Racial Profiling and the Police

Racial profiling involves discriminating against, suspecting, or targeting a person based on assumptions and characteristics of a certain racial group, rather than the person's actual behavior.

It can occur when a store employee follows a customer of color around the store because the employee assumes persons of color are likely to steal. Or a person calls the police to report a black teenager walking in their neighborhood who must be up to no good just by being there.

Racial profiling happens in ordinary day-to-day happenings. It can also occur when police officers make decisions in their interactions with citizens.

What Is Racial Profiling by Police?

Racial profiling by police refers to police action that targets individuals for stops, searches, arrests, or use of force based on primarily on their race, ethnicity, or national origin, rather than their behavior.

In conducting their jobs, police officers exercise a great deal of discretion when stopping, arresting, and searching individuals. An officer can use a person's race as one of several factors used to identify a suspect, but race cannot be the sole reason for an officer's actions or suspicion of criminal activity. So if the police are informed to be on the lookout for a man about 6 feet tall wearing a grey hoodie, the police cannot single out their search to just black or brown men who look to be 5' 10" or taller wearing hoodies.

A common complaint of racial profiling involves "driving while black or brown." For instance, an officer pulls over a luxury vehicle driven by a black man, because the officer assumes the black man stole the vehicle. Or, during a traffic stop or arrest, the officer frisks the person for weapons because the person looked Hispanic. The most common complaint associated with "driving while black or brown" is that persons of color are stopped by officers at higher rates than white individuals for petty offenses.

Do Laws Prohibit Racial Profiling by Police?

Federal and state laws prohibit racial discrimination or profiling by police in various ways. The U.S. Constitution guarantees equal protection under the law and protects individuals from unreasonable search and seizure. The federal Civil Rights Act and many states' civil or human rights acts make it illegal for a government actor (like the police) to discriminate against someone on the basis of race, color, or national origin. And a number of states' laws also specifically prohibit officers from engaging in racial profiling in the performance of their duties.

What Legal Remedies Exist for Racial Profiling by Police?

Legal remedies for racial profiling include mostly civil actions. In some criminal cases, a person might be able to use what's called "the exclusionary rule." (More on this rule below.) Only one state statute was identified that provides criminal penalties for conduct involving racial profiling by an officer. Oklahoma makes a violation a misdemeanor. (Okla. Stat. Ann. tit. 22, § 34.3 (2020).)

Federal Civil Lawsuits

Federal law provides a couple of avenues that victims can take against an officer who engages in racial profiling. In some cases, the federal government can bring an action against a police agency for patterns of racially discriminatory practices.

Individual lawsuits. Commonly referred to as a "section 1983 lawsuit," this civil action allows an individual to sue an officer for a violation of the person's civil rights. Another federal statute—section 1981—prohibits race discrimination by a government official. While the right to sue for money damages is available to victims of racial profiling, prevailing in the lawsuit often proves difficult. Learn more about section 1983 lawsuits and remedies in our Nolo article. (42 U.S.C. §§ 1981, 1983 (2020).)

Government lawsuits. Federal law also authorizes the U.S. Department of Justice to bring lawsuits against police agencies engaged in unconstitutional practices. Depending on the basis for the lawsuit, the government might seek relief in the form of ordering the agency to implement plans to address and eliminate unconstitutional practices or by taking away federal funding from the agency.

State Civil Lawsuits

Victims might be able to find relief similar to the above federal actions under their state civil rights or human rights statutes. Only a few states have civil remedies specific to racial profiling. Both Kansas and Rhode Island allow a victim of racial profiling to file a civil cause of action against a police officer or department that engaged in racial profiling. (Kan. Stat. Ann. § 22-4611 (2020); R.I. Gen. Laws § 31-21.2-4 (2020).)

The Exclusionary Rule

Under a criminal rule of evidence called the exclusionary rule, a criminal defendant may ask the court to exclude evidence obtained illegally by a police officer, such as part of an illegal stop. While the law prohibits racial profiling by police, the U.S. Supreme Court has said the officer's state of mind doesn't necessarily make the stop illegal as long as the circumstances could have justified the stop. (Whren v. United States, 517 U.S. 806 (1996).) Because it's fairly easy to come up with a traffic violation, it's often difficult for criminal defendants to win a motion to exclude evidence based on allegations that the traffic stop was racially motivated.

What Other Actions Have Governments Taken to End Racial Profiling?

Over the decades, communities, lawmakers, and government officials have implemented various tactics and enacted laws and policies in an effort to end racial profiling. Some examples include:

• creating task forces to evaluate racial profiling in the community and propose policies to deter and eliminate racial profiling
• requiring police officer training on racial profiling, implicit bias, and racial and cultural diversity
• developing police department policies against racial profiling
• authorizing various levels of disciplinary action against officers who engage in racial profiling
• appointing independent review boards to accept and investigate complaints of racial profiling, and
• mandating data collection, monitoring, and review of officer traffic stops, arrests, searches, and other police actions.

Have These Actions Worked?

Some argue it's only a few bad apples that give all police officers a bad name, and the majority of police officers work hard to protect the community and do so fairly. They contend only egregious cases make the news, and the policies and tactics being employed have been successful.

Critics argue the very foundation of policing is broken and can't be fixed with policy changes (like those above). Rather, they seek an overhaul to the entire system of policing, such as disbanding and restructuring police departments or shifting funding from police departments to community services.

Talk to a Lawyer

If you believe you've been subjected to improper police scrutiny or otherwise targeted based on race, talk to a lawyer with experience in police misconduct or civil rights law. A lawyer can help evaluate your case and guide you through the legal process.