« Safe and Just Police Interactions

Policy 6: Bans on Bias Based Policing

Anti-profiling measures prohibit officers from stopping or targeting people based on their race, religion or national origin. Bias based profiling by law enforcement is not only racially discriminatory, it also erodes trust between communities and police, unnecessarily involves victims of profiling in the criminal justice system, and can have dangerous, even deadly consequences (as seen in the case of Eric Garner in Staten Island). Moreover, there is no evidence that bias based profiling is an effective law enforcement strategy.

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According to a report released by the New York Attorney General in 2013, just 0.1% of stop-and frisks resulted in conviction for a violent crime or possession of a weapon. Bias based profiling is a daily reality for young people, communities of color, low income communities, and LGBTQ communities. According to the NAACP’s extensive study on racial profiling, “Born Suspect,” not a single state in the country has anti-profiling legislation that is strong enough to be considered a model. An enforceable ban against bias biased profiling can help curb police harassment and limit the amount of unnecessary contact Black and Brown community members have with law enforcement and the criminal justice system.

In Practice:

For decades in New York City, discriminatory profiling was the cornerstone of the New York Police Department’s (NYPD) stop-and-frisk practices. Overwhelming numbers of Black and Brown residents were stopped and harassed with no cause. Although, young Black and Latino men made up only 4.7% of New York City’s population they accounted for 41.6% of those stopped in 2011. Rates of racial disparities in stops of women were equal to those of men—on average over 80% of women stopped by the NYPD were Black or Brown. Additionally, according to researchers at CUNY Graduate Center, LBGQT youth were more likely to report negative interactions with police than their heterosexual peers, and more than twice as likely to report sexual harassment by police.

After years of organizing and advocating, Communities United for Police Reform led a New York based coalition of community-based, policy, legal, research, faith-based, labor and other organizations in a public education, political advocacy and grassroots organizing campaign aimed at ending Broken Windows policing in New York City. Through a combination of public education, political advocacy and legal strategy, the coalition worked to change the narrative, and laws, around policing in New York City. The coalition mobilized the membership of dozens of community based organizations and created public education materials, including videos and testimonials featuring the stories of those most impacted by the practice. In 2013 they were able to pass a local law that outlawed targeting on the basis of characteristics such as immigration status, age, housing status, disability, sexual orientation, gender and gender identity or expression in addition to race, religion and national origin. The New York City legislation established an enforceable ban on profiling and a “private right of action” so that individuals who are targeted can sue the NYPD. It also allows New Yorkers to bring both intentional discrimination and disparate impact claims—meaning that lawsuits could be brought based on NYPD practices that unfairly impact protected groups.

Best Practices:

Profiling bans can be enacted at the state, county, or local level and can be passed on their own or incorporated into state or local human or civil rights laws. In some states it may require a state law in order to create a private right of action, which gives individuals the ability to take the police to court when they are profiled.

  • Profiling bans should include a broad scope of protected categories including: immigration status, age, housing status, sexual orientation, gender, gender identity/gender expression, disability, and HIV status, in addition to race, religion and national origin.
  • Effective bans must include meaningful enforcement mechanisms including: a private right of action allowing individuals who have been profiled to seek relief in court, recourse to existing enforcement bodies and mechanisms (i.e. local Human Rights Commission), and attorney fees.
  • Profiling bans should hold local law enforcement responsible for both intentional discrimination as well as unintentional practices that unfairly impact specific communities (known as “disparate impact”). Bans should allow those profiled to bring claims both after incidents of intentional discrimination and when practices have a disproportionate impact on protected communities. Disparate impact prohibitions should not be phrased in terms of actions “based on” or “because of” race, which is hard to prove, but should prohibit practices that have a disparate and unwarranted impact on protected classes.
  • Effective bans must create and adequately fund systems for collecting and monitoring community complaints. Ideally, these complaints will be incorporated into officer and department-level performance evaluations so that law enforcement agents and agencies are held accountable for compliance with anti-profiling measures.
  • Police departments should adopt department policies on both intentional profiling and avoiding disparate impact.