The Ferguson Police Department is not only an embarrassment to every law enforcement agency in this country but an embarrassment to the entire State of Missouri.


Last year the nation witnessed their unprofessional conduct in scores of incidents as they dealt with the community’s street protests following the August 9 shooting of an African-American teenager by Officer Darren Wilson. But those incidents pale in comparison to the findings outlined in a recent U.S. Justice Department report which show that the Ferguson Police Department (FPD) created a new definition for “racial profiling.” Some of the key findings of the report published in various media outlets are:


• Between 2012 and 2014, African-Americans accounted for 85 percent of the traffic stops, 90 percent of the traffic violations issued, and 90 percent of the arrests made by the FPD.
• In 88 percent of the cases involving force used by the FPD, African-Americans were the subjects of that force.
• In every instance in which police dogs were used and the race of the suspect was available, African-Americans were the targets. In some of those canine attacks, dogs sunk their teeth into black children as young as fourteen.
• African-Americans were twice as likely to be searched during a vehicle stop, notwithstanding that contraband was 26 times less likely to be found on them than on white drivers.
• Of those charged with minor offenses during the study’s two-year time frame, 94 percent of those charged with improper “manner of walking in roadway” were African-American; 94 percent of those with “failure to comply” with police orders were African-American; and 92 percent of those charged with disturbing the peace were African-American.


These statistics are made even more troubling by the fact that while African-American residents account for 67 percent of Ferguson’s population, there were only three African-Americans police officers with the 53-member FPD at the time Michael Brown was killed by Officer Wilson.


To context what inevitably occurs when there is this kind of racial disparity in a police department, the state of Missouri’s own racial profiling statistics in 2013 alone revealed that the FPD made a total of 5,384 stops in the city—4,632 were African-American citizens while only 686 were white citizens. Of the 611 searches conducted during these stops, 562 were African-American while only 47 were white; and of the 521 arrests made by these stops, 483 were African-American while just 36 were white.


Racial Profiling


Racial profiling is the practice of targeting individuals for suspicion of crime based solely on racial, religious or national origin characteristics. It is distinguishable from criminal profiling which is based on a group of characteristics – not just race – believed to be associated with crime.


Racial profiling is most often used in two contexts: stopping motorists for minor traffic violations, such as not wearing a seat belt; and stopping pedestrians to search for contraband, such as young black man walking on cold day with hands in pockets in high crime area. It is also frequently used outside the law enforcement context; most particularly in department stores where store security personnel stops, and detains, shoppers on suspicion of shoplifting based on race.


Racial profiling became a social issue in the 1970s when it use was exposed as a method to intercept drug trafficking—a targeting that focused almost exclusively on African-American and Hispanic motorists. A 1999 U.S. Justice Department survey, however, revealed that drugs are more discovered when whites are searched instead of blacks, just as the most recent report found with the FPD.


Some estimates indicate as many as one-third of the nation’s population will experience racial profiling at least once in their lifetime.

This shocking statistic exists notwithstanding that racial profiling was banned for federal law enforcement agencies by the U.S. Justice Department in 2003. The DOJ adopted the policy that “any instance of racial profiling by a few [law enforcement officers] damages our criminal justice system.”


Texas, and 29 other states, forbids racial profiling. It is expressly against the law.


The Houston Police Department has established a policy, General Order 600-42, concerning the prohibition of racial profiling as set out in state and federal laws concerning racial profiling and discriminatory practices in general. Discrimination in any form, including racial profiling, is strictly prohibited and the department will take immediate and appropriate action to investigate allegations of discrimination. This policy applies to all members of the Houston Police Department both classified and non-classified.


Article 3.05 of the Texas Code of Criminal Procedure defines racial profiling as a law enforcement-initiated action based on an individual’s race, ethnicity or national origin rather than on the individual’s behavior or on information identifying the individual as having engaged in criminal activity.


But racial profiling is not confined to the state law enforcement.


Racial Profiling at the Border


In 1976, the Supreme Court lent some legitimacy to racial profiling in United States v. Martinez-Fuerte which held that the U.S. Border Patrol could employ immigration checkpoints to detain and question drivers and passengers.


Today’s Border Patrol maintains a practice called “roving patrols” to stop and detain suspected illegal immigrants. These patrols work inside the U.S. beyond the approved 100-mile border checkpoint sites. The agents must have “reasonable certainty” that a suspect has crossed the border illegally, and must have “reasonable suspicion” of criminal activity before initiating a stop.


A case currently pending before the Fifth Circuit Court of Appeals could set a precedent of allowing civil damages lawsuits to be brought against individual Border Patrol agents as well as the agency based on racial profiling.


Garcia de la Paz was in a vehicle stopped by the Border Patrol on a county road 90 miles from the border in 2010. The agent involved in the stop said he made the stop because “the driver’s facial expression changed immediately upon making eye contact with me.” Garcia de la Paz’s lawsuit claims the stop was the result of racial profiling, and that his Fourth Amendment rights were violated by the ensuing search that discovered drugs. Some courts have held that the Fourth Amendment applies to anyone in the United States, legally or illegally, while others do not.


No one knows how the Fifth Circuit will rule. The court’s cases on internal immigration checkpoints have been all over the map. For example, in 2012, the Court held that a stop and search of suspected illegal immigrant 170 miles from the border was unlawful while other cases have found similar searches reasonable. The 2012 case indicates the Court may afford some Fourth Amendment protection to individuals stopped pursuant to a “roving patrol” outside the internal checkpoint zones.


Most of these internal checkpoints were set up in the wake of 9/11 when the Border Patrol has expanded its law enforcement reach to prevent suspected terrorists and illegal weapons from entering the U.S. With these checkpoints, the Border Patrol does not have to have a reasonable suspicion or probable cause or individual consent to indiscriminately detain law-abiding people.


This post 9/11 practice would seem to violate the 2000 U.S. Supreme Court decision in City of Indianapolis v. Edmonds which held that roadblock checkpoints cannot be conducted by the police if the “primary purpose is to detect evidence of ordinary wrongdoing.”


The Arizona Republic reported recently that the U.S. Border Patrol has the capacity to maintain at least 1,000 border checkpoints nationwide, although the agency will only concede to operating 35. Last year the ACLU filed civil rights complaints involving 12 individuals who were subjected to excessive force, unlawful searches, and other forms of misconduct at Arizona border checkpoints.


Regardless of how it is applied or by whom it is applied, racial profiling in a cancer to effective law enforcement. It breeds contempt for law enforcement among all racial minorities which, according to the 2010 Census, represent 36.3 percent of the nation’s population. When more than 100 million people do not trust the police, the country’s need for law and order will be seriously undermined.