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BIASED-BASED POLICING: AN OPPORTUNITY FOR TRUST
The author, Charles F. Grover has been the Chief of Police since 1991 of the Prairie Village (KS) Police Department, a nationally accredited agency. Previously, Chief Grover served with the Bloomington (MN) Police Department where he began his career in law enforcement in 1970. Chief Grover has a Masters degree in Public Administration from Hamline University, and a Bachelor of Arts degree from St. Olaf College. He is a graduate of the 177th session of the FBI National Academy. In August 1998, The Washington Post printed an article entitled, “Driving While Black,” written by Dr. John Lamberth. The article was not about a new issue; for several years, claims of racial profiling by law enforcement officers have surfaced among the minority community. The value of the article, however, is that it did identify, through statistical methodology, data regarding two east coast state law enforcement agencies. These statistics caused concern for citizens, government, and law enforcement agencies alike. The author’s findings increased public awareness and initiated a wide public debate regarding the alleged widespread existence of the practice of racial profiling. Although the term “racial profiling” or “biased-based policing” means different things to different people, it is founded on the premise that it is illegal and unethical for law enforcement officers to stop, detain, search, or arrest anyone based solely on the person’s race, national origin, citizenship, religion, ethnicity, age, gender, or sexual orientation. Many civil rights groups state that police officers, using misguided prejudice, believe minorities are more likely to commit crimes, have weapons, and be in possession of drugs. Therefore, they believe, law enforcement officers conduct traffic stops for the ‘pretextual purpose’ of searching vehicles driven by minorities for the fruits of those crimes. The cities of Prairie Village and Mission Hills, Kansas, are affluent communities located on the Kansas and Missouri border, both with eastern borders adjacent to Kansas City, Missouri. The combined population of both suburbs is approximately 26,000, with the racial makeup of almost 98 percent white. The geographic location of both cities makes them a major gateway between the inner-city populations of Kansas City, Missouri, and the fast growing commercial centers of Johnson County, Kansas. Due to the extreme difference in racial makeup of the communities, it was apparent to the leadership of the Prairie Village Police Department that questions regarding our operational practices in this area could be called into question. It was also apparent that the management staff had little or no data to substantiate or deny allegations of biased-based policing by department members. The direction the department had to take was clear. If the agency were to maintain its position as a professional law enforcement agency and preserve the trust it had developed with its citizens, programs had to be developed and implemented that focused on the question of biased-based policing. The dilemma facing the department was how does a small department with limited resources, no community group to partner, and lack of expertise cope with this expansive national issue? In 1999, the department selected a comprehensive model to monitor equal protection issues. The staff felt a broad-based foundation was the best course of action to address the situation. The goal was to develop organizational expertise within the agency that would allow the department to develop policy, training programs, data collection processes, and administrative oversight to ensure quality law enforcement, within constitutional guidelines, to the community. Awareness for Governing Body In January 2000, the Prairie Village Police Department presented to the City Council an initial report regarding the practice of racial profiling. The report dealt with the topics as presented by both civil rights and law enforcement supporters. It outlined the laws regarding the issue found in the fourth and fourteenth amendments as they relate to the seizure of citizens, and discussed case law found in U.S. vs. Whren, Chavez vs. Illinois State Police, U.S. vs. Travis, and U.S. vs. Armstrong. The final portion of the report discussed what means the department would employ to provide direction and managerial oversight to ensure profiling was not practiced within the agency. On August 18, 2000, a similar presentation was provided to the Mission Hills City Council. Training Department staff laid a foundation for its expertise on biased-based policing during 1999. The initial exposure occurred when the Chief of Police attended a seminar sponsored by the United States Justice Department in Omaha, Nebraska, in August 1999. Additional training was obtained during the International Chiefs of Police Conference in Charlotte, North Carolina, that same year. The department continued its aggressive training program into 2000. Command staff members attended schools at the F.B.I. Law Enforcement Executive Development Conference in Quantico, Virginia, and the United States Justice Department training on racial profiling in St. Louis, Missouri. Line officers received mandatory annual training on cultural diversity issues during in-service block training. Subjects for roll call training during the year included such topics as, “Racial Epitaphs by Police Officers,” “Racial Profiling of Black Teenagers,” “Proactive Defense Strategies Can Minimize Risks,” and “Traffic Stops-Building Bridges to the Community.” National and Community Expertise The department met with many organizations and experts in the area of bias-based profiling to gather additional expertise. These groups included the United States Justice Department Community Service Unit-Civil Rights Division, the Kansas Law Enforcement Training Center, the Kansas City Human Rights Consortium, MARC (Mid-America Regional Council), the Public Safety Institute, area police chiefs, a local civil rights advocate and a national expert on the subject of racial profiling. Policy A common allegation throughout the country is that police officers use pretextual traffic stops to search individual persons and property. In February 2000, the department revised its written directive on the Limits of Authority (CALEA Standard 1.2.4) by self-restricting the use of consent searches by officers. The current directive requires that an officer documents every request for consent to search, provides guidelines limiting the use of consent searches to detailed instances, and establishes oversight by department managers through the review of Consent to Search forms. On July 24, 2000, the Prairie Village Police Department issued an Equal Protection Policy that may have been the first of its kind in the state of Kansas, and possibly, one of the first in the nation. This policy prohibits officers from “...stopping, detaining, searching, or arresting anyone solely because of the person’s race, national origin, citizenship, religion, ethnicity, age, gender or sexual orientation.” The written directive also delineates officer, supervisor, and department responsibilities as they relate to this topic. This policy was put in place almost one year before CALEA adopted Standard 1.2.9 on Biased-based Profiling. Complaint Process Early Warning The agency had first adopted a complaint process of its policies and employees in 1992. The policy came into compliance with CALEA Chapter 52 in August 1997. Due to the accreditation process, the department had a practice of investigating all complaints filed against department members or policies. A review of the annual summary (Standard 52.1.11) for 1999 showed the department received 15 complaints during the year, with eight complaints questioning an abuse of process by Prairie Village officers. Seven of the complaints were resolved with the complainant at the supervisory level. The final complaint was listed as unresolved and no misconduct by the officer was determined. During the year 2000, officers responded to 13,889 calls for service and stopped 10,040 vehicles or persons. During this period, eighteen complaints were received. Four of the aforementioned complaints were listed in the area of abuse of process, with two complaints being resolved with the complainant early in the process, and two others resolved at the Chief of Police level. The department discovered no violations of agency written directives during those investigations. Use of Force Early Warning The department had a practice of documenting use of force incidents within the agency beginning in 1993; therefore, documentation was available to enable the agency to determine if the organization or member officers had a propensity for violence with minorities. The agency had complied with CALEA Use of Force standards since 1997, and a review of the annual use of force report (Standard 1.3.13) demonstrated no such pattern violence. The department used force in only five instances in 2000, one involving a racial minority. The standard investigation into the officer’s actions determined that restraining force was required due to a medical condition before medical assistance arrived, so the detainee would not further injure himself. This is the first use of force on a racial minority since September 1996. Traffic Survey Study In 1998, the department conducted a study to determine the racial/ethnic makeup of our traffic stops. The study was frankly limited, as the methodology to complete an accurate study of racial profiling was still in the developmental stages. The methodology of preparing such a study has taken great leaps since that time, and a decision was made to voluntarily conduct another study to take advantage of these new methods. The department consulted with a national expert on what methodology to employ to produce a valid survey. Based on his suggestion, a private traffic-engineering firm was contracted to conduct traffic surveys within the city. The process required the department to identify the five most active traffic enforcement points within the jurisdiction. The consultants, Bucher, Willis & Ratliff, conducted traffic surveys from November 14 through December 6, 2000. These surveys were random and controlled by the consulting firm. The survey was to determine the racial, ethnic and gender makeup of the motoring public through Prairie Village and Mission Hills. The surveys were conducted on weekdays, during daylight hours, sampling periods of one and one-half hours, with surveying individuals standing three to four feet away from the edge of the roadway. Sampling occurred in both directions unless one direction did not lie within the jurisdiction of the department. The consultants charted 14,171 vehicles during the sampling period. Traffic Contact Study Before January 1, 2000, the department mandated that all officers document any seizure of a person during a self-initiated contact. This documentation appeared on the officers' daily logs, with the following data segments recorded: time of stop, location of stop, race, ethnicity or gender of the person stopped, and the reason for the stop. The traffic survey and contact data were then entered in a spreadsheet for analysis. The spreadsheet listed 11 statistical categories, including gender and race/ethnicity to include: White, Black, Hispanic, Asian, and Native American. The officer determined this data either through a driver’s license, or judgments made by officers during the stop. These numbers were plotted against 44 separate violations divided into four violation categories that included, equipment, license, moving, and miscellaneous. Data was computed for the department as an entirety, and for each individual officer. The statistical data was represented as either a percentage or as a statistical probability. Hiring Process Although the training program affected current members of the department, the issue of close analysis of new hires and their thoughts on race and ethnicity was a concern. In 1999, two scenarios were placed in the standard department oral board questions that measured a candidate’s reactions to encounters with minorities. The traits evaluated included whether a candidate rationalized if his/her actions were legal during a traffic stop based on the ethnicity of vehicle occupant, and whether a candidate would treat everyone equally and fairly, based on the candidate’s current understanding of the issues. Video Monitoring of All Officer-Initiated Contacts The department installed in-car video cameras in all marked vehicles in late 1996. Prairie Village written directive 41.4.2 required that officers use in-car video recorders during all traffic stops and other enforcement activities. Tapes are stored for 31 days before being returned to service, which provides supervisors the opportunity to review videotapes of car stops when a complaint has been filed. The use of in-car video equipment continues to be a great aid in determining the correctness of an officer’s actions and in providing assurances to the public of the stop’s legality. Comparison with Legal Guidelines Although a comprehensive program to ensure the agency was monitoring and educating all officers on bias-based policing had been put in place, the staff still struggled with the lack of industry standards that could guide a law enforcement agency in the appropriate response to this national issue. The department had been made aware during numerous training sessions attended by staff members that several police departments throughout the country had signed consent decrees in United States District Courts on the issue of racial profiling. Further study into the area revealed that the Federal Courts, and sometimes civil rights groups, were attempting to establish policies and practices that would, in their view, alter the behavior of law enforcement agencies they believed were conducting biased stops. It was decided that, if the Federal Courts were mandating practices through these consent decrees, this would be an excellent measure of the department’s efforts regarding this issue. A consent decree was obtained from the United States District Court for the Northern District of Illinois, involving a suburban Chicago Police Department. The theory was to list the individual requirements of the decree and match those requirements with the written directives and practices of the Prairie Village Police Department. A chart was formulated which factually outlined each requirement of the decree with a comparison of written directive language taken from the department’s policy manual. The consent decree contained 51 requirements. The first analysis of the department’s manual, compared with the decree, demonstrated we were already complying with, or would not be bound by 85 percent of the requirements. Changes were made in our written directives over a period of several weeks to allow the agency to fully comply with 84.31 percent of the requirements, partially comply with 1.96 percent, not be bound by 13.73 percent, and not comply with 0 percent. Therefore, the department currently complies, or is not bound by every requirement of the Federal Court decree. Initially, staff was very surprised with the percentage of our overall adherence to the decree, and the small amount of work required to be in almost complete compliance. It was clear our CALEA accreditation had placed us in a position where we met those requirements. Traffic Data Collection The following chart represents the percentages of the motoring public as determined by the Bucher, Willis and Ratliff survey, compared with the race and ethnicity percentages of persons stopped by officer initiation during 2000.
The data can also be viewed as a factor of probability when comparing the race/ethnicity stopped to the traffic survey data. The table below demonstrates a comparison between the vehicle survey and contact survey of all vehicles within the City for 2000.
Some experts in the field of racial profiling have stated that probability comparisons should be made with the traffic survey data compared only with vehicles stopped in the survey zones at the same times the surveys were taken. The following table demonstrates that method of survey.
A general item of interest in the above table is that even in the most liberal probability interpretation, in two survey locations a white person is most likely to be stopped, in two other survey locations a black person is most likely to be stopped, and in one other survey location, Hispanics are most likely to be stopped. If one views the first table, the license violation statistics appear to be skewed compared to the others. A more in-depth analysis of specific stop infractions which caused that effect, indicates that although 10.78 percent of the surveyed traffic was black, blacks accounted for 40.45 percent of one license plate violations, 57.14 percent of the altered license plate violations, 70 percent of the fake temporary tag violations, 39.02 percent of the illegal tag violations, and 46.63 percent of the switched tag violations. Consent to Search Data Collection In March 1, 2000, the department also began to analyze consent to search forms to determine the statistical makeup of the persons being searched after the officer requested consent. Consent to search forms indicate data to include race/ethnicity, gender, state of registration if a vehicle was searched, written or oral consent, reason for the search, and results of the consent search. Our consent to search data for nine months in 2000 demonstrated that officers completed 103 waivers during that period. Of those, eight waivers were for residences, and therefore not included for this report. Contact data reports indicated males comprised approximately 58 percent of our citizen contacts throughout the year, and underwent 78 percent of the consent searches. The traffic survey data reveals that 84 percent of citizens driving our roadways were white, while consent to search requests were at 72 percent. The study also noted that approximately 53 percent of the individuals contacted were driving vehicles with Kansas plates, and 34 percent displayed Missouri plates. Based on these figures, it would appear that when a consent search is requested, the state in which the vehicle is licensed has little or no impact on the decision to request such a search. Finally, of the 95 consent searches requested, eight citizens refused the officer's request. Therefore, out of the 87 consent searches actually carried out, 17 searches, or almost 20 percent, were successful with some contraband being found. It is important to note that due to department guidelines, officers cannot request consent to search unless certain conditions are present. These triggers include: an odor consistent with the presence of drugs, past criminal history for drug use, weapons or criminal behavior, suspicious actions in concert with a suspect’s behavior, or possible suspect in a reported crime. Therefore, in most situations, an observation or criminal record initiates a request for consent to search, not an officer’s subjective decision-making process.
Based on the data presented, the question is, what conclusions can be drawn. To provide some insight, a brief review of how some experts have answered that question is necessary. At a conference of Policing in the New Millennium in Omaha, Nebraska, in August 1999, a national expert on racial profiling stated, “There is no bright line when determining what percentage or probability factor is an indication of racial profiling.” In St. Louis, Missouri, in September 2000, at the Regional Law Enforcement Executives Training Conference sponsored by the United States Department of Justice, another national expert stated, “…that a probability of more than two times indicates there is an issue that needs to be addressed, with a problem possible when the number is five times.” Finally, another expert in the field comments, “…a probability number of more that 1.5 indicates a problem.” Some civil rights groups have informally taken the position that only a 1:1 probability ratio is acceptable. If you find this confusing, you must take into account that experts also cannot agree on how one should conduct a valid survey. The state of Missouri has chosen the position that stop data should be compared with the racial/ethnic makeup of the community, with no importance applied to the actual makeup of persons using the roadway. Several national experts have scoffed at that position stating, “It doesn’t compare apples to apples!” Recently, several academic experts testified before the State of Pennsylvania House Judiciary Subcommittee that census statistics do not provide a good comparison, because the racial makeup of transient motorists may not match that of the area patrolled by the police. This condition is inclusive of Prairie Village as provided by the Bucher, Willis and Ratliff study compared with the 2000 census data. The traffic study denotes a 15.79 percent minority transient population as compared to the approximate 2 percent resident non-white population from both municipalities. It is also interesting to note that the expert the department used in study methodology in early 2000 has now changed his methods of comparison. The latest study from the Police Executive Research Forum (PERF) entitled Racially Biased Policing: A Principled Response muddies the waters even further. The study warns that data collection alone is not the answer. The PERF staff determined there are not yet satisfactory best practices in the realm of data interpretation and analysis. Experts in the field seem to agree with this point due to their lack of uniformity on the significance of numbers. The Prairie Village Police Department began to monitor and act on the issue of biased-based policing in November 1998. Each year we have become more knowledgeable on the subject and have introduced methods and training that allow us to continue to monitor the agency. The department has put considerable resources and energy into the issue of racial profiling. Our comprehensive approach is in line with PERF’s recommendations in the area of data collection, accountability, supervision, training, and the establishment of policy. The department has been extremely progressive in this area and has made an excellent start. Critical systems are in place that will continue to allow us to monitor department and individual officers, and a clear organizational cultural message has been sent to all employees regarding the importance the department places on effective law enforcement for the citizens of our community. Several long-term plans have also been finalized. These include the selection of the Public Safety Institute of Jacksonville, Florida, as the department vendor for our training on legal traffic stops. This subject was introduced in 2001 for all officers during the In-Service Block Training Program. The agency also selected a vendor for a software program, and purchased Personal Digital Assistants to be placed in each marked patrol unit to aid in automating the tracking of stop data in 2001. In conclusion, the department believes our comprehensive approach to biased-based policing has placed us in a position of trust in the community. As an agency, we can meet with citizens and confidently proclaim we are doing our part in providing quality law enforcement to the community within the framework of the law of the land.
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