331, 331-32 (2000). The police officers maintain that they had a “reasonable and articulable” suspicion that Gerald was smuggling drugs.

22. See Dolores D. Jones-Brown, Fatal Profiles: Too Many “Tragic Mistakes,” Not Enough Justice, N.J. LAW. MAGAZINE, Feb. 2001.

23. 517 U.S. 806 (1996). See discussion infra Part II.

24. See Trende, supra note 21, at 362-63 (“[T]he existence of profiling and the press attention given to the practice only serve to increase tensions between minorities and police.”); see also Forman, supra note 13, at 26 (“[D]iscriminatory police practices create unnecessary and unproductive hostility between police and the communities they serve.”).

25. See Forman, supra note 13, at 25 (police conduct pat-down searches on students weekly at Maya Angelou Public Charter School in Washington, D.C.).

26. See James Q. Wilson & George L. Kelling, Broken Windows: The Police and Neighborhood Safety, THE ATLANTIC, March 1982, available at http://www.theatlantic.com/politics/crime/windows.htm.

27. They have a good reason not to do so: the Fifth Amendment protects against selfincrimination while on the stand in a criminal trial or in the interrogation room. U.S.

How Continental-Style Police Procedural Reforms Can Combat Racial Profiling 1029 the road of truth-seeking in favor of speedy resolution and risk aversion.28 Granted, given the immensely crowded state of affairs in today’s criminal justice system, a preference for plea-bargaining is understandable.29 However, it is possible that a policy favoring plea bargaining at the expense of actual truthseeking may be undermining the faith of minorities in the criminal justice system.30 This is not merely an intellectual matter, since a felony conviction carries great consequences in American society, such as political disenfranchisement and a loss of economic opportunity.31 A system that favors quick plea bargaining over truth-seeking, especially in light of new “get tough on crime” mandatory sentencing requirements, may reap other social problems that sour the bargain.32 While Gail Atwater may not have much in common, socially, economically or otherwise, with the average African-American victim of racial profiling, they share a common distrust of the police. There is a sense – particularized in the former case, generalized in the latter – that the police are unaccountable, reckless, and untrustworthy. The Atwater decision is a sterling example of the federal government’s impotence to control and discipline law enforcement officers for abuses of their otherwise lawful authority.33 It is a CONST. amend. V. Also, evidence obtained in violation of this right may be excluded at trial. Miranda v. Arizona, 384 U.S. 436 (1966).



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