Racial Profiling under Police Discretion
Michelle Alexander explains that racial profiling by law enforcement has long been allowed, a “dirty little secret,” legally affirmed by the Supreme Court in 1975 (2020, p. 163). In United States v. Brignoni-Ponce, the court upheld the use of “Mexican appearance” as a relevant factor for Border Patrol when deciding to stop someone under suspicion of unlawful presence. Justice Lewis Powell stated, “The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor” (Alexander, 2020, p. 164; Andrade, 2014, p. 723).
Despite this and the fact that police officers regularly use race as a factor when deciding whom to stop and search, most or all police departments claim they don’t racially profile, convinced that it’s only racially profiling if race is the sole factor for stopping someone. Alexander explains that if a group of Black youth are stopped in front of their high school and are dressed similarly in baggy pants, the police can argue that they stopped to search this group because “they look like drug dealers,” claiming non-racial factors into their discretion. However, race is still a determining factor if a group of white youth were in the same situation, as they would not be stopped. She writes, “Similarly situated people inevitably are treated differently when police are granted permission to rely on racial stereotypes when making discretionary decisions” (2020, p. 165).
Additionally, seemingly race-neutral factors such as “prior criminal history” that will influence whether prosecutors will throw the book at Black youth with multiple arrests, are not actually race-neutral. This is because people living in racially segregated ghettos that face heavy policing are more likely to encounter police and be arrested for possession, let’s say of marijuana, while, for example, a white college student who smokes pot in his dorm room will not have a record even if his use of drugs may be no less than the Black youth in poorer communities. Such practices actually “...often exacerbat[e] racial disparities created by the discretionary decision to wage the War on Drugs almost exclusively in poor communities of color” (Alexander, 2020, pp. 165 - 166).
Further, Alexander explains that police are “highly adept” at pointing to race-neutral explanations for overwhelmingly stopping and searching African Americans such as failing to use the turn signal or because one seemed nervous around police. As long as officers and prosecutors don’t use explicitly racist terms, and “the good sense not to say ‘the only reason I stopped him was ’cause he’s black,’ courts generally turn a blind eye to patterns of discrimination by the police” (2020, p. 166). Despite denial by police that they practice racial profiling, multiple studies have proven otherwise.
Driving While Black or Brown
A famous study was conducted in New Jersey and Maryland in the 1990s which demonstrated how a federally funded program called Operation Pipeline, stemming from the Drug Enforcement Administration (DEA), "resulted in 'a dramatic pattern of racial bias in highway patrol stops and searches'" (Alexander, 2020, p. 166). Even though only 15% of all drivers on the New Jersey Turnpike were people of color, they made up 42% of all stops by police and 73% of arrests were of Black drivers. This was despite the fact that Black and white drivers violated traffic laws at the same rate. 77% of consent searches were of people of color. In Maryland, Black people made up 17% of all drivers on the I-95 outside Baltimore, yet they made up 70% of those stopped and searched by police (p. 167). Once stopped, whites were in fact more likely to be found carrying illegal drugs or contraband in their vehicles in both states. In New Jersey whites were more than twice as likely than African Americans to be found with drugs and contraband and five times more likely than Latinx drivers. Despite this truth, whites are stereotyped to be less likely to carry drugs so they face far fewer stops, searches, and arrests.
Studies analyzing the racial demographics of police stops of vehicles support the claim of racial profiling by police:
- Of the 1,000 stops by state troopers on a Florida highway, 80% of drivers stopped and searched were African American or Latinx, despite making up only 5% of all drivers on the road (p. 168).
- In Illinois, Operation Valkyrie targeted Latinx drivers, making up 30% of those stopped and searched for drugs by state police, even though Latinx residents only made up 8% of the state’s population and 3% of drivers. They were also much less likely than whites to carry illegal contraband.
- A racial profiling study in Oakland, CA in 2001 found that African Americans were twice as likely as whites to be stopped and three times more likely to be searched by police.
- The San Francisco Chronicle found in 2022, that despite decades of gentrification pushing out the Black population of this city, African Americans are still more than 5 times more likely to be stopped.
A recent San Francisco Chronicle article pointed out that racial profiling in the state of California is still a major issue, even after decades of new training and policies created to curb racial profiling and “confront the unconscious bias” among police (Gardiner and Neilson, 2022, para 1). The state attorney general’s data revealed that Black people in California are still facing disproportionate stops by police between 2019 and 2020. In San Francisco and Los Angeles, Black people were six times more likely than whites to be stopped by the police even after factoring in relative city demographics. In Oakland, Black people were 5.3 times more likely to be stopped, in Sacramento, 3.7 times more likely. This study also found that even though African Americans were stopped and searched more often than whites, they were less likely to be carrying contraband than whites. Still Black people faced heavy use of force against them in their interaction with police.
Police agencies and officers were defensive, claiming that the racial disparities didn’t consider how police more regularly patrolled low-income communities of color, which led to disproportionate arrest rates (Gardiner and Neilson, 2022, para 26). However, the state also analyzed data of police stops during the night, when officers can’t see faces as clearly, and found that the racial discrepancy rates between Black, Latinx, and white people fell by two percentage points. This suggested that “officers’ perception of race is playing a role on its own - not just the neighborhood type or arrest rates” (para 28).
Found unconstitutional in 2013 (Goldstein, 2013), the stop-and-frisk policy enforced by the New York Police Department (NYPD) allowed officers to use discretion when deciding whom to stop, interrogate and search. Unsurprisingly, this practice led to the targeting of Black and Latinx people, who made up the vast majority of those harassed by police. Michelle Alexander wrote that the NYPD began collecting data after the violent killing of Amadou Diallo in 1999, an unarmed African immigrant from Guinea, fired at by four plainclothes officers a total of 41 times. The officers were found not guilty. Facing pressure after massive protests and outcry from the community, the NYPD released statistics from 2007 that showed that police stopped over 500,000 pedestrians, often making people lie face down on the concrete, stand spread-eagle against a wall, and searched and groped aggressively as people watched or walked by. Black people were stopped at six times the rate of whites, but resulted in less arrests because they were less likely to be found with drugs (Alexander, 2020, p. 169). Data from 2008 showed that 80% of those stopped by NYPD officers were Black and Latinx (p. 170).
The highest concentration of stops were in the Brownsville neighborhood of Brooklyn, where a majority of residents were Black. They faced a stop rate of 13 times the average for the entire city. At its height in 2011, under the mayorship of billionaire Michael Bloomberg, NYPD made nearly 700,000 stops of largely Black and Latinx people (New York Civil Liberties Union, 2019). The justification was to reduce crime and get guns off the streets, but less than 1% of the stops resulted in finding guns and African Americans and Latinx people were less likely than whites to have guns.
Stopped by police in the summer of 2011, Alvin, a local teen, secretly recorded the interaction. He stated that he was just stopped two blocks back, and we can hear the police officer replying, “because you look very suspicious.” Then we hear a scuffle between the officer and the teen, Alvin pleading, “why you push me like that for?” and the officer swearing at him. The recording also caught the officers threatening to hit Alvin, threatening to take him to jail, and stating that he was being arrested “for being a fucking mutt” (Tuttle, 2012).
Alexander wrote that stop-and-frisk operations functioned as
…humiliating, demeaning rituals for young men of color, who must raise their arms and spread their legs, always careful not to make a sudden move or gesture that could provide an excuse for brutal—even lethal—force. Like the days when black men were expected to step off the sidewalk and cast their eyes downward when a white woman passed, young black men know the drill when they see the police crossing the street toward them; it is a ritual of dominance and submission played out hundreds of thousands of times each year (2020, p. 170).
More importantly, this routine contact between the police and men of color served as “a gateway into the criminal justice system” and as a way to collect personal information on individuals not yet in the criminal database; these are the very same data used by police, prosecutors, employers, and housing officials to create barriers for this community (Alexander, 2020, p. 171). Other metropolitan city police departments like the LAPD have also collected an overwhelming amount of personal data on young Black men in the city, including their names, addresses and more. In Denver, it was found that 80% of all people of color in the city were on the police’s list of criminal suspects (p. 171).
Post-9/11 Racial Profiling and Surveillance of Arabs, South Asians, and Muslims
Irum Shiekh, Ethnic Studies professor at University of Oregon, explained that she was inspired to research post-9/11 detentions because her own two brothers were investigated by the FBI. She wrote that they were targets of discrimination because of their ethnicity and religion, reminding her of “the Japanese Americans who, during World War II, were harassed and ultimately sent to internment camps because of their race and national origin” (2011, p. 2). In fact, a pattern of racial profiling by law enforcement of “Muslim-looking” men and communities began after September 11, 2001, all in the name of national security. Shiekh continues that one major difference was that the sweeps by the government were on a narrower scale (compared to Japanese American incarceration) and based on “immigration status and Muslim appearance” (p. 2), a difference which allowed for a perception that they were targeting “real terrorists.” Targeting immigrants, who were “much easier to harass and detail legally,” helped sustain the U.S. wartime “tradition of creating domestic enemy aliens” (p. 2).
It’s important to note that not all Muslims are Arab or from the Middle East and vice versa. However, due to the legacy of Orientalist framing of Arabs as “the Other,” and a relatively newer history of anti-Muslim and anti-Arab framing rooted in U.S. foreign policy in the Middle East since the 1960s, Muslims and Arabs are often conflated in the U.S. There have been other law enforcement operations and surveillance of Muslim communities before 9/11 happened, including the 1996 Anti-Terrorism and Effective Death Penalty Act that impacted civil liberties of Muslims (Shiekh, 2011, p. 7). Shiekh points out how anti-Muslim framing demonized the entire Islamic religion as the enemy of the West, capitalism, democracy, and Christianity, helping to create “the image of Muslims as terrorists who are barbaric, savage fundamentalist, and inhumane” (p. 8). The 9/11 attacks on the World Trade Center and the Pentagon ultimately “provided the catalyst for rounding up and deporting over 1,000 Muslims in the three months after 9/11” (p. 8).
The U.S. government initiated several policies that allowed law enforcement to question and detain Muslims on suspicion of terrorism. The U.S. PATRIOT Act adopted October 26, 2001, “expanded the state’s power to wiretap, question, and keep individuals under surveillance” (Shiekh, 2011, p. 15). This “War on Terror” has wrongfully associated Muslim, Arab, and South Asian people to terrorism and 9/11 attacks, displacing blame on the most vulnerable of these communities. Further, the extralegal military prison camp, Guantánamo Bay opened in 2002, leading to the detainment, abuse, and torture of hundreds of so-called terrorism suspects sent to imprisonment without due process. Guantánamo Bay has become what the ACLU calls "a symbol of injustice, abuse, and disregard for the rule of law."
“9/11 detentions” refers to people who were arrested after 9/11 on suspicion of terrorism and held under unrelated immigration or criminal charges. The number detained is unknown, but the government shared that they detained 1,182 people in the two months after 9/11 (Shiekh, 2011, p. 8). Of this group, the majority are from predominantly Muslim nations including Pakistan, Egypt, Turkey, Yemen, Afghanistan, Iran, Saudi Arabia, and more. They also included individuals who were British and French citizens. Shiekh speculates that even though none of the 9/11 hijackers were from Pakistan, many Pakistanis were targeted by law enforcement (33%) because they were working in low-paying jobs in public spaces (taxis, restaurants, newspaper stands) “and stood out because of their brown skin color” (p. 9). Furthermore, a majority of arrests (62%) happened in New York even though other areas had larger populations of Arabs and Muslims. The Office of the Inspector General’s (OIG) report found that guards at the Metropolitan Detention Center in Brooklyn, New York had lost relatives and friends on 9/11 and “harbored anger and vengeance toward the detainees” (p. 9) perhaps explaining why so many arrests were concentrated in New York.
A majority of arrests since 9/11 happened because of tips and racial profiling, meaning “individuals who slightly resembled the 19 hijackers - those whom officers perceived as being from the Middle East - were subject to surveillance, questioning, scrutiny, and detentions” (Shiekh, 2011, p. 10). Due to the nature of racial profiling, many non-Muslims were stopped and questioned by law enforcement as well, especially Sikhs and Hindus, and depending on the individuals stopping them, sometimes arrested. The general public also called FBI tip hotlines which were mostly based on “fear, ignorance, and hearsay,” the callers attributing “suspicious activities” to “Arab men” (p. 12). Undocumented immigrants were largely targeted and ultimately deported for immigration violations having nothing to do with terrorism. Michael Welch’s Scapegoats of September 11 (2006) argued that undocumented Muslim men were targeted because they were easy to hold under immigration laws, not because they had any actual links to terrorism (Shiekh, 2011, p. 14). Lacking political power, undocumented immigrants were the most vulnerable to abuse since they were not familiar with immigration laws, and many didn’t have any family to support them outside the jail. Shiekh also states that undocumented immigrants “bore the brunt of antiforeign sentiments because they lacked public sympathy and support” (p. 15).
In the aftermath, many human rights organizations published reports on disappearances of people, the lack of transparency, and mistreatment of detainees, including a March 2002 report by Amnesty International which brought concerns about harsh conditions, prolonged detentions, and possible violations of international law (Shiekh, 2011, p. 17).
NYPD Spying on Muslim Communities
In 2001, the New York City Police Department (NYPD) established a secret surveillance program called Demographics Unit, targeting Muslim communities within the city and in surrounding states. With help from the CIA, this unit listened in on conversations at mosques, assembled databases on where Muslims shopped, worked, and prayed, and the police infiltrated Muslim student groups and placed informants in local mosques. The Associated Press (AP) were the first to report leaked documents about this program in 2011 and reported a year later that this unit “never generated a lead or triggered a terrorism investigation” (Goldman and Apuzzo, 2012, para 1). Once the report about this unit got out, Mayor Bloomberg and supporters defended the program, arguing it helped to keep the city safe, and held the police department’s “counterterrorism tactics as a model for the rest of the country” (para 6).
Chief of NYPD Intelligence Division, Paul Galati admitted under sworn testimony that the police gathered information on individuals even where “there is no evidence of wrongdoing, simply because of their ethnicity and native language” (Goldman and Apuzzo, 2012, para 8). He gave examples of when police collected information on men speaking Urdu, one of the national languages of Pakistan, stating, “Most Urdu speakers from that region would be of concern, so that’s why it’s important to me” (para 15). In another example, Galati discussed eavesdropping on a conversation in a Lebanese cafe no matter the topic, simply because a customer could be “a sympathizer to Hezbollah because Southern Lebanon is dominated by Hezbollah” (para 17). Despite the request by some members of Congress that the Justice Department investigate the NYPD, John Brenna, President Barack Obama’s top counterterrorism adviser, stated that he was confident that the NYPD was acting lawfully and is keeping the city safe.
But who is actually being kept safe? A report by the Creating Law Enforcement Accountability & Responsibility (CLEAR) Project of CUNY School of Law in collaboration with the Muslim American Civil Liberties Coalition (MACLC) and the Asian American Legal Defense and Education Fund (AALDEF) found among interviews with American Muslims in the city that the surveillance program caused “a climate of fear and suspicion,” impeding on their constitutionally protected rights to political and religious freedom. The report also found that spying by the police resulted in mistrust in law enforcement (CLEAR Project, 2013, p. 4).
The report uncovered how places of worship were the focus of the NYPD’s secret unit, mapping, surveilling, and infiltrating at least 250 mosques. Amira (aliases have been used to protect the identities of interviewees), a 22-year old Sunday school teacher stated: “Everyone in the community knows that our mosque is being surveilled.... A few years back they used to just park this undercover car outside the mosque. They would just watch people walk in and out” (CLEAR Project, 2013, p. 12). Many shared that people stopped attending mosques because “the risk of subjecting oneself to being featured in a police file is reason enough to cease attending the mosque or praying with other Muslims” (p. 14). Imams who were interviewed shared that they “felt that their own ability to fulfill their role as spiritual advisors and guidance were hindered by surveillance,” unable to guarantee confidential consultations or that they avoided one-on-one consultations because they were never sure if someone was an informant or not (p. 15).
The report also found that American Muslims would be targeted for “appearing to be a certain type of Muslim” such as wearing a hijab (headscarf) or growing a beard. Assia (alias), an interfaith community organizer, stated that dressing in a certain way “has become charged with suspicion. A hijab or a beard isn’t just about being different and not fitting in. But now, it’s not just that, it’s also that people will see me as prone to violence” (CLEAR Project, 2013, p. 15). Some younger people shared that their parents didn’t want them to join the Muslim Student Association (MSA) at school or wear a Muslim hat, worried that it would draw “police scrutiny” (pp. 15-17).
Interviewees in this report also noted how their free speech and engagement in political expression were also stifled due to fears of police surveillance. Therefore, the report notes that “it is clear that the surveillance program has, in fact, quelled political activism, quieted community spaces and strained interpersonal relationships….many American Muslim organizations and individuals hesitate to participate in protests, to lobby, and to speak out” (CLEAR Project, 2013, p. 20). Police surveillance, especially on college campuses, have resulted in self-censoring in the classroom by Muslim students, out of concern of police scrutiny, but also classmates and professors misinterpreting their views (p. 44).
Many in the community have come out to criticize this spying program by the NYPD, attending rallies, press conferences, and participating in boycott and media campaigns. Some organizations have broadened their campaigns and collaborated with larger calls for police accountability, connecting issues of profiling Muslim communities with broader issues of racial profiling and policing in communities of color (CLEAR Project, 2013, p. 46). Activists and advocates have demanded an end to surveillance programs, hearings on activities by the NYPD’s intelligence division, legislation prohibiting racial profiling and other bias-based profiling, and more. Some have filed discrimination lawsuits against the city, police department and mayor.
In 2018, a settlement from a suit on illegal spying of Muslims by the NYPD resulted in the dismantling of their surveillance unit and an agreement to end religious-based surveillance in the future in New Jersey as well as New York. The settlement also included a payment of damages to businesses and mosques totaling $47,500 and $25,000 to individuals targeted (Pilkington, 2018).