Racial Profiling in Louisiana: Unconstitutional and Counterproductive
Racial profiling – the unconstitutional practice of law enforcement targeting individuals due to the color of their skin – remains an egregious and common form of discrimination and continues to taint the legitimacy of policing in the United States.
It is both pervasive1 and hard to prove.2 Stopping an individual merely for “driving while black” violates the U.S. and Louisiana constitutions,3 but few cases have been brought in state or federal courts in Louisiana to challenge racially discriminatory policing.4 Racial profiling is also problematic from a public safety perspective because it undercuts effective police work by damaging trust in law enforcement.5
Racial profiling is likely a major driver of Louisiana’s high incarceration rate. Although Oklahoma has now surpassed Louisiana as the world’s No. 1 incarcerator,6 Louisiana remains a close second.7 By expanding the pool of people who come under police surveillance, racial profiling leads police to refer a disproportionate number of people of color for criminal prosecution, often for low-level crimes such as drug possession.8
Police officers’ disproportionate focus on people of color means that they are disproportionately ticketed, arrested, prosecuted, and ultimately imprisoned. In 2016, for instance, black adults comprised only 30.6% of Louisiana’s adult population but 53.7% of adults who were arrested and 67.5% of adults in prison.9 Overall, black adults are 4.3 times as likely as white adults to be serving a felony prison sentence in Louisiana.10
The SPLC has found large racial disparities in arrest rates across the state that would be difficult to explain by different rates of crime commission alone. For example, in 2016, black people were 2.9 times as likely as white people to be arrested for marijuana possession in Louisiana,11 despite evidence that black people and white people use marijuana at similar rates.12 The disparities are much greater in some areas: A black person was six times as likely as a white person to be arrested by the Baton Rouge Police Department (BRPD) for marijuana possession in 2016.13 Gretna, previously labeled the “arrest capital of the United States” for its sky-high arrest rate,14 to target black people disproportionately for arrests: In 2016, black people comprised two-thirds of people arrested in Gretna but only one-third of the city’s population.15 And 67% of the arrests of black people in Gretna were for the nonviolent offenses of drug possession (not sale), drunkenness, disorderly conduct, and other offenses that the FBI does not track due to their relatively minor nature.16
The death of Alton Sterling, a 37-year-old black man, at the hands of two white BRPD officers on July 5, 201617 highlighted decades-long tensions in Louisiana’s capital over police treatment of Louisianans of color, especially African Americans. From the department’s crackdown on civil rights marchers in the 1960s,18 to its illegal searches and arrests in the aftermath of Hurricane Katrina (which raised alarm bells among out-of-state police officers dispatched to the city to assist with public safety)19 to its militarized response to the protests over Alton Sterling’s death,20 the BRPD has consistently over-policed the city’s black community and violated the First Amendment rights of people who speak out against police brutality. If the BRPD ever hopes to resolve these longstanding tensions and earn the trust and respect of the city’s black residents,21 who comprise a majority of its population, combatting racial profiling will be an essential first step.
Notwithstanding the well-known harms of racial profiling in Baton Rouge and across the state, both for over-policed communities and for public safety more generally, a surprising number of Louisiana police departments do not have policies to address it. The SPLC’s investigation revealed that more than a third of the state’s law enforcement agencies lack any policy on racial profiling. And the policies that do exist usually fail to explain clearly to officers what racial profiling is and what conduct is prohibited.
While the much-needed sentencing reforms Louisiana began implementing in 2017 are projected to reduce the state’s prison population by 10% over the next 10 years, resulting in savings of $262 million,22none of the reforms focus on the disproportionate policing of Louisianans of color. Eliminating racial profiling must be a priority if Louisiana wants to shed its status as one of the world’s most prolific incarcerators. To address these harms, Louisiana law enforcement agencies must adopt and enforce effective policies against racial profiling and take other steps to ensure constitutional policing. For their parts, the Legislature and the Louisiana Commission on Law Enforcement and Administration of Criminal Justice should institute a host of reforms to curb this unconstitutional and counterproductive practice.
Racial profiling is a law enforcement officer’s reliance – to any degree, whether the officer acknowledges it or not – on race, ethnicity, color, or national origin to choose which people to target for law enforcement action. The only exception is that officers may rely on race and ethnicity, in combination with other physical characteristics, to match a person to a credible and specific suspect description for a particular crime. Racial profiling usually takes one of two forms, both of which violate the U.S. Constitution:
UNREASONABLE SUSPICION
When a law enforcement officer conducts a traffic or pedestrian stop based on the belief that a person’s race, ethnicity, color, or national origin raises the likelihood that s/he has committed, is committing, or is about to commit a crime (for example, because that person is unlikely to be driving a certain make or model of car or is unlikely to have a valid reason to drive or walk in a certain neighborhood), the officer has formed unreasonable suspicion based on racial or ethnic stereotypes. This stop violates the Fourth Amendment’s prohibition against unreasonable seizures by law enforcement. To comply with the Fourth Amendment, the stop must be based on either probable cause that the person has committed a civil traffic or pedestrian violation or infraction23 or reasonable suspicion that the person has committed, is committing, or is about to commit a crime.24 The fact that someone of a certain race is driving a certain car or walking in a certain area does not constitute reasonable suspicion. In addition, if someone calls to complain about black people sitting in a Starbucks or Native American students participating in a college tour, police should not automatically treat the caller’s allegations as warranting a response by law enforcement. To justify stopping or arresting someone, police must make their own independent assessment of whether the situation gives rise to reasonable suspicion or probable cause.25
UNEQUAL ENFORCEMENT
When a law enforcement officer observes someone committing a relatively minor violation (e.g., speeding with the flow of traffic, jaywalking, or failing to signal a turn) and stops that person even though the officer would not have stopped a person of a different race or ethnicity committing the same violation, the officer is enforcing the law in an unequal manner. If the officer’s true motivation for making the stop was based on the person’s race or ethnicity, but the officer makes the stop on the pretext that the person violated a traffic law, this is known as a “pretextual stop.” Such stops violate the Fourteenth Amendment’s prohibition on intentional discrimination on the basis of race, ethnicity, color, or national origin.26
Officers are permitted to use race or ethnicity, when combined with other physical characteristics such as gender, weight, height, and age, to match someone to a specific suspect description for a particular crime. The suspect description must be credible and based on timely and locally relevant information. This is sometimes called the “be on the lookout for” exception.27
Racial profiling thwarts effective police work because it impairs trust between police and the communities they serve. When communities of color believe that they are stopped, searched, and arrested or become subject to uses of force without a valid reason, solving crime becomes much more difficult. This is because members of these communities may be less willing to report crimes, provide tips to police, or otherwise cooperate with investigations for fear that police will misuse the information or arrest people for low-level crimes.28
State and local law enforcement’s involvement in immigration enforcement likewise erodes immigrant communities’ trust in police. When people fear that the police are more interested in their immigration status than in catching the perpetrators of actual crimes, police will have a hard time securing tips and other cooperation from community members.29 Precisely because of the negative impact on trust between police and communities, national police leaders have denounced racial profiling and the involvement of state and local police in immigration enforcement as counterproductive.30 Further, unless a police department has an official agreement with U.S. Immigration and Customs Enforcement that deputizes the department’s officers to enforce federal immigration law, an officer violates the Fourth Amendment when s/he prolongs a traffic stop solely for the purpose of inquiring about someone’s immigration status. Such inquiries could open the officer and his department to lawsuits and civil damages.31
Although data on policing in Louisiana are sparse, available data and reporting strongly suggest that Louisiana law enforcement officers disproportionately target people of color in traffic stops and arrests32:
In 2016, black people were 2.9 times as likely as white people to be arrested for marijuana possession in Louisiana, according to the SPLC’s analysis of arrest data that law enforcement agencies submitted to the FBI.33 Yet federal survey data show that white and black people use marijuana at similar rates; indeed, black adults are less likely than white adults to use marijuana in the course of their lifetimes,34 and adults account for the vast majority of the reported arrests.35 The table below summarizes the black-white disparities in arrest rates for marijuana possession among the 10 agencies that reported the most marijuana possession arrests in 2016.36 For example, a black person was six times as likely as a white person to be arrested by the Baton Rouge Police Department for marijuana possession in 2016.37
Gretna has been dubbed the “arrest capital of the United States” for featuring the highest per-capita arrest rate in the country as of 2013, at one arrest for every three residents.38 Black people comprised two-thirds of those arrested despite making up only one-third of Gretna’s population.39 By 2016, according to the SPLC’s analysis of data reported to the FBI, the city had halved its arrest rate; however, black people still comprised two-thirds of people arrested and only one-third of the city’s population.40 And only 17.2% of arrests of black people in 2016 were for what the FBI designates as “serious” crimes, such as murder, aggravated assault, and robbery.41 By contrast, 18.5% of arrests of black people were for drug possession (the vast majority of which were for marijuana possession); 10.6% were for disorderly conduct; 8.3% were for drunkenness; and 29.9% were for “all other non-traffic offenses” that the FBI does not even track because of their relatively minor nature.42
Map 01 shows the location of traffic stops for loud music within Baton Rouge.
Map 02 shows Census tracts shaded by the proportion of residents who are African- American (the darkest color indicates tracts where at least 80% of residents are black; the next darkest color indicates tracts where between 60% and 80% of residents are black; and so on.)
Map 03 shows Census tracts shaded by overall population density (the densest quintile of tracts are shaded in the darkest color, the next densest quintile shaded the next darkest color; and so on. ) The maps suggest that enforcement of the music ordinance is much more closely associated with the presence of African Americans in a tract’s population than with overall population density.45
Data published by the Baton Rouge Police Department (BRPD) show that BRPD officers made 1,660 traffic stops between 2011 and 2017 to enforce a local ordinance that makes it a misdemeanor to play loud sounds from a vehicle in a manner that “disturb[s] the peace.”43 The vast majority of these stops took place in predominantly black neighborhoods,44 raising the concern that officers may be using this ordinance to make pretextual stops of black motorists.
Though data on encounters between Latinx communities and police are limited due to the way race and ethnicity data are recorded,46 news reports provide mounting evidence that Louisiana police are targeting people who look Latinx for arrests and referrals to U.S. Immigration and Customs Enforcement (ICE).
In 2015, two Honduran men were waiting for a ride to their construction jobs when a New Llano Police Department officer arrested them for loitering and handed them over to ICE, even though they were never prosecuted for any crime.47 After investigating the incident, the U.S. Department of Homeland Security’s (DHS) Office for Civil Rights and Civil Liberties concluded that the New Llano police officer made the stop “solely for an immigration status check” and that the officer’s interest was “based on their ethnicity and the way they were awaiting pickup for a job.”48 The office urged the director of ICE to release the two men from custody and to request that the deportation proceedings against them be dropped NLPD.”49 ICE released one of the men after The New York Times published an editorial on the incident nearly 150 days into his detention, but ICE had already deported the other man.50 More recently, in June 2018, Jefferson Parish Sheriff’s Office deputies and ICE officers detained a Latina woman by chasing and tackling her to the ground while she was walking to a store to buy milk for her 3-year-old child, an incident the New Orleans Workers’ Center for Racial Justice has labeled as racial profiling. The deputies then pressured her to lead them to her home, where they detained her, her 10-year-old son, her father, and her uncle, forcing her to leave behind her 3-year-old.51
Because racial profiling violates the U.S. and Louisiana constitutions, damages relationships with communities, and likely persists across Louisiana, it is critical that law enforcement agencies adopt effective policies prohibiting the practice and train their officers to comply with these policies. As the International Association of Chiefs of Police (IACP) has explained, “The first step in preventing racial profiling is the development of a clear departmental policy banning the practice.”52
To determine whether Louisiana’s law enforcement agencies have adopted anti-profiling policies, the SPLC conducted a survey of the 331 multi-officer53 law enforcement agencies in the state.
The survey responses are alarming.54 Of the 310 respondents, more than a third (109) admitted that they have no policy on racial profiling.55 One of the departments lacking any anti-profiling policy is the New Llano Police Department, which DHS’s Office of Civil Rights and Civil Liberties has strongly criticized for engaging in racial profiling of Latinx immigrants.56
Of the 201 agencies that sent some sort of document in response to our survey, 89 sent documents that do not contain prohibitions broad enough to cover both types of profiling (i.e., the use of race to form unreasonable suspicion and racially selective enforcement of traffic and pedestrian laws). Several of these documents have little, if anything, to do with racial profiling. Three agencies sent their policies on workplace harassment, three sent a “courtesy” policy requiring officers to refrain from “voicing any bias or prejudice concerning race,” one sent an equal employment opportunity policy, and one sent a summary of training hours.57
Approximately a third (112) of agencies provided policies that do cover both types of racial profiling. However, many of these policies are only one sentence long or fail to explain clearly to a non-lawyer audience what racial profiling is. For instance, several agencies sent policies that do little more than restate their existing obligations under the law and say nothing about what specific conduct is prohibited. The Amite Police Department’s one-sentence policy reads, “Amite City Police Department’s policy is to follow all local, state and federal laws regarding all investigations including racial profiling.” Another example comes from the Gretna Police Department, which sent us its mission statement, code of ethics, and policies on arrests and workplace harassment. The only mentions of race in these documents occur in the workplace harassment policy (which is wholly unrelated to racial profiling) and the arrest policy’s one-sentence statement, “It is the policy of the Gretna Police Department to treat all individuals equally and fairly without regard to race, religion, sex, nationality or handicap” – which again merely states the department’s existing legal obligations under federal and state law.
The IACP notes that “[a]mbiguous policy definitions and directives are of no assistance to officers on the street and have no value for developing relationships of trust between the department and the community.”58 By this standard, Amite’s, Gretna’s, and many other departments’ policies are wholly inadequate to help officers understand their roles and obligations.
Just as concerning were the responses of some agencies that revealed a disturbing lack of understanding of the serious nature of racial profiling. The Bernice Police Department sent this one-sentence response, “We have no written policies on racial profiling since we do not racially profile.” The Tickfaw Police Department has chosen to give its policy the title “Ethnics.”59 In lieu of sending any policies, the St. Charles Parish Sheriff’s Office provided materials for a 2011 training called “Officer Survival in a Culturally Diverse Community.” The curriculum, based on the work of a former-police- officer-turned-Pentecostal-missionary,60 asserted that “there are seven (7) major cultural groups in existence in the world today,” one of which is the “American Underclass.” The trainer’s guide promoted dozens of racist stereotypes, such as African Americans are “verbally aggressive, competitive, and confrontational”; Latino American males “will fight if challenged, as this is what a man does”; “Arabic Americans” have a “violence potential” that is “based upon the concept of earning honor by achieving revenge”; and the “American Underclass” is “found in urban areas and inner cities living in deprived conditions” that have spawned the “‘Killing Fields’ of America.”
Another cause for concern are contracts the Denham Springs, DeRidder, and Independence police departments have entered with the private company Lexipol to write their policies. Lexipol bills itself as “America’s leading provider of defensible policies and training for public safety organizations.”61 Unfortunately, its racial profiling policy is neither defensible nor all that useful. Lexipol’s policy defines “bias-based profiling” as an “inappropriate reliance on characteristics such as race, ethnicity, [and] national origin ... as the basis for providing differing law enforcement service or enforcement.” But the policy never explains what “inappropriate reliance” means, so the policy is entirely unclear on what bias-based profiling is and what conduct is prohibited.
The SPLC also obtained a copy of the video produced by the Louisiana Department of Public Safety and Corrections that all law enforcement agencies without racial profiling policies are required to screen for their officers.62 The video, which has not been updated since 2002, contains an incomplete definition of racial profiling that also conflicts with other directives it presents.63 It also fails to provide useful examples of what actions constitute racial profiling.64 Overall, like Lexipol’s policy, the video does a poor job explaining what racial profiling is and what conduct is prohibited.
The state of Louisiana has failed to ensure that law enforcement agencies do not engage in racial profiling. In fact, there is strong evidence that racial profiling is widespread, even though data collection on policing remains woefully insufficient. In addition, few law enforcement agencies within the state maintain adequate policies and training opportunities to prevent racial profiling. Given these facts, we recommend the following:
For Louisiana Law Enforcement Agencies
Adopt policies banning all forms of racial profiling. Such policies should:
- Define racial profiling to include any reliance on a person’s race, ethnicity, national origin, or color – even if the officer never reveals his/her true motivations – to determine whom to target for law enforcement action. The only exception is the “be on the lookout for” exception, in which an officer may use race, ethnicity, national origin, or color in combination with other physical characteristics to match someone to a credible, timely, and specific description of an individual suspect for a particular crime.
- Define “reasonable suspicion” and “probable cause” and include examples of when considerations of race and ethnicity would and would not be permissible in forming reasonable suspicion and probable cause.
- Discourage over-policing by avoiding language that calls for police to patrol “in a proactive manner” or to “aggressively investigate suspected violations of law.” • Implement procedures to eliminate the influence of improper bias, such as requiring officers to state the reason for the stop right away; forbidding officers from detaining someone any longer than necessary to issue a citation or investigate the original reason for the stop; and discouraging officers from making arrests for any violations for which a citation is authorized.
- Require officers who witness improper conduct to report it and require the internal affairs division to investigate all such reports as well as complaints made by community members.
- Mandate data collection for all stops – not just those that result in citations – and require publication and periodic review of the data to determine if racial disparities are present in stops, searches, citations, arrests, and uses of force. The online HTML, CSS and JS cleaner will take care of your dirty web code. They are all free online programs.
Provide regular training to officers on the content of these policies and how racial profiling undermines effective police work.
- The IACP identifies “meaningful training” – i.e., sessions that employ “active, scenario-based trainings” rather than “passive, lecture-based training” – as essential to eliminating racial profiling.65 Trainings should help officers apply legal standards to “real-life settings”; understand the “detrimental effects of racial profiling on effective policing and community relations”; “acknowledge and come to terms with any biases they may have” while developing a “fuller understanding and appreciation of different ethnic or cultural groups within their jurisdiction”; and recognize the importance of conducting police-initiated encounters with “courtesy, professionalism, and respect.”66 Officers should also be trained on the importance of reporting instances where they suspect a colleague has engaged in impermissible profiling.67
- One example of training that Louisiana law enforcement agencies could introduce comes from California, which requires all officers in the state to be trained on the “[n]egative impact of intentional and implicit biases, prejudices, and stereotyping on effective law enforcement” including how “discriminatory enforcement practices have harmed police-community relations.”68
Establish mechanisms to receive, review, and respond to complaints from people who believe they have been unfairly profiled. This could include providing a sample form on the agency’s website asking the complainant to provide basic details about the encounter.69 Agencies should publish their procedures for how they review complaints and notify the complainant in a timely fashion about the progress of the investigation, whether the complaint is sustained or unsustained, and what disciplinary measures are taken against officers.
Discipline officers found to have engaged in racial profiling – such as stopping or searching a disproportionate number of motorists of color compared to the driving population of the area where the officer regularly patrols – and voluntarily report these disciplinary measures to the Louisiana Uniform Law Enforcement Statewide Reporting Database administered by the Louisiana Commission on Law Enforcement and Administration of Criminal Justice.70
For the Louisiana Legislature
Require all law enforcement agencies to collect, report, and publish data on traffic and pedestrian stops, uses of force, arrests, and complaints. This would enable agencies and the public to determine whether and where racial profiling may be occurring.
Ban racial profiling, including the use of pretextual stops, and provide a remedy for violations of the ban.
- In criminal proceedings, the remedy should be the exclusion of all evidence obtained from a stop that violates the Fourth Amendment or the Equal Protection Clause. The Washington Supreme Court, for example, has held that the state’s constitution bars the admission of evidence obtained as a result of a pretextual stop.71
- For civil proceedings, the Legislature should enact a state-level version of the End Racial Profiling Act, which Congress has considered for several years.72 In particular, the Legislature should create a cause of action for plaintiffs who have been injured by racial profiling to sue for damages or declaratory or injunctive relief. The Legislature should define as prima facie evidence of a violation a statistically significant disparity in the law enforcement officer’s or agency’s enforcement actions (e.g., stops or searches) compared to the local driving or pedestrian population. This would allow the plaintiff to survive a motion to dismiss, and then it would be up to the officer or agency at trial to rebut the evidence by showing that the disparity can be explained by something other than persistent racial profiling. Of course, the viability of this legal test would depend on law enforcement agencies publishing reliable data on their patrols. The Legislature should also provide for attorney’s fees, costs, and expert fees if the plaintiff prevails.
Prohibit Terry stops, i.e., non-arrest detentions based only on reasonable suspicion of a crime, unless the officer has reasonable suspicion that the person is about to commit a violent crime. Outside of the circumstance in which the officer has reasonable suspicion that a violent offense is imminent, the officer should be required to have probable cause before stopping, questioning, or frisking someone.73
Require all law enforcement agencies to adopt effective policies, training, and disciplinary measures to eliminate racial profiling as a condition of receiving funding from the Edward Byrne Memorial Justice Assistance Grant program,74 the largest source of federal funding for state and local law enforcement.75 Specifically, the Legislature should condition receipt of federal funds on agencies adopting policies banning all forms of profiling, collecting and publishing data on officers’ enforcement actions, updating training, and reviewing and responding to complaints in a timely manner.
Amend the state law on revocation of law enforcement officers’ certifications to authorize the Peace Officer Standards and Training Council to revoke the certification of officers who have demonstrated a track record of unjustified racial and ethnic disparities in their patrols.76 Such evidence could come from reports by law enforcement agencies to the Louisiana Uniform Law Enforcement Statewide Reporting Database77 or from a mechanism the Council could establish to receive complaints from the public.
For the Louisiana Commission on Law Enforcement and Administration of Criminal Justice
Compose model policies on racial profiling and data collection and disseminate these policies to law enforcement agencies throughout the state. Model policies should contain the elements outlined above in the recommendations to law enforcement agencies.
Promulgate regulations conditioning approval of Byrne grant applications and receipt of residual pass-through Byrne funds on law enforcement agencies adopting anti-profiling policies, collecting and publishing data on their activities, updating training, and reviewing and responding to complaints in a timely manner. The Commission could issue such regulations under its existing authorities even without a specific directive from the Legislature to impose such conditions.78
A 2001 Louisiana statute requires law enforcement agencies either to adopt a written policy against racial profiling or to submit data about traffic citations to the Louisiana Department of Public Safety and Corrections. To determine whether they have adopted anti-profiling policies, the SPLC conducted a survey of the 331 multi-officer law enforcement agencies in the state.
The following list shows the agencies that 1) have a policy that prohibits both types of racial profiling, i.e., the use of race to form unreasonable suspicion and racially selective enforcement of traffic and pedestrian laws; 2) have a policy that does not prohibit both types of profiling; 3) have no policy; and 4) did not respond to the survey. Policies that fall into the first category are not necessarily well-written or effective in explaining to officers what racial profiling is and what conduct is prohibited. The SPLC does not endorse any of the policies excerpted below.
1For example, studies from across the country show large racial disparities in the rates at which motorists of color are stopped, cited, searched, and arrested compared to white motorists. See Ian Ayres & Jonathan Borowsky, A Study of Racially Disparate Outcomes in the Los Angeles Police Department, American Civil Liberties Union of Southern California (Oct. 2008), https://www.aclusocal.org/sites/default/files/wp-content/uploads/2015/09/11837125-LAPD-Racial-Profiling-Report-ACLU.pdf; Frank R. Baumgartner, Derek A. Epp, and Kelsey Shoub, Suspect Citizens: What 20 Million Traffic Stops Tell Us About Policing and Race (Cambridge: Cambridge Univ. Press, 2018); Frank R. Baumgartner et al., Racial Disparities in Traffic Stop Outcomes, 9 Duke Forum for L. & Soc. Change 21 (2017); Frank R. Baumgartner et al., Targeting Young Men of Color for Search and Arrest During Traffic Stops: Evidence from North Carolina, 2002-2013, 5 Politics, Groups, & Identities 107 (2017); Samuel R. Gross & Katherine Y. Barnes, Road Work: Racial Profiling and Drug Interdiction on the Highway, 101 Mich. L. Rev. 651 (2002); Matthew B. Ross et al., State of Connecticut: Traffic Stop Data Analysis and Findings, 2015-16, Cent. Conn. State U., Inst. for Mun. & Reg’l Pol’y (Nov. 2017), http://www.ctrp3.org/app/download/766619976/November+2017+Connecticut+Racial+Profiling+Report. pdf; Matthew B. Ross et al., Traffic Stop Data Analysis and Findings, 2016, Cent. Conn. State U., Inst. for Mun. & Reg’l Pol’y (Mar. 2018), http://www. dot.ri.gov/community/CCPRA/docs/2016_Rhode_Island_Traffic_Stop_ Study.pdf; Camelia Simoiu et al., The Problem of Infra-Marginality in Outcome Tests for Discrimination, 11 Annals of Applied Stat. 1193, 1205-08 (2017) (deploying a new statistical test for discrimination to find that North Carolina officers employed a lower threshold of suspicion for searching black and Hispanic motorists versus white motorists); CPD Traffic Stops and Resulting Searches in 2013, American Civil Liberties Union of Illinois (Dec. 2014), http://www.aclu -il.org/wp-content/uploads/2014/12/Report-re-CPD-traffic-stops-in-2013.pdf; Picking Up the Pieces: A Minneapolis Case Study, American Civil Liberties Union (May 28, 2015), https://www.aclu.org/issues/racial-justice/race-and-criminal-justice/picking-pieces; Racial Disparities in Florida Safety Belt Law Enforcement, American Civil Liberties Union (Jan. 2016), https://www.aclu.org/report/racial-disparities-florida-safety-belt-law-enforcement. Back to report.
2It is difficult to prove racial profiling in both the Fourth Amendment and Equal Protection Clause contexts. For traffic stops, it is difficult to show Fourth Amendment violations, because most motorists commit easily observable violations (giving rise to probable cause to justify a stop), and courts disregard the officer’s subjective motivation for making the stop. Whren v. United States, 517 U.S. 806, 813-14 (1996). For pedestrian stops, because it is harder for a pedestrian to break laws while walking, it is easier to show that the officer did not have probable cause for the stop. See, e.g., Floyd v. City of New York, 959 F. Supp. 2d 540, 578-83 (S.D.N.Y. 2013). Nevertheless, the Fourth Amendment permits stops based on only reasonable suspicion of criminal activity (a standard that is lower than probable cause). Terry v. Ohio, 392 U.S. 1, 21 (1968). It is therefore difficult to prove Fourth Amendment violations in the pedestrian stop context, even if the officer has only low suspicion that criminal activity was afoot. Regarding Equal Protection Clause violations, a challenger must show that the law enforcement action had a discriminatory purpose and a discriminatory effect. See Washington v. Davis, 426 U.S. 229, 244-45 (1976); Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 US. 252, 264-65 (1977). To show a discriminatory purpose, a challenger may rely on circumstantial evidence, but shrewd officers will avoid making their motivations obvious. To show a discriminatory effect, a challenger must make a “credible showing” that a similarly situated person of a different race or ethnicity would not have been subjected to the same treatment – and the challenger is not entitled to discovery (i.e., required disclosures from the government) to help her make this “credible showing.” United States v. Armstrong, 517 U.S. 456, 470 (1996). Such a showing generally requires access to large amounts of data, which may not be publicly available. Back to report.
3U.S. Const. amend. IV (prohibiting “unreasonable searches and seizures”); id. amend. XIV, § 1, cl. 4 (prohibiting denial of equal protection of the law); La. Const. art. I, § 3 (prohibiting denial of equal protection of the law); id. § 5 (prohibiting “unreasonable searches, seizures, or invasions of privacy”). Back to report.
4Louisiana state appellate courts have directly addressed claims of racial profiling only eleven times and found sufficient evidence of profiling in only two of those cases. Parker v. Town of Woodworth, 160 So. 3d 1113 (La. Ct. App. 2015); State v. Vingle, 802 So. 2d 887 (La. Ct. App. 2001). Only nine federal cases have directly addressed claims of racial profiling by police in Louisiana, and none have found sufficient evidence of profiling. Back to report.
5See infra notes 28-31 and accompanying text. Back to report.
6Peter Wagner & Wendy Sawyer, States of Incarceration: The Global Context 2018, Prison Pol’y Initiative (May 2018), https://www.prisonpolicy. org/global/2018.html; Appendix: States of Incarceration: The Global Context 2018, Prison Pol’y Initiative (May 2018), https://www.prisonpolicy. org/global/appendix_2018.html (showing that, as of December 31, 2016, Oklahoma’s incarceration rate was 1,079 per 100,000 residents, whereas Louisiana’s incarceration rate was 1,052 per 100,000 residents). Back to report.
7Currently, nearly one in one hundred Louisianans is behind bars. This statistic is the sum of the number of adults held under DOC jurisdiction as of June 2018 (33,186), the number of children held under Office of Juvenile Justice jurisdiction as of the second quarter of 2018 (796), and an estimate (methodology for calculation below) of the number of people held in parish and local jails (9,718), totaling 43,700 people incarcerated, divided by the July 2017 U.S. Census estimate for Louisiana’s population (4,684,333), which yields 933 per 100,000 people incarcerated. Briefing Book, La. Dep’t of Pub. Safety & Corr., p. 11 of the .pdf (July 2018), http://www.doc. la.gov/media/1/Briefing%20Book/July%2018/july.2018.bb.pdf (33,186 adults under DOC jurisdiction as of June 2018); Vera Inst. of Just. et al., Louisiana Quarterly Juvenile Justice Indicators, La. Off. of Juvenile Just., 2nd Q. 2018 (July 2018), https://ojj.la.gov/wp-content/uploads/2018/07/OJJ-Indicators-2018Q2.pdf (accessed July 28, 2018) (403 children held in secure care and 393 children held in non-secure care as of 2nd quarter of 2018); , U.S. Census Bureau, https://www.census.gov/quickfacts/LA (accessed July 6, 2018) (July 2017 population estimate of 4,684,333).
The estimate of the number of people held in parish and local jails (either serving misdemeanor sentences post-conviction or being detained pre-trial) was obtained by taking the difference between the total number of adults the federal Bureau of Justice Statistics reported were incarcerated in Louisiana as of December 31, 2016 (45,400) and the number of people held under DOC jurisdiction as of December 2016 (35,682). Danielle Kaeble & Mary Cowhig, Correctional Populations in the United States, 2016, U.S. Dep’t of Just., Bureau of Just. Stat., NCJ 251211, at 11 app.tbl.1 (Apr. 2018), https://www.bjs.gov/content/pub/pdf/cpus16.pdf (45,400 incarcerated in Louisiana as of Dec. 31, 2016); Briefing Book, supra, p. 6 of the .pdf (35,682 under DOC jurisdiction as of Dec. 2016). Back to report.
8One “insider” patrol tactics book explains how increasing the number of cars an officer stops enables the officer to identify and investigate more criminal activity: “Criminal Patrol in large part is a numbers game; you have to stop a lot of vehicles to get the law of averages working in your favor.” Charles Remsberg, Tactics for Criminal Patrol: Vehicle Stops, Drug Discovery and Officer Survival (Northbrook, Ill.: Calibre Press, 1995), 27; see also Tactics for Criminal Patrol: Product Description, PoliceOne Books, http://policeonebooks.com/tactics-for-criminal-patrol-by-chuck-remsberg.html (accessed May 10, 2018) (referring to Remsberg’s book as containing “‘[i]nsider’ patrol tactics” from “elite officers who are already producing spectacular results, while staying alive and legally unscathed”); Gary Webb, Driving While Black: Tracking Unspoken Law-Enforcement Racism, Esquire (Jan. 29, 2007), https://www.esquire.com/news-politics/a1223/drivingwhile-black-0499 (“[A] reporter had asked a veteran California Highway Patrol sergeant to explain the operating principle behind this campaign to remove contraband from highway travelers. The answer: volume, volume, volume. ‘It’s sheer numbers,’ he said. ‘Our guys make a lot of stops. You’ve got to kiss a lot of frogs before you find a prince.’”). Back to report.
9We lack the data to know how much of the disparity in incarceration is due to differing rates of crime commission across people of different races and ethnicities. However, it is plausible that racial discrimination in police practices drives at least a portion of this enormous disparity, since studies using replicable observational methods have found that certain violations like traffic infractions are committed at roughly similar rates across racial groups. See, e.g., Joseph B. Kadane & John Lamberth, Are Blacks Egregious Speeding Violators at Extraordinary Rates in New Jersey?, 8 Law, Probability & Risk 139, 146, 147 fig.1 (2009) (“It does appear that blacks drive slightly faster than others, but only slightly. . . . [T]he extent to which blacks drive faster than others is not nearly enough to explain the disparity in stops between blacks and others.”); Seatbelt Use in Florida: Final Report, Fla. Dep’t of Transp. 16 tbl.3 (June 2014), http://www.fdot.gov/safety/4-Reports/Seat-Belt-Use-Reports/2014%20FL%20Seat%20Belt%20Use%20Report.pdf at 16 tbl.3 (finding seatbelt usage among 91.5% of white drivers, 85.8% of black drivers, 89.4% of Hispanic drivers, and 96.3% of other drivers). Similarly, federal survey data suggest that marijuana use is consistent across people of different racial and ethnic groups. See Results from the 2016 National Survey on Drug Use and Health: Detailed Tables, Substance Abuse & Mental Health Servs. Admin., Ctr. for Behavior Health Stat. & Quality, 230 tbl.1.32B, (Sept. 7, 2017), https://www.samhsa.gov/data/sites/default/files/NSDUH-DetTabs-2016/NSDUH-Det-Tabs-2016.htm#tab1-32B. The figures in the main text are calculated using data from the following sources: Sex by Age (Black or African American Alone), B01001B, American Cmty. Survey 5-Year Estimates, U.S. Census Bureau, https://factfinder.census.gov/bkmk/table/1.0/en/ACS/16_5YR/B01001B/0400000US22 (accessed Aug. 3, 2018) [hereinafter 2016 ACS Data – Black] (number of black adults); Sex by Age, B01001, American Cmty. Survey 5-Year Estimates, U.S. Census Bureau, https://factfinder.census.gov/bkmk/table/1.0/en/ACS/16_5YR/B01001/0400000US22 (accessed Aug. 3, 2018) (number of adults); Uniform Crime Reporting Program Data: Arrests by Age, Sex, and Race, 2016 (ICPSR 37056), U.S. Dep’t of Justice, Fed. Bureau of Investigation, available from Inter-Univ. Consortium for Pol. & Soc. Res. (June 28, 2018), https://doi.org/10.3886/ICPSR37056. v1 [hereinafter 2016 UCR Data] (percentage of adult arrestees who were black); Briefing Book, La. Dep’t of Pub. Safety & Corr., p. 26 of the .pdf (July 2016), http://www.doc.la.gov/media/1/Briefing%20Book/Jul%202016/bb.jul.16.update.pdf. Back to report.
10This figure was calculated using data from Briefing Book, supra note 7, p. 11 of the .pdf (black and white adult prisoner percentages and total number of adult prisoners as of June 2018); 2016 ACS Data – Black, supra note 9 (number of black adults in 2016, the most recent year for which Census data disaggregated by age and race are available); Sex by Age (White Alone), B01001A, American Cmty. Survey 5-Year Estimates, U.S. Census Bureau, https://factfinder.census.gov/bkmk/table/1.0/en/ACS/16_5YR/B01001A/0400000US22 (accessed Aug. 3, 2018) (number of white adults in 2016). Back to report.
11This figure was calculated using the following sources: 2016 UCR Data, supra note 9, RACE: Universe: Total Population, 2012-2016 American Community Survey 5-Year Estimates, B02001, U.S. Census Bureau, https://factfinder.census.gov/bkmk/table/1.0/en/ACS/16_5YR/B02001/0400000US22 (accessed Aug. 3, 2018) [hereinafter 2016 Louisiana ACS Data] (population by race for state, parishes, and municipalities). Back to report.
12Results from the 2016 National Survey on Drug Use and Health, supra note 9. Back to report.
13This figure was calculated using the same sources as in supra note 13. Back to report.
14Mark Gimein, Welcome to the Arrest Capital of the United States, Naked Truth (June 22, 2016), https://fusion.tv/story/256788/gretna-louisiana-arrest-capital-america. Back to report.
15These figures were calculated using the following sources: 2016 UCR Data, supra note 9, 2016 Louisiana ACS Data, supra note 11. Back to report.
16This figure was calculated using the following source: 2016 UCR Data, supra note 9. Back to report.
17Richard Fausset & Alan Blinder, Baton Rouge Officers Will Not Be Charged in Alton Sterling’s Killing, N.Y. Times (Mar. 27, 2018), https://nyti.ms/2pJaRSC. Back to report.
18See Cox v. Louisiana, 379 U.S. 536, 538-545 (1965). Back to report.
19In September 2005, New Mexico State Police officers reported that BRPD officers forcibly entered dwellings without warrants or exigent circumstances; slammed a car door and pepper sprayed a man who was handcuffed in the back of a patrol car; stopped and searched black motorists and pedestrians without reasonable suspicion or probable cause, even scraping off a valid vehicle registration sticker to force a motorist to purchase a new one and crumpling a valid driver’s license; tased an unarmed man, including after he had fallen to the ground; spoke discourteously and unprofessionally toward black but not white residents and referred to black residents as “heathens”; choked and kicked a handcuffed black youth who had sworn at the police while other officers stood by laughing; and falsified an incident report to justify an unconstitutional stop and search. See First Amended Complaint, Exhibit A at 5-8, 10-16, 18, Imani v. City of Baton Rouge, No. 17-cv-439-JWD-EWD (M.D. La. July 21, 2017), ECF No. 5-1. One BRPD officer offered to let a Michigan State Police officer beat a prisoner as a “thank-you” for assisting with hurricane relief. Reports Allege B.R. Police Misconduct Post-Katrina, NOLA.com (Mar. 15, 2010), http://s.nola.com/eTUrSPk. After only two days of patrolling with BRPD officers, the 55 New Mexico and Michigan troopers withdrew due to their concerns over BRPD misconduct. Id. Back to report.
20Thomas Gibbons-Neff, Why the Police in Baton Rouge Look Like They’re Dressed for War, Wash. Post (July 11, 2016), https://wapo.st/29Ib5mn; Abigail Hauslohner et al., As Arrests Mount in Baton Rouge, Protesters Question Police Tactics, Wash. Post (July 10, 2016), http://wapo.st/29GP5K9. Back to report.
21See, e.g., Greg Allen, In Baton Rouge, Simmering Mistrust Divides Police, Community, Nat’l Pub. Radio (July 14, 2016), https://n.pr/29EhVHh; Trymaine Lee, Alton Sterling Shooting Exposes Racial Fractures in Baton Rouge, NBC News (July 7, 2016), https://www.nbcnews.com/news/us-news/alton-sterling-shooting-exposes-racial-fractures-baton-rouge-n605126. The BRPD also remains under a federal consent decree instituted in 1980 to ensure that police and fire departments across the state would recruit officers of color and women into their ranks. United States v. City of Alexandria, 614 F.2d 1358, 1367-72 (5th Cir. 1980), overruled on other grounds, Dean v. City of Shreveport, 438 F.3d 448, 452 n.1 (5th Cir. 2006) (applying strict scrutiny to review “race-conscious remedies” rather than rational basis). While 29 other jurisdictions have been released from the decree, the BRPD has still not demonstrated substantial compliance with the decree after nearly 40 years. Jim Mustian, Baton Rouge Police Department Remains Non-Compliant with 37-Year-Old Consent Decree Despite Reform, Diversity Efforts, The Advocate (May 20, 2017), http://www.theadvocate.com/baton_rouge/news/courts/article_0568014c-3a72-11e7-827d-df011cf01d5d.html. Back to report.
22Louisiana Justice Reinvestment Package, La. Dep’t of Corr. 1, http://doc.louisiana.gov/media/1/Justice%20Reinvestment%20Task%20Force/a_final.package.summary_2017-6-7_final.pdf (accessed July 6, 2018). The Justice Reinvestment Initiative (JRI) is already outperforming expectations: JRI was projected to save Louisiana taxpayers $6.2 million by June 2018, but it has already saved $12.2 million. Report to the Commissioner of Administration and the Joint Legislative Committee on the Budget Regarding Calculated Savings Realized from Criminal Justice Reform for Fiscal Year 2018, La. Dep’t of Pub. Safety & Corrs. 3-4 (July 9, 2018), http://doc.la.gov/media/1/Justice%20Reinvestment%20Task%20Force/07.09.18.report.to.doa.comm.and.jlcb.for.fy18.calculated.savings.pdf. Back to report.
23Cf. Whren v. United States, 517 U.S. 806, 810 (1996) (“As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.”). Back to report.
24See Terry v. Ohio, 392 U.S. 1, 21-22, 30 (1968); Berkemer v. McCarty, 468 U.S. 420, 439 (1984) (“Under the Fourth Amendment, we have held [that] a policeman who lacks probable cause but whose observations lead him reasonably to suspect that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to investigate the circumstances that provoke suspicion.” (omitting internal quotations and citation)). Back to report.
25See, e.g., Carl Takei, How Police Can Stop Being Weaponized by Bias- Motivated 911 Calls, American Civil Liberties Union (June 18, 2018, 6:00 PM EST), https://www.aclu.org/blog/racial-justice/race-and-criminal-justice/how-police-can-stop-being-weaponized-bias-motivated. Back to report.
26This stop would not necessarily violate the Fourth Amendment as long as the officer had probable cause to believe that a traffic or other violation had occurred. See Whren, 517 U.S. at 814, 819. However, unless the officer was looking for someone who matched a credible and specific suspect description, if the officer’s true motivation for making the stop was because of the motorist’s race or ethnicity, and the officer would not have made the stop if the motorist’s race or ethnicity had been different, the officer has violated the Fourteenth Amendment’s Equal Protection Clause. For an example of how a traffic stop that complies with the Fourth Amendment could nevertheless violate the Equal Protection Clause, see Marshall v. Columbia Lea Regional Hosp., 345 F.3d 1157, 1166-71 (10th Cir. 2003) (“[T] he right to equal protection may be violated even if the actions of the police are acceptable under the Fourth Amendment.”); see also United States v. Avery, 137 F.3d 343, 352 (6th Cir. 1997) (“The Equal Protection Clause of the Fourteenth Amendment provides citizens a degree of protection independent of the Fourth Amendment protection against unreasonable searches and seizures.”). Back to report.
27See, e.g., Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity, U.S. Dep’t of Just. 4 (Dec. 2014), https://www.justice.gov/sites/default/files/ag/pages/attachments/2014/12/08/useof-race-policy.pdf [hereinafter DOJ Guidance]; Protecting Civil Rights: A Leadership Guide for State, Local, and Tribal Law Enforcement, Int’l Ass’n of Chiefs of Police 157 (Sept. 2006), http://www.theiacp.org/portals/0/pdfs/PCR_LdrshpGde_Part3.pdf. Back to report.
28A long line of research into “procedural justice” has revealed that people who feel the police have treated them fairly, even when facing a citation or arrest, are much more likely to view the police as legitimate authorities and therefore more likely to cooperate with the police on subsequent, independent matters. These findings remain true across different racial and ethnic groups. See, e.g., Tom R. Tyler & Jonathan Jackson, Popular Legitimacy and the Exercise of Legal Authority: Motivating Compliance, Cooperation, and Engagement, 20 Psych., Pub. Pol’y, & L. 78, 85-89 & tbls.4, 8 (2014); Tom R. Tyler & Jeffrey Fagan, Legitimacy and Cooperation: Why Do People Help the Police Fight Crime in Their Communities, 6 Ohio State J. of Crim. L. 231, 250-54 & tbls.3-4, 263-64 (2008); see generally Procedural Justice, Nat’l Initiative for Building Cmty. Trust & Just., https://trustandjustice. org/resources/intervention/procedural-justice. Guidance for federal law enforcement agencies also emphasizes the harm caused by biased policing. DOJ Guidance, supra note 27, at 1 (“Biased practices . . . are unfair, promote mistrust of law enforcement, and perpetuate negative and harmful stereotypes.”). And national survey data reveal large gaps in people’s trust of law enforcement between white, black, and Hispanic Americans, probably because police treat people of different races and ethnicities differently. Rich Morin & Renee Stepler, The Racial Confidence Gap in Police Performance, Pew Research Ctr. (Sept. 29, 2016), http://pewrsr.ch/2dcLkM4. Back to report.
29For example, a 2012 survey of Latinx communities in the counties of Cook (Chicago), Harris (Houston), Los Angeles, and Maricopa (Phoenix)— all with large Latinx populations—revealed widespread fear that contacting police would lead to inquiries into a person’s immigration status and corresponding unwillingness to report crimes or provide tips to the police. Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement, Univ. Ill. Chicago 5-6 fig.1 (May 2013), http://www.policylink.org/sites/default/files/INSECURE_COMMUNITIES_REPORT_ FINAL.PDF. Data from Denver and Philadelphia show that reports of crime in Latinx communities fell, even relative to non-Latinx communities, between 2016 and 2017, a decrease attributed to Donald Trump’s becoming president and rising fears of deportation. Rob Arthur, Latinos in Three Cities Are Reporting Fewer Crimes Since Trump Took Office, FiveThirtyEight (May 18, 2017), http://53eig.ht/2pY4kSh; see also Cora Engelbrecht, Fewer Immigrants Are Reporting Domestic Abuse. Police Blame Fear of Deportation., N.Y. Times (June 3, 2018), https://nyti.ms/2HgpbrM. Back to report.
30Chuck Wexler, Police Chiefs Across the Country Support Sanctuary Cities Because They Keep Crime Down, L.A. Times (Mar. 6, 2017), http://www.latimes.com/opinion/op-ed/la-oe-wexler-sanctuary-cities-immigration-crime-20170306-story.html (“[P]olice chiefs warn that if their agencies are required to enforce federal immigration laws, it will hurt their ability to investigate and solve serious crimes in their communities. If people are afraid to have contact with the local police, they will not report crime, serve as witnesses, or tell police what is going on in their neighborhoods. Without information from the community, investigating crime becomes difficult and crime levels rise.”); Immigration Policy, Major Cities Chiefs Ass’n 1 (2013), https://www.majorcitieschiefs.com/pdf/news/2013_immigration_policy.pdf (explaining that local enforcement of immigration law “undermines the trust and cooperation with immigrant communities which are essential elements of community oriented policing”). Back to report.
31See Rodriguez v. United States, 135 S. Ct. 1609 (2015) (extending a traffic stop beyond the time reasonably necessary to address the traffic violation, absent reasonable suspicion of other criminal activity, violates the Fourth Amendment); Arizona v. United States, 567 U.S. 387, 413 (2012) (“Detaining individuals solely to verify their immigration status would raise constitutional concerns.”). Suspecting that someone is in the country illegally solely because s/he looks Latinx does not constitute reasonable suspicion of unlawful presence. United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975) (“Even if [the Border Patrol] officers saw enough to think that the occupants were of Mexican descent, this factor alone would justify neither a reasonable belief that they were aliens, nor a reasonable belief that the car concealed other aliens who were illegally in the country. . . . The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens.”); see also Kavitha Surana, How Racial Profiling Goes Unchecked in Immigration Enforcement, ProPublica (June 8, 2018), https://www.propublica.org/article/racial-profiling-ice-immigration-enforcement-pennsylvania (discussing legal implications of racial profiling in the immigration context); Kavitha Surana, Pennsylvania State Police Adding Oversight to Troopers’ Interactions With ICE, ProPublica (June 14, 2018), https://www.propublica.org/article/pennsylvania-state-police-adding-oversight-to-trooper-interactions-with-ice (same). Back to report.
32Unfortunately, data on Louisiana-based police encounters involving people of color other than African-Americans are extremely limited, so the examples that follow focus on black-white disparities in enforcement. Back to report.
33These figures were calculated using data from the following sources: 2016 UCR Data, supra note 9; 2016 Louisiana ACS Data, supra note 11. Back to report.
34Results from the 2016 National Survey on Drug Use and Health, supra note 9. Black youth (15.0%) are only slightly more likely than white youth (14.7%) to have used marijuana in their lifetimes. Id. For more on racial disparities in arrests for low-level crimes, see Paul Butler, Chokehold: Policing Black Men (New York: New Press, 2017), 61-64. Back to report.
35Of 8,916 black people whose arrests for marijuana possession in Louisiana in 2016 were reported to the FBI, 8,275, or 93%, were adults. Of 5,902 white people whose arrests for marijuana possession in Louisiana in 2016 were reported to the FBI, 5,431, or 92%, were adults. 2016 UCR Data, supra note 9. Back to report.
36The figures in the table were calculated using the following sources: 2016 UCR Data, supra note 9; 2016 Louisiana ACS Data, supra note 11. It is likely that agencies made more arrests for marijuana possession than what they reported to the FBI. This is because the UCR program employs a “Hierarchy Rule,” which dictates that, if a person is arrested for multiple offenses, only the arrest for the most serious offense should be reported to the FBI. For what the FBI calls “Part I” offenses (i.e., criminal homicide, forcible rape, robbery, aggravated assault, burglary, larceny-theft (except motor vehicle theft), motor vehicle theft, and arson), the FBI determines which Part I offense is the most serious. For what the FBI calls “Part II” offenses (all crimes not designated as Part I crimes), the reporting agency itself determines which Part II offense is the most serious. Marijuana possession is a Part II offense, so whenever a person is arrested for a Part I offense and marijuana possession, the arrest for marijuana possession is not reported to the FBI. If a person is arrested for marijuana possession and another Part II offense, whether the agency reports the arrest for marijuana possession to the FBI depends on whether the agency ranks marijuana possession as more or less serious compared to the other offense for which the person was arrested. See Uniform Crime Reporting Handbook, U.S. Dep’t of Just., Fed. Bureau of Investigation 97 (2004), https://ucr.fbi.gov/additional-ucr-publications/ucr_handbook.pdf (explanation of the Hierarchy Rule); id. at 10, 139 (hierarchy of Part I offenses and definition of Part II offenses). Back to report.
37This figure was calculated using the same sources as in supra note 36. Back to report.
38Gimein, supra note 14. Back to report.
40These figures were calculated using the following sources: 2016 UCR Data, supra note 9, 2016 Louisiana ACS Data, supra note 11. Back to report.
41This figure was calculated using the following source: 2016 UCR Data, supra note 9. Back to report.
42These figures were calculated using the following source: 2016 UCR Data, supra note 9. Back to report.
43Code of Ordinances of the City of Baton Rouge and East Baton Rouge Parish § 12:101(3). Back to report.
44Baton Rouge Crime Incidents, Open Data BR (Mar. 15, 2018), https://data.brla.gov/Public-Safety/Baton-Rouge-Crime-Incidents/fabb-cnnu/data. Back to report.
45These maps were constructed using data from the following sources: Baton Rouge Crime Incidents, supra note 44; City Limit, EBRGIS Open Data (June 12, 2018), https://data-ebrgis.opendata.arcgis.com/datasets/city-limit; Cartographic Boundary KML Files – Census Tracts, U.S. Census Bureau, https://www.census.gov/geo/maps-data/data/kml/kml_tracts.html (accessed Nov. 17, 2017); RACE: Universe: Total Population, 2012-2016 American Community Survey 5-Year Estimates, B02001, U.S. Census Bureau, https://factfinder.census.gov/bkmk/table/1.0/en/ACS/16_5YR/B02001/0400000US22|0500000US22033.14000 (accessed Aug. 1, 2018); Population, Housing Units, Area, and Density: 2010 – County – Census Tract: 2010 Census Summary File 1, GCT-PH1, U.S. Census Bureau, https://factfinder.census.gov/bkmk/table/1.0/en/DEC/10_SF1/GCTPH1. CY07/0500000US22033 (accessed Aug. 3, 2018). One census tract (number 98) does not have current population data associated with it. Back to report.
46The FBI’s Uniform Crime Reporting program, for example, does not require reporting on arrests of Latinx people as a distinct racial or ethnic group, so many Latinx people who are arrested are coded as white in the data. This has the effect of both making it hard to know how often police make contact with Latinx people and also underestimating black-white disparities in arrest rates by artificially inflating the number of white people who are arrested. See The War on Marijuana in Black and White, American Civil Liberties Union 32-33 (June 2013), https://www.aclu.org/sites/default/files/field_document/1114413-mj-report-rfs-rel1.pdf; see also Sarah Eppler-Epstein, We Don’t Know How Many Latinos Are Affected by the Criminal Justice System, Urban Inst. (Oct. 17, 2016), https://urbn.is/2wOkrsb. Back to report.
47Editorial, Wrongly Profiled and Deported, N.Y. Times (Oct. 23, 2015), https://nyti.ms/1NXiTPd. Back to report.
48E-mail from Megan H. Mack, Officer for Civil Rights & Civil Liberties, U.S. Dep’t of Homeland Security, to Sarah Saldaña, Dir., U.S. Immigration & Customs Enf’t (Sept. 21, 2015, 4:56 PM EST), available at http://nowcrj.org/wp-content/uploads/2015/10/ERO-Prosecutorial-Discretio...Back to report.
50Editorial, supra note 47; ICE Releases Gustavo Barahona Late Night, But ICE Director Fails To Answer Charges of Racial Profiling & Biased Racial Just. (Oct. 26, 2015), http://nowcrj.org/2015/10/26/ice-releases-gustavo-barahona-late-night-butice-director-fails-to-answer-charges-of-racial-profiling-biased-policing-10-26-15. Back to report.
51Immigrant Advocates Demand Justice for Perez Family and an End to Jefferson Parish Sheriff’s Office Collaboration with Immigration and Customs Enforcement, New Orleans Workers’ Ctr. for Racial Just. (June 8, 2018), http://nowcrj.org/2018/06/08/immigrant-advocates-demand-justice-perez-fa...Back to report.
52Protecting Civil Rights, supra note 27, at 161. Back to report.
53Departments consisting of only one officer were excluded because, according to many chiefs of police who spoke with the SPLC, these officers perform only limited functions. Many, for example, do not conduct traffic patrols. To determine the number of officers in an agency, the SPLC relied on publications by the Louisiana Commission on Law Enforcement and Administration of Criminal Justice, the Louisiana Association of Chiefs of Police, and phone calls and e-mail communications with select agencies. Crime in Louisiana 2016, La. Comm’n on Law Enf’t & Admin. of Crim. Just. 56-60 tbls.25-27, 69 tbl.32, 72 tbl.34 (May 1, 2018), http://lcle.la.gov/programs/uploads/CIL_2016.pdf; 2016 Directory, La. Ass’n of Chiefs of Police, https://lachiefs.org/wp-content/uploads/2016/11/LA-Directory_web.pdf (accessed June 18, 2018). Back to report.
54The responses to our survey are available online; a chart in the Appendix summarizes the policies’ content and rates them for whether they contain prohibitions that are broad enough to cover both types of profiling. Back to report.
55Twenty-one agencies never responded to our public records request, in violation of the Louisiana Public Records Law’s three-day deadline for responding. La. Rev. Stat. Ann. § 44:32(D) (West 2018). Back to report.
56See supra notes 47-50 and accompanying text. Back to report.
57These were the Arcadia, Jeanerette, and Lake Providence Police Departments (workplace harassment); the Mansura, Moreauville, and Plaucheville Police Departments (“courtesy” policies); the Berwick Police Department (equal-employment opportunity policy); and the Leesville Police Department (summary of training hours). The Bastrop Police Department’s policy consists of a single sentence: “This policy will be governed by the City of Bastrop sexual harassment policy,” which in turn governs workplace sexual harassment. Back to report.
58Protecting Civil Rights, supra note 27, at 161. Back to report.
59Tickfaw’s policy contains other problematic language, including, “It is the policy of this department to patrol in a proactive manner, to aggressively investigate suspicious persons, circumstances [sic] and to actively enforce the motor vehicle laws, while insisting that citizens will only be stopped or detained when reasonable suspicion exists to believe they have committed, are committing or about to commit an infraction of the law.” This sort of language encourages zero-tolerance- and broken-windows-style policing, in which police use any observed violation of the law to justify stopping a motorist or pedestrian. Moreover, this language misstates the legal standard for making an investigatory Terry stop. When a police officer has not observed any crime or infraction, the officer may make a Terry stop only if she thinks the suspect is involved in “criminal activity.” Terry v. Ohio, 392 U.S. 1, 30 (1968). The officer has no authority to stop a motorist based on the belief that the person is “about to” exceed the speed limit or that a pedestrian is “about to” jaywalk, since these are almost always non-criminal infractions. Rather, if a person’s only wrongdoing was a non-criminal infraction, the police must have probable cause, which usually requires real-time observation of an infraction, to justify a stop. In addition, Tickfaw’s policy defines racial profiling as the “detention, or other deliberate treatment of any person based on their racial or ethnic status, or characteristics.” The use of the word “deliberate” is a typo – every other policy the SPLC received that uses similar language uses the word “disparate,” not “deliberate.” Moreover, any police-initiated action like a stop, search, ticket, or arrest is a “deliberate,” as opposed to a merely accidental, action, so it does not make sense to use that word in the definition. Back to report.
60Good News of the Kingdom of God: An Interview with Paul Pomerville, Pneuma Review (Apr. 28, 2018), http://pneumareview.com/good-news-ofthe-kingdom-of-god-an-interview-with...Back to report.
61About Lexipol, Lexipol, http://www.lexipol.com/about-us (accessed Mar. 14, 2018). Lexipol has come under fire for focusing primarily on helping law enforcement agencies reduce their liability risk rather than helping them develop policies to provide better services. In addition, immigrants’ rights and police-reform advocates in California have criticized Lexipol’s policies on immigration enforcement as promoting unconstitutional behavior; at least one California police department rescinded its Lexipol-written policy as a result. See Ingrid V. Eagly & Joanna C. Schwartz, Lexipol: The Privatization of Police Policymaking, 96 Tex. L. Rev. 891, 908, 924, 928-29, 956 (2018). Back to report.
La. Rev. Stat. Ann. § 32:398.10(E)-(F) (West 2018).Id. Back to report.
63For example, the video at one point defines racial profiling as “[a]ny police-initiated action that relies upon race, ethnic, or national origin of an individual rather than the behavior of that individual or information that leads the police to a particular individual who has been identified as being engaged in or having been engaged in criminal activity.” Videotape: Not in Our Agency, 11:42-12:02, 17:14-17:34 (La. State Police 2002) (copy on file with SPLC). The problem with this definition is that it does not prohibit police actions that would be permissible under the Fourth Amendment but that would violate the Equal Protection Clause, e.g., an officer who observes many motorists of different races and ethnicities committing traffic violations but decides to pull over mostly motorists of color would be selectively enforcing the law based on race and ethnicity. Even though these traffic stops would violate the Equal Protection Clause, the officer has not committed racial profiling as the video defines it, because the officer can point to the traffic violations—“the behavior of th[ese] individual[s]”—to justify each stop without ever mentioning race or ethnicity. The video subsequently states, “A trooper shall NOT use race, gender, religion, national origin, or any other variable as a discriminatory factor in selecting whom to stop, search, or initiate police actions against.” Id. at 12:06-12:18; 17:37-17:50. This is a much stronger prohibition that applies to both Fourth Amendment and Equal Protection Clause violations. But because this subsequent statement disallows conduct that the first statement would permit, the overall effect of the video is confusing. Back to report.
64The only examples the video provides come from snippets of random interviews with individual Louisiana State Police troopers in which they respond to the question, “Just what is racial profiling?” In response, one officer says nothing more than “Stereotypes,” id. at 9:56-9:58, while another says, “Think of it this way: a law enforcement officer, acting in his position of power, plus a prejudicial attitude equals the formula for discrimination, and in this case, racial profiling,” id. at 11:22-11:36. Back to report.
65Protecting Civil Rights, supra note 27, at 164. Back to report.
66Id. at 164-66. Back to report.
67Int’l Ass’n of Chiefs of Police, Unbiased Policing: Model Policy 2 (Dec. 2015) (“Officers who witness or who are aware of instances of biased policing shall report the incident to a supervisor. Also, where appropriate, officers are encouraged to intervene at the time the biased policing incident occurs.”) (copy on file with the SPLC). Back to report.
68Cal. Penal Code Ann. § 13519.4(h) (West 2018). Back to report.
69The Louisiana State Police should amend its template form to make clear that a person cannot be prosecuted simply because the Internal Affairs Division finds a complaint to be unfounded. Rather, a person may be prosecuted only for intentionally making a complaint the person knows to be false. La. Rev. Stat. Ann. § 14:133.5(A) (West 2018). The current language on the LSP form, “I fully understand that any false statement I make to the State Police Internal Affairs investigators or designee, in regard to this complaint may be a violation of LRS 14:133.5,” fails to make this clear. Complainant, La. Dep’t of Public Safety & Corr., Off. of State Police 5, http://www.lsp.org/pdf/ComplaintAffidavit.pdf (accessed Apr. 17, 2018). As a result, it may intimidate or dissuade people from lodging complaints. See Ask the Advocate: Filing Complaints About Law Enforcement Officers, The Advocate (Apr. 16, 2017), http://www.theadvocate.com/baton_rouge/news/article_8cf65fcc-0e72-11e7-8...Back to report.
70La. Rev. Stat. Ann. §§ 15:1212-1212.1 (West 2018). The database currently does not require law enforcement agencies to report disciplinary measures short of involuntary terminations, voluntary terminations in lieu of resignation, and resignations pending an investigation, id. § 1212(B) (4), but agencies could voluntarily report other disciplinary actions to the database. Back to report.
71State v. Ladson, 979 P. 2d 833, 842-43 (Wash. 1999) (“When determining whether a given stop is pretextual, the court should consider the totality of the circumstances, including both the subjective intent of the officer as well as the objective reasonableness of the officer’s behavior.”). Back to report.
72End Racial Profiling Act of 2017, H.R. 1498, 115th Cong. § 102 (2017), available at https://www.congress.gov/115/bills/hr1498/BILLS-115hr1498ih.pdf (establishing cause of action for declaratory and injunctive relief). Back to report.
73Terry v. Ohio opened the door to racial profiling by allowing police to stop and question people without probable cause that they had committed a crime; instead, officers need to articulate only the lower standard of “reasonable suspicion” to justify the stop and reasonable suspicion that the person is armed and dangerous to justify a frisk. Terry v. Ohio, 392 U.S. 1 (1968). The warrant requirement or another exception to the warrant requirement—e.g., probable cause that a crime has been committed—is sufficient to enable police to address crimes where no one is facing imminent harm. See Renée McDonald Hutchins, “Racial Profiling: The Law, the Policy, and the Practice,” in Policing the Black Man: Arrest, Prosecution, and Imprisonment, ed. Angela J. Davis (New York: Pantheon Books, 2017), 112, 124-25. Back to report.
74This would be similar to the End Racial Profiling Act’s provisions that would 1) condition receipt of Byrne and “Cops on the Beat” grants on an agency’s adoption of certain anti-profiling policies and practices; and 2) allow the U.S. Attorney General to withhold grants from agencies that fail to adopt these measures. End Racial Profiling Act, supra note 72, §§ 2(1), 201, 302(b). Back to report.
75Gretta L. Goodwin, DOJ Grants Management: Justice Has Made Progress Addressing GAO Recommendations: Testimony Before the Subcommittee on Government Operations, Committee on Oversight and Government Reform, House of Representatives, Gov’t Accountability Off. 5 (July 14, 2016), https://www.gao.gov/assets/680/678440.pdf. In FY17, Louisiana law enforcement agencies received $4.7 million in Byrne grants. At least 40% of these funds must go directly to parish and municipal law enforcement agencies or be “passed through” to them by the Louisiana Commission on Law Enforcement and Administration of Criminal Justice (LCLE), while the remaining portion is retained by state law enforcement agencies. Federal law leaves it up to the State of Louisiana to approve law enforcement agencies’ applications for Byrne grants before they are submitted to the U.S. Department of Justice and to distribute residual passthrough funds to parish and local agencies. Therefore, the legislature should require LCLE to condition approval of applications and receipt of residual pass-through funds on agencies taking concrete steps to end racial profiling. Fiscal Year (FY) 2017 State Edward Byrne Memorial Justice Assistance Grant (JAG) Allocations, U.S. Dep’t of Just, Bureau of Just. Assistance, https://www.bja.gov/Funding/17JAGStateAllocations.pdf (accessed Apr. 17, 2018) ($3.2 million directly to State of Louisiana, some of which must be passed through to local agencies); 2017 Louisiana Local JAG Allocations, U.S. Dep’t of Just., Bureau of Just. Assistance, https://www.bja.gov/Programs/JAG/jag17/17LA.pdf (accessed Apr. 17, 2010) ($1.5 million directly to local governments); 34 U.S.C.A. § 10156(b)(2) (West 2018) (direct funding from federal Bureau of Justice Assistance (BJA) to parish and local law enforcement agencies); id. § 10156(c)(2), (e)(2) (pass-through funding from state to parish and local law enforcement agencies); id. § 10156(b) (1), (c)(1) (direct funding from BJA to state law enforcement agencies); Alexia D. Cooper, Justice Assistance Grant Program, 2016, U.S. Dep’t of Just., Bureau of Just. Stat., NCJ 250157, at 5-6 (Sept. 2016), https://www. bjs.gov/content/pub/pdf/jagp16.pdf (explanation of funding allocations); Letter from Michael L. Alston, Dir., Off. for Civ. Rights, Off. of Just. Programs, U.S. Dep’t of Just., to Joseph M. Watson, Exec. Dir., La. Comm’n on Law Enf’t & Admin. of Crim. Just. 3 (May 15, 2012), https://ojp.gov/about/ocr/pdfs/LA-08-OCR-0388.pdf (explaining process for reviewing applications for federal grants, including submission of applications to LCLE for “final approval”); Edward Byrne Memorial Justice Assistance Grant (JAG) Program Frequently Asked Questions (FAQs), U.S. Dep’t of Just., Bureau of Just. Assistance 2 (Aug. 2017), https://www.bja.gov/Funding/JAGFAQ.pdf (explaining that the state administering agency distributes pass-through funding); Louisiana State Administering Agencies, U.S. Dep’t of Just., Off. of Just. Programs, https://ojp.gov/saa/la.htm (accessed July 10, 2018) (LCLE is the “state administering agency” for Byrne grants in Louisiana). The best geek prank collection can be found at GeekPrank.com. Play with the Windows simulator, the fake upgrade screens, the fake disk formatter and other pranks. Back to report.
76The Council on Peace Officer Standards and Training is under LCLE’s jurisdiction. Most of the P.O.S.T. Council’s members come from LCLE, as does its staff. La. Rev. Stat. Ann. § 40:2403(B)(1) (West 2018). Under current law, the P.O.S.T. Council is explicitly authorized to revoke officer certifications based on a conviction of “malfeasance in office”; 2) a conviction of an offense that restricts a person’s right to carry a firearm; 3) involuntary termination by a law enforcement agency for a civil rights violation; 4) conviction of a misdemeanor for domestic abuse battery or any felony; 5) failure to complete additional training prescribed by the Council; or 6) a judicial ruling ordering decertification. Id. § 2405(J)(1)(2). For (3)-(6), the Council probably has to hold a hearing before revoking certifications on these grounds, but the law is unclear on this point. Id. § (2) (“The Council on Peace Officer Standards and Training may conduct a revocation hearing to determine whether the P.O.S.T. certification of any qualified peace officer, whether employed full-time, part-time, or reserve, shall be revoked if any of the following conditions occur.” (emphasis added)). Nothing in the current law explicitly bars the Council from revoking certifications for non-enumerated reasons, but it would be better to provide explicit authority for the Council to do this. Back to report.
77La. Rev. Stat. Ann. §§ 15:1212-1212.1 (West 2018). Back to report.
78Pursuant to La. Rev. Stat. Ann. § 15:1204(9) (West 2018), LCLE has the authority to promulgate rules to assist in approving and denying Byrne grants. Back to report.
