You re on routine patrol when you re notified by dispatch that an armed robbery has just occurred at the local convenience store in your beat. The store clerk reported a description of the suspect to dispatch: a Hispanic male, wearing a red jacket and orange baseball cap. You immediately respond to the location, and as you get within three blocks of the scene, you observe a male with a dark complexion fitting the description.
Are you legally permitted to take his race into consideration in determining the basis to stop him? The answer is yes.
This is a controversial issue and some civil rights activists have asserted taking race into consideration is a form of unlawful racial profiling. Others explain it may be a form of racial profiling, but it s still permissible.1
Putting aside civil rights activists, experts and political correctness, what s a street officer to legally do? The case of Brown v. City of Oneonta, New York et al.2 provides the backdrop for this discussion.
Brown v. City of Oneonta, N.Y.
In Brown, approximately 200 African American individuals filed a federal civil rights suit against New York State, the Town of Oneonta and State University of New York College (SUCO) Police Departments as a result of their interactions with police officers during investigating an attack on an elderly woman. The issue in the case was the extent to which police may use race in their investigation of a crime.
At the time of the incident, Oneonta had approximately 10,000 full-time residents and fewer than 300 African Americans resided in town and made up only 2 percent of the SUCO student body.
In the early morning hours in the fall of 1992, a 77-year-old woman was attacked in her home. When she contacted the police, she stated she couldn t see her assailant s face, but based on the skin color of the hand and arm, the victim knew he was African American. During the struggle with the assailant, the victim also saw he had a knife and cut his hand.
The police responded, and a canine unit tracked the assailant s scent from the victim s residence toward the SUCO campus. Unfortunately, the trail was lost after several hundred yards.
The police immediately contacted SUCO and requested a list of all its male African American students. After SUCO supplied the list, police attempted to locate and question every male African American student at SUCO. When the investigation produced no results, the police conducted a sweep of Oneonta, stopping and questioning non-white persons on the streets to inspect their hands for cuts. In the end, more than 200 suspects were questioned, but no one was arrested. Those whose names appeared on the SUCO list and those who were stopped and questioned filed the civil-rights lawsuit against the police alleging they were singled out because of their race, which violated their rights under the Fourth and Fourteenth amendments.
This case has been in litigation for more than a decade. Nonetheless, between the various court opinions in this case, a rule has emerged: When police officers receive a description that includes race as one of several descriptive factors of the suspect, the police may use race to determine who to interact with in conducting their investigation.3 Specifically, according to the Second Circuit Court of Appeals:
Plaintiffs do not allege that upon hearing that a violent crime had been committed, the police used an established profile of violent criminals to determine that the suspect must have been black. Nor do they allege that the defendant law enforcement agencies have a regular policy based upon racial stereotypes that all black Oneonta residents be questioned whenever a violent crime is reported. In short, plaintiffs faction premise is not supported by the pleadings: they were not questioned solely4 on the basis of race. They were questioned on the altogether legitimate basis of a physical description given by the victim of a crime... In acting on the description provided by the victim of the assault a description that included race as one of several elements defendants did not engage in a suspect racial classification that would draw strict scrutiny. The description, which originated not with the [investigating police departments] but with the victim, was a legitimate classification within which potential suspects might be found. 5
The Department of Justice
The Department of Justice (DOJ) supports the Second Circuit s holding in Brown. [U]se of race or ethnicity is permitted only when the officer is pursuing a specific lead concerning the identifying characteristics of persons involved in an identified criminal activity. 6 The DOJ even uses the facts in the Brown case as an illustration of the permissible use of race by the police in a description supplied by a victim.7
Academia & Scholars
Legal scholars also support the use of race during investigations when it s one of several factors given by a victim.8 For example, David A. Harris writes: Law enforcement may properly use race in deciding whether or not reasonable suspicion exists when race comes from a description of a known suspect. In such a situation, race becomes part a vital part of a particularized reason for individual suspicion. This is not only good police work; it is good for society in general.
Using Brown as an example, Mr. Harris asserts all of the characteristics given by the elderly victim black male with visible cut on the hand are valid ways of describing the suspect. According to Mr. Harris, They are physical characteristics that one can easily recognize and use to identify someone as either looking or not looking like a particular perpetrator of a particular crime.
The Bottom Line
Brown is controversial,10 but the case is still good law. That said, there may be other laws, ordinances and general orders that come into play. For example, state constitutions may impose additional restrictions on the federal law governing searches and seizure and equal protection.11Local ordinances and the law enforcement agencies general orders may impose restrictions that are greater than those enunciated in the Brown case. In any case, it behooves law enforcement officers to check with their municipal attorney or prosecutor before taking enforcement action based on the circumstances presented in Brown.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.
References
1. See MacDonald, Heather, The Myth of Racial Profiling, City Journal, Spring 2001, Vol. 11, No. 2.
2. 221 F.3d 329 (2nd Cir. 2000).
3. 221 F.3d at 337-38.
4. See United States v. Brignoni-Ponce, 422 U.S. 873 (1975).
5. 221 F.3d at 337-38.
6. Civil Rights Div., U.S. Dept. of Justice, Guidance Regarding the Use of Race by Fed. Law Enforcement Agenices 1 (2003).
7. Id. at 9.
8. See Harris, David A., Using Race or Ethnicity as a Factor in Assessing the Reasonableness of Fourth Amendment Activity: Description, Yes; Prediction, No., 73 Miss.L.J. 423, (2003). But see Sinha, Priyamvada, Police Use of Race in Suspect Descriptions: Constitutional Considerations, 31 N.Y.U.Rev.L.&Soc.Change 131 (2006).
9. Id. at 467.
10. See Lynne Duke, When Race is Equated with Crime, Washington Post, Oct. 21, 1992; Diana Jean Schemo, Singling Out Blacks Where Few Are to Be Found, New York Times, Oct. 20, 1992; and 60 Minutes II: The Black List (CBS television broadcast Feb. 13, 2002).
11. See Brown v. State, 814 N.Y.S.2d 492, 506 Ct.Cl.