On 5th July 2016, Alton Sterling, a 37 year-old black man, was fatally shot several times after being tackled to the ground by two white police officers in Baton Rouge, Louisiana. On 6th July 2016, Philando Castile, a 32 year-old black man, was fatally shot several times after being pulled over by a Mexican American police officer in Falcon Heights, Minnesota. On 7th July 2016, at the end of a peaceful protest held in Dallas, Texas, relating to these shootings, a black man opened fire in an ambush, killing five police officers, wounding seven others and two civilians. Two cases of excessive force causing homicides and one of a tragical counter-move that are all symptoms of the racial disparities appearing across the criminal justice system, causing serious lack of trust between law enforcement and too many of the communities they are about to serve. Year after year, efforts are being made to solve the problem of ethnic profiling, but these events leave us with more questions than answers: how to understand it, how to face it and most of all, how to set up a legal system, in which the reality of racial bias in law enforcement could finally disappear.
Although the prohibition of discrimination is regulated in many international and national legal documents, the practice of law enforcement and crime prevention is a serious challenge to human rights, in particular the requirement of equal treatment, well exemplified by the emergence of the practice of ethnic profiling. Profiling itself is a lawful and frequent activity of law enforcement, which helps prevent and investigate crimes by determining the characteristics of the potential circle of perpetrators. The question of ethnic profiling comes into consideration when the basis of selection is race or ethnic features, which leads to the violation of the prohibition of racial discrimination. According to the Racial Equality Directive [1], one of the key legislative instruments regulating the issue in the European Union, discrimination „shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin”. A typical example of this is stopping a member of an ethnic minority on suspicion of committing an offence only or mainly because they are a member of that ethnic minority.
Ethnic profiling is harmful to the society because it can create tension and mistrust between different communities (as seen in the recent events), and to human dignity because it ignores that each of us is a unique individual. Discriminatory ethnic profiling is also proved to be counter-productive because the dominance of stereotyping profiles may actually increase the offending rate for a specific crime as a consequence of „labeling”. In essence, patterns of offending may respond to patterns of policing. However, even as law enforcement may achieve a certain „hit rate” among minority populations, the offending rate in the majority population may increase precisely because their members are not focused on the profiling practice of law enforcement.
In 2014, wondering whether there is an operable solution to prevent the exercise of discriminative actions penetrating the law enforcement system, I found a functional pattern that was worth taking into consideration. I had the opportunity to go on a study trip [2] to Dublin in order to take a closer look on the practical realisation of the ongoing „Diversity Works Training” course under an EU Peace II project. I had the great honour of interviewing Jonathan O’Mahony [3] who took part in the successful construction of this programme.
This course covers:
• understanding every person’s ability to stereotype, exclude and marginalise others,
• reflection on stereotypes, prejudices and assumptions,
• getting participants to understand their power of authority and how the combination of prejudices and power can result in discrimination,
• better understanding of diversity,
• recognising, acknowledging and respecting differences,
• intercultural communication skills.
At that time, it was a relatively new initiative, but it is clearly visible after two years of operation that the strategy has a very progressive approach. The participation in the training has become an eligibility criterion for the applicants to the police force. At the end of the training, candidates must demonstrate that they will be able to perform their duties without intolerance and prejudice. In addition, the course runs also during continuous professional development training. The result of this test is a decisive factor in allocating tasks inside the police.
In Ireland, the development of the strategy was necessary because of the significant wave of immigration in the past decades, which terminated the homogenity of the society, so the police strategy had to be changed in order to prevent intercultural conflicts. Although the problem of ethnic profiling has another nature in the US, I still think that the Irish pattern could be a good starting point to find common ground in fighting institutional discrimination.
As for the legal background of the situation in the US, the Fourth Amendment of the United States Constitution [4] prohibits a person from being stopped or detained without evidence that he or she was involved in a particular crime. This should protect people from being the victims of unfair (the so-called stop-and-frisk) traffic stops. Unfortunately, as incidents of racial profiling were increasing, the United States Supreme Court’s interpretation of the Fourth Amendment started to be less protective of individuals’ rights. The Maryland v. Wilson [5] case for example granted the police power to order passengers out of stopped cars, regardless of whether there is reason to think they are dangerous or not.
As a supreme legal basis, Jody Feder referred to the above-mentioned Fourth Amendment, supplemented by the first paragraph of the Fourteenth Amendment that says:
„All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Proving the discriminatory intent is an essential element of any equal protection claim, which is quite difficult regarding authority policies. Besides substantial evidentiary requirements, procedural obstacles may also limit the efficacy of private actions to end racial profiling practices. There is the “equitable standing doctrine” that denies 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. Lyons [6], the Court reversed the grant of injunctive relief to a black motorist permanently injured by a police chokehold applied during a routine traffic stop. Although he had standing to assert a damages claim, the plaintiff could not obtain an injunction because it was unlikely that he would be again subject to a chokehold. In my opinion, judicial protection should be made more effective by the adoption of new regulations that could guarantee a fair and lawful procedure for discrimination claims.
However, the most important thing would be the prevention of discriminatory practices, which can only happen through a practical approach to this topic. On 2nd December 2014 in Atlanta, Eric Holder, the former US Attorney General announced plans to "help end racial profiling once and for all". The triggering event was a mass demonstration series that started after the trial of shooting dead of unarmed black teenager Michael Brown by a white policeman in Ferguson, August 2014. The grand jury decided not to bring charges against the police officer Darren Wilson, whose insensitive statement also appeared in the media, sparking violence in the society throughout the United States.
In his Atlanta speech, Mr Holder said that the police cannot be regarded as an "occupying force". He said he intended to update department of justice guidance on racial profiling by federal law enforcement. "This will institute rigorous new standards and robust safeguards to help end racial profiling once and for all," he said.
His plans were the following:
• more appropriate use of military equipment by the police,
• 50,000 body cameras to record interactions,
• building a „sustained conversation” across the United States.
According to this initiative, a Task Force on 21st Century Policing was set up two years ago, which remained only a nice try in the light of last week’s tragedies that show the urgency of a real solution. Utilising the tools of social media, President Obama urged the whole American society to make efforts to communicate with each other in order to implement every idea that can “institute the best practices that reduce the appearance or reality of racial bias in law enforcement” [7]. He added: “So even as officials continue to look into this week’s tragic shootings, we also need communities to address the underlying fissures that lead to these incidents, and to implement those ideas that can make a difference. (…) Rather than fall into a predictable pattern of division and political posturing, let’s reflect on what we can do better.”
On 8th July 2016, Attorney General Loretta E. Lynch delivered a statement on Dallas shooting saying that the answer should never be violence, but “calm, peaceful, collaborative and determined action”. Building trust between the society and law enforcement, equal justice under the law and understanding the differences are the key movements for finding some common ground.
On 13th July 2016, President Obama hosted a conversation at the White House to discuss how to effectuate a progress, concentrating on the achievements of communities that have already found ways to handle the disparity issues [8]. He invited among others Black Lives Matter activists, police chiefs, state and local officials to discuss the following topics:
• how to work together to protect peace and first amendment rights,
• how to police violence in problematic neighbourhoods,
• how to improve law enforcement practices,
• how to act properly in case a tragedy does occur.
The variegation of aspects show that a constructive conversation has started, which is already able to previse the path out of the tragical situation. Since its first emergence, ethnic profiling is essentially a practical problem. Consequently, it is highly important to concentrate on and demolish wrong practices, which raise tension and lack of cooperation between different communities and authorities. In my opinion, the regulatory and the practical aspects should be jointly enforced in order to end discriminatory rules or actions and intensify the public acceptance of equality issues.
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This article has been originally published here, on Ars Boni.
Notes:
[1] Article 2, Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between
persons irrespective of racial or ethnic origin [2000] OJ L180/22
[2] This research has been attained with the support of the European Union and Hungary, co-financed by the European Social Fund, in the framework of the TÁMOP 4.2.4.A/2-11-1-2012-0001 seeded project called „National Excellence Program – Convergence program on developing and operating a system ensuring personal support to inland students and researchers”.
[3] Racial, Intercultural and Diversity Office, An Garda Síochána
[4] „The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (1791)
[5] Maryland v. Wilson (95-1268), 519 U.S. 408 (1997)
[6] 461 U.S. 95 (1983)
[7] President Obama’s Facebook page, post of 7th July 2016 https://www.facebook.com/potus/
[8] President Obama’s Facebook page, post of 13th July 2016
