<DOC>
[107th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:77191.wais]
THE BENEFITS OF AUDIO-VISUAL TECHNOLOGY IN ADDRESSING RACIAL PROFILING
=======================================================================
HEARING
before the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
JULY 19, 2001
__________
Serial No. 107-36
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2002
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON GOVERNMENT REFORM
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut MAJOR R. OWENS, New York
ILEANA ROS-LEHTINEN, Florida EDOLPHUS TOWNS, New York
JOHN M. McHUGH, New York PAUL E. KANJORSKI, Pennsylvania
STEPHEN HORN, California PATSY T. MINK, Hawaii
JOHN L. MICA, Florida CAROLYN B. MALONEY, New York
THOMAS M. DAVIS, Virginia ELEANOR HOLMES NORTON, Washington,
MARK E. SOUDER, Indiana DC
JOE SCARBOROUGH, Florida ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio
BOB BARR, Georgia ROD R. BLAGOJEVICH, Illinois
DAN MILLER, Florida DANNY K. DAVIS, Illinois
DOUG OSE, California JOHN F. TIERNEY, Massachusetts
RON LEWIS, Kentucky JIM TURNER, Texas
JO ANN DAVIS, Virginia THOMAS H. ALLEN, Maine
TODD RUSSELL PLATTS, Pennsylvania JANICE D. SCHAKOWSKY, Illinois
DAVE WELDON, Florida WM. LACY CLAY, Missouri
CHRIS CANNON, Utah DIANE E. WATSON, California
ADAM H. PUTNAM, Florida ------ ------
C.L. ``BUTCH'' OTTER, Idaho ------
EDWARD L. SCHROCK, Virginia BERNARD SANDERS, Vermont
JOHN J. DUNCAN, Jr., Tennessee (Independent)
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
James C. Wilson, Chief Counsel
Robert A. Briggs, Chief Clerk
Phil Schiliro, Minority Staff Director
C O N T E N T S
----------
Page
Hearing held on July 19, 2001.................................... 1
Statement of:
Dinh, Viet, Assistant Attorney General, U.S. Department of
Justice.................................................... 25
King, Rachel, legislative director, American Civil Liberties
Union; Raymond Kelly, former Commissioner, U.S. Customs
Service; Brian Boykin, fellow, National Organization of
Black Law Enforcement Executives; and Chris Maloney,
president, TriTech Systems, Inc............................ 117
West, Hon. Royce, Texas Senate; Hon. Robert Duncan, Texas
Senate; Charles Dunbar, Jr., superintendent, New Jersey
State Police; Mark Finnegan, esq., Heberle and Finnegan,
Ltd.; and Robert Wilkins, esq.............................. 65
Letters, statements, etc., submitted for the record by:
Boykin, Brian, fellow, National Organization of Black Law
Enforcement Executives, prepared statement of.............. 143
Burton, Hon. Dan, a Representative in Congress from the State
of Indiana, prepared statement of.......................... 7
Clay, Hon. Wm. Lacy, a Representative in Congress from the
State of Missouri, prepared statement of................... 15
Dinh, Viet, Assistant Attorney General, U.S. Department of
Justice, prepared statement of............................. 28
Finnegan, Mark, esq., Heberle and Finnegan, Ltd., prepared
statement of............................................... 75
Kelly, Raymond, former Commissioner, U.S. Customs Service,
prepared statement of...................................... 136
King, Rachel, legislative director, American Civil Liberties
Union, prepared statement of............................... 120
Maloney, Chris, president, TriTech Systems, Inc., prepared
statement of............................................... 148
Morella, Hon. Constance A., a Representative in Congress from
the State of Maryland, prepared statement of............... 62
Schakowsky, Hon. Janice D., a Representative in Congress from
the State of Illinois, prepared statement of............... 3
Shays, Hon. Christopher, a Representative in Congress from
the State of Connecticut, prepared statement of............ 23
Towns, Hon. Edolphus, a Representative in Congress from the
State of New York, prepared statement of................... 2
Wilkins, Robert, esq., prepared statement of................. 82
THE BENEFITS OF AUDIO-VISUAL TECHNOLOGY IN ADDRESSING RACIAL PROFILING
----------
THURSDAY, JULY 19, 2001
House of Representatives,
Committee on Government Reform,
Washington, DC.
The committee met, pursuant to notice, at 10:25 a.m., in
room 2154, Rayburn House Office Building, Hon. Dan Burton
(chairman of the committee) presiding.
Present: Representatives Burton, Barr, Gilman, Morella,
Shays, Platts, Cannon, Waxman, Owens, Maloney, Norton,
Cummings, Kucinich, Tierney, Turner, Clay and Watson.
Staff present: Kevin Binger, staff director; James C.
Wilson, chief counsel; David A. Kass, deputy chief counsel;
Mark Corallo, director of communications; Andre Hollis,
counsel; Kevin Long and Michael Canty, professional staff
members; Sarah Anderson, staff assistant; Robert A. Briggs,
chief clerk; Robin Butler, office manager; Josie Duckett,
deputy communications director; John Sare, deputy chief clerk;
Danleigh Halfast, assistant to chief counsel; Corinne
Zaccagnini, systems administrator; Phil Schiliro, minority
staff director; Phil Barnett, minority chief counsel; Sarah
Despres and Tony Haywood, minority counsels; Denise Wilson,
minority professional staff member; Ellen Rayner, minority
chief clerk; and Jean Gosa and Earley Green, minority assistant
clerks.
Mr. Burton. Good morning. A quorum being present, the
committee will come to order. I ask unanimous consent that all
Members' and witnesses' written opening statements be included
in the record, and, without objection, so ordered.
[The prepared statements of Hon. Edolphus Towns and Hon.
Janice D. Schakowsky follow:]
[GRAPHIC] [TIFF OMITTED] T7191.001
[GRAPHIC] [TIFF OMITTED] T7191.002
Mr. Burton. I ask unanimous consent that all articles,
exhibits and extraneous or tabular material referred to be
included in the record, and, without objection, so ordered.
I also ask unanimous consent that questioning in this
matter proceed under clause 2(j)(2) of House rule 11 and
committee rule 14 in which the chairman and ranking minority
member allocate time to the committee members as they deem
appropriate for extended questioning, not to exceed 60 minutes,
equally divided between the majority and minority, and, without
objection, so ordered.
Today we're going to examine the issue of racial profiling.
I think we all understand what this means. Racial profiling
occurs when a law enforcement officer targets someone for a
traffic stop or a search or some other law enforcement action
based solely on their race, their ethnicity or their gender.
This is something that should never happen. It's offensive to
the basic values that we all hold dear.
Police officers do have a tough job. We have to give them
the freedom they need to do their jobs. If they have probable
cause to believe someone is committing a crime, they have to
take action, but no one should ever be targeted because of
their race. People should be able to drive down a highway or
walk down a city street with the confidence that their civil
rights will not be violated.
This is a tough issue. It's hard to get a handle on how
often this happens and why it happens. I should say at the
outset that I have a lot of confidence in our law enforcement
community. In my years as a Congressman and a State legislator,
I have met a lot of very good law enforcement officers from all
over the country. They're dedicated. They work very hard to
protect our safety. I think most police officers around the
country would find the notion of targeting people because of
their race just as repugnant as Mr. Cummings and I do.
On the other hand, I have no doubt that it happens. I have
no doubt that there are bad police officers out there who've
pulled people over just because of their race. I wouldn't be
surprised to learn that out of the thousands of police forces
around the country, there may have been a few that tolerated or
even winked at that kind of behavior.
I think it's very difficult to quantify how often racial
profiling happens. It's hard to get inside a police officer's
head and figure out why he makes a certain decision. Maybe the
best thing we can do is focus on what can be done to prevent it
from happening and punish people who do it. That's why Mr.
Cummings and I wanted to focus this hearing on the use of
audio-visual technology.
It's becoming more and more common to see video cameras in
police cars. The reason is pretty obvious: When a police
officer goes to the scene of a crime, videotaping what happens
creates evidence. If a police officer is attacked or shot, a
video camera might record the identity of the attacker. By the
same token, if a police officer violates the rights of any
citizen, it's captured on videotape, and that officer can then
be punished.
The use of audio-visual technology should be a strong
deterrent to racial profiling. If a police officer's actions
are being recorded, he or she will be much less likely to stop
someone unless there's an objective reason for doing it. If a
police officer does target motorists for no other reason than
their race, there will be videotaped evidence to discipline
him. On the other hand, if a police officer is falsely accused
of violating someone's rights, there will be evidence to
exonerate him.
Today we're going to hear from the Justice Department on
this issue. The Assistant Attorney General for Policy
Development Viet Dinh will testify. He will tell us what the
Justice Department has done to work with law enforcement
agencies around the country to promote the use of audio-visual
technology and prevent racial profiling.
We are going to hear from two State senators from Texas,
Senator Royce West and Senator Robert Duncan. They spearheaded
a bipartisan effort to pass legislation in the Texas
Legislature. It promotes the use of video cameras for just this
purpose. Their bill was signed into law earlier this year. It
requires that Texas police departments either collect racial
data on police stops or employ video cameras to record stops.
We're going to hear from the lawyer for several Hispanic
individuals from Ohio. They were pulled over by a State police
officer. Because they were all Hispanic, everyone in the car
was asked to prove that they were U.S. citizens. They sued the
State police. The entire incident was videotaped from the
police car. The videotape substantiated the charges against the
police officer, and action was taken.
We'll also hear testimony about a New Jersey State trooper
who was accused of violating a motorist's rights. The stop was
videotaped. The officer was exonerated by the videotape. The
motorist pled guilty to lying in his complaint because of the
videotape, and the head of the New Jersey State Police, Colonel
Charles Dunbar, is going to tell us what happened and how the
use of video cameras has affected his force.
We can see that video works in both ways. If a police
officer does something wrong, he should be held accountable. If
a police officer is falsely accused, he should be exonerated.
This is the way it ought to be. And that's why there's so much
support for use of video cameras from police groups and civil
rights groups alike.
That's not to say that audio-visual technology is the only
solution to the problem. We don't want to downplay the
potential contributions of data collection and other tools.
Data collection can and should continue, but it's always good
to be looking ahead to new and better ways to attack these
problems.
Our witnesses today will discuss a number of these
approaches. We'll hear from the National Organization of Black
Law Enforcement Executives as well as the ACLU. We're also
going to hear from the former Commissioner of the U.S. Customs
Service, Raymond Kelly. Mr. Kelly will testify about how the
Customs Service has dealt with the issue of racial profiling.
We'll also hear from a Maryland attorney who believes that he
was a victim of racial profiling. Finally, we'll hear from an
executive of a California company that produces equipment for
law enforcement agencies.
We have a lot of witnesses today. It is going to be a well-
rounded debate. I'll end my opening statement here so we can
get on with it. Let me just close by saying that we all find
racial profiling and discrimination repugnant. We want people
to have confidence in the fact that their police officers are
there to protect them. We want people to trust law enforcement
officers and work with them. That should be true if you're
African American, Hispanic, Asian or White. That's why it's so
important that we look for constructive solutions to deal with
the problems like the one we're dealing with today.
[The prepared statement of Hon. Dan Burton follows:]
[GRAPHIC] [TIFF OMITTED] T7191.003
[GRAPHIC] [TIFF OMITTED] T7191.004
[GRAPHIC] [TIFF OMITTED] T7191.005
Mr. Burton. Mr. Waxman, would you like me to yield to Mr.
Cummings for his opening statement, or would you like to make
it?
Mr. Waxman. I thank you, Mr. Chairman and Mr. Cummings, for
allowing me to make my opening statement. I have to return to a
markup in the Commerce Committee on one of the key energy bills
before us this year, but I want to start today by thanking
Chairman Burton for his willingness to work with Congressman
Cummings and other Democratic Members to put together this very
important hearing, and I am pleased there is bipartisan
consensus that the issue of racial profiling deserves serious
attention. And I'm glad our staffs were able to work together
to organize this hearing, and I want to particularly thank
Congressman Cummings for his leadership and commitment to this
issue.
Earlier this week the Police Executive Research Forum, a
national membership organization of progressive police
executives, released a study funded by the Department of
Justice on racial profiling. The report included a survey of
perceptions of racial profiling of over 1,000 law enforcement
officials who lead the big-city police departments, sheriffs
departments and other police agencies. Nearly 60 percent of
those surveyed said that racial profiling is not a problem in
their communities, and fewer than 20 percent have adopted
policies to outlaw racial profiling.
While law enforcement officials may not see that racial
profiling is a problem, the people they stop on the highways do
not agree. A recent Washington Post survey found that more than
half of African American men and one-fifth of Asian and
Hispanic men say they have been the targets of racially
motivated police stops. Statistics validate this perception. In
Maryland, for example, minority drivers are stopped and
searched at rates higher than can be explained by their numbers
on the roads.
Today we are going to hear the testimony of people who know
firsthand that racial profiling is indeed a problem. Robert
Wilkins, an African American attorney from Washington, DC, will
testify about his personal experience of being stopped by
Maryland State Police officers while he was returning from a
funeral with his family. Pursuant to racial profiling policy,
Mr. Wilkins was stopped and detained on the side of the road
for no apparent reason for over an hour while the officer tried
to obtain his consent to search his car. Mr. Wilkins
subsequently sued the Maryland State Police, and the case was
settled. Pursuant to the settlement, the Maryland Police agreed
to collect data on traffic stops.
On the same panel attorney Mark Finnegan will testify about
his client, a Latino motorist who has also experienced racial
profiling and was able to prove it using audio-visual
technology.
We'll also hear testimony about possible solutions to this
problem. We have two legislators from Texas, who will tell us
about a Texas law requiring law enforcement agencies to collect
racial data unless they have applied for or receive State
funding to purchase audio-visual technology. In addition, we'll
hear about local law enforcement agencies that use audio-visual
technology in exonerating police officers of charges of racial
profiling. Other witnesses will testify about the need to
expand efforts to combat racial profiling beyond audio-visual
technology, including the important role of data collection and
technological advances to improve data collection.
Former U.S. Customs Commissioner Ray Kelly will also
testify about the progress Customs has made in decreasing the
number of searches without experiencing any decline in the
number of successful searches.
I look forward to all the perspectives we will hear today.
Racial profiling is an important and difficult issue we must
confront at all levels of government. Given that this is a
national problem, it is important that Congress take the lead
on the issue. We need to examine all possible solutions,
including data collection and the use of new technologies. We
need to use all the tools available to deal with this problem.
However, it would be very difficult to even begin to solve the
problem until we understand that the problem exists. This is
particularly true of law enforcement, without whose cooperation
all proposed solutions will fail.
What the recent survey of law enforcement officials reminds
us is that we have yet to clear that first hurdle of getting
law enforcement to understand that racial profiling is a
problem that needs to be addressed. I hope that today's hearing
helps to do that.
I thank the witnesses for coming today, and I look forward
to their testimony.
Mr. Burton. Thank you, Mr. Waxman.
Before I go to Mr. Cummings, I'd like to welcome
Representative Watson to this hearing, and I ask unanimous
consent that she be allowed to participate in today's hearing,
and, without objection, so ordered. Welcome. Glad to have you
with us.
Mr. Waxman. Mr. Chairman, she's a new member on the
Democratic side of this committee.
Mr. Burton. Oh, is that right? Well, we're tickled to death
to have you with us.
Ms. Watson. May I very quickly respond?
Mr. Burton. Sure.
Ms. Watson. Mr. Chairman, Chairman Burton, Congressman
Waxman and Congressman Elijah Cummings, thank you so much for
the privilege of serving on this committee. I look forward to
involving myself in every issue that comes in front of us.
Today's issue, the benefits of audio-visual technology and
addressing racial profiling, is very significant. Racial
profiling has truly been a pervasive issue within my district.
One of the cases that we considered at the State level is the
young man who took my seat in the California State Senate. So I
will be very much involved in this issue, and thank you for the
privilege of serving on the committee and with all of my
colleagues.
Mr. Burton. Well, once again welcome to the committee, and
we will now yield to Mr. Cummings, who's been very, very hard-
working on this issue. And I can think of no Member in the
Congress that's worked harder on making sure that this issue is
brought to light and reviewed thoroughly than Mr. Cummings, and
I want to thank you very much for your hard work.
Mr. Cummings. Mr. Chairman, I want to thank you for your
cooperation, for working with us, and your staff and certainly
my staff, and we also, all of us, join in welcoming the
Congresslady from the great State of California Ms. Watson.
Welcome, and we look forward to working with you.
Chairman Burton, earlier this year, as you may recall, I
urged this committee to apply its vast and powerful oversight
jurisdiction to examine the menacing problem of racial
profiling, and I'm very happy that our majority and minority
staffs have been able to work together to help make this
hearing happen.
Mr. Chairman, racial profiling is a very new term that
describes a very old problem. We will hear a lot today about
the role audio-visual technology can play and is already
playing in addressing racial profiling. But the origins of
racial profiling in the United States predate patrol-car-
mounted cameras with sound recording equipment. In fact, they
predate cameras, tape recorders and cars altogether. We are
talking about a problem as old as this country itself, and, in
fact, even older.
Drawing conclusions about character on the basis of
immutable superficial characteristics rather than on the basis
of behavior helped to justify slavery and segregation and now
informs more subtle forms of discrimination that occur today in
the post-civil-rights era in this country. Two months ago the
Congressional Black Caucus held a hearing on all facets of the
racial profiling problem. I'm glad that at least a slice of the
issue has been presented here in this forum for broader
discussion, because racial profiling is not just a problem for
the Black Caucus or the Hispanic Caucus or the Democratic
Caucus, it is a problem for all of this Congress and America to
deal with. It offends our most basic common sensibilities as
Americans because it directly contravenes our most sacred
principles, namely, freedom, liberty, fairness and equal
justice under the law.
Mr. Chairman, we didn't have a Constitution when the evil
seeds of this problem were seen centuries ago, but we have one
now, and thank God it has evolved to the point where it is
beyond question to lawmakers that law enforcement action
directed against citizens because of their race is plainly
obnoxious to the sacred principles of due process and equal
protection embodied to many of our--protection embodied in that
enlightened document.
Evidently the notion is less clear to many of our Nation's
law enforcers. Indeed, a recent survey suggested a clear
majority of police executives surveyed believe that racial
profiling is not a problem in their jurisdictions, and fewer
than 20 percent have adopted policies to outlaw racial
profiling. That must change. When President Clinton declared
that racial profiling is the opposite of good policing, he was
absolutely right. His wisdom was borne out by the clear
evidence in my State of Maryland, which sadly has been called
the ``driving while Black'' capital of the world.
One of our witnesses today, Mr. Robert Wilkins, is a
respected attorney in Washington, who brought this situation to
light. In 1992, he became an unfortunate victim of racial
profiling; unfortunate for the police that is. As a result of
the litigation that resulted from the encounter, Wilkins v.
Maryland State Police, the State police in my home State have
been required to disclose detailed information about the
Maryland motorists they stop and search. The results are
shocking to the conscience and chilling.
During 1995 through 1997, minorities accounted for 22
percent of both the motorists and the speeders along I-95. We
were 34.5 percent of those stopped. We were 77 percent of those
who were both stopped and searched along Interstate 95. Yet we
also were 76 percent of the travelers who were stopped and
searched and were found to be innocent of carrying any
contraband.
The Wilkins evidence demonstrated that targeting Black
people is ineffective as a police practice. It is, as President
Clinton said, the opposite of good policing.
Today, the evidence derived from the Wilkins and companion
cases is helping to bring about change in my home State, even
though the problem persists. On May 15th of this year, Maryland
joined 12 or more other States that have enacted legislation to
address racial profiling. Like President Clinton's Executive
order, which applies to Federal agencies, the Maryland
legislation mandates the collection of data on State and local
police stops. Other States are taking similar contrasting
approaches, including Texas, as we'll hear today.
Whether audio-visual technology is sufficient on its own to
address this problem is a matter of debate, and we'll hear
arguments on that subject this afternoon. What should be clear
from the outset of the discussion, however, is that we as
Americans cannot and will not tolerate the practice of stopping
and searching people for no reason other than their race,
whether it's on the side of a highway, in an airport, in a
public park or anywhere else.
This is national problem, and it is therefore incumbent
upon this Congress to demonstrate leadership on this issue.
This hearing is an important step, and I hope we have an
opportunity to investigate thoroughly all potential solutions
before we move forward with Federal legislation. But surely,
Mr. Chairman, Congress must act. The data tells us so.
I look forward to hearing our witnesses today. I thank them
for participating, and hopefully we will find some solutions to
this menacing problem.
Mr. Burton. Thank you, Mr. Cummings, and once again thank
you for all your help and effort on this issue.
Ms. Watson, I believe came next, and since she's a new
Member, do you have an opening statement you'd like to make?
Ms. Watson. I just made it.
Mr. Burton. You've already made your statement.
We'll go to Mr. Clay.
Mr. Clay. Thank you, Mr. Chairman.
Very briefly I would like to say that I am very interested
in hearing from the witnesses today. Representing Missouri, I
helped draft and pass a law last year that instituted data
collection. We received our first report last month, and it's
just what I suspected: more higher incidence of African
Americans and other minorities being stopped, vehicles being
searched.
So my interest today is really to hear from our first
witness, the Justice Department, too, so that he can share with
us on how we attack the issue of racial profiling, how we
address it, how we eradicate it from police departments
throughout this Nation. I have a 7-month-old son, and I don't
want him to have to go through what I have been subjected to,
what other African Americans have been subjected to, which is
``driving while Black,'' and I fear for him and other young
African Americans and people of color that are growing up now
who may have to be subjected to this profiling. So I am
interested in hearing from the U.S. Justice Department to hear
what kinds of approaches they want to take. President Bush as
well as Attorney General Ashcroft have indicated to this
country that they want to eradicate racial profiling. So I am
interested in hearing what approaches the U.S. Department of
Justice wants to take to help eradicate this problem.
Thank you, Mr. Chairman.
Mr. Burton. Thank you, Mr. Clay.
[The prepared statement of Hon. Wm. Lacy Clay follows:]
[GRAPHIC] [TIFF OMITTED] T7191.006
[GRAPHIC] [TIFF OMITTED] T7191.007
[GRAPHIC] [TIFF OMITTED] T7191.008
[GRAPHIC] [TIFF OMITTED] T7191.009
[GRAPHIC] [TIFF OMITTED] T7191.010
Mr. Burton. Mr. Owens.
Mr. Owens. I have no opening statement, Mr. Chairman.
Mr. Burton. You have no opening statement, you say, sir?
OK. Ms. Norton.
Ms. Norton. Thank you, Mr. Chairman. May I commend your
initiative on holding this hearing. It's not in this committee
I expected to have the first hearing, and I was very pleased to
find that indeed there is jurisdiction in this committee for a
hearing of this kind at a time when this issue has assumed
mammoth proportions.
Pending before the Transportation Committee as we speak is
my own bill, the Racial Profiling Prohibition Act, which I
filed as a member of that committee essentially to prohibit
police stops based on race alone. We, of course, know if you
have a description of somebody who is a Black male of a certain
height or of a certain weight, that the description of the
person's color could be informative, but if the police are
looking for a Black male, that there is something very wrong
with that description, because the police then can look for
anybody, and the evidence is overwhelming that is exactly what
police have been doing. This is often because at the very top,
the kind of training and the kind of professionalism it would
take to use race correctly, just as you can use the color of
somebody's hair correctly, has not been in place when it comes
to race. That is not unrelated.
So the way race has been treated in our country since the
first Black slaves landed on these shores, what this problem
indicates is that race and ethnicity as a basis for police
stops has become so pervasive and so systematic that it has
blown a hole in our civil rights protections. What is clear to
us now, at a time when we thought we were at the end of having
to pass civil rights legislation and merely had now to enforce
it, is that there is a very important piece of civil rights
legislation lying on the table. So three Members of Congress
have introduced three different approaches to it.
My bill is introduced because I do not intend to sit in
this Congress as a member of the Transportation Committee next
year when we authorize upwards of $250 billion in highway
traffic funds and see those funds continue to go to subsidize
racial profiling, and that is exactly what will happen if, in
fact, we do not take the steps to make sure that the
unconstitutional use of Federal funds does not occur. It is
unconstitutional for Federal funds to be used in a
discriminatory way or to enforce discrimination. And so my bill
would require that States have standards that bar the use of
race and ethnicity as the reason for stopping somebody, and
that the data and ethnicity to show that the law is being
enforced be collected.
The reason that I have used this approach, Mr. Chairman, is
that for a very real reason, it is the most natural way to get
at this practice. What we have now, of course, are people have
to sue; they have to look and see if their State legislation is
good enough. I don't think anything but a proactive approach
will truly work in this climate. I don't want to wait until Mr.
Wilkins gets stopped again and say, go sue again. I want the
State to take action now so that my son and every other Black
man or Hispanic man who are identifiable by their color do not
have to wonder if they're going to be stopped on the street,
because the State has already moved to make sure that does not
happen.
And so what I looked at was how my committee, the
Transportation Committee, had approached problems that it felt
strongly about, and what I found was that in disbursing
transportation funds, that the committee often required that in
order to receive those funds, States had to take very specific
action. The reason you have a national minimum driving age is
not because all the States wanted to do it, and the District of
Columbia had one age and one in Maryland and another in
Virginia. A lot of people liked it that way, and we said, no,
you have to have the same age in order to get this money. And
highway money is the most coveted money in the Congress, and
they came into line because we said it was important enough.
We said it was important enough to get convicted drug
offenders off all of the roads, and so their licenses should
not come back except after a period of time. And so we said,
you're not going to get your highway money unless you pass a
bill to that effect.
As I speak, we have said, unless you pass a law that, in
fact, requires that those who are stopped meet the .08 blood
alcohol content, you won't get your highway money. So
essentially I've said to the Congress this is a test. Do you
feel strongly about the outrage of people being stopped on the
street because they are Black and Hispanic; do you feel
strongly enough so that this Congress will take action to make
sure that we do not subsidize racial profiling, because that is
exactly what we are going to do.
I believe that the Congress is going to do that. I believe
that my committee, the Transportation Committee, is going to
pass this legislation. I believe it because it is a very
bipartisan committee, because the committee has often sustained
goals and timetables and other civil rights protections, and I
believe that the outcry from literally every State in the Union
is going to get this provision included in the transportation
bill, the new TEA-21, when it comes out next year.
I can't thank the chairman enough, if I may say in closing,
for being the first committee to spotlight this problem and
take action to move us forward. Thank you, Mr. Chairman.
Mr. Burton. Thank you, Ms. Norton.
Once again I want to tell the gentlelady from Washington
that Mr. Cummings has led the fight on this issue, and he's to
be commended for being so persistent, and that's one of the
reasons why we're having this hearing today, because of his
hard work.
Mr. Tierney.
Mr. Tierney. I have no comment. Thank you.
Mr. Burton. Mr. Shays.
Mr. Shays. Thank you, Mr. Chairman. Thank you, Chairman
Burton. Thank you so very much for convening this hearing on
the benefit of audio-visual technology in addressing racial
profiling. This bipartisan oversight initiative addresses a
critical issue in need of greater exposure, public debate and
reform.
Decades ago, with the passage of the sweeping civil rights
legislation, this Nation attempted to amplify and extend our
constitutional commitment to equal protection and equal
treatment under the law. One remaining bastion of racial bias
cynically turns the law and law enforcement against the very
citizens it is the solemn duty of both to protect. The practice
of using race as a prima facie criterion for questioning or
arrest violates that commitment and flies in the face of
progress we have made toward racial equality.
With our colleague Mr. Conyers of Michigan, I am a grateful
cosponsor of the End Racial Profiling Act, H.R. 2074, to
require Federal law enforcement agencies to adopt policies and
procedures to eliminate racial profiling. The bill also holds
States and localities to the same high standard by making sure
Federal funds are not used to continue the practice.
Our bill will help protect citizens from the indignity and
stigma of profiling. It will also help law enforcement officers
perform their sworn duties impartially by encouraging use of
the technology we will be discussing today. Video and audio
systems can serve as an impartial third party, protecting
citizens against arbitrary police actions while reducing the
risk of false or spurious racial profiling charges against law
enforcement personnel. These technologies when used effectively
should increase public confidence that arrests are being made
based on probable cause, not racial stereotypes.
Again, Mr. Chairman, thank you for focusing the committee's
attention on this issue. I truly look forward to the testimony
of today's witnesses, and I look forward to exploring other
dimensions of the problem and proposed solutions at future
hearings. And I thank my colleagues who are participating in
this important hearing.
Mr. Burton. Thank you very much, Mr. Shays.
[The prepared statement of Hon. Christopher Shays follows:]
[GRAPHIC] [TIFF OMITTED] T7191.011
[GRAPHIC] [TIFF OMITTED] T7191.012
Mr. Burton. We'll now welcome our first panel to the
witness table, Assistant Attorney General Viet Dinh, and we'd
like you to please rise and raise your right hand.
[Witness sworn.]
Mr. Burton. Do you have an opening statement, sir?
Mr. Dinh. I do, sir, and it's been submitted for the
record. I'd like to now give an oral statement, if I may.
Mr. Burton. It's fine. Without objection.
STATEMENT OF VIET DINH, ASSISTANT ATTORNEY GENERAL, U.S.
DEPARTMENT OF JUSTICE
Mr. Dinh. Mr. Chairman and members of the committee, it's
an honor be here, my first hearing since being sworn into
office as Assistant Attorney General for Legal Policy. Thank
you for this opportunity to inform you of the Department's
effort on racial profiling and specifically how technology may
assist in those efforts.
Improving the relationship between law enforcement and the
communities they serve is a priority for the Department of
Justice and for this administration. The Department recognizes
that effective law enforcement requires trust between citizens
and police officers, and police-community relationships may be
threatened when a citizen is treated unfairly by the police.
Racial profiling is a particularly egregious example. No
American should fear law enforcement action just because of his
or her race.
We are committed to ensuring that all individuals are
treated equally under the law. The President and Attorney
General have made clear that the Department will take a
leadership role in addressing the issue of racial profiling. In
February, the President directed the Attorney General to review
the use of race by Federal law enforcement authorities,
requested that the Attorney General work with Congress to
develop data collection methods, and asked that the Attorney
General report to him findings and recommendations for improved
administration of the Nation's laws.
To implement these directives, the Deputy Attorney General
Larry Thompson is conducting a comprehensive review of the
policies and practice of Federal law enforcement agencies to
determine the nature and extent of any racial profiling. That
review encompasses the four following elements: a summary of
the available data and studies relevant to the racial profiling
issue; a description of the types of contacts that occur
between Federal law enforcement and a general estimate of the
number of such contacts; a review of current policies of
Federal law enforcement agencies concerning racial profiling;
and fourth, a review of all judicial proceedings and
professional responsibility inquiries involving allegations of
racial profiling by Federal law enforcement officials. The
Deputy Attorney General anticipates completing this review by
the fall.
In addition to our work under the directive, the Department
has a number of ongoing initiatives relating to racial
profiling. For example, the Community-Oriented Policing
Services Office, the COPS office, has provided resources for
data collection and research on racially biased policing and
implemented a national training initiative through its regional
community policing institutes. These programs proactively work
with State and local law enforcement agencies to adopt best
practices, to weed out the bad seeds, and to improve the trust
between law enforcement agencies and the communities that they
serve. Additionally, COPS introduced a targeted grant program
entitled Racial Profiling Prevention Strategies to develop best
practice and technical assistance guides to prevent racial
profiling.
The Department's Bureau of Justice Statistics [BJS],
collects and analyzes data on traffic stops and data collection
procedures. The Bureau of Justice Assistance recently published
a Resource Guide on Racial Profiling Data Collections Systems.
And the National Institute of Justice has supported studies on
racial profiling issues, such as the North Carolina Highway
Traffic Study, which addressed whether North Carolina Highway
Patrol officers stopped minorities at a higher rate than
nonminorities and what factors motivate highway stops.
Today you've asked me specifically to address the use of
audio-visual technology as a law enforcement tool and its
potential as a means for eliminating racial profiling. Section
2 of my written statement describes the nature of the
technologies available and the respective advantages and
certain limitations.
I would like to spend the next few minutes describing the
Department's efforts to support deploying technologies to
enhance police capabilities and improve efficiencies and
prevent racial profiling.
The Department, principally through the Office of Justice
Programs and the Office of Community-Oriented Policing
Services, provides significant funding to State and local law
enforcement agencies to support the deployment of technologies
which can be used to purchase a wide range of equipment,
including in-car and other video and a variety of data
collection systems. The COPS office also administers an In-Car
Video Camera Grant Program to provide law enforcement officials
with this important tool during traffic stops.
To leverage these investments, OJP and COPS have produced a
number of guides, references and other reports for use by the
agencies in deciding what equipment to acquire and how best to
collect data on traffic stops. Among these are a tutorial
published by the Bureau of Justice Assistance that includes
description of data collection programs in four United States
and one foreign location, and provides recommendations for
traffic stop data collection systems; an executive brief on how
video cameras are used in law enforcement published by the
International Association of Chiefs of Police under a National
Institute of Justice cooperative agreement, and finally, but
not exhaustively, a National Institute of Justice guide on how
to select and apply law enforcement video surveillance
equipment, which offers guidance on how to position cameras,
lighting, and focusing, and other requirements.
The NIJ is also engaged in research on a variety of
technologies to enhance capabilities and improve efficiency.
Some of these technologies may also help to make police stops
less personally intrusive and allow for a more objective
determination of a need for a stop. Among these research
subjects are police palm top devices that combine a number of
technologies to allow the rapid completion and filing of
reports from the field; the Voice Response Translator, a small
device that allows officers to communicate one-way in the same
language as the subject being questioned; and conceal weapon
detection systems that may be used in certain circumstances in
lieu of more intrusive body searches. Adaptive surveillance
systems which can dynamically adjust the video parameters in a
region of an image containing a face or other object of
interest to improve the quality of image is also another
technology that we are exploring.
Not all of these technologies, of course, are ready for
deployment, and some will not be for several years, and any
technology, old or new, may be employed in ways that raise
significant concerns regarding privacy. Law enforcement
agencies using any of these technologies must be cognizant of
the privacy issues, seek guidance from legal counsel, develop
appropriate policies and provide training before them putting
them into operation.
We look forward to working with the law enforcement
agencies and, more important, the Congress to answer these
important questions relating to privacy, but to the topic
today, relating to proactive steps we can take as a Department
and as an administration to eliminate the practice of racial
profiling across the land. Thank you very much.
Mr. Burton. Thank you, Mr. Dinh.
[The prepared statement of Mr. Dinh follows:]
[GRAPHIC] [TIFF OMITTED] T7191.013
[GRAPHIC] [TIFF OMITTED] T7191.014
[GRAPHIC] [TIFF OMITTED] T7191.015
[GRAPHIC] [TIFF OMITTED] T7191.016
[GRAPHIC] [TIFF OMITTED] T7191.017
[GRAPHIC] [TIFF OMITTED] T7191.018
[GRAPHIC] [TIFF OMITTED] T7191.019
[GRAPHIC] [TIFF OMITTED] T7191.020
[GRAPHIC] [TIFF OMITTED] T7191.021
[GRAPHIC] [TIFF OMITTED] T7191.022
[GRAPHIC] [TIFF OMITTED] T7191.023
[GRAPHIC] [TIFF OMITTED] T7191.024
[GRAPHIC] [TIFF OMITTED] T7191.025
[GRAPHIC] [TIFF OMITTED] T7191.026
[GRAPHIC] [TIFF OMITTED] T7191.027
[GRAPHIC] [TIFF OMITTED] T7191.028
[GRAPHIC] [TIFF OMITTED] T7191.029
[GRAPHIC] [TIFF OMITTED] T7191.030
[GRAPHIC] [TIFF OMITTED] T7191.031
[GRAPHIC] [TIFF OMITTED] T7191.032
[GRAPHIC] [TIFF OMITTED] T7191.033
[GRAPHIC] [TIFF OMITTED] T7191.034
Mr. Burton. Most of the questions that I had to ask you
covered very thoroughly. Let me ask you this question. The COPS
program, do you know how much money is allocated for that
program?
Mr. Dinh. There are a number of programs under the COPS
initiative, and I have asked our people to assemble all those
in a concrete number.
Mr. Burton. Can you submit those for the record for us?
Mr. Dinh. I will.
Mr. Burton. What I'd like to find out right now, maybe your
staff that's with us can help us with this, how much money has
been used for the visual technology, and is that being
apportioned out on a State-by-State basis, or is it being given
to the States based upon their requests?
Mr. Dinh. We have awarded 41 State police agencies $12
million to purchase 2,900 video cameras in the past--in last
year actually. This year we are continuing the program with $3
million to 6 additional States for 750 additional cameras. I do
not know the specifics as to whether or not we make these
grants selectively or whether they're based upon an RFP that
comes in and then we evaluate those.
Mr. Burton. I think those of us on the committee would like
to know if the Justice Department is pushing the States to
accept audio-visual technology for police surveillance in these
police cars, or if they're waiting for there to be a request
from the States. If the Justice Department--I think it would be
appropriate--and this is just a suggestion--that the Justice
Department push the States to accept this, because I think
racial profiling is a concern all across the country, and there
may be some States that are not as active as far as requests
are concerned, that if pushed a little bit, may accept them,
and it might speed up the process.
Mr. Dinh. We take your suggestions very seriously, Mr.
Chairman, and I take all suggestions from Congress very
seriously. We do have a program across the entire Department in
making targeted grants more effective in achieving the
objectives that Congress intended them to be, and this would
fit right into that initiative, and I will personally commit to
making that happen.
Mr. Burton. Very good. I know the new administration has
made this one of their issues and priorities, and what we'd
like to do is maybe have you or somebody from the Justice
Department that's conversant with this issue or working on it
come back at some future date. So would you be willing to come
back and give us an update on this in the not too distant
future to see how it's progressing? In particular I'd like to
know which States are actively pursuing the new technologies to
make sure there's not racial profiling and which States aren't.
I think if we make that public, it will kind of put a little
pressure on the States that are not accepting the new
technology to make sure there's not racial profiling to get on
with the program.
Mr. Dinh. I will be honored to come back, and especially
when the Deputy Attorney General has completed his review of
the Federal law enforcement policies and practices, and as we
go into the second phase of our proactive efforts, to
effectuate the President and Attorney General's directive on
this in the fall. I would appreciate an opportunity to address
those issues in addition to the questions you have today.
Mr. Burton. Mr. Shays, do you have some questions?
Mr. Shays. Yes.
Mr. Burton. Excuse me. Just for the benefit of our
colleagues, we are under the 30-minute rule, and that's why I
went to Mr. Shays, and then Mr. Cummings will have 30 minutes
as well.
Mr. Shays. For the benefit of my colleagues, my questions
will probably be 5 to 10 minutes, and we will probably be able
to give you a half hour and some of our time. We're happy to
yield our time as well.
Mr. Burton. That's fine.
Mr. Shays. Mr. Dinh, I just want to welcome you. I can get
almost emotional seeing you at this desk and think that this is
a country that is very inclusive when it wants to be and very
open, and this American society is a very unique society. I
would suspect you probably weren't born in this country.
Mr. Dinh. I was not, sir. I came here in 1978 as a refugee
from Vietnam.
Mr. Shays. Well, it makes me very proud to have you here.
Mr. Dinh. Thank you, sir.
Mr. Shays. And welcome.
I was speaking with Congressman Owens, and he was sharing
with me something that makes me wonder as well. The Federal
Government basically has a role to play in this whole issue of
racial profiling, but law enforcement tends to be a local and a
State responsibility. I mean, that's where it tends, I would
think, we would see most of the abuses. So let me ask you first
off, what powers do you think the Federal Government has to
deal with racial profiling?
Mr. Dinh. Of course, as Congresswoman Norton noted, the
Constitution prohibits the use of race as the basis for law
enforcement, and that Constitution, of course, under Article VI
of that great document, applies across the land to State and
Federal actors alike, but, as you noted, the Federal Government
is limited in its law enforcement capacity. Most of the
policing power is exercised by State and local authorities.
That's why the Department of Justice in its proactive efforts
are reaching out to help State and local police agencies in
order to develop best practices, to weed out the bad seeds, and
to improve the trust between their law enforcement agencies and
the communities they serve.
With respect to your specific question for congressional
authority----
Mr. Dinh. I would like to defer that to my colleagues in
the Office of Legal Counsel and my new colleague the Solicitor
General Ted Olson. I am no longer a constitutional law
professor. I'm now a recovering academic in the guise of a
government official. So I have to respect their province of
authority.
Mr. Shays. Let me ask you this way: Do you think there are
powers inherent in the Federal Government that can help us deal
with this issue?
Mr. Dinh. Certainly there is the Federal spending clause
that is applicable, Section 5 of the 14th amendment are
possible bases, but, again, the devil's in the details with
respect to the employment of any one of these powers with
respect to State intrusions upon State sovereignty, and I think
that any particular legislation or action by the Federal
Government would have to be scrutinized under the
constitutional standards as set forth by the Supreme Court.
Mr. Shays. I know you're involved in the policy side, and I
suspect that you're not fully staffed and the Department isn't
yet fully staffed, but can you tell me to what extent--and this
is really a question that in the dialog I was having with
Congresswoman Norton. I want to know to what extent the
administration is willing to pursue this issue of racial
profiling.
Let me put it in the context of this: There are some of us,
a lot on the Democratic side of the aisle and some of us on the
Republican side of the aisle, that believe that hate crimes is
an issue that we need to deal with, hate crimes whether it be
race or sexual orientation and so on, and the administration
clearly doesn't want to move in that direction. I'm eager to
know to what extent we are going to pursue this issue of racial
profiling.
Mr. Dinh. This is a matter of high priority both for the
President and for the Attorney General. The review being
undertaken by the Deputy Attorney General is but one step in
this process, as you know. As you may know, the Attorney
General in February issued I guess I would call it an ultimatum
to ask Congress to authorize a Federal study, comprehensive
study, of these practices within 6 months, and if not, he would
undertake personally within the Department the study within our
own Department and fund it through sources that we can
identify. And so this is a matter of high priority for all of
us in the administration, and we will pursue working with
Congress and the relevant agencies.
Mr. Shays. Two last questions, and let me ask them both
now, and maybe it will lead to another question. But have you
had the ability yet to determine where in what level of
government racial profiling tends to be the most egregious; and
No. 2, are there particular areas of the country where we see
it more prevalent? And I don't just mean in the South. I mean,
we know that the civil rights movement kind of marched to
Washington and in some cases stopped, and we can see
segregation in a different way in the North, where I live;
wealthy people tending to live in wealthy areas with wealthy
White citizens, urban areas tending to have more of the poor
and the minorities. It's more of a de facto segregation in some
ways. But my question is have you had an opportunity to look at
what level of government and where racial profiling tends to be
the most egregious?
Mr. Dinh. No, sir. We have not had that opportunity. Our
review at this point is focused at the Federal law enforcement
agency level. We anticipate to be able to study, with
congressional authorization and funding if possible, otherwise
an independently authorized review by the Justice Department of
the State and local data that is available. Currently 12
States, I believe, require the collection of racial profiling
data, and 37 States voluntarily do so, and we look forward to
the opportunity to take a more comprehensive view of that data
should it be funded by Congress.
Mr. Shays. Thank you, Mr. Chairman. Mr. Chairman, I have
completed my questions.
Mr. Burton. Thank you, Mr. Shays. Mr. Cummings we will
recognize you for 30 minutes and if your side needs more, we
will see if we can't get that for you.
Mr. Cummings. Thank you very much, Mr. Chairman. Mr. Dinh,
I also welcome you to the hearing and I congratulate you on
your appointment and thank you for your testimony.
I just was wondering as you were answering Mr. Shays'
questions, you know, a lot of the racial profiling problem
comes from, I think, from a certain level of insensitivity and
police officers who already have come to certain conclusions
before they even stop a person. They--I see it in my own
neighborhood. I have been a victim of it many times. And I was
wondering, before we even get to the audio-visual piece, are
you all looking at any--that is, the Justice Department--
looking at any programs, and is it something that you believe
is necessary to sensitize police officers to understanding that
every African American male that they see driving a modern car,
or any kind of car, down the road is not a criminal?
I mean are you all looking at it from that angle because
the problem begins actually a little bit before the stop
actually takes place.
Mr. Dinh. Yes, sir, the COPS program, the Community
Oriented Policing Services program, as part of its proactive
training mechanism for State and local police officers and
executives, has as a primary component what they call the
ethics and integrity program; in your words, sensitizing the
chiefs and their rank and file to these very, very significant
issues.
That is one component of a much broader initiative in
reaching out and developing a best practices and also
implementing those best practices, encouraging the agencies to
implement those practices throughout their rank and file, and
so it is a problem that admits of both remedial but, as you
noted, preventative measures; and those preventative measures
include changing the hearts and minds and improving the trust
between law enforcement agencies and the communities they
serve.
Mr. Cummings. Now, going to the COPS program and the audio-
visual opportunities that are presented, do you know why that
came about, why they first started with audio-visual, you know
making these cameras available; that is, grants for the
cameras?
Mr. Dinh. I am not familiar with the genesis of the grant
program but I suspect with most OJP--Office Justice Program--
grant programs, that it was initiated by Congress. I do have,
by the virtue of technology, two-way messaging, in answer to
the earlier question with respect to the breakdowns of the
States in requesting these programmatic funds. And I have been
advised that all States except three have now requested money
for audio-visual equipment for State police. One State not
requesting is Hawaii, for the obvious reason it does not have a
State Highway Patrol, and the other two States not requesting,
for reasons unknown, are Ohio and Delaware.
Mr. Cummings. OK. I look at the Baltimore City Police
Department, when they make requests of the COPS program, they
have certain priorities. And one of their priorities was just
basic computers so that the police knew what each other were
doing in the various parts of the city. And I was just
wondering if you have, say, the COPS piece, the audio-visual
piece; and then a city looks at that and says OK, yeah, we
really do need the audio-visual but we need some basic things
before we get there, like police cars and things of that
nature.
I was just wondering whether one grant works against the
other. Are you following what I am saying?
Mr. Dinh. Yes, I do, sir. The grant program that was
described earlier, the $12 million last year and $3 million
this year, is specifically for in-car video devices. The COPS
program--the COPS office and other offices within OJP have a
significant number of other grant programs on improvement of
technologies generally, and some of that money can be used for
in-car video or they can be used for other uses. The in-car
program, the $12 million program, is specifically for this, but
all of our programs are designed so that they do not work
against each. This one just happens to be targeted for this
particular priority, but there are many other technology-
related grants that exceed, obviously, the hundreds of millions
of dollars in improvement in technology for the State and local
law enforcement agencies.
Mr. Cummings. Is there any research that you all have done
or that you are doing with regard to States that use the audio-
visual equipment and how that has affected this whole concept
of racial profiling? I guess it is a little early for that.
Mr. Dinh. We have not performed any research or funded any
specific research within the Department of Justice, and I have
undertaken a review of social science literature with respect
to the use of audio-visual and I have not seen any significant
statistical research. There has been some anecdotal research
out there, I think of two specific studies, but not any
comprehensive ones.
That goes to one of the issues that was addressed in my
written remarks, is the obvious limitation, a common-sense one
with respect to the use of audio-visual equipment is that there
has to be somebody reviewing the audio tapes and data, and that
is a significant undertaking of reviewing those hours of tapes
and data.
Mr. Cummings. So how do you see that playing out? I know if
there was an issue, if someone, say, filed a complaint against
the police to their Internal Affairs Division and said, look,
you know, I was a victim, that is one issue. But it is a whole
other issue when you are trying to get a full view of the many
stops--say, for example, with the Maryland State Police--and I
guess that is a big manpower issue, and is there money
available for that?
Mr. Dinh. As you noted and as the chairman noted, there are
a number of technologies that can be deployed in order to
prevent or remedy racial profiling. Some of the anecdotal
studies that I have reviewed with respect to the use of audio-
visual equipment specifically suggests a deterrent effect in
the conduct of police officers knowing that they are being
recorded, and specifically of the motorist or the suspect when
they are advised specifically that they are being recorded, for
the obvious reason that there is an audio-visual recording of
whatever actions or words that are spoken. And so there is a
deterrent effect, a general improvement effect. I stress that
it is only anecdotal, because it is not a statistical
significant sample for these studies.
Mr. Cummings. Now, what is the OJ's interpretation of the
legality of racial profiling under the Federal statutes?
Mr. Dinh. As you may know, the Supreme Court in a case
called Whren, W-h-r-e-n, a fourth amendment case, noted in
passing that it is common--that it is obvious that the 14th
amendment guaranteed equal protection, prohibits the law
enforcement on the basis of race, and I think that everybody in
this room recognizes that constitutional prohibition.
Mr. Cummings. Now, if you were to find that a Federal
officer was one who was proven to be a racial profiler, what do
you all have available in Justice to address that?
Mr. Dinh. Each one of the law enforcement agencies have
procedures to ensure professional integrity within their rank
and file, and those procedures are very, very rigorous in order
to weed out the bad seeds, if you will, as I noted before.
In addition to that, the civil rights division of the
Department of Justice has authority under the statutes to
investigate pattern and practice violations by specific law
enforcement agencies or officers, and that authority is
obviously being deployed throughout the country when there is a
need that warrants it.
Mr. Cummings. Do you know whether there are any cases
presently before Justice, following up on what you just said?
Mr. Dinh. There is a working group within the Department of
Justice, again just addressed by Congressman Shays earlier,
whether or not this is a high priority. There is established
within the Department of Justice a working group that oversees
and monitors all litigation affecting Federal agencies that
involve racial profiling. Any such litigation would be reported
to the working group.
My office is working intimately with that working group in
order to ensure that whatever litigation position's taken in
those litigation is consistent with our priority of
eliminating, preventing, and remedying racial profiling. I
believe there is a case pending with respect to the Customs
Service in Chicago. I do not know the details of that case nor
would my position allow me to comment on pending litigation.
Mr. Cummings. I understand. I just wanted to know whether
we would--whether there was anything--anybody who had been
brought up to--under any kind of charges. I didn't need to know
the details.
Mr. Dinh. Actually, if I may amplify, one of the four
components of the study undertaken by the Deputy Attorney
General across the entire law enforcement community is a review
of all professional responsibility complaints and/or litigation
involving their personnel on the issue of racial profiling, and
that review is anticipated to be completed within the fall. So
I can have a much more full answer and specific answer to you
in my next report, sir.
Mr. Cummings. I think you said that Larry Thompson was--is
doing some investigating now to determine what?
Mr. Dinh. That is the study that the Attorney General
ordered Deputy Attorney General Thompson to undertake. It is a
study that reviews all Federal law enforcement agencies with
respect to their practices and policies on racial profiling.
The four components of that study, if I may briefly go into
that, is, one, a summary of the available data and studies
relevant to the racial profiling issues; two, a description of
the types of contacts, the approximate number of contacts that
the law enforcement agencies have with the public; and, three,
a review of current policies of Federal law enforcement
agencies concerning racial profiling; and, four, a review of
all judicial proceedings and professional responsibility
complaints, as I just explained a minute ago.
That study is continuing. We anticipate completion of that
study sometime in the fall.
Mr. Cummings. OK. Now, I'm just trying to figure out, I
mean under the things that you just named, is there any
research being done as to any other tools that you all may need
to properly address any violations?
Mr. Dinh. Yes, sir. There is continuing review in
appendices A and B of my written testimony. There are a
compendium of not only the programs that we have but also the
assessments procedures for the tools that we need. I anticipate
that as we review these matters, we will be making requests to
you in your support and funding, authorization and funding of
these tools so that we can better combat this problem that we
all recognize is a matter of high priority.
Mr. Cummings. Now, last but not least, when the
Congressional Black Caucus met with President Bush, he said
something that was just--I guess it was just one of the more
silencing moments of our discussion. This was in, I think,
around January, and he said that he--it really bothered him
that there are Americans who believe that there are two
standards of justice, or at least two standards of justice: one
for those who have; one for those who have not; one for those
who may be Black; one for those who may be White. And he said
that he would do everything in his power to address that, so
that every American would know that there's one system of
justice.
And I was just wondering what, if any, other than maybe the
things you've said, directives have you all gotten with regard
to this issue to carry out what the President said to the
Congressional Black Caucus?
Mr. Dinh. Thank you very much for that question,
Congressman, and it is a promise that I personally believe in
also. I think that the promise and opportunities of America
that my family have been so fortunate to realize should be
available to all Americans regardless of immutable
characteristics as you noted before.
Specific to your question, on February 27 of this year, the
President issued a directive to the Attorney General
specifically on the issue of racial profiling, asking him to
review the use of Federal law enforcement authorities--by
Federal law enforcement authorities--of race as a factor in
conducting stops, searches, and other investigative procedures,
and also to direct him to report back with findings and
recommendations for the improvement of just and equal
administration of our Nation's law.
Now, as you may recall, the Attorney General also met with
the Congressional Black Caucus, at which time he announced his
high priority in this issue and issued the call to Congress to
authorize him funding to effect these directives within 6
months or he would undertake the study himself, under existing
Department of Justice authorization and try to find funding
elsewhere. I hope not from my line budget, from my office, but
certainly staff from my office. It is a matter of high
priority, and we are all working very hard toward that goal.
Mr. Cummings. I think the Attorney General, when he met
with the Caucus said something about 6 months.
Mr. Dinh. Yes.
Mr. Cummings. For some reason that rings in my head. And
that was in February?
Mr. Dinh. That was in February, sir. And that is why the
Deputy Attorney General's target date for completion of his
study is sometime in the fall. That 6 months would probably run
approximately September 28.
Mr. Cummings. OK. I yield to Mr. Clay.
Mr. Clay. Thank you very much, Mr. Cummings.
Mr. Dinh, I am impressed with your testimony today, and
hopefully the DOJ can make progress on this issue. You
mentioned in your testimony that you have several initiatives
to address the problem on States that have already conducted
studies.
Here's what I'm interested in: in seeing the DOJ come up
with a concerted effort, a coordinated strategy to address
those areas that we know are problems. And in the Missouri
study, for example, we found that there were pockets and areas
where police departments had very high incidents of stops and
searches. You talked about a weed-out-the-bad-seeds initiative.
Have you all discussed or initiated any type of program
directed toward States that have already conducted the data
collection and addressed the issue of weed out bad seeds? Just
how do you do that?
Mr. Dinh. There are two components to your question. I'd
like to take each of them in turn.
Mr. Clay. Sure.
Mr. Dinh. The 6-month call to Congress for action that the
Attorney General issued contemplates additional funding for us
to study the data that is collected voluntarily by 37 States
and mandatorily by legislation by the 12 States that are
available. That is obviously a significant undertaking because
it is many different jurisdictions and many different points of
data, and so we would like to be able to get congressional
funding for that by the end of September, if possible. If not,
we will try to find mechanisms to do it ourselves.
With respect to your question about the proactive steps
that we can take, the early warning systems that the COPS
program have developed and worked with local and State law
enforcement officials to encourage them to implement is one
example of that in order to identify problems and problem
officers at an early enough stage in order to take preventative
measures.
This is obviously a very significant undertaking that will
require significant contemplation in terms of the data
available, but also in working out and coordinating a strategy.
We are in the process of implementing or formulating a strategy
with respect to that, and I would like to report to you back in
the fall on our overall plan.
Mr. Clay. Let me suggest that in your deliberations you
also consider forming some type of Federal task forces that
will send in agents of color to those areas where you have high
incidences of traffic stops, of vehicle searches, so that they
can report back to DOJ, and you all make the determination
whether there are bad seeds and how we eradicate those seeds
from our local law enforcement. And so let me throw that out as
a suggestion.
Also, have you all done any extensive studies of U.S.
Customs and the stops that they make at Customs? Is that
completed yet or not?
Mr. Dinh. That is part of our study that Larry Thompson,
our Deputy Attorney General, is conducting. As you know, as Mr.
Cummings noted earlier, President Clinton ordered the
collection of data by certain law enforcement agencies,
specifically the INS and the U.S. Customs Service. We have that
data. The Deputy Attorney General is reviewing that and will
report on that as part of his overall objective, overall
report.
With respect to your specific suggestion, of course we take
that very seriously and I will take that back. I also note that
recently, just last month, the Attorney General announced a
memorandum of understanding with the D.C. Police Department
where there is a cooperative effort between the D.C. Police
Department and the Department of Justice civil rights division
in working together cooperatively in order to improve the
practices of police. I think that this type of cooperative
mechanism is the kind of thing that you are contemplating in
your pattern and practice investigations.
Mr. Clay. Sure. And with the Attorney General being from my
home State, I would hope he would want to eradicate any issues
that are outstanding in Missouri.
Final question: The video technology, video and audio
technology, in patrol cars where it is used now, do we have
issues with law enforcement turning the cameras on, or is there
enough technology that once the car door opens, the camera is
activated? Just tell me, do we have problems with the
technology itself?
Mr. Dinh. I do not think there are specific questions with
respect to selective deployment of the technology. I believe a
lot of these systems are either automatically activated keen
points or round-the-clock kind of activations so that there is
sufficient coverage.
I do note that one advance of technology is the movement
from analog--the normal VHS tapes that we see--to digital, the
CD ROMs that we see. That improvement in the technology will
significantly improve the capacity of storage within each car
and also within each department so as to ensure continuous
coverage of the type that you contemplate.
Mr. Clay. Thank you for that. Appreciate it, Mr. Chairman.
Mr. Shays [presiding]. I thank the gentleman. There's more
time remaining, and, Ms. Norton, you have the floor.
Ms. Norton. Thank you very much, Mr. Chairman.
Mr. Dinh, I'd first just like to establish what I will call
a basic understanding between the committee and yourself about
the legal and constitutional ground rules so we make sure we're
talking about the same things. Could Federal funds flow to
States which--where there is evidence of pervasive racial
profiling? That is to say, stops on the basis of race or
ethnicity, while--if that continued, would we not have a prima
facie violation of the Constitution and would we have a prima
facie violation of any Federal statute?
Mr. Dinh. I'm afraid that I am not prepared to answer that
question simply because I have not taken an in-depth review of
the funding sources and the implications of the Constitutional
prohibition as it relates to the funding matter, but I would
like to get back to you in consultation with our Office of
Legal Counsel on that.
Ms. Norton. Well, I must say that if we got hung up at the
level of generality that I indicated, I'm afraid we are really
in trouble. I thought you indicated that you thought that there
was a constitutional prohibition against the use of Federal
funds, against Federal subsidy of racial or ethnic
discrimination. And now you say you are not sure if it's a
prima facie violation even, and you can cite no Federal statute
where there might be a prima facie violation and here when I
say prima facie, because obviously that means that you've only
established that there may be a violation, and that is
rebuttable, and you are telling me you can't even say in answer
to my question where there's evidence that a State pervasively
engages in racial profiling that there is a prima facie
violation of the Constitution?
Mr. Dinh. Thank you for the opportunity to clarify,
Congresswoman Norton. What I stated before in answer to the
chairman's question was a citation to the United States v.
Whren, which is a 1976 U.S. Supreme Court case, fourth
amendment case, that noted in passing the constitutional
prohibition contained in the 14th amendment that prohibited law
enforcement on the basis of race. I did not extend my remarks
to the question you raised; that is, the linkage to funding,
the flow of funds to specific localities. That is an additional
question that I would have to consult with our Office of Legal
Counsel----
Ms. Norton. I thought you raised the notion of the spending
authority as well in your answer.
Mr. Dinh. I think in my answer to Congressman Shays, I
noted when he asked for speculation as to what authority that
Congress may have in addressing this issue, I noted that this
funding clause is a possible source, and also section 5 of the
14th amendment is a possible source for congressional authority
for action to redress these problems.
Of course, as I said, the devil's in the detail. Both of
those answers, one, the recognition of the 14th amendment's
prohibition on the use of race as a basis for law enforcement
and, two, the source of authority possibly under the spending
clause and the section 5 of the 14th amendment, do not go to
the specific nub of your question, which is whether the
Constitution in and of itself prohibits the flow of Federal
funds to localities under certain circumstances.
I do note, however, that, as I noted before, that our civil
rights division has authority and responsibility that we take
very seriously to investigate and prosecute pattern and
practice violations, and that is a matter of continuing
priority for our Department.
Ms. Norton. So we've established that there may be a
constitutional basis for enacting legislation to forbid racial
profiling under the spending authority or under the 14th
amendment.
Mr. Dinh. I think that is correct. Of course the findings
and actions and the like would have to pass constitutional
muster----
Ms. Norton. Of course.
Mr. Dinh [continuing]. Under the Supreme Court's division--
for example, City of Boerne v. Flores--for section 5 of the
14th amendment; South Dakota v. Dole for the spending clause.
But those are things that my colleagues in the Office of Legal
Counsel and Office of Solicitor General are much more well
equipped to answer than I.
Ms. Norton. I understand, Mr. Dinh. That is why I'm trying
to keep my questions very general, because I'm not trying to
pin you down on the details. I'm trying to establish, as I said
the legal ground rules. After all, I'm writing legislation and
you can help me to make sure it's constitutional and that the
President would want to sign it and that the Justice Department
would want to be helpful in making----
Mr. Dinh. We always can help you in that regard.
Ms. Norton. Could I read to you Title 6 of the 1964 Civil
Rights Act: No person in the United States shall, on the ground
of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal
financial assistance.
My question went to the Constitution but it also went to
any to any Federal statute. Do we have a colorable violation of
a Federal statute, namely Title 6, if there is evidence of
pervasive racial profiling by one State which receives Federal
funds in its highway program or any Federal funds that are
connected to the violation?
Mr. Dinh. I will study your question in reference not only
to Title 6 of the Civil Rights Act but other provisions of
Federal law and will get back to you.
Ms. Norton. I'm sorry. Would you repeat that?
Mr. Dinh. I will study not only Title 6 but all the other
provisions of the Civil Rights Act and other Federal law, as
you requested, and seek the counsel of my colleagues and get
back to you.
Ms. Norton. Like you, Mr. Dinh, I'm a constitutional
lawyer, and I tell you that if I were in your position, and the
Attorney General asked me that question, I would say the devil
is in the details--to quote Mr. Dinh--but, sir, I think that
there probably is a prima facie violation and maybe you want me
to indeed study the details to make certain.
Has there ever been a case brought by the Justice
Department under Title 6 on the basis of racial profiling?
Mr. Dinh. I'm not aware of any such case, but again that
would require a comprehensive review of all components, and I
would like to study that. We have a Department of 125,000 so
I'd like not to make a categorical answer without----
Ms. Norton. That is very important for us to know. It is
very important to know under--you haven't been there very long,
so it would almost surely have to be in some prior
administration. I ask you to in your written response to this
committee, in your responses to the committee, to let us know
whether or not in its entire history the Department has ever
brought suit under Title 6 or whether any department of the
government, such as the Department of Transportation, has ever
conducted a Title 6 investigation based on racial profiling.
I see that I have a note that my good chairman has allowed
me to go overtime, and I appreciate it and I therefore yield
back the remainder of no time left.
Mr. Shays. Let me just say to you--I thank the gentlelady
and appreciate her questions, and we would recognize that you
are new into this position and we would like a more accurate
answer than one where you are not totally certain. But we would
clearly want the answers to her questions and would expect that
you would provide that to the committee and make sure that your
staff gets it right away, Ms. Norton, as well as other members.
Before we have a vote, in fact what I'd like to do is
recognize Mr. Gilman for my time and let him have a statement.
Mr. Gilman. Thank you, Mr. Chairman. I would just like to
make an opening statement before we have to go to the floor. I
may have to stay over there.
Chairman Shays, I would like to thank you and Chairman
Burton for scheduling this extremely important hearing timely
to investigate the benefits of any other methods of taking some
steps to prevent racial profiling; the benefits, for example,
of the audio-visual technology in addressing racial profiling.
I believe that advancing this kind of affordable and accessible
technology can help curb the highly questionable practice of
using mandatory racial data collection and law enforcement.
That technology can also act as an objective source in
disproving claims against law enforcement officers who have
been wrongly accused of using racial profiling.
In short, the challenge we face is to make certain the
civil liberties of our citizens and, at the same time,
providing our law enforcement officers with the tools necessary
to maintain law and order.
I look forward to the testimony of today's panel and
working with my colleagues on this important issue. Sound law
enforcement certainly is dependent upon good trust between the
citizens and police officers and a sound police/community
relationship. Racial profiling as a law enforcement tool
undermines that trust, which is why the President has directed
the Attorney General to undertake steps to conduct a
comprehensive review of the use of racial profiling by Federal
law enforcement authorities, and that is why we welcome having
a representative from the Department of Justice before us
today.
And just one quick question. Is there any question about
the use of audio-visual material in the courts?
Mr. Dinh. No, sir. I can imagine certain challenges based
on authentication and the like, but I do not know of any
specific evidentiary or general evidentiary prohibition on the
use of such materials.
Mr. Gilman. Thank you very much and thank you, Mr.
Chairman.
Mr. Shays. Thank you. We may be able to get on to the next
panel after the break. I don't know if--I still have a little
more time on my time. Mr. Barr, you are here, Mrs. Morella, Mr.
Platts, would you----
Mrs. Morella. Mr. Chairman, I just simply want to ask
permission that my opening statement be included in the record
and point out that I am a lead co-sponsor of the bill to End
Racial Profiling Act and am very interested in this hearing.
Thank you.
Mr. Shays. Without objection.
[The prepared statement of Hon. Constance A. Morella
follows:]
[GRAPHIC] [TIFF OMITTED] T7191.035
[GRAPHIC] [TIFF OMITTED] T7191.036
Mr. Shays. Mr. Barr, opening comment or welcome?
Mr. Barr. Just a quick question for the witness.
Mr. Shays. Yes.
Mr. Barr. Thank you. Mr. Assistant Attorney General, thank
you for being with us today and congratulations on your recent
appointment.
Would you agree with the following statement: that if in
fact the Department of Justice uncovers evidence of improper
racial profiling, it has tools under current law and regulation
to address that and take appropriate action?
Mr. Dinh. Yes, sir. Most significantly, the pattern and
practice authority in our civil rights division.
Mr. Barr. Thank you. Thank you, Mr. Chairman.
Mr. Shays. Thank you. Mr. Platts, would you like to make a
comment before--would either of my colleagues like to make----
Mr. Cummings. We have nothing else. Thank you.
Mr. Shays. Thank you.
Mr. Dinh. Thank you very much.
Mr. Shays. Mr. Dinh, thank you so much. It's wonderful to
have you here. You may be back again and we will look forward
to that.
We will be in recess. We do have some votes. I think we may
have two votes, so our next panel may have about 15 to 20
minutes if they want to quickly get a bite to eat, downstairs
one floor. We stand in recess.
[Recess.]
Mr. Barr [presiding]. I'd like to call to order the
continuation of our hearing in the Government Reform Committee
on the benefits of audio-visual technology in addressing racial
profiling. We will now move to our second panel, having already
heard earlier this morning from the Assistant Attorney General,
Office of Legal Policy at the U.S. Department of Justice.
I'd like to welcome the members of our second panel. We
have two members, distinguished members of the Senate of the--
is it State or Republic of Texas?
Mr. West. State of Texas.
Mr. Barr. State of Texas. The Honorable Royce West and the
Honorable Robert Duncan. Senators, welcome. We appreciate your
being with us today. We know that both of you have extensive
experience in this particular area, as I understand it, both of
you having been instrumental in the drafting of the Texas
legislation on anti-racial profiling.
We're also happy and honored to have with us today the
Superintendent of the New Jersey State Police, Colonel Charles
Dunbar. And I believe the gentlelady from New York has some
welcoming comments for the colonel.
Mrs. Maloney of New York. I just want to thank the chairman
on holding this hearing on this important issue, and Ranking
Member Elijah Cummings for really requesting it and helping to
make it happen. I look forward to the testimony of all of the
witnesses.
But I would particularly like to welcome Colonel Dunbar
from the great State of New Jersey, which is right next door to
New York, and we share many facilities between our two regions
in the tri-State borough, and I particularly want to welcome
him. He represents the region that I'm from, and I'm glad to
see you. Glad you are here.
Mr. Barr. Thank you, gentle lady.
The final two witnesses on our second panel are both
gentlemen who have also had actual experience with regard to
the subject matter at hand, and that is racial profiling. Two
very distinguished members of the bar: Mr. Mark Finnegan, a
plaintiff's counsel from Ohio--Mr. Finnegan, we welcome your
being with us today; and Mr. Robert Wilkins with the District
of Columbia Bar Association, member of the D.C. Bar, who also
has experiences that he would like to relate to us today.
Counsel, we very much appreciate your being with us today.
At this time I'd like the four witnesses to stand and raise
their right hands to be sworn in.
[Witnesses sworn.]
Mr. Barr. Thank you. Let the record reflect that all five
witnesses answered in the affirmative. We appreciate your all
being here. I believe you are all familiar with the procedures
that we have here in the committee. Each witness is afforded 5
minutes to make an opening statement, and following that each
member of the committee will have 5 minutes to ask questions
and you'll have time, obviously, to respond. If there is
material that you would like submitted in addition to your oral
comments, submit them. The record will remain open for--
counsel, 7 days? For 7 days for the submission of any
additional material. And with that, I would like to recognize
Senator Royce West for 5 minutes, sir.
STATEMENTS OF HON. ROYCE WEST, TEXAS SENATE; HON. ROBERT
DUNCAN, TEXAS SENATE; CHARLES DUNBAR, JR., SUPERINTENDENT, NEW
JERSEY STATE POLICE; MARK FINNEGAN, ESQ., HEBERLE AND FINNEGAN,
LTD.; AND ROBERT WILKINS, ESQ.
Mr. West. Thank you. Thank you, Mr. Chairman, and members
of the committee. It's indeed a pleasure to appear before you
to talk about and be a part of the deliberation on dealing with
this particular issue.
It's a pleasure to appear before you today. The issue of
racial profiling, I don't think I need to get into the issue of
it, I think that everyone in the United States perceives it as
a problem. What I'd like to do is to spend my time talking
about potential solutions to the issue of racial profiling.
In the State of Texas we passed Senate bill 1074, and I
believe that each of the members of the committee has a copy
and also an analysis of that particular bill.
What I'd like to do is to kind of go through the process,
what we attempted to accomplish and the process by which we
accomplished our goals.
Needles to say, being a veteran of the legislative process,
albeit the State legislative process, I didn't get everything
that I wanted but I got some of the things that I wanted, and I
believe that as a result of working with my colleague, Senator
Duncan, we were able to pass a pretty good bill.
Central to this particular bill is in fact the issue of
video-audio recording. We believe that particular facet of the
bill provides an impartial third party to look at interactions
between law enforcement and also citizens. We believe that
particular aspect of the bill not only helps deal with issues
of racial profiling but also protects officers from frivolous
complaints, protects citizens from overzealous police actions,
provides a very good training tool.
In addition, it provides evidence in criminal cases which
may very well have the impact of reducing the amount of time
that citizens have to spend in the criminal justice system,
through the judicial process and also prosecutorial time; and
we have not been able to, needless to say, measure that. I know
that the past speaker was asked a question about whether or not
there's any studies out in academia or anyplace else to measure
the impact of the use of audio-visual as it relates to racial
profiling. I know of no such studies, and we attempted to look
at that when we were looking at passage of this particular
bill. We believe that this is cutting edge and that given the
state of technology in this country and this world, that we
should in fact put in place video--audio-visual recording in
police vehicles.
How did we get to this particular juncture and what does
1074 provide? Believe it or not, we were able to bring in some
of the Nation's most notable and credible civil rights
organizations and sit them down at the table with rank-and-file
law enforcement organizations in the State of Texas. The
organizations that were a part of crafting this particular bill
and signed off on this particular bill were as follows: No. 1,
the NAACP State chapter in the State of Texas, the ACLU, ERISA,
MALDAF, all signed off on this legislation, as well as several
rank-and-file organizations through the police agencies.
What Senate bill 1074 does is the following: No. 1, it puts
in place a reporting requirement, a collection and reporting
requirement for police agencies. I want you to just kind of
visualize this. There's a minimum reporting requirement and
there's an expansive reporting requirement. If police agencies
decide to put in place audio-visual recording, then they are
not subject to the more expansive reporting requirement but
they still must continue the minimum reporting requirement.
The minimum reporting requirement is pretty much akin to
the information that is currently collected, at least in the
State of Texas on traffic citations. What we have mandated in
the State of Texas as a result of passage of this bill is that
the race ethnicity of the person that is issued the citation be
recorded, as well as to record whether or not there was in fact
a search and whether the search was in fact consensual.
We also provide that each law enforcement agency must
promulgate policies dealing with racial profiling and that the
report of the data that is being collected be turned over to
the governing agency of that particular law enforcement agency.
If it's a city council, then the city council.
In addition, we require training that each law enforcement
officer that is certified in the State of Texas, they must go
through--as part of their annual education, that they have to
go through at least, of course, dealing with the issue of
racial profiling. Not only the rank and file, but also the
chief of police must also go through such a training and,
needless to say, be certified.
We require that the law enforcement agency that oversees
police officers in the State of Texas develop, help develop
model policies as it relates to racial profiling and also that
the institution of higher education where many law enforcement
officers seek training develop a course on racial profiling.
We believe that by putting in place the training component,
the audio-visuals and their collection and the reporting back
to the local unit of government, that it will help address the
issue of racial profiling in the State of Texas. How are we
funding this? The State grappled with this particular issue. We
sent out surveys in terms of the number of police agencies that
we have in the State of Texas and how many police cars would
need to be outfitted with these cameras, and needless to say,
we've gotten back probably about a 62 percent response from the
various police agencies.
The agencies reported that it was going to be in the
neighborhood of some $34 million. What we've done in the State
of Texas because we cannot accurately gauge how much it's going
to cost, we set aside through general obligation bonds about
$18 million in order to begin to address the issue. If law
enforcement agencies, some of which have already received
grants from the Federal Government, if those particular
agencies come to the Department of Public Safety, the agency
that will be responsible for providing vouchers and grants, and
make a good faith effort in terms of applying for the audio-
visual equipment, then--and if some particular reason we don't
have the funds in order to accommodate those entities, then
what we will do is provide them an exemption until the State
has put up the necessary funds for purposes of providing that
particular equipment.
It is my hope and desire that this noble body will also
look at the issue and provide the necessary funding to deal
with the issue of racial profiling.
Mr. Barr. Thank you very much, Senator. Senator Duncan,
you're recognized for 5 minutes, sir.
Mr. Duncan. Thank you. I appreciate the opportunity to be
here. I think one of the reasons I was asked to come here was
to comment a little bit on how we developed a bipartisan
support for this legislation in the State of Texas. I think it
and, very briefly, I think what happened there was, No. 1, you
have to have leadership on any issue. I think Senator West did
an outstanding job of bringing the issue forward. I think that
he was assisted by a lot of folks. One of those was President
Bush. President Bush came forward, Attorney General Ashcroft
came forward, I believe, with this leadership on this issue and
stated that racial profiling should not be tolerated in this
country, and I think Republicans generally in the State of
Texas and others do believe that there is really no
conservative principle that can support prolonging or assisting
racial profiling by allowing it to continue to occur, not
recognizing that it may occur.
So we worked with Senator West and I think Senator West
addressed the Republican caucus in the State of Texas, Senate
of Texas. We worked with Senator West because we know he has
the ability to pull people together. He did. He pulled together
the law enforcement community, I think, on this issue, which
was a key to that. The concern that we had was that we did not
want this legislation to be more or less a Trojan horse for
litigation under 42 U.S.C. Section 1983. We felt that under the
Monnell decision there were some protections that needed to be
preserved and we didn't need to have loopholes or provide
continued or expansion of litigation perhaps with regard to the
collection of data, and so we worked with Senator West.
We believe that the camera was the key to be able to
balance that. We provided in there that the collection of data,
there is collection of data in this bill by everyone. It
changes, if you have the cameras; the level and the type of
data that you collect is different. If you don't have cameras,
you have to get very specific with all data and the data that
you collect is on all stops, traffic or pedestrian. If you do
not, if you have the cameras and the collection requirement is
simply on citations and arrest and it's basically whether the
person consented, the race ethnicity, and then whether or not
they were searched and whether they consented to the search,
and that's basically all you report. We felt like the cameras
were a good compromise. That was Senator West's idea, and I
think that the cameras provide law enforcement functions. They
provide protection functions. They are deterrent, they provide
a deterrent element to this, and we felt like it was a good
investment.
Like Senator West, I believe that the States should
participate in assisting municipalities in acquiring this
technology. I think that it would also be helpful if the
Federal Government should assist the States and the
municipalities as well to make this a partnership because it is
expensive, but it is a good law enforcement tool and it
protects the rights of our citizens. I believe it prevents
racial profiling, will help prevent it, which is what we really
want to do, and then I do believe it provides a lot of other
law enforcement functions separate and apart from racial
profiling.
So that basically wraps up pretty much where I am on this,
and I appreciate the opportunity to work with Senator West on
this issue.
Mr. Barr. Thank you, Senator. Colonel Dunbar, we are happy
to have you with us today and you are recognized for 5 minutes
for an opening statement.
Mr. Dunbar. Thank you very much. First, let me just mention
to Senators Duncan and West that I think you're certainly
taking the right road and if there's anything that we can do to
assist you, we've been in this about 3 years, we'd be more than
happy to work with you.
The New Jersey State Police I think has the largest fleet
of in-car cameras in the country and we've had that. Virtually
every one of our patrol vehicles has had a camera in it going
back to 1998. I have over 23 years of experience in special
agent of the Federal Bureau of Investigation. Prior to becoming
special agent I served for 4 years as a New Jersey State
trooper. In 1999 I was asked by Governor Whitman of New Jersey
to assume command of the New Jersey State Police, an agency of
just under 4,000 personnel, which has 120 different law
enforcement functions. At the time of my appointment the New
Jersey State Police had been at the epicenter of an issue
involving racial profiling. The Attorney General of New Jersey
issued the interim final reports on the State police that
raised very serious questions regarding the organization. In
addition, the minority caucus of the State legislatures held
hearings regarding the State police initiative, very critical
report.
In December 1999, the New Jersey State Police signed a
consent decree with the U.S. Department of Justice which is
scheduled to last for 5 years. An independent Federal monitor
has been appointed and has issued the first 4 of 22 expected
quarterly reports. Each of the reports have been very favorable
with the monitor stating that the New Jersey State Police have
in fact taken significant strides in reform. In fact, after
1\1/2\ years we are already over 70 percent compliant with the
final phase of compliance in the decree. The items still
outside the compliance are computerization of our management
systems to track personnel activities and behaviors. This
computerized system is expected to be deployed later this year.
When I assumed my responsibility, the need for strong
internal control, discipline and ability to assess how the job
was being done in the field was and is still paramount. It is
my position that no better tool exists for today's law
enforcement manager than the mobile video cameras, MVRs. There
is no doubt that my present task would have been much more
difficult without the MVR.
When I assumed my position, the media and the public
questioned how we performed our duties. There appeared almost
daily some question regarding our fairness in dealing with the
public. Complaints regarding field operations increased from
260 in 1998 to 350 in 1999, 580 in 2000 and this year we're on
a pace that we would have 800 complaints. Complaints come from
individuals of all colors and stations of life. By consent
decree we must thoroughly investigate each of these complaints
and must make the findings of our investigations available to a
Federal monitor. This has and will continue to be done. Without
the video cameras I would not have been able to demonstrate
that the vast majority of complaints received by the State
police are unfounded and in some cases brought about by
opportunists.
You will see such a video today that is common in our
complaint cycle. When complaining as a professional who has
written a very convincing letter alleged--that I received and
read within weeks of my assuming office--a letter that based
upon the individual's background and the fact that it was
notarized would have led me to have serious questions regarding
the conduct of the trooper involved, yet you will clearly see
that the trooper involved in this motor vehicle stop had every
reason to stop the vehicle and conduct themselves in a
professional manner.
When mobile video recorders were first introduced, there
were those that resisted them. Today we have troopers that will
not go on patrol without them. My personal view of hundreds of
videos has truly been an education. I have found individuals
who have absolutely no basis for their complaints, yet they use
the complaint process as a means to strike back at a trooper
who is trying to do his or her job.
We receive telephone calls where the complainant states he
or she will drop charges if the summons issued is dismissed. In
one case a complainant stated that he was an aggressive driver
and that he'd drove hard. He went on to state that the first
time the trooper pulled in front of him, he tried to go around
him and then the trooper continued to try to pull him over.
On the other hand, we have also seen troopers who have been
rude, have lost their composure and in several occasions have
conducted themselves in a manner that is a serious violation of
our rules and regulations. At the present I believe that less
than 10 percent of our complaints have real merit.
MVRs are also an important tool in training. We have
uncovered countless training issues that we can then use in our
teaching sessions. One of the issues of recent note is that
troopers may engage in conduct that they are not aware of. We
have used the videotapes as spot training for individual
troopers. We are also using both good and bad tapes for in-
service and recruit training.
MVRs do bring with them costs for agencies and many
additional legal issues. We will be storing over 50,000 tapes
per year. We anticipate that we will have an ongoing inventory
of over 400,000 tapes. We are spending in excess of $500,000
for new storage facilities. We have had to create new video
camera policies, hire new staff. We are working on discovery
issues as they pertain to tapes and addressing a variety of
technical issues. We are now exploring the relocation of video
cameras from within the vehicle to roof lights.
Now, after 3 years we are still seeing that most of our
video cameras will not last in the field for longer than 3
years. These cameras cost in excess of $3,000 each. At present,
the technology requires minute for minute duplication. This is
a very time consuming prospect. We have technical difficulties
with microphones and video cameras themselves.
When I began my assignment with the State police there was
a major concern that cameras would not be used in the manner
required. We consider this to be a serious breach of
responsibility. Our legislature is pursuing possible criminal
violations for tampering with video cameras and I support this.
We require an officer to initiate the camera prior to the stop
and continue to operate the camera until the stop is concluded.
This includes activating a microphone during this entire
period. We are now directing that whenever possible the video
camera be activated to observe the actual violation. This is
not practical in every case. However, it helps greatly in
resolving complaints, as you will see in the video that will be
shown.
In addition to our MVRs, we are an agency that is also
heavily involved in data collection. This is a component of our
consent decree. Data collection will also provide management
with additional insight into field operations. However, while I
do not fear data collection, I've already seen it misused. The
ability to collect data, to see exactly what officers are doing
and to get an up to the minute review is every administrator's
dream. At the same time, the very data can be used out of
context and lead to wrong conclusions. It has been said, and I
agree, that one can make data appear to support any side of an
issue.
I have spoken to the State police and provincial police
section of the International Association for Chiefs of Police.
Their position is that they support voluntary data collection,
but we agree that MVRs will contribute more to resolving
today's law enforcement issues. As was stated by the Department
of Justice, where MVRs were needed, last year $12 million were
made available and this year only $3 million have been made
available.
As you move forward in this area, I ask that you give
strong consideration to providing Federal support and funding
additional mobile video recorders. In my discussions with other
law enforcement leaders, I know that they are very interested
in obtaining more MVRs, but the cost of the units will require
years of supplemental budgets to fully integrate them into the
field.
Last year the Department of Justice, as I said, made
available--I thought it was $10 million for purchase of video
cameras. This tool is extremely important for both officer
safety and professional policing, and it should be a top
priority of the Federal Government. If the general public knows
that both they and the officer are being monitored, it will
strengthen their confidence in the way the law enforcement
works.
As a law enforcement leader, it is always my hope that when
an individual does not perform in the way he or she should that
the individual's behavior can be changed. Make no mistake,
changing behavior is no easy task. However, with the MVR if you
cannot change the behavior, you can at least modify it, and
that is the first step in ensuring that our police force
protects the rights of all our citizens.
My understanding is that you want to show the videotape.
The videotape that we're going to be viewing is a stop that
took place in 1999. It took place on the New Jersey Turnpike.
The trooper is in an unmarked car operating the video. You will
see on the lefthand side of the screen there's a black vehicle
on the far side. Now this is the New Jersey Turnpike, so I
guarantee you that the vehicles there are not going 55 miles an
hour. The chances are they're probably all doing 70, and I give
you that speed because the comparison is the black Mercedes. I
believe that is on the side of the road. You will get a closer
shot. I'll also note that this videotape has been edited to
delete the time it took the trooper to issue the summons.
We did provide the committee with a full copy of this, so
it's not edited to hide anything. The individual that is
driving that vehicle has indicated by letter to my office that
he was a retired military officer and a principal in a school.
He submitted a written letter which was notarized saying that
the trooper stopped him, the trooper spat on him, that there
was no basis for the stop. And I think the video pretty much
will speak for itself.
The actual clock, what he's doing now is pacing the vehicle
and the pace of the vehicle reaches up to 92 miles per hour.
This section of the highway is a six-lane section. The troop
vehicle which will now be shifting over the car portion is
actually operating in the truck portion of the vehicle--of the
roadway. Now, from a profiling point of view, as you can see,
it's very difficult to see who the occupants of the vehicle are
at this point because he's behind the vehicle, and he has
already made the decision when he switches over the other side
of the highway. This is one of the breaks in the roadway here.
I'll also have you notice when a vehicle is pulled over you
will notice there's a very dangerous procedure, there's almost
a collision that takes place at the time that the vehicle pulls
over. By now the trooper had determined that he's going to make
the stop, and again, it's very difficult to see who the driver
of the vehicle is.
Now, I don't know, will they have the sound up high on
this?
As you watch as he pulls over, the vehicle parks this way.
Because on the New Jersey Turnpike our troopers never approach
the vehicle on the driver's side of the vehicle because we've
lost more troopers like that than we have lost to gunfire. So
the trooper will always blade his car halfway between the
roadway and the vehicle and then will approach from the
passenger side of the vehicle for the trooper's own safety.
Sometimes the trooper will get out of the vehicle and walk in
between the two cars. Other times the trooper will go behind
the vehicle and approach completely on the passenger side of
the vehicle.
For privacy's sake we've edited out the license plate of
the vehicle and we've also edited out the name of the trooper,
and again, if you look at the vehicle here, I think you should
be able to see that you really can't tell who was in the
vehicle. There are two passengers in there and--the passenger
and a driver, I should say.
The M indicates that the microphone has come on. Our policy
in New Jersey, and this is an important policy, the microphone.
[Video playing.]
Mr. Dunbar. The driver is saying he's sorry he knows he was
speeding and he was in a hurry to get someplace.
What he's saying there is since I have a perfect driving
record is it possible that I can get a warning. Now is the
point where we edit the film, you will see the time jump from
957 to 1010.
Now, we elected actually to prosecute this individual
because he had notarized the letter, and in fact I've
liberalized the policy on prosecution. For the first year we
limited the prosecutions to only five people because you had to
do something extra. I did not want to show complaints, but this
is one of the ones we did in fact prosecute. He was found--
actually pled guilty and received, I think, a 30-day, 30-day
community service and $400 fine for his actions.
I would note for the Senators that one of the things that
we found extremely important is that the troopers were very
reluctant to turn off their microphones in their vehicle. We
mandate that from the time the stop begins and the time the
stop ends that the camera and microphone must be on. There's
too much that's missed in between and it leads to tremendous
amount of suspicion, and that was one more of the difficult
things to overcome. But we hold very strongly to the policy of
activating the camera and issues of tampering with cameras and
things like that.
Mr. Shays [presiding]. Thank you, Colonel. Very helpful
testimony and the film was very informative.
Mr. Finnegan.
Mr. Finnegan. Thank you for inviting me here to testify. My
name is Mark Finnegan and I have been certified by the Federal
Court as the attorney for a class of all Latino motorists and
passengers driving in the State of Ohio. I've submitted written
testimony which is already before the counsel, and I've been
asked to narrate a videotape. I wanted to say a couple of
things of introduction for the tape and then it's a very short
tape.
In Ohio what our lawsuit has shown and what the Federal
Court has ruled is that in Ohio every year thousands of people
are stopped during routine traffic stops in the State of Ohio
by the Ohio State Highway Patrol and although the Ohio State
Highway Patrol does not enforce Federal immigration law and
does not give its troopers any substantive immigration law,
thousands of people every year are interrogated and held for
additional questioning on the issue of their immigration
status.
What our lawsuit said and what the judge agreed was because
the Ohio State Highway Patrol troopers have no training in
immigration law and don't really understand how it works, they
use as the sole reason for questioning people their Hispanic
appearance. In this room, if any of you happened to be driving
through the State of Ohio and got stopped, most of you would
not be asked about your immigration status, including me. When
I ask troopers under oath, including the troopers involved in
the stop on the videotape, if they would demand to see my green
card, one of the troopers said you being you or you being
Hispanic, and another trooper said of course not because you're
a White man.
But then when we asked the troopers why are you asking
certain people for immigration cards, they knew better than to
say because they look like Mexicans to me. So they would say
one of two things and they said this under oath. No. 1, the
motorist and passengers acted in some way that was suspicious
to me, that made me think they were here without papers and,
No. 2, oh, it was completely consensual, we were just chatting
about their immigration status that I know gladly told me
everything I wanted to know.
In the case that triggered the lawsuit, the situation, a
middle-aged couple with permanent resident alien cards which
were completely legitimate were stopped by Highway Patrol
troopers for having a burned out parking light even though it
was 1:30 p.m. on Sunday, but it was true they were driving with
their parking lights and one of them was burned out. They
weren't given a ticket and there's no record of their stop. But
they both had their green cards confiscated and the Highway
Patrol refused to give them a receipt for the green cards,
refused to explain to them why they were taking the card,
refused to tell them how to get the cards back. That's what
triggered the lawsuit.
This videotape was part of the evidence in the lawsuit and,
like I say, because the couple that was initially stopped,
there was no record of any sort of them having been stopped,
this is a videotape of a different stop. But it involves Latino
drivers and passengers and it involves the exact same troopers
in a stop that triggered the lawsuit.
In the course of the lawsuit the Highway Patrol admitted
under oath that it is routine for them when they stop people
who appear to be Latino that they start interrogating them
about immigration status and even if you're a Puerto Rican and
automatically a U.S. citizen if you fail to produce a green
card you will be held for additional questioning and the Border
Patrol will be called. They will ask you the question, did you
pay for your green card? Anyone who knows anything about
immigration law knows that there is an application fee for a
green card. Also, you usually have to hire an attorney to get
one. You have to pay notaries, you have to pay all sorts of
document fees. So of course the honest answer is yes, I paid
for green card. Troopers repeatedly testified under oath that
an answer that you paid for your green card made you suspicious
and was grounds for your card to be confiscated and destroyed.
Now, the Federal Court agreed with us, specifically found
that this was not consensual questioning about immigration
status, that it was coercive by nature, and ordered the Highway
Patrol to stop questioning people about immigration status
based solely upon their appearance and also stop seizing
lawfully issued green cards. The Highway Patrol appealed that
decision and it's currently pending before the Sixth Circuit
Court of Appeals in Cincinnati.
Now today's videotape, like I say, involves a different set
of motorists, but what it will show, and it shows it relatively
quickly, is that the Chevy Suburban was pulled over for
changing lanes without a signal, although that doesn't show up
in the videotape, and that when the trooper approached and
asked to see the driver's license it was readily given but then
for some reason the trooper demanded to see the driver's
license of both passengers in the vehicle, which were readily
given. Then the trooper asked to see the registration of the
vehicle, which was readily given and is valid, as are all three
of the driver's licenses. The trooper turns from the car and
radios in the three California driver's licenses but for some
reason then turns on his heel and comes back and demands to see
the three people's green cards, and that's what the tape shows.
When I confronted the troopers with this videotape during
their deposition, they said I don't remember, I make so many
stops. I don't remember why I demanded to see the green card
but it was because the people in the vehicle were acting
suspiciously.
Well, the videotape I think is helpful and the court found
it was helpful to see whether there was suspicious activity
going on.
[Video played.]
Mr. Finnegan. See, in this tape we have no idea why the
stop was made.
[The prepared statement of Mr. Finnegan follows:]
[GRAPHIC] [TIFF OMITTED] T7191.037
[GRAPHIC] [TIFF OMITTED] T7191.038
[GRAPHIC] [TIFF OMITTED] T7191.039
[GRAPHIC] [TIFF OMITTED] T7191.040
[GRAPHIC] [TIFF OMITTED] T7191.041
Mr. Shays. Thank you. Mr. Wilkins.
Mr. Wilkins. Thank you, Mr. Chairman. Thank you, Mr. Chair,
and I thank Chairman Burton, in his absence and Congressman
Cummings also in his absence, for their leadership in having
this hearing, and as well as the entire committee for your
interest in this issue.
I'm going to just try to briefly discuss what happened in
my particular circumstance and lawsuit and then get to, right
to the issue of what I see as the benefits, but also the
limitations of audio-visual technology in addressing racial
profiling.
Unfortunately, I am a victim of racial profiling. I was
with my cousin and my uncle and his wife when we were returning
from my grandfather's funeral when we were driving through
western Maryland and stopped by the Maryland State Police
allegedly for speeding, but rather than just writing a speeding
ticket, the trooper demanded that we sign a consent to search
form allowing him to search our rental car for drugs or
weapons. When I explained to the trooper that--as well as my
cousin, who was the driver--that we did not wish to consent,
his response was, well, if you've got nothing to hide then
what's your problem and this is routine, nobody ever objects
and basically that there was some sort of problem or that we
were suspicious or trouble because we weren't willing to
consent to this search.
And when we wouldn't consent, he said that we would have to
wait for a drug sniffing dog to be brought to the scene and I
told him the name and date of the U.S. Supreme Court case that
said that he couldn't do that, but none of that seemed to
matter to this trooper, who responded that this was routine.
And he knew that I was a lawyer, and I told him that I was in
fact a public defender in Washington, DC. So I knew exactly
what his rights were and our rights were, but none of this
mattered because he said they were having problems with rental
cars and drugs and therefore they were going to have to take
this action.
And indeed they did force us to wait for the dog to come
and we had to stand outside of our car in the rain as this
German shepherd climbed all over and on top of and under our
car sniffing for drugs that weren't there.
We sued and learned that the Maryland State Police had
actually issued an intelligence bulletin, which is appended to
my testimony, that directed their troopers to be on the lookout
for Black males in rental cars from Virginia traveling through
that area early in the morning and late at night because they
were likely to be drug traffickers, and so in our case we
actually had a smoking gun and we actually had the trooper's
statements that they were concerned with rental cars and drugs
that we could link to that smoking gun, and that gave us some
leverage in dealing with the Maryland State Police as far as
being able to make a case that they were engaging in a pattern
and practice of racial discrimination.
We used that leverage to extract a settlement that not only
included new nondiscrimination policy and training, but also
data collection on who was being stopped and searched and for
what reasons and the race of the people being stopped and
searched. And with that data being available to us for several
years so that we could monitor that along with the Federal
Court and see how they were doing with combating racial
profiling, unfortunately that data showed that the problem was
persisting. And there's more information about that in my
written testimony, but suffice it to say the data showed that
when the Maryland State Police searched the hundred Whites and
the hundred Blacks they were just as likely to find drugs or
contraband. The problem is that for every 100 Whites they were
searching they were searching 400 or 500 Blacks, and so it was
anything but equal justice under law and there was no real
reasonable explanation whatsoever for that disparity. And
unfortunately those disparities continue till today, though not
quite at as high a level.
So to get to audio-visual technology, I think that audio-
visual technology would have been helpful had it existed in
1992, when we were stopped by the Maryland State Police,
because we unfortunately were in a situation where it was going
to be our word against this trooper's about what happened and
what we said and whether we were behaving suspiciously.
And I have appended to my testimony not only the settlement
agreement, but also the report that the trooper wrote after we
notified the Maryland State Police that we intended to sue, and
the report had some very important falsehoods in it that were
designed to show that we were more suspicious than we really
were and that he was more considerate of our rights than he
really was and that we were agreeable to all of this detention
and drug sniffing dogs when in fact we weren't, and I did
everything I could in the most peaceful manner that I could to
protest what he was doing.
And so it's quite a powerless feeling when you're going
into a lawsuit and you know that it is your word against
someone else's and you don't know whether the jury is going to
believe you, even though you know that you're telling the
truth, and so I think that the audio-visual technology can help
diminish that imbalance of power that victims feel and provide
an independent third party witness. But it's not a panacea
because, as you can even see from the tapes that we reviewed,
you can't see everything and you can't hear everything during
the incident, and so it's not going to capture everything. Of
course, it will be helpful, but also the videotapes can't
really help you look at whether there are patterns and
practices the way that you can if you have data collection
because you can't look at every single videotape as a police
department manager and you can't really use the tapes as a
substitute for data that will show you trends in certain areas
or with certain officers.
And so while I'm encouraged by this hearing and encouraged
that you're interested in supporting in whatever ways you can
the expansion of audio-visual technology, I still think that
you need to support and consider legislation such as
Congressman Conyers' legislation and legislation that
Congresswoman Norton mentioned earlier today, because
ultimately you need to take more strong steps and proactive
steps, and I think that the loss of Federal funding is a good
incentive to encourage the State and local jurisdictions to be
proactive.
Thank you.
[The prepared statement of Mr. Wilkins follows:]
[GRAPHIC] [TIFF OMITTED] T7191.042
[GRAPHIC] [TIFF OMITTED] T7191.043
[GRAPHIC] [TIFF OMITTED] T7191.044
[GRAPHIC] [TIFF OMITTED] T7191.045
[GRAPHIC] [TIFF OMITTED] T7191.046
[GRAPHIC] [TIFF OMITTED] T7191.047
[GRAPHIC] [TIFF OMITTED] T7191.048
[GRAPHIC] [TIFF OMITTED] T7191.049
[GRAPHIC] [TIFF OMITTED] T7191.050
[GRAPHIC] [TIFF OMITTED] T7191.051
[GRAPHIC] [TIFF OMITTED] T7191.052
[GRAPHIC] [TIFF OMITTED] T7191.053
[GRAPHIC] [TIFF OMITTED] T7191.054
[GRAPHIC] [TIFF OMITTED] T7191.055
Mr. Shays. Thank you, Mr. Wilkins. I thank all of you. I
apologize to my two colleagues in the elected side of our, of
this panel for missing your testimony. I'd like to just read a
comment that Sherman would have made had he been here to you,
Senator West, saying I personally want to congratulate you for
your hard work to combat racial profiling in Texas and for the
bipartisan effort that resulted in the passage of a new Texas
law that prohibits racial profiling. And also Senator Duncan,
he said I also salute you and other Texas Republicans' efforts
to work in a bipartisan fashion to enact the Texas racial
profiling law.
I think you described it in some measure. I would like
either of you to just tell me, was this something where both
parties had consensus on or was there a bit of struggle at
first? Was this, for instance--Mr. Duncan, did you have to be
persuaded over time or did you--were you aware of this problem
originally? I would imagine, for instance, Mr. West being, I
assume, an African American, that you would have been more
aware of this kind of problem and so, Mr. Duncan, maybe both of
you could just respond from your own perspectives as to how you
did this.
Mr. Duncan. I think Senator West does an excellent job in
the Texas Senate of raising issues like this, that while those
of us who are not of African American descent or Hispanic
descent may not have those personal experiences or have our
constituents talking to us, he was more aware of it. He made
this issue aware or made our caucus aware of this in the Texas
Senate, continued to pull all of the law enforcement groups
together. They worked with--including the Associations of the
Chiefs of Police, and I think whenever he was able to develop
that undercurrent or the grassroots sort of support from those
associations, he got the attention of a lot of members who
normally wouldn't be involved in that, proactively in that type
of an issue.
Mr. Shays. If you don't walk in that moccasin you don't
always know what it's like.
Mr. Duncan. That's right, or if you don't represent a
number of constituents who walk in those shoes. So it helps to
have someone like Senator West to bring the issue forward and
raise it to the level that he did. I think President Bush
helped and Attorney General Ashcroft whenever I think they took
a proactive staff. I know it did affect the members, the
Republican and more conservative members of the Texas Senate,
that this is not an issue that is--there is no conservative
principle that supports anything that perpetuates the practice
of racial profiling, and I think Senator West got that across.
Mr. Shays. Senator?
Mr. West. And might I add, this was an unusual session for
the Texas Legislature, and if I had to kind of sum up what we
did, we dealt with a lot of civil and individual rights this
session like none other before in the history as far as I know.
I mean hate crimes passed in the State of Texas this time
around and also racial profiling. So did DNA that Senator
Duncan kind of led the effort on. So we had a whole host of
individual and civil rights bills that have been considered in
previous legislation but had never been passed and it was
passed this session, racial profiling being one of them.
Mr. Shays. Colonel Dunbar, Mr. Finnegan, this is really a
tremendous panel because we have people who help promulgate
very important law, we have both of you who can explain two
sides of the benefit of the visual look at an arrest or, excuse
me, a question, a stop issue, and, Mr. Wilkins, to have you as
someone who has gone through it from the side of being truly a
victim of it. I thank all of you for that contribution.
Colonel, I would think and, Mr. Finnegan as well, that if you
know you're an officer and you know you're on tape--they say it
sometimes on the floor of the House, Members act differently
when there's TV cameras on--I think they would act differently
but over time, and maybe I'll start with you, Mr. Finnegan, he
knew, the officer knew he was on tape, and did he not know he
was doing something wrong or did he just forget the TV was on
or was it a combination of both? And maybe you can respond from
your perspective, Colonel, but first you, Mr. Finnegan.
Mr. Finnegan. Well, what was interesting I thought about
the tape was that the trooper goes up and announces that it's,
you know, you were paced slightly over the speed limit, and
that is a friendly warning, and yet there are five troopers
wandering around in the background. So we know that there was
something funny about the stop, and I thought a lot of the
troopers were trying to stay out of camera range.
Mr. Shays. I only thought there were three.
Mr. Finnegan. There were five as it turned out and a sixth
one showed up with the dog. That is what the questioning was
about. They were trying to hold them up, like with Mr. Wilkins,
until the dog got there. No, he really thought it was all right
if you saw someone with brown skin to start asking them about
immigration status, and he was the trooper that when I said
would you demand to see my green card, he said, you being you
or you being Hispanic--and the Highway Patrol actually had a
written policy still in effect that said if a person appears to
be in illegal status institute questioning about immigration.
And I said what do you mean ``appears,'' and some of the
troopers said they look like Mexicans, others said----
Mr. Shays. So the bottom line point is that whether they
evolved into this practice they really weren't as aware as you
would think they would be that maybe they were over the line.
Mr. Finnegan. That's right, they thought they were doing
the right thing.
Mr. Shays. So it tells me there's a value in just having
this because I would think--which gets me to you, Colonel. I
would think that supervisors would periodically look at these
and maybe at random, and I would think you would be able to
improve the practices of your officers in the process of also
protecting them and the citizens.
Mr. Dunbar. Well, first of all, we do have a policy that
supervisors have to review tapes. Actually we review tapes on
three different levels. We have a supervisor reviewing the
tape, we have an inspection staff that comes in and reviews the
tapes, and we have an office within the Attorney General's
Office called the Office of State Police Affairs that comes in
and reviews the tapes. Unfortunately, I think what Mr. Finnegan
says is correct, that what ends up happening is that for
whatever reasons practices begin and they're unacceptable
practices.
I've seen tapes somewhat similar to this where the
individual believes that they're doing the job. In fact, we
teach what's called noble cause corruption, and what noble
cause corruption means is that the ends--the means justifies
the ends, and that's something that we are trying to get away
from. People will ask and I've seen--well, in New Jersey we've
had a series of Supreme Court decisions that limit checks as
far as, you know, lost driver's license and so on, but this,
Mr. Finnegan's tape, is an issue that we are looking at in New
Jersey. That I have seen, and it is a--I think you made an
interesting observation when you asked a question of, you know,
you would think, well, you know, the reality of it is if a
person doesn't believe or know what he or she is doing wrong is
wrong, that's what--you end up with problems, I think, as was
shown on that tape.
Mr. Shays. Let me ask one last question and then I don't
know if Mr. Barr, if you have some questions you'd like to ask.
Mr. Wilkins, in the work that you have done, and maybe others
could answer as well, is it conceivable that even an African
American might get caught up in racial profiling against
another African American? Is that something that can happen as
well? I mean, would that ever be in your experience, Senator
West or Mr. Wilkins, or is it almost always 99 percent of the
time a Caucasian would do that.
Mr. Dunbar. There's actually a Justice Department study
that was done by the Bureau of Statistics that actually points
that out. There's really no difference between African
Americans and non-African Americans in relationships with the
public. So from my point of view, I think it's very possible.
Mr. Wilkins. Yeah, I think that it's definitely conceivable
and it definitely happens that African American and other
police officers of color can engage in these practices because
I think that the practices themselves just mirror invalid and
erroneous and illegal stereotypes and part of just American
culture, and so you can't expect police officers or troopers to
really be immune from it no matter what the color of their skin
is. I do think in some occasions that some of the
whistleblowers and the police officers and the troopers that
have come forth to try to help address problems have been
African American and other minority ethnic and racial groups,
and so I think that there is sometimes more of a sensitivity by
some of those troopers, but they can definitely get caught up
in the same problem.
Mr. Shays. I can't imagine almost anything scarier than to
think that you can be in a society where you have laws and you
realize how protected you feel from them, but not feel they
wouldn't be administered fairly and equitably and it has to be,
you used the word ``powerless'' and that's--but you have to
feel even worse than powerless, you have to feel
extraordinarily vulnerable and it must be very scary and it
must, I can even think, it's a hard word to describe. I think
it would be scary as hell, frankly.
But we, for some reason I guess, divided each panel into
half an hour slots and I have ended up taking 10 minutes. I
don't know if we each should go for 10 minutes and if you would
like to jump in or how you'd like me to proceed. Why don't you
go for 10 minutes?
Mrs. Maloney of New York. Thank you very much and, first of
all, I want to comment that my colleague Elijah Cummings worked
very, very hard to have this hearing, and I appreciate the
chairman for holding it and we're trying to locate him. He has
a conflict with another meeting that he has to be part of, but
he wants to get back to questions, and thank you and
particularly, Senators West and Duncan, thank you for your
testimony and your hard work to enact this law. I hope I have
time to hear from you about your reactions to the Conyers law
that is similar to yours, and I particularly want to hear how
the exemption provisions work in your legislation.
But first I'd like to really talk to Mr. Wilkins and thank
him for coming forward with his personal experience and for
your hard work really to reach a settlement that helps people,
and part of your settlement was that the police are required to
collect data on traffic stops, correct, and why do you think
that data collection is such an important tool for combating
racial profiling?
Mr. Wilkins. Well, I think that it's proven to be very
important in the State of Maryland because we had a situation
where our lawsuit got a lot of publicity. I mean it's not often
that you have a Harvard law graduate attorney who cites the
Supreme Court precedent to the trooper and still gets stopped
and then you get a smoking gun with a written racial profile
and all of that turns into a lawsuit. So there was a lot of
pressure on them and there was a lot of people watching how
they were going to react to this issue and these allegations,
and we reached a settlement and they adopted a new policy and
they trained every trooper as to that new policy and they
started gathering data, and they knew it was going to a Federal
judge and to the ACLU and to me and they knew that none of us
was going away, and yet with all of that, all of that attention
and pressure and everything else, we got this data that to this
day can't be explained on any other basis except that there
must be some discrimination going on in the Maryland State
Police because these disparities just can't be explained any
other way. And so if you have policies in place and people
being watched and it's still taking place, you know that this
is a pretty pervasive and a cultural and a problem that's going
to take a lot of management and attention, and you can't expect
that just putting some video cameras in cars or just adopting
new policies is going to eradicate it.
It's a problem that unfortunately is as endemic to policing
as racial discrimination is endemic to the culture of this
country, something that's going to take generations and lots of
hard work and special sensitivity to deal with.
And so that's why I think that the data collection is
important, because you would think that with all of that there
wouldn't be any problems in Maryland still today and yet there
are, just like you would think that with the video cameras in
the cars you wouldn't see troopers doing some of the things
that we see them doing. And so I think that you really need all
of these tools in your arsenal to try to fight this problem.
Mrs. Maloney of New York. What you're basically saying is
that you have to change attitudes?
Mr. Wilkins. Exactly.
Mrs. Maloney of New York. And it's a longer, harder road. I
am particularly sensitive not only to racial profiling against
minorities but also against women. Violence against women was
not treated seriously by many law enforcement officers and most
notably the attacks in Central Park, where many women reported
that they approached police officers and they wouldn't help
them when they had been mauled and attacked.
And so maybe we need more attention not only in audio-
visual technology and collecting data, but really in educating
attitudes in our society and, Colonel Dunbar, you testified
that in some cases audio-visual technology can be used to
exonerate police officers that have been wrongly accused of
racial profiling. Protecting innocent police officers from
false accusation is very important, but do you agree that
racial profiling does exist?
Mr. Dunbar. Yes.
Mrs. Maloney of New York. And wouldn't you agree that in
order to deal with the problem of profiling we need to
understand the scope and severity of the problem and that
requiring data collection is a way to do that?
Mr. Dunbar. I think actually everything that Mr. Wilkins
said is right on the money, that it is a very complex issue and
what people are looking for is a quick fix. Mr. Wilkins talked
about generations. I mean, unfortunately, I think, and I think
you used the term ``attitudes,'' it is about changing
attitudes. It is about changing policing and the thing that
we've adopted in the State police is that we will do our job
constitutionally and with compassion, and I go out and I sell
that every single day. It is data collection, it is the video
cameras, it is training and it is supervision on a daily basis.
Mrs. Maloney of New York. Do you believe you need both data
collection and the videos or could you have one or the other?
Mr. Dunbar. No, I think it's beyond that. I think you need
data collection, I think you need the video, and I think you
need constant training and supervision. People are looking for
a quick fix. There is no quick fix to this.
Mrs. Maloney of New York. I agree, I agree. I know I, along
with many women, we went to the police department after these
assaults in Central Park, and I believe that New York's police
officers are the bravest in the world. They're not afraid of
anything. That's why they're police officers. They're there to
protect people, but for some reason some of them didn't think
that hitting or beating or stripping a woman was a crime, and
one officer made a comment to me that we can't change attitudes
and, you know, admitting that attitudes are a problem.
What is happening in the police field on attitudes, Mr.
Wilkins, Mr. Dunbar, Mr. Finnegan, anyone who would like to
comment? I agree with you, Mr. Wilkins and Colonel Dunbar, that
it's a deep problem that goes farther than videos and data
collection. It goes to attitudes of how you treat another
person.
Mr. Dunbar. One of the things I think I need to say, I
think there are a lot of police officers, probably the vast
majority, that do their job and they do the job professionally.
There are those individuals that don't. We are a reflection of
society. We have taken on the position that we have gone back,
and just as Mr. Wilkins talked about in Maryland, we've gone
back, and we have like almost a eight or nine-phase program
where we've gone back and trained all 3,000 troopers and made a
commitment to train all the new troopers coming in. We are
truly interested in changing our organization but the thing----
Mrs. Maloney of New York. Are you trying to change
attitudes?
Mr. Dunbar. Oh, absolutely.
Mrs. Maloney of New York. Because training is training. You
do this, that, and the other, but are you also looking at
attitudes. How is policing affecting attitudes?
Mr. Dunbar. That is--it's one of those situations where you
find someone who does something wrong, one of the things I have
stressed since I've been on the job in Internal Affairs, and
the basis there is if you're doing something wrong you're going
to get punished, and my contention is that if people know
they're going to be punished for doing something wrong----
Mrs. Maloney of New York. Some people may not think they're
doing wrong.
Mr. Dunbar. Well, whether you think or you don't think it
doesn't make any difference because if you are doing it wrong,
as I think was the case in Mr. Finnegan's situation, you're
going to be found wrong by somebody, and that is part of
changing the attitude, getting them to understand that what
they were doing is not acceptable.
Mrs. Maloney of New York. I will say that I have been
stopped twice in my life, just I don't know why, and I guess
just routinely to check if you have a license or a registration
or your inspection card, and I gave it to them and I said thank
you very much and I went on. So it's routine to stop people
just to check if they have a license, I guess.
Mr. Dunbar. Well, that's one of the things you can do, but
the issue as you said, the issues of changing attitudes is no
small, no small feat. In fact, I said in my opening statement
that my philosophy is that if I can't change behavior I want to
at least modify it. And you talked about violence toward women.
If you take a look especially in New Jersey at what's happened
with domestic violence laws, there's been a radical change from
the seventies to where we are now, where it used to be no one
ever got arrested. Now if there's a domestic incident in New
Jersey, you're going to be arrested and there's a change of
policy and a change of attitude.
Mrs. Maloney of New York. I agree, it used to be you beat
up a stranger on the street you get arrested and you beat up
your wife and they say it's a domestic problem, and I applaud
New Jersey and New York that have made tremendous strides in
domestic violence and other areas, not enough, but tremendous
strides.
How has the early warning program worked in addressing the
attitudes of the troops? You've started this early warning
program. Could you talk about that a little?
Mr. Dunbar. We have and we haven't. The early warning
program is actually in the trial stage. It actually goes on-
line the end of November. I think that is a key element that
when you talk about changing the attitudes, you can see things
where you get complaints about individuals. Even if you don't
substantiate, if you get the similar complaint you need to look
harder, and I think that's what the data collection issue goes
to, that if you see a pattern where a person is just stopping
certain people, stopping one sex as opposed to the other sex,
you need to be able to look at that, and my only fear with data
collection is that--as again as I said in my opening statement,
is that there is a tendency to make data appear to serve
whatever purpose and it really needs to be much more thought
out that this is the number, this is the end. It truly is more
complex and I mean, quite frankly, as I said before, I think
Mr. Wilkins had it right when he said that it is at least a
three-pronged data collection: Videos, attitudinal change,
training and so on.
Mrs. Maloney of New York. Well, my time is up. I want to
thank all of you, and really request that you look at Ranking
Member Cummings' legislation on racial profiling and give us
any comments you may have. And I just want to close not only by
thanking all of you for being really leaders in this field and
trying to address it and make it better for all Americans, and
I thank especially my colleague, Elijah Cummings, who has been
working on this since we came back into session, working to get
this hearing and working to move forward legislation. I want to
comment on his extraordinary leadership.
And thank you, Chris, for having the hearing, very, very
much.
Mr. Shays. Thank you. Mr. Burton, I know, has worked with
Mr. Cummings, and we do want to thank Mr. Cummings for having
this hearing. And, Mr. Barr, you have the floor.
Mr. Barr. Thank you very much, Mr. Chairman.
Colonel Dunbar, what is the cost that you-all have occurred
to install a camera in each cruiser?
Mr. Dunbar. The immediate cost is approximately--this was
just for the State police. The immediate cost was between $6
and $7 million.
Mr. Barr. No. For each camera.
Mr. Dunbar. For each----
Mr. Barr. What does it cost for each----
Mr. Dunbar. $3,000 per camera.
Mr. Barr. $3,000. Is there any significant upkeep cost to
it?
Mr. Dunbar. Yes. We have to--not only the additional tapes
that we buy, but then the storage of the tapes, we're committed
to keeping them--I think it's for 60 months, if I'm not
mistaken. We have a repair contract that costs us several
hundred thousand dollars. We also have now had to create a unit
to collect the tapes, store the tapes, make the tapes available
for discovery. It is no cheap deal.
The State of New Jersey, initially I had spoken to the
former Governor, and a bill was passed for $10 million for
local municipalities. But this is an area--and I will tell you,
Mr. Barr, in talking to the other superintendents, this is an
area that all of us would be very, very desirous of having some
help from the Federal Government in the purchase of this
equipment.
Mr. Barr. Would you--and I know there are a lot of
different needs that you all have, and we're all trying to do
our best to help meet those needs within the balance of both
our budgetary and jurisdictional concerns. Would you place this
fairly high up on the priority list in terms of assistance that
might be provided by the Congress?
Mr. Dunbar. Yes. Yes, I would. And I'll tell you why. I
don't think you had a chance to see the video but----
Mr. Barr. I did.
Mr. Dunbar. OK. What's transpired is that we're receiving
numerous false complaints, and they do a couple of things. They
tie up my Internal Affairs investigators so we can't
concentrate on the complaints that are there and that are
valid. That's a downside. I think that this issue of racial
profiling--in fact I call it biased-based policing as opposed
to racial profiling, because it really goes beyond racial
profiling. It's a national issue and it's something that's
eroding confidence in the police, and we have to have that
confidence back. And I just think that the video camera right
now--while I don't believe in quick fixes, I think video
cameras is in fact somewhat of a quick fix because it allows
people like myself to really see what was going on. And I for
one am not hesitant in disciplining my personnel if they're
doing something wrong. I also want to stand by them if they're
doing the right thing.
And, you know, in my agency, there was resistance when we
first fielded them. Now there are troopers who will not go out
on patrol without them. And one of the things that we have done
in our organization is that I have made it a paramount issue
that manipulating that camera or playing with that camera will
get you in serious trouble. But I think this is a major issue
for--it's such--such a major issue that I went to our Governor,
our former Governor, and asked her to give 24 of our vehicles
to two of our cities that did not have them and couldn't afford
them, just so they could see how good a tool they are.
Mr. Barr. What has been the reaction from outside groups,
some of the groups that the Senators in Texas have worked with?
ACLU, the NAACP, other citizens groups, have they been
supportive?
Mr. Dunbar. We have not heard on the legal aspect of this,
and there are some States that prevent you from doing
recordings and so on. But by and large, I think that the ACLU
and the NAACP are more concerned about the issues of profiling,
and anything that can be done is looked upon favorably, and
probably Mr. Wilkins would be in a better position to answer
than I.
Mr. Wilkins. Well, in Maryland we--``we'' meaning working
with the ACLU and the NAACP--have asked as a remedy for a court
order for videotapes to be placed in cars. And that's something
where we agree with the Maryland State Police, not on the court
order, but they want the videotapes as well. It's just a matter
of cost for them. So it's something that we all agree would be
beneficial. We are all on the same page there.
Mr. Barr. In terms of protecting the privacy of the
individuals, do you have a mechanism in place? Obviously every
person that's stopped isn't cited, every person isn't arrested;
yet there is a record of them having been stopped. What
mechanism do you have in place to protect the privacy of the
individuals?
Mr. Dunbar. Well, you want to have a record, I think, of
the stop, and you want to have the most complete record of the
stop. We don't release the tapes. There is some issue that, you
know, for example, I think Pennsylvania is one of those States
where you're not allowed to record an individual without their
consent. We don't have that problem in New Jersey. As long as
the trooper's there, there is no expectation of privacy.
We have also explored the possibility of actually putting
up signs on the interstates that--similar to radar being used--
cars use videotapes. And the reason we want to do that is we
want people to know that they are in fact being videotaped. I
just think that we live in a very aggressive--one of the things
that review--and I review a lot of tapes, and one of the things
that I've seen is that we live in a very aggressive society. We
have road rage. We have a bunch of individuals that are very,
very impatient. And I think that the public, knowing that their
actions are going to be recorded, will possibly dissipate bad
behavior on both parts. But as far as privacy issues, we've not
really run into any of them.
Mr. Barr. If I could, Mr. Chairman, ask the two Senators
from Texas that same question in terms of protecting the
privacy of individuals who might, or whose car might appear on
those tapes. Obviously if they're used in a court proceeding,
the information has to be disclosed; but for other purposes, is
there a mechanism in place in Texas to protect the privacy of
these tapes and the information on them?
Mr. West. The issue of privacy never came up during our
deliberation, Mr. Barr. I believe that from a constitutional
standpoint, at least from my study of the criminal law, that
when you're driving a vehicle, it's a privilege, No. 1; and,
No. 2, when you're driving on the highways and byways of a
State of this country, that you give up a certain amount of
privacy as it relates to your operation of that motor vehicle--
--
Mr. Barr. I'm really talking about dissemination of the
tapes. For example, I don't know what the statistics would be,
but as I mentioned before, every car that's stopped does not
result in an arrest or citation. I presume most of them do
because the reason they're being stopped is because there's
probable cause that the officer presumably can establish. But
if you have an individual, and for purposes of court
proceedings that tape is never introduced in evidence, it's not
used in a court proceeding, can the public have access to
those, or somebody that just might have some interest in
saying, hey, I'd like to see who was stopped out there and try
to make an issue out of it?
Mr. West. In our bill we did a couple of things. No. 1, as
it relates to the tape itself, it's on file for 90 days. I
believe that it is in fact subject to public disclosure,
whether it's the person that's driving the car, or--not as a
result of the police officer stopping the car--as a result of
constitutional law where you have to give up a certain amount
of freedom in order to exercise that particular privilege, that
it would in fact be subject to an open records request.
Mr. Dunbar. Mr. Barr----
Mr. Barr. That's interesting. Yes, sir.
Mr. Dunbar. In New Jersey, for example, the tape we showed
here today, even though this case has gone to court and there
was a guilty plea, we still had to get a legal opinion. We took
out the license plate and we took out all references to the
individual. We will not give out these tapes to anyone unless
there's a court proceeding and we're directed to give them up.
It is just our policy that they're like our records. We won't
make them available to anyone unless there's a specific legal
request. We consider that--we consider that the same as one of
our reports. They're just not given out.
Mr. Barr. Thank you.
Mr. Duncan. I would like to comment. I think that it makes
sense to have some sort of a privacy policy in there, because
obviously if you create a governmental record that would be
subject to open records. At least in Texas I think it might be.
And, you know, I think that you can--we probably should have
looked at that, or should look at that at some point in time,
because I think it is an important issue when you're preserving
these records. Although they may be important records later
down the road to where you have to have some access to them or
the public needs some access. I don't know how to balance that,
but I do think that you raise an important issue.
Mr. Dunbar. Mr. Barr, one other issue that I don't know
whether Texas has thought about this yet, and that's the fact
that I think our time period that we keep them is 60 months,
and I know it may be 30, but it's based on what our civil--if
you file a civil suit, plus 6 months, because what's going to
happen is if you have those records, and a year later Mr.
Wilkins decides to sue, and you've destroyed the records,
that's going to be very problematic.
So from the very beginning we tied it to 6 months--6
months--30 months I think from the time of the incident, and it
goes 6 months beyond. So if you filed at the 24th month, we
would still have 6 months that we would retain that. We want to
have the ability to produce that because, if we don't produce
it, there's going to be a question of what happened to it. So
your 90-day--unless your civil claim is 90 days, it's going to
be problematic for you.
Mr. Barr. Thank you. Thank you, Mr. Chairman.
Mr. Shays [presiding]. I thank the gentleman. And now Mr.
Cummings, the gentleman who's responsible for all of you being
here.
Mr. Cummings. Thank you very much. And to the gentlemen, I
want to thank you for your testimony. I want to apologize. We
have a catastrophe in Baltimore, in my district, literally
about 8 blocks from my house. So I've been kind of running in
and out trying to deal with that, with the train derailment. So
I apologize. The timing is just not good. I just wanted--to
you, Mr. Royce, and to you, Mr. Robert.
You know, one of the things that I'm noticing, and a little
bit earlier Mr. Waxman talked about--I think it was Mr.
Waxman--talked about this study that was done and how Whites
perceive the problem and how Blacks perceive the problem. I
mean when I go into my district and I talk to women--and
particularly, believe it or not, women seem to be as much or
more sensitive to this problem than a lot of men. And the
reason why they're so concerned about it is because it's their
sons, a lot of women concerned about their sons and their
husbands being profiled. So how did you raise it to a level
where people didn't play games with the legislation, but
actually said, wait a minute, we do have a problem? And just
because people realize they have a problem doesn't mean they're
going to deal with it, as you know, from any kind of--being in
the State legislature. So how did you get it to that point
where people felt, you know, yeah, we do have a problem and
need to do something about this?
Mr. West. Mr. Cummings, as I stated earlier, this
legislative session--and I think Senator Duncan would agree
with me--was pretty strange in Texas. We dealt with a lot of
civil and individual rights issues. There was actually
bipartisan support for it and passed. In terms of the issue of
racial profiling, it was brought up last legislative session,
but no significant action was taken.
What we did this time around was to bring in the NAACP, who
initially raised the issue with me, and the American Civil
Liberties Union and La Raza and MALDAF, those types of
organizations, with law enforcement. And the first question I
asked them, I said, is there anyone in this room that does not
believe that racial profiling is an issue in the State of
Texas? I said, if so, raise your hand. No one raised their
hand. I said, well, we don't have to dwell on whether it's a
problem. Let's now dwell on a solution to the problem.
And so that's the way we started the process of coming up
with something that we believe can help address the issue.
Mr. Duncan. I will comment that Senator West can be very
persuasive, too, and he did challenge me to go with him----
Mr. Cummings. I'm sorry. I meant to say--I've got to put
glasses on for one thing. I'm sorry, Senator West. I said
Senator Royce. I apologize.
Mr. Duncan. I was going to say that Senator West had
challenged me on several occasions. He and I worked on several
issues together over the years, and he said, I want you to grow
a beard--I can't grow a beard, for one--but grow a beard and
we'll go dress in jeans and go walk out on the streets of
Dallas and see how we're treated, and I want you to see
firsthand.
We didn't do that, because I got to thinking about that
might not be a good idea, but I think he did personalize the
issue with me, and I think we have to do it as policymakers,
try to walk a mile in those shoes. And I think that's the role
that Senator West played in this issue.
Mr. Cummings. The reason I asked you all this question is
because you are from Texas, a southern State, and be able to--
and I served in the Maryland Legislature for 15 years and it
just seems like, you know, there are a lot of issues that we
grapple with, but we never could get them to a point where we
had effective legislation. We have it now, but--and I don't
know if it's as detailed as this legislation that you all have.
So you're to be congratulated.
Mr. Wilkins, I'm pretty familiar with your case, being from
Maryland. The--you think the cameras would have made a big
difference in your situation?
Mr. Wilkins. I think that they would have made a difference
in--because the trooper--the report that he wrote up after he
found out that we were going to file a lawsuit, he was very
careful to make it appear that, one, we were more suspicious
than we were by saying that instead of coming from a funeral in
Chicago and returning to the D.C. area, that we were traveling
from Pittsburgh to Baltimore, but yet we had a Virginia rental
car--which was not true--and he didn't say anything about the
funeral.
He also, all of a sudden, I guess, was very concerned about
our rights, because he wrote in his report that he told us that
we had a right not to sign the consent form. Yet he was the
same trooper who said if we didn't sign the form, then we must
have something to hide. And he said that we agreed to wait for
the dog, which was going to raise an issue in court as to
whether we were really detained because, if we had agreed and
in effect consented to wait for the dog, then he could argue
and the State could argue that there wasn't a detention.
And so there were all of those issues that we were very
concerned that we were going to have to fight about. But I can
promise you, if there had been a videotape, there wouldn't have
been a fight at all. Fortunately, we were able to settle the
case on favorable terms but, you know, a videotape would have
helped.
Mr. Cummings. To all of you--and you all may have answered
this question already--but, you know, we're always trying to
figure out what it is that we can do to be helpful to States
and what makes sense. Sometimes I think the Federal Government
does a little bit too much intruding, but I'm just wondering
what, if you all could--I mean if there's things we could do to
help you do your job, what would it be to get this done; I mean
to further what you're trying to accomplish?
Mr. West. Thank you for asking the question. I think it's
very critical, and Mr. Barr asked the question about the cost
of video cameras, and Colonel Dunbar indicated what the cost is
for the great State that he represents. Needless to say, Texas
has over 20 million people. I firmly believe that Congress
should take the lead, working closely with the State and also
with local units of government, be they parishes, counties, or
cities, in funding a process where we put in place video
cameras; video and audio in all police vehicles--that are used
for traffic purposes in this country.
I think that it has several positives, many of which have
been noted here today. No. 1, it protects the citizen, it
protects the police officer, it provides evidence of any
criminal wrongdoing that subsequently can be utilized in a
court of law if necessary. But in most instances, if you have a
smoking gun videotape, then what you're going to have is less
need for police officers to take time off of the street and
spend time down at the courthouse, as well as prosecutorial
costs related to it; which we can't measure now because we
hadn't tried this before.
I think that it is very important that Congress uses its
vast resources and influence through purse strings to put in
place the requirement that we have educational programs geared
toward what racial profiling is, that we look at adopting the
Department, the Justice Department definition--which Texas has
done--in reference to racial profiling throughout this State;
and that we have funds--obviously you send funds to the State--
that you require States to have training programs that include
racial profiling; and, in addition, through your funding
mechanism, require States to require units of government to
adopt policies concerning racial profiling.
Mr. Cummings. Anybody else?
Mr. Dunbar. I just want to echo what he just said. I think
that, as was testified this morning, last year they gave $12
million to video cameras from the COPS program. This year I
think the budget was $3 million. This is a time for increases,
not decreases.
The other thing that I just want to briefly mention is
there's a variety of both State and I think Federal proposed
bills on racial profiling. And one of the things that--as the
head of a State police organization, one of the things that I
found very problematic is proving intent. And the issue of
intent is going to be one--if these bills are passed, I think
it's going to be very difficult to prove.
But yet, again, what Mr. Wilkins said with video cameras.
For example, if you have documentation that does not coincide
with what you have in your video camera--and in New Jersey what
we have been doing is we have been going after the
administrative violations or false reports and so on, and that
is a way I think that you can document misdeeds.
And if racial profiling bills get passed, I think the next
struggle you're going to see is, you know, how do you prove
intent? And that's a question that I'm asked every single day
by the media, you know; what about this case, what about that
case? And that is going to be a challenge, and I think that it
really needs to be looked at.
What is it that we're going to look for? What is going--
what is it--you know, how do you get in the mind of an
individual? We discussed earlier about attitudes. How do you
get to what that person is thinking?
And this morning you started off in your statement talking
about the issues that we're discussing, going back hundreds of
years, and I think what you said this morning is right on the
mark. And to me the issue of racial profiling becomes an issue
of race in America and our struggle to appropriately deal with
it, and I think law enforcement is making an honest effort.
We need help financially, and you know, dare I say, we need
some time to try to change things, because I think things are
changing.
Mr. Cummings. You know, I see my time is up. It's so
interesting when we talk about the perceptions of how some
White people look at racial profiling and maybe African
Americans or Hispanics may look at it. But, you know, as an
African American man, I can tell you that you begin to live
your life with an extra bit of caution. I mean if you talk to
most Black men, they will tell you that they make sure that
their lights are fixed on their cars, they make sure that no
tags are hanging down, they make sure that everything is in
place, because we don't want to be stopped and because we're
afraid of what's going to happen. And as I practiced law for 15
years, I saw so many instances of where a little incident like
a stop resulted in three or four or five charges: assault
against the police officer, disorderly conduct, resisting
arrest. That's the trilogy normally.
Mr. West. That's right.
Mr. Cummings. And so somebody has a record and they have a
record until they die, usually. So I just want to thank you
all. You've been here a long time. Ms. Norton, I didn't know
whether--but I just want to thank you all. Because being Black
in America and being male is not easy, and I don't mind saying
it to anybody. Even as a Congressman, it's not easy. And we're
seeing our jails being filled with African American men and
women now at a phenomenal rate, disproportionate rate. And I
just think that the things that you all--Senator West and
Senator Duncan and, you, Colonel Dunbar and, you, Mr. Wilkins,
and, you, Mr. Finnegan, all of you, you're doing something to
touch the future. And the things you're trying to do is prevent
some things from happening in the future.
And I think that if all of us just looked at--every time I
go to an elementary school--and I'll be finished with this, Mr.
Barr. Every time I go to an elementary school, I look at those
little kids in my district, and then I ride about five or six
blocks away and I see new jails being built, and I know that
those jails are being built for them, and it breaks your heart,
and so--but hopefully, the kinds of things we're talking about
today will allow those people to do the things that was
intended for them by God, so that they can grow up and sit at a
table, like you, and be productive.
And I just wanted to put your testimony in some kind of a
context, and what you're doing in context, and to thank you for
them. I really do thank you.
Mr. Barr. I thank the gentleman from Maryland. Mr.
Finnegan, if you would, please describe for us or summarize for
us the laws that were available that you were able to use
successfully in your case to obtain relief for your clients in
Ohio.
Mr. Finnegan. The law--there were no specific laws. The
basic was a straight 1983 action for a constitutional violation
under the fourth amendment for improper search and seizure; and
under the equal protection clause, questioning people based
solely on their appearance and race. We also used Title 6
because, of course, the Highway Patrol gets--it was about $3
million a year from the Federal Government to do this racial
profiling. And Title 6 survived summary judgment. It's not up
in front of the Sixth Circuit right now on appeal, like the
constitutional issues are, but the judge did find that Federal
money was being used to do this.
Recently Title 6 took a hit with the U.S. Supreme Court
ruling that there's no private cause of action under Title 6,
which very well may throw out a large part of our case. And one
thing I'd like to urge, I guess--I don't know if this committee
has jurisdiction--that Congress take a close look at Title 6
because I think Congress intended that when Mr. Wilkins had his
rights violated by the State police, that he would have a
private cause of action to go in against the State police; and
that when my clients and the Farm Workers Union were violated
by Ohio, that they would have a right. That just went away, I
think, under the Supreme Court decision of Sandoval v. Alabama,
and we would sure like to see Congress go back in there and
say, we mean for individuals whose rights are violated to have
the right to go to court. Not just the U.S. Department of
Justice, because I think, as we've all seen today in the first
round of testimony, the Department of Justice has a lot on
their plate. And for them to prosecute on behalf of Mr. Wilkins
and to prosecute in Ohio on behalf of the Farm Worker Union
takes us out of the equation. And there's a lot we can get done
as long as Congress give us a private cause of action.
But those were the two laws that we used primarily, and
they're all alive in front of the Sixth Circuit right now.
Mr. Barr. Thank you. Colonel Dunbar and Senators West and
Duncan, what's been you-all's experience with regard to the
reaction of your State prosecutors? Have they been supportive
in the use of cameras in cases?
Mr. West. Do you want to go first?
Mr. Dunbar. I live in Bergen County and I prosecuted Erol
Lexis so much that he's taking his forfeiture funds and trying
to buy cameras for all the local police departments.
I think everybody likes to have best evidence, and if you
can come into court and you can show what you're doing, I think
it makes the landscape much clearer. We've gone through so much
turmoil in the last 3 years because of the issue of racial
profiling. I think that any workable solution is something that
people are willing to try.
We have 21 counties. I don't know of any county prosecutor
that has raised any objection to the use of video cameras. I
think that there are going to be legal challenges because some
of the things we're running into is when we have malfunctions
in the equipment, valid malfunctions, when the microphone
inadvertently gets shut off, and that is also going to be a
challenge for us, is trying to determine whether it's a real
malfunction or not a malfunction. But the concept has been, I
think, universally accepted not only by the county prosecutors.
In fact I don't think I've heard anything negative after the
first year when the police officers resisted, and since then--
this still sells. I mean nothing's ever 100 percent, but there
are still some people that are going to resist it, but I think
everybody pretty much has learned to live with it.
Mr. Barr. And has that been a similar experience for you-
all in Texas?
Mr. West. Yes. And I think, Mr. Barr, you have to look at
most of the COPS money that's been coming to the States has
been used to purchase cameras for the DWI squads, and needless
to say, it's been very effective in recording drunk drivers on
the road. So prosecutors are just kind of chomping at the bit,
so to speak, to be able to get this type of tool for
prosecutorial purposes.
Mr. Barr. Colonel Dunbar, are you aware of any incidents in
which State troopers in New Jersey were accused of racial
profiling or other inappropriate behavior and those charges
were substantiated by the audio-visual evidence?
Mr. Dunbar. No. However, through our own review of tapes,
internal review, we have developed, I'm trying to think--a
number of--a handful of tapes that reflect problematic
behavior. But as far as just responding to complaints, no. In
fact, most of it's going the opposite way.
Mr. Barr, one of the things we have found--and this isn't
necessarily racial profiling--one of the things we have found
is just rudeness on the part of the police officer, and I think
that also feeds into the issue of--it's how you're treated, and
that also--we found that, and we have taken disciplinary action
cases like that.
Mr. Barr. Thank you. Have there been any problems with
the--are you-all's officers unionized or from any of the
police----
Mr. Dunbar. Can you do something about unions?
Mr. Barr. Police unions, the----
Mr. Dunbar. Yeah.
Mr. Barr. Have they had any problems with the use of the
cameras?
Mr. Dunbar. In speaking to counsel for the committee, the
president of our State Troopers Fraternal Association was
willing to come and testify today on behalf of the cameras. And
again they see the same thing that--the issue has been raised.
We now need to have a third person present to speak for the
trooper or the complainant. And again, in the last 2 years it's
been a turnaround on the unions where they are now very
support--they've seen over the last 2 years that this tool--
they labeled it Big Brother when it first came out, and what
you have to understand in New Jersey it was--we got it. It
wasn't because we were like real forward looking. It was kind
of forced on us. We had some problems. And troopers thought it
was being forced on them. Now I don't think that's the case,
and we have three unions in the State police and all three of
them support them.
Mr. Barr. Thank you. The gentlelady from the District of
Columbia is recognized for 10 minutes.
Ms. Norton. Thank you, Mr. Chairman. Let me, Mr. Finnegan,
let me say to all four of you that I apologize I wasn't here to
hear all of your testimony, and I'm briefed on it by my staff.
It does seem to me it was all very valuable testimony.
Mr. Finnegan, I appreciate what you had to say about the
Sandoval case. That was an English-only case, English-only for
driver's license case. And the Supreme Court said that the
essential distinguishing point, I think, to your case is that
they said that the English-only driver license did not involve
deliberate discrimination. It does seem--and, of course, Title
6 does cover deliberate discrimination. It does seem that
racial profiling is inherently deliberate discrimination. You
have to have a thought in your head that I want that man
because that man is Hispanic, or that woman is Black. So I hope
you're home free. I'm not certain. We'll see.
Mr. Wilkins, I must express my gratitude to you again that
you have made yourself available for what is perhaps the most
instructive case ever to have been filed about racial
profiling. I'm not sure what we would have done without not
only your case but your ability in official and unofficial
hearings--because you have come to the Congress on numerous
occasions to educate us--but your ability to lay out the facts
and what law applied. And it has been very valuable to have had
a talented young lawyer to testify.
It cannot have been very valuable to have been that
talented young lawyer, however. And I do want to say that in
thinking through my own bill, which of course is based
essentially on the spending authority, to say if you spend our
money you can't use it in a discriminatory way--and other
approaches, because there's another very important bill that's
been filed, the Conyers bill. I believe both approaches are
very important.
I believe that it is very important that someone like Mr.
Wilkins always be able to pursue his rights and that there be a
statutory basis to do that. But the fact is that Mr. Wilkins is
a Harvard-educated lawyer. And when you consider how pervasive
racial profiling is, it does seem to me that we're barking up a
very slow-moving vehicle if we believe that case-by-case is
going to do it.
Indeed, Maryland can't boast now, even given the Wilkins
case, that it's a model jurisdiction, even though his case
alone--because he was so principled--succeeded in getting
structural change in that State. So I am interested in a
proactive approach.
See, there are two approaches here. One is preventative.
There's always two approaches in law enforcement. One is
preventative and one is remedial. Now, Mr. Wilkins was forced
into a remedial context, the lawsuit approach. And we'll try to
get a bill here that would give the next Mr. Wilkins all the
tools he needs to pursue his rights. Lawsuit approach,
adversarial case-by-case, essentially the officer is put on
trial, and the city, the State, or the county is put on trial.
And, you know, if you've got the upfront money and the lawyer
is willing to do it on a contingent fee basis and the whole
works, you may prevail. It is very important.
I am the former chair of the Equal Employment Opportunity
Commission, so I very much favor precisely that approach.
Indeed I wish Title 6 would have been used the way Title 7 had
been used. We would be nowhere in this country if private
attorneys hadn't brought case after case under Title 7 of the
1964 Civil Rights Act to help rid the country of racial
discrimination. So obviously, I think that these are two valued
approaches but that, particularly given the fact that racial
profiling may well be more likely to occur in poor African
American neighborhoods, that it would be a shame if we were
only left with a case-by-case adversarial approach.
I'd like to ask you all a set of a questions, beginning
with Mr. Dunbar. Mr. Dunbar, I was very concerned because
perhaps the highest profile State of them all has been New
Jersey, that yesterday in the New Jersey Star Ledger was a
report that 90 percent of the people--I'm not sure if this has
been brought out, I haven't been here, but that 90 percent of
the people who consented to searches and stops in New Jersey
are members of handpicked----
Mr. Dunbar. Members of----
Ms. Norton [continuing]. And racial minority groups.
Mr. Dunbar. I didn't know if it was 90 percent. I think it
was around 80 percent.
Ms. Norton. Well, I'm quoting from the New Jersey Star
Ledger, and it's yesterday--it's a site that we got out of--
from yesterday. I'd just like to ask you if that surprises you
and whether you think it makes a comment on the effectiveness
of whatever it is you are doing now.
Mr. Dunbar. Does it surprise me? No. I've said all along--
while you were out, we were talking about changing attitudes.
Changing attitudes is something that does not happen overnight.
I think that--and this is one of the things that--one of the
things that article does not talk about. It does not talk about
the reduction in the number of consent searches that take
place, for example, this year.
Ms. Norton. Why has there been a reduction?
Mr. Dunbar. Why has there been a reduction?
Ms. Norton. Yeah.
Mr. Dunbar. Because we've gone back and we've changed
attitudes. You know, we ask questions. If, you know, you make a
stop and the person produces license, registration, and
insurance card, why are you asking questions beyond that? But
the numbers have come down, and I think the numbers will
continue to come down.
In New Jersey, I think 4 months after I took my job, the
issue was, you know, was everything resolved? And I don't think
it's going to happen in a matter of a months and it may not
happen in a matter of years.
Ms. Norton. Could I ask all four of you a question? I need
to be informed about the possible effectiveness, or not, of the
approach I'm pursuing, and I'd like from the--in the context
where all of you operate, I'd like your response to the
following question: Do you think it would help law enforcement
in this field, help those who are trying to do the right thing,
the way Mr. Dunbar is, help get compliance the way Mr. Wilkins
has had to do through a lawsuit, if in fact the head of the
State police or the police chief in a given area were to have
in his arsenal a bill which would essentially deny his
jurisdiction of coveted highway money if in fact the
jurisdiction did not have enforceable legislation and did not
pursue it such that the practice began to diminish?
Would it make a difference? Or perhaps is the threat of a
lawsuit what will make the greatest difference because people
just don't want to be sued?
Now, either way, you pay money perhaps. You pay money on
the lawsuit and perhaps it has a deterrent effect. You might
have to pay money and lose money if you don't have an
enforceable policy to bring down racial profiling. Do you think
it would have an effect on the practice and on how law
enforcement went at eliminating the practice to have this
preventative approach in the arsenal of strategies to use
against the practice? In any order you'd like to speak.
Mr. Finnegan. Well, I'd like to start out that the
traffic--the series of traffic stops that set off our lawsuit
in Ohio occurred in early and middle 1995, and we've been
litigating ever since and we've been winning ever since. But
the State of Ohio hasn't change one bit in its practices about
questioning people because of the color of their skin. So a
lawsuit--and in fact I think some of the State--some State
officials have actually scored points in the more conservative
parts of the State by standing up for tough law enforcement.
Even if a few thousand minorities get questioned and held up,
you know, it's good to be tough on crime right now.
I think the taxpayers of Ohio would really be upset if we
lost any highway money because that's a constant grumble, that
the highways need to be improved. That would get people's
attention a lot faster than this kind of obscure lawsuit that's
been cooking away in Toledo for 5 years.
So I think every weapon--we've been at it for 5 years and
there's no end in sight for our lawsuit. And I know from
talking to Mr. Wilkins, he's back to round two in his case. The
lawsuits are important, and Title 6 is important, but Title 6
is important specifically because Federal funding is
threatened. And in our lawsuit the traffic and drug
interdiction team was almost all Federal money. The Drug
Enforcement Agency that started the Highway Patrol on
questioning on immigration was almost all Federal money, and
almost all the immigration detentions had been Federal money.
So until the Federal Government gets on the ball, I think
things aren't going to change in Ohio.
Mr. Wilkins. I'd like to echo that and also note that the
new lawsuit that we filed in Maryland, because there were
continuing problems on I-95, there is a Title 6 claim which is
now at risk with Sandoval because the disparate impact portion
of that claim is likely to be dismissed because of that
decision and therefore we'll be forced to try to prove
discriminatory intent, which is more difficult. And I would say
as well that, you know, we've been litigating this and it's
been 9 years since my stop, and I was young and single and in
shape now, and now I'm old and out of shape and have two kids
and married, and so this has been going on for a long time. And
we only got $50,000 in damages for the four of us, along with
about another $46,000 in attorneys' fees for all of the work
that we did up until the time that we settled the case. And so
money was never going to be something that was going to be a
deterrent and to the State of Maryland, at least the money that
they were risking in our lawsuit. And I think that what you're
doing is very important.
Mr. West. I concur. We need to make sure that we tie these
Federal dollars in terms of the dollars that the States are
getting to some sort of policy that, needless to say, you want
to see implemented. I know that in Texas we've taken some steps
toward dealing with issues of racial profiling. I believe that
it's something we need to do across this country.
Mr. Duncan. I'll take a little different approach. I will
note that--I'm always concerned when we create new remedies
through the civil court system. I think, as Mr. Finnegan said,
there are laws in place. I think they're filing suits and
they're winning. I would hate to see us change those laws. I
think those laws work and they're carefully balanced, and I
don't know that's necessarily the way to approach it.
The other end of it is--and, you know, I guess--I serve on
the finance committee, and Senator West has as well in the
Texas Senate, and, you know, I'd rather have incentives that
are proactive. Texas, which is considered to be the bastian of
conservatism in the South, has enacted a very aggressive bill.
We did it on our own. We didn't do it because of any threat
from Congress to cutoff our highway funds. We did it on our
own, and I think that we would like to do more with regard to
video cameras.
We need help with training. I think some of the things that
Colonel Dunbar has raised, and I think Mr. Finnegan as well as
Mr. Wilkins, I think all of these issues that they have raised
have really gone to the core of training and attitude changes
that need to occur from the top down.
The bill that Senator West passed, Senate bill 1074, has
significant training requirements, and it also does something
very important. It requires each local law enforcement agency
in Texas to have a policy on racial profiling to address it at
that grassroots level. I had preferred to see the States work
as laboratories with assistance from the Federal Government in
the form of incentives because there are a lot of issues like
racial profiling and other issues that I think are important
that we address, and I think Texas is a good example of how it
can be done without the threat of pulling highway funds which
are, you know, very important to all of our States. Thank you.
Mr. Shays [presiding]. Would the gentlelady yield just a
second to point out to Mr. Duncan that you Texans are amazing.
Did you say to me you're the bastian of conservatism of the
South? There are about eight other States that would probably
want to contest that.
Mr. Duncan. Well, we might want to team up with them and
have a co-title here.
Mr. Shays. I just couldn't resist. You guys are awesome.
Excuse me for interrupting.
Ms. Norton. Well, I thank the gentleman for his
intervention. Let me add that I want to congratulate the State
of Texas for its forward leadership, and I suppose that I live
in a country which does not make my civil rights dependent upon
what State I happen to be in. At the time that the 1964 Civil
Rights Act was passed, New York already had a very strong civil
rights law, but if I traveled to Texas I would have encountered
overt intentional racial discrimination.
So, to give you another example, I come out of the civil
rights movement, where if I got on a train from New York to
Washington, I sat anywhere I wanted to. I'm a fourth-generation
Washingtonian. If I went to see my grandfather in North
Carolina, I had to change my seat. I thought we were long
past--we bow to States' rights in this place, but I thought we
were long past the point where we would make anybody's human
rights contingent upon the State that person happened to be in.
The whole notion that I could have my rights in Texas, and
get to Louisiana and lose them, ought now be a thing of the
past. And I think none of us would--you have to forgive me, but
that's such a throwback. I accept it with respect to almost
everything else. Let the States be the States. Let them
blossom. Please don't let racism and discrimination blossom
State by State.
Mr. Dunbar.
Mr. Dunbar. You know, in New Jersey, much of what's been
done was done as a result of the Attorney General's review of
the State police, but it was also in concert with the
discussion with the Department of Justice in which we entered
into a consent decree back in 1999 which gave us specific
things that we have to change.
What my concern is, is that--and this goes back to the
discussion of data collection and so on--is that, you know,
what happens? For example, if we have 100 searches and 4 are
problematic, that's 4 percent; if we have 10 searches and 4 are
problematic, that's 40 percent. Those are the type of issues
that I have concerns with, that when you--you know, when you're
talking about, you know, enacting a bill, what's going to be in
that bill, you talked about--and I certainly agree with you,
and in fact I wouldn't have taken this job if I didn't agree
with you--that change has to take place, but at the same time
you asked me before about what has changed.
I think there's a number of things that have changed.
Percentages have not changed. The numbers have changed. You
know, I often say when I talk to my troopers, I say that if we
had one racial profiling case, how can I go out and say we
don't have a problem? I mean that's the bottom line. And that's
the exact terminology that I use every single time. If it
happens one time, it's too much.
But at the same time, you know, as a law enforcement
officer--and I really can't overemphasize. I think that other
law enforcement leaders, most of the ones that I discuss with,
the two issues they come up with are racial profiling and
unions and difficulties with both of them.
I would like to be able to sit here and have you say that,
you know, everything we're doing is great. If you look at--you
know, if you took that article and you made reference to that,
in that same article there were comments made by the Department
of Justice, independent monitored, which has reviewed every
single thing that we do from top to bottom, and they've
indicated we've made significant strides and changes. But what
we focus on is not what's been done or being done, it's what's
not done.
And I really can't dispute that the issues are there, but
there is a genuine effort, I think, on the part of the local
legislation in New Jersey and on the part of the Governors and
certainly the Attorney General to bring about change.
Do I think that money would get attention? Yeah, probably
it would. But I would just ask if we're going to do something,
let's look at, you know, what is it that we're going to do and
what is the impact? Are we going to just use an arbitrary
number? You know, how do you say, for example, in racial
profiling that if you've got a department that has two cases,
that's OK?
Ms. Norton. Well, my bill would not use any numbers. It
simply would require enforcement and require you to have an
enforceable law and say what the law is. So I agree that the
circumstances differ.
Let me finally say that one of the things, it seems to me,
to consider in adopting a proactive approach is that it is
probably always better to prevent discrimination than to
remediate it. There's a lot of hard feelings and a lot of
bitterness. Bitterness on the person who believes he
experienced it; great bitterness on the part of the person who
stands accused. Because even those who engage in it today don't
like to be fingered for doing it.
I also believe that many of the police involved are not to
blame. I believe that there is a kind of imperative that police
consciously and unconsciously feel, and that whether it is Mr.
Dunbar or the chain of command below him--and I know how
difficult it is to make police focus on something like this
when there's so many law enforcement matters to focus on. But
the fact is that one way to get management to take its
responsibility seriously, not focusing on cop by cop, who often
is not the problem, but on the folks who have the most to lose,
the Governor who would lose State funding, who the Governor
appointments who could be held accountable, one might get a
rise out of States which have had trouble. I don't know if you
would except by the precedent. The precedent is that we have
had enormous success by tying transportation funds to stated
policy objectives that we care about.
A second reason why I press this approach is what you've
heard from our two litigators. In this Congress litigiousness
is the enemy. There are Members who would prefer to jump out of
one of the windows of the Rayburn Building than to be involved
in a lawsuit; who believe that lawsuits are absolutely a waste
of money, if not inherently evil; crowd the courts; people
running after one another, blaming one another; why don't they
work things out?
It seems to me if you start from the beginning with a
strong proactive remedy, you eliminate the cop problem, you
eliminate the money problem, you eliminate the hard feelings
problem, and you eliminate one of the great problems of this
society, and that is that African Americans still feel very put
upon in this society.
There is a huge racial divide in this society, 35 years
after I was a kid in the civil rights movement. If you ask the
average African American, do you feel there is discrimination
in this country, he'll say ``you bet 'ya.'' and that's
notwithstanding the enormous strides we've made.
Why is he still saying that? As long as you can be stopped
on the street based on the color of your skin, nothing the
society does will matter to average Black man. There is nothing
that is a great--that is--gives you a greater sense of
indignity than having a policeman stop you and having to say,
what did I do? For a lot of reasons, not the least of which we
need to begin to heal the racial divide in this town.
I certainly hope that the testimony of all five of you will
in fact help us to begin to march down that road toward the
finish. I thank you very much, Mr. Chairman.
Mr. Shays. I thank the gentlelady. She obviously speaks
with much experience. We thank all the panel. And I'm not
asking to extend this panel, because I know you've gone longer
than you expected, but is there any one last short comment that
any one of you want to make or feel you need to make?
Mr. Dunbar. Send money.
Mr. Shays. That is short. Gentlemen, you're an excellent
panel. I congratulate the staffs for putting this panel
together, and I apologize to the next staff for keeping them
waiting so long.
Mr. Dunbar. Thank you.
Mr. Burton [presiding]. We'll now welcome our third panel
to the witness table: Rachel King, Raymond Kelly, Lieutenant
Brian Boykin, and Chris Maloney, would you please come forward,
please.
[Witnesses sworn.]
Mr. Burton. Be seated. Ms. King, do you have an opening
statement you'd like to make?
STATEMENTS OF RACHEL KING, LEGISLATIVE DIRECTOR, AMERICAN CIVIL
LIBERTIES UNION; RAYMOND KELLY, FORMER COMMISSIONER, U.S.
CUSTOMS SERVICE; BRIAN BOYKIN, FELLOW, NATIONAL ORGANIZATION OF
BLACK LAW ENFORCEMENT EXECUTIVES; AND CHRIS MALONEY, PRESIDENT,
TRITECH SYSTEMS, INC.
Ms. King. Yes, sir.
I thank you very much for inviting me to testify today. I
have prepared a written statement which I submitted already, so
I'll be very brief and just basically make two points.
While we believe that the use of video cameras and audio-
visual technology is very important and a very useful law
enforcement tool, it cannot in and of itself be used to address
the problem of racial profiling. It needs to be used in
conjunction with other programs, specifically data collection
programs.
And the second point I'd like to make is that the Federal
Government needs to intervene to help the States in addressing
this problem.
I'd like to just tell you a story that illustrates how
video cameras are not the absolute solution to the problem of
racial profiling. The ACLU represented a client named Sergeant
Joe Rossario, who's a Black man who was traveling across the
country with his 12-year-old son.
When he entered the State of Oklahoma, within a half hour
of entering the State he was stopped two different times, the
second time by two troopers who were driving patrol vehicles.
Each vehicle had a video camera. In spite of the presence of
these video cameras, this is what happened to Mr. Rosaria. He
was detained for over 2 hours. His car was searched without his
consent. His son was kept separate from him and terrorized by
the police dog. They were kept in patrol vehicles with the heat
blasting even though it was 90 degrees outside. Their
possessions were strewn along the side of the road and gone
over by a drug-sniffing dog, and their car was dismantled,
looking for drugs.
Obviously having video cameras in those patrol vehicles did
not keep two people, innocent people, from having their
constitutional rights violated. One of the video cameras,
according to one of the troopers, was malfunctioning, and the
other one was functioning, but they could not find the tape. So
there was virtually almost no recording of the incident.
You will see that with video cameras there are limitations
in that there can be malfunctions, tapes can be lost, and
cameras can be tampered with; but an even more important
limitation of the camera is they can give you a snapshot in
time about one stop and search, but they cannot give you an
overall picture of what's happening in the community around the
issue of racial profiling, and that's why you need to have data
collection as well.
Video cameras are a good supplement to data collection
because they can be used, for example, to audit any data
collection programs to make sure there's accuracy in the data
collection efforts, and they can also be used for training for
police officers and conducting proper traffic stops.
I know of no State that is using video cameras at the
present time as exclusively in addressing a racial profiling.
If you look at my written statement, I've attached on the back
of it a map of the United States that shows the various
jurisdictions which are using data collection programs. There
are a number of States that are using both data collection and
video cameras. Those include New Jersey, Missouri and North
Carolina. Texas, as we heard, passed legislation that would
require both video cameras and data collection, and Indiana and
Minnesota are also both considering legislation that would
require both video cameras and data collection. While we
support all these State efforts, we still believe that Federal
support and intervention is necessary, and that's why we
support H.R. 2074, which is a comprehensive bill to ban racial
profiling.
We'd like to specifically thank members of this committee
who are sponsors of that bill, notably Congresswomen Morella
and Norton, and Congressmen Shays, Cummings, Davis, Clay and
Owens. We'd like to thank them very much for their support of
this important legislation.
This bill does several important things that are needed to
address the problem of racial profiling. First of all, it
defines racial profiling. We have to have a Federal definition
of racial profiling. We can't have racial profiling be one
thing in Arkansas and something else in Oklahoma. People who
are traveling across the country need to know what the law is.
It bans racial profiling and makes it clear that it is illegal.
Until very recently the Federal Government has actually trained
law enforcement officers in the use of racial profiling as a
legitimate law enforcement technique, and the government needs
to make it clear that it's no longer a legitimate technique.
The bill also provides a carrot-and-stick approach to
requiring States and localities to adopt programs to address
racial profiling by both withholding Federal funds if States
are not in compliance, but also giving important grant money
that's necessary that the States need to establish data
collection programs and other types of best practices programs,
including video cameras in the cars. And last it requires the
Attorney General to report to Congress on the state of racial
profiling in the country.
I'd just like to finish with one remark about the privacy
concerns. The ACLU, as you know, is very concerned about
individual privacy rights, but in this case we think in general
the benefits of video cameras outweigh the individual privacy
concerns; however, we do not believe that these video tapes
should be publicly released except, of course, in criminal and
civil litigation. There may be times that a very compelling
public interest outweighs the privacy of the individual, for
example in the Rodney King beating, but in no way should they
be released without first going forward and having that
determination made by a court.
I'd be happy to answer any questions later. Thank you.
Mr. Burton. Thank you, Ms. King.
[The prepared statement of Ms. King follows:]
[GRAPHIC] [TIFF OMITTED] T7191.056
[GRAPHIC] [TIFF OMITTED] T7191.057
[GRAPHIC] [TIFF OMITTED] T7191.058
[GRAPHIC] [TIFF OMITTED] T7191.059
[GRAPHIC] [TIFF OMITTED] T7191.060
[GRAPHIC] [TIFF OMITTED] T7191.061
[GRAPHIC] [TIFF OMITTED] T7191.062
[GRAPHIC] [TIFF OMITTED] T7191.063
[GRAPHIC] [TIFF OMITTED] T7191.064
[GRAPHIC] [TIFF OMITTED] T7191.065
[GRAPHIC] [TIFF OMITTED] T7191.066
[GRAPHIC] [TIFF OMITTED] T7191.067
[GRAPHIC] [TIFF OMITTED] T7191.068
Mr. Burton. Mr. Kelly, do you have a statement, sir? And
thank you for being on our third panel. I know that there was
some question about whether or not you would prefer to be on
the first panel, but I guess everything worked out.
Mr. Kelly. Yes, thank you. Thank you for the invitation to
be here today, Mr. Chairman. Although I know the title of
today's hearing is the Benefits of Audio-Visual Technology in
Addressing Racial Profiling, with your permission I'd like to
outline what one Federal agency, the U.S. Customs Service, has
done to address the allegations of racial profiling. It also
involves the use of some technology.
In my experience, there's no greater threat to the
credibility of law enforcement than racial profiling. Anyone
who ignores this threat or delays in taking precautions against
it risks not just the reputation of the organization in
question, but the very compact and trust and fairness between
government and the people upon which the civil society rests.
I served as the Commissioner of U.S. Customs from August
1998 to January 2001, and before the beginning of my tenure,
Customs began to receive allegations from certain members of
the traveling public that in specific incidents agency
personnel had selected commercial air passengers for physical
searches based on race. These allegations, of course, were very
disturbing, to say the least. It was certainly not the agency
policy to use such tactics in their enforcement mission. In no
way were we prepared to accept it as part of our practice.
As you know, one of Customs chief responsibilities is to
keep dangerous contraband from crossing U.S. borders. The fact
is the great majority of travelers entering our country are
law-abiding, but there exists a small percentage who are not
and who contribute to the illegal menace by smuggling
narcotics. It's a difficult job of the Customs Service to stop
these individuals. The job is even more difficult when it comes
to stopping those who conceal drugs on or in their bodies,
particularly those arriving by commercial air.
To put this in the proper perspective, Customs searches an
extremely small amount of the approximately 80 million
commercial air passengers entering the U.S. each year. To
accomplish this difficult aspect of its mission, Customs has
been granted very broad search authority, the broadest of any
law enforcement agency in the land. Inspectors can stop, search
and detain travelers based on reasonable suspicion. That is
based on specific factors that may lead those officers to
believe someone may be carrying drugs. Those criteria are
clearly outlined in the intensive training provided to Customs
personnel. Under no circumstances whatsoever do these factors
ever include a person's race.
When complaints of racial profiling surface, we move
quickly to review all aspects of our personal search policy.
Our preliminary review showed no specific incidence of bias,
but we did find lapses in management and supervision that
contributed to instances of improper conduct, poor judgment and
insensitivity to the rights of travelers.
Not satisfied with an internal assessment alone, we
immediately appointed an independent outside commission of
government and community leaders to conduct a study of Customs'
personal searches beginning in April 1999. Commission members
were given unfettered access to Customs facilities and
personnel across the country.
In the meantime we began a number of immediate reforms.
First and foremost we increased the role of supervisors in the
personal search process. Where in the past any individual
inspector could decide whether or not to make a personal
search, we ensured that a supervisor approved that decision.
Moreover any decision to move someone to a facility for a
medical examination had to be approved by a port director, the
highest-ranking Customs official onsite. We bolstered training
for our employees. We mandated new cultural interaction and
personal cert training for all of our officers. That's about
8,000 in all. The agency has a total of about 20,000 employees.
We also rewrote our personal search policies, eliminating
any phrase that could be remotely construed as bias, and
compiled them in a single handbook. We increased legal
oversight of the process. We made Customs lawyers available 24
hours a day by phone to inspectors to advise on the legal
grounds for searches. We implemented a new policy that requires
Customs officers to consult with the local U.S. attorney's
office for any prolonged detention. In the past Customs could
hold someone indefinitely without permitting contact with
friends or family. New notification rules allowed anyone
detained to inform someone of his or her delay within 2 hours.
Recordkeeping in general was poor. Data collection on
personal searches was weak and inconsistent. We instituted
mandatory data collection on the race, gender, age and
citizenship of persons searched as well as the reasons for the
search. We formed a national passenger data analysis unit at
headquarters to examine that data. I received updates every
morning on the searches we conducted. We made major investments
in new nonintrusive technology and x-ray equipment. These
included the purchase of body scan machines and mobile x-ray
equipment that minimized the need for physical contact and the
time-consuming trips to the hospital. That technology was
deployed at major international airports across the country.
We undertook a major information campaign with the
traveling public. That campaign began with an outside
consultant's review of our passenger processing areas. Based on
a consultant's findings, we implemented a series of changes,
including better signage, enhancing the role and visibility of
the Customs passenger service representatives, and designing
new declaration forms to eliminate confusion for travelers. We
also put out new brochures that explained why Customs performs
inspections and searches. These included a document entitled,
``Why Did This Happen to Me,'' which explained the personal
search process to those who are referred for a secondary
inspection. We also developed a passenger rights brochure that
explains the rights of travelers and their obligations under
U.S. laws. We created a new customer satisfaction unit at
headquarters to handle complaints and other issues, and a
national comment card program to which travelers can submit
their feedback to Customs.
To sum up, improved supervision, better training, enhanced
legal oversight, better data collection, better technology,
better communication with the traveling public, these were the
pillars of our reforms. Now, while changes like these require
time to take hold, we're very encouraged by the earlier
results. Nationally Customs was searching far fewer people than
it ever did before while maintaining its overall level of
seizures. In the year 2000, Customs cut the number of personal
searches significantly, from just over 23,000 searches to just
over 9,000, yet the number of positive searches yielding drugs
remained relatively constant. Those numbers showed us that we
could engage the narcotics traffickers vigorously without
allowing the rights of the law-abiding public to become
casualties in the counterdrug find.
In addition, our comment card program indicated that our
changes were being well received by the public. We mandated
that officers who give anyone who goes through a secondary
inspection a comment card. They were also made available to any
traveler passing through our processing areas. As of the close
of 2000, we received well over 15,000 cards. Eighty percent
complimented Customs and the work of our inspectors. I
understand that rate has held steady through today.
In June 2000, the Personal Search Commission issued their
report. They acknowledge, in their words, a series of bold
reforms Customs had taken. While the report did not find
specific evidence of bias, it did state that more precautions
could be taken and offered 20 recommendations to further
safeguard the rights of travelers. I assembled a special high-
level internal committee of Customs managers to assess,
implement and monitor those findings.
Having been involved with this issue for a long time, I
know one thing for certain, this is not a problem from which we
can simply walk away and declare victory. Policies must be
monitored constantly to ensure that changes become embedded in
the culture of the organization. Could we prove that racial
bias never existed in the Customs Service or guarantee that it
never would again? It's a difficult question to answer.
Obviously we couldn't scrutinize people's thought processes,
but we knew that we could strengthen a system of checks and
balances that dramatically reduced the possibility of bias, and
we could reinforce through constant training and supervision
that there is no place for such a tack, not in the Customs
Service nor anywhere else in law enforcement.
Thank you, Mr. Chairman.
Mr. Burton. Thank you, Mr. Kelly.
[The prepared statement of Mr. Kelly follows:]
[GRAPHIC] [TIFF OMITTED] T7191.069
[GRAPHIC] [TIFF OMITTED] T7191.070
[GRAPHIC] [TIFF OMITTED] T7191.071
[GRAPHIC] [TIFF OMITTED] T7191.072
[GRAPHIC] [TIFF OMITTED] T7191.073
Mr. Burton. Mr. Boykin.
Mr. Boykin. Good afternoon, Mr. Chairman and other members
of the committee. Thank you for allowing me the opportunity to
address you. Before I proceed, I would like to take time out
and express our sincere appreciation to Mr. Cummings and other
Members of the Congressional Black Caucus for championing and
helping us afford many of our initiatives that have come before
Congress and other special bodies. Thank you for allowing me as
a representative of the National Organization of Black Law
Enforcement Executives [NOBLE], to testify concerning the
benefits of audio-visual technology in addressing racial
profiling.
My name is Brian Boykin, and I have been in law enforcement
for nearly two decades. Before I proceed, I'd like to share a
bit of information about our upcoming 25th anniversary training
conference. This historical event will be held July 28th
through August 1st at the Marriott Wardman Park Hotel. During
this week more than 2,000 of our members with at least 300
Federal, State and local executive-level managers will converge
in D.C. to attend our training conference. Additionally we will
have an internal contingency of delegates from many other
countries in attendance.
As most concerned Americans, one of our key topics of
discussion will be racial profiling. We will reconvene our
racial profiling task force to discuss these critical issues.
We feel honored that we have some of the most innovative and
forward-thinking professionals that will bring a wealth of
information to the table to share with all interested parties.
Our national president, Ms. Iona Gillis, and our executive
director, Mr. Maurice Foster, asked me to extend each of you an
invitation to be our honored guest during this training
conference.
As you may be aware, in May 2001, NOBLE released our
comprehensive plan for combating racial profiling entitled,
``NOBLE Perspective: Racial Profiling, a Symptom of Bias-Based
Policing.'' This valuable information can be obtained and
downloaded by visiting our Web site at noblenational.org I have
a prepared statement they would like to share with this
committee.
NOBLE was founded in 1976 and consists of many of the most
influential chief law enforcement executives throughout the
country. NOBLE has been actively involved and concerned over
the decline and state of citizen-police relations. Furthermore,
NOBLE is unique in that our members, by virtue of their race
and/or ethnicity, may be faced with some of the same negative
concerns with law enforcement that many minorities complain
about frequently.
Issues concerning racial profiling, also referred to as
DWB, driving while Black, or driving while brown, have
significantly affected our country. As stated in the law
enforcement code of ethics, as a law enforcement officer my
fundamental duty is to serve the community; to safeguard lives
and property; to protect the innocent against deception, the
weak against oppression or intimidation, and the peaceful
against violence or disorder; and to respect the constitutional
rights of all to liberty, equality and justice. Unfortunately
recently there has been several events involving rogue law
enforcement officers that have cast a negative light and caused
the public to doubt the true significance of the law
enforcement code of ethics. However, we believe that most law
enforcement officers are proud to serve the community, and they
do it with honor.
Moreover, we believe that audio-visual technology, also
known as in-car video systems, coupled with other management
safeguards will have a profound benefit in restoring trust
between law enforcement and the community and helping refute
claims of bias-based policing.
In-car video systems have been in use in this country for
more than a decade. As many of you have probably witnessed on
police dramatization shows like COPS and the World Series
police videos, police are challenged with some extraordinary
situations each and every day. As a law enforcement manager and
a practitioner, I can assure you that the benefits both to the
community and also to the officers far outweigh the few
concerns that you may hear from some opposing groups.
In-car video systems enhance police accountability both to
management and also to community. The video systems capture a
true and accurate picture of what happens on the scene.
Additionally it preserves evidence and allows the scenes to be
recreated without concern of memory deterioration from the
police officer and the citizen. Additionally, the system
affords citizens, attorneys and the media to review the true
actions and behavior of law enforcement. This technology can
confirm or dispel claims of officers violating civil rights.
Furthermore, the tapes can be presented as evidence both in
civil and criminal proceedings.
Last and most importantly to me as a law enforcement
professional, an in-car video system is an extra added layer of
safety for police officers who protect our society each and
every day. Studies have repeatedly shown that cameras
positively modify and influence people's behavior. Whether it's
an irate or unruly citizen or an officer that is violating a
citizen's rights, the system should aid in capturing this
inappropriate and/or illegal behavior.
In closing I would be happy to have an in-car video system
to be my front seat partner.
Again, Mr. Chairman, I appreciate the opportunity to speak
to you concerning this matter.
Mr. Burton. Thank you, Lieutenant Boykin.
[The prepared statement of Mr. Boykin follows:]
[GRAPHIC] [TIFF OMITTED] T7191.074
[GRAPHIC] [TIFF OMITTED] T7191.075
[GRAPHIC] [TIFF OMITTED] T7191.076
Mr. Burton. Mr. Maloney.
Mr. Maloney. Yes. Thank you, Mr. Chairman.
Mr. Chairman and members of the House Committee on
Government Reform, on behalf of TriTech Software System, I
would like to thank you for this opportunity to testify at this
important hearing. The purpose of my testimony before you today
is not to explore issues and allegations relating to racial
profiling, but rather to address practical technical
considerations relating to a nationwide effort to quantify and
remedy racial profiling practices.
I personally believe that the use of existing technology
such as audio-visual applications can provide many of the
capabilities we are collectively seeking. However, audio and
video technology can only address some of the data collection
requirements, and the utility of the information when collected
lends itself only to a narrow range of very local applications
within the organization sponsoring it. The current available
systems to collect this audio-visual information are costly,
and the storage and retrieval of this data is time-consuming
and requires dedicated personnel at additional expense.
TriTech has created a solution that is not only an
effective and powerful information technology tool, but is
uniquely affordable in the marketplace where cost is always a
principal consideration. This solution can be used on a stand-
alone basis or as a complement to the collection of information
with audio-visual applications.
I would like to begin with a brief overview of TriTech
Software Systems and its position within the public safety law
enforcement marketplace.
TriTech Software Systems, headquartered in San Diego, CA,
has developed integrated and support software solutions for
public safety for nearly 20 years. Our computer-aided dispatch
solution VisiCAD is installed in more than 125 agencies and six
countries. In October 2000, TriTech deployed Voyager, a suite
of portable wireless applications targeted primarily at the
needs of the law enforcement community. The Voyager suite of
applications runs on virtually any personal digital assistant,
two-way pager or smart phone capable of wireless
communications. TriTech's Voyager contact application
facilitates collection of data relating to contact demographics
and enables statistical reporting and analysis.
Technology solutions may address two perspectives related
to racial profiling: First, to potentially discourage officers
from engaging in racial profiling practices, and, second, to
provide objective evidence to either support or disprove
allegations of racial profiling. Audio-visual technology has
been used effectively by many police departments to disprove
allegations of officer misconduct and to provide an added
measure of officer safety.
The primary advantages afforded by audio-visual technology
are its visibility to suspects and its acceptance by police
officers as a supportive defensive tool. However, as a racial
profiling tool for analysis, audio-visual technology is limited
as a stand-alone solution for several reasons. First, an
officer willfully engaging in racial profiling activities could
elect not to record the stop. Two, the reasons for escalating a
search after an initial contact could be difficult to capture
from a video camera. And three, the information captured using
audio-visual tools cannot be used to populate a data base
against which statistical analysis can be applied.
Tools for data collection must be easy to use, allowing the
officer to more easily perform his daily duties while capturing
this important data. Tools such as Voyager greatly facilitate
both data entry and data retrieval in or out of the patrol car
by allowing officers to query criminal data bases while
simultaneously documenting the stop.
In addition to ease of use, data collection tools must be
affordable. Video systems installed in the patrol vehicles and
the required costs of storage and retrieval are expensive. Of
the more than 18,000 law enforcement agencies in the United
States, more than 80 percent lack the financial resources to
procure such equipment. By contrast, our solution operates on a
variety of inexpensive hand-held devices at a low monthly cost,
as little as $100, and appeals to all agencies regardless of
size.
In conclusion, Voyager contact is an affordable innovative
data collection tool that offers a stand-alone or complementary
technical solution to law enforcement. The benefits include a
data collection mechanism that is secure, portable and easy to
use, and affordable by even the smallest agency; applications
that empower officers to enhance officer safety through
immediate access to criminal justice information; and last,
protection against civil litigation through its extensive
operational audit trail.
Thank you for the opportunity to testify on this important
matter. TriTech Software Systems would be honored to work in
concert with the House committee to provide any requested
information or technical guidance in this matter. Thank you
very much.
[The prepared statement of Mr. Maloney follows:]
[GRAPHIC] [TIFF OMITTED] T7191.077
[GRAPHIC] [TIFF OMITTED] T7191.078
[GRAPHIC] [TIFF OMITTED] T7191.079
[GRAPHIC] [TIFF OMITTED] T7191.080
[GRAPHIC] [TIFF OMITTED] T7191.081
Mr. Cannon [presiding]. Thank you, Mr. Maloney, and I
apologize for not having got here earlier, but I hope we have
just a pleasant exchange on some of these issues and build a
record that will be helpful, although it looks like we're going
to go.
Do you want to take like 2 or 3 minutes? I'll take 2 or 3
minutes. Why don't I recognize Mr. Cummings for a couple of
minutes, then I'll take a couple of minutes, then we will go
vote and come back. Why don't we take 5 minutes and let me
recognize you, Mr. Cummings, for 5 minutes. Then we will go
vote and come back.
Mr. Cummings. Let me just ask you, Ms. King, when you
listened to Mr. Kelly's testimony, did that surprise you, to go
from 23,000 to 9,000 searches was it, Mr. Kelly?
Mr. Kelly. Yes, sir.
Mr. Cummings. And still be effective.
Ms. King. No, sir, it did not. I was actually aware of
those numbers. The ACLU has sued the Customs Service, and so we
are following this issue closely. We have been very impressed
with some of the reforms Mr. Kelly has made and do believe they
have made a difference, although we would point out, as Mr.
Kelly did himself, that there is still some disparity in
numbers coming back that needs to be explained, and it sounds
like they're looking toward trying to figure out how does that
still exist.
The question about does it surprise me, it doesn't because
racial profiling is pretty ineffective. So it doesn't surprise
me they can get the same results without submitting innocent
people to such humiliating treatment.
Mr. Cummings. Are there things--were you here earlier when
the gentleman from Texas, the two senators, testified? Were you
here?
Ms. King. Uh-huh.
Mr. Cummings. OK. The legislation they talked about, are
you familiar with it?
Ms. King. Yes, I am.
Mr. Cummings. Is that more or less model legislation, or is
it still a lot to be desired there?
Ms. King. It's pretty good, although we weren't very
pleased with the opt-out provision, which is if you--they have
two different data collection requirements. You have to collect
data on all traffic stops and all pedestrian stops unless you
have purchased and are using video cameras or have tried to
purchase video cameras and can show that you couldn't afford
to, in which case then you can opt out of collecting data on
all stops and only have to on arrests and citations. And we
would prefer not to have the opt-out provision. We think that
more data and the video cameras would be better, but it's still
a good, overall I'd say good piece of legislation.
Mr. Cummings. Mr. Kelly, when you all went from the 23,000
to the 9,000, I mean, you know, all of us travel and come
through the airports and travel overseas and whatever. And I am
trying to figure out what is it that you did different? I mean,
in other words, you will still--you said initially that there
was--you named several things that you all were doing wrong.
You kind of generalized, but at the same time you said that you
reduced the number, and I'm trying to figure out what is it
that you did, and how did you determine how to reduce the
number? You follow me?
Mr. Kelly. Yes, I do. I think you have to understand how
Customs is constructed. It has 301 ports of entry into the
United States. And I think it's fair to say--and people who
have been in Customs for a while would support me on this--that
the process just wasn't watched adequately by management. It
just wasn't supervised. So it was going on pretty much at the
initiation of an individual inspector. So the process itself
wasn't watched on the local level as far as supervisors are
concerned or managers, and it wasn't being watched on a
national level.
I think when, in fact, the word got out that it was being
looked at and that you needed total and complete data
collection, which also wasn't happening, those two factors were
the most important in making significant changes in how the
Customs Service operated. Collecting that data, everyone who is
searched has to be recorded, gender, location, reasons for that
search, supervisor had to authorize it, and then managers up
the chain of command were certainly accountable for looking at
it, those two things alone were the major reasons for a change,
and I have been in policing a long time. I was in New York City
Police Department for 31 years.
Again, I think those two facts, the total data collection
and management involvement, can go a long way to significantly
reducing the problems associated with stop and frisk.
Mr. Cummings. I have some other questions, Mr. Chairman,
but I think we are approaching this vote.
Mr. Cannon. Thank you. I note it looks like we're going to
have a 10 minutes of debate, then a motion to recommit and then
final passage. So I think we probably need to recess until
after we finish that, and I suspect that's going to take 20 or
30 minutes, if that will work for the panel. OK. Thank you.
So we'll recess for 30 minutes, and until we finish this
vote.
[Recess.]
Mr. Cannon. We thank the panel for its extraordinary
patience. Thank you for coming back. And I think we'll just
continue with Mr. Cummings' time.
Mr. Cummings. Ms. King, on racial profiling, extensively is
it your sense that this problem is greater on the State level
than on the Federal level? In other words, is it more of a
problem?
Ms. King. It's difficult to answer your question, sir,
because we have basically a lack of information. We have
reliable data or at least initial data out of New Jersey and
Missouri and Maryland and California and Rhode Island, and from
the Customs Service, but I'm not aware of any other Federal
agencies that have compiled and distributed data, although
President Clinton did order it to be collected back in June
1999. There hasn't been any distribution of the results of
that. So it's hard to say whether it's more prevalent in one or
the other level.
Mr. Cummings. Mr. Kelly, when your people had to collect
data, did that impede them in any kind of way? They had to
collect data; is that right?
Mr. Kelly. Yes. That's correct.
Mr. Cummings. Did that impede their efforts in any way?
Mr. Kelly. None whatsoever.
Mr. Cummings. You know that's the usual argument, right?
You know, many police departments say it interferes with what
they have to do. And I would like for you to comment on that
also, Lieutenant.
Mr. Kelly. It's a necessary part of doing business. They
have to do it. In New York City, for years, there still is a
form that's used and should have been used and just wasn't
used. It wasn't because it was taking up too much time. It
simply was not given the appropriate attention by management
for years. So I don't see it as, in my view anyway, interfering
with normal law enforcement business.
Mr. Cummings. Mr. Boykin.
Mr. Boykin. Yes, Mr. Cummings. As you indicated, many times
you'll hear individuals in law enforcement comment that it
increases the time spent on a traffic stop, and it
inconveniences the citizen. Additionally, in many instances,
you might hear they might actually have to ask the race of the
individual. And I think much of the problem in many localities
is that the policies have, and in some instances cannot be
explained thoroughly enough to the officer. And many times they
don't have a good explanation for why they're doing what
they're doing. So I think there lies part of the problem.
But in many of the agencies that we've had contact with,
there's been little or no inconvenience to the citizen.
Kind of going back to the initial question that you asked
Ms. King related to it, that what we're finding throughout the
country is that many agencies have not, No. 1, been collecting
this data long enough; and No. 2, once they get the data
collected, they are having a time and an analyzation of that
data to produce a viable product.
Mr. Cummings. Mr. Maloney, you may have explained this, but
in a previous panel they were talking about--I forget who it
was--was talking about how--and I think you talked about it
briefly--how you can collect the data, but then you've got to
be able to process it. And your technology--and I assume yours
is not the only company that has this kind of technology, I
mean, this technology is designed to be reviewed daily, or, I
mean, how is that done, and how do you minimize personnel hours
to have--to review it?
Mr. Maloney. That's a very good question. I think the issue
up until this point has been most of the departments that are
under consent decrees to collect this data have done so on
paper, and that requires a lot of back-end processing.
Somebody's got to data-enter the paper after the fact. And that
is sort of an onerous job for the officer to do, because
there's not really a benefit to the officer to filling out a
form.
So the good news about new hand-held wireless technology is
that the officer can fill out the form very easily, very
quickly. There's edit checks inside the Personal Digital
Assistant to make sure he's filling out the right information,
and then once he hits the send button, the information is
transmitted back into a central data base for immediate
analysis and processing.
So, in essence, the computer is doing more of the checks
and the analysis work, and the officer has to do very little
other than just fill out some basic information.
In addition, on the back end, one of the nice things of
this technology is that the officer is going to get information
back once they're entering the information. So when they put in
a license plate or a driver's license of a suspect, they're
going to be looking up criminal information at the State and
the Federal level so they can get that back and help them do
their job better, because they may be pulling over somebody who
has a criminal history, maybe it's a stolen vehicle, and
they're not going to know that until they do that look-up. So
both of those in parallel with each other make it a very
positive experience for the officer, and they actually want to
do this.
Mr. Cummings. Mr. Kelly, did you find that there was a lot
of--in other words, there were people reluctant to do the
things--you know, the things that you put in operation? Were
they reluctant--there was not a great deal of supervision
before, and people usually don't like change, and I can imagine
in a quasimilitary operation, change becomes very
uncomfortable. Did you find changing the mindset to be
difficult?
Mr. Kelly. Yes. There was some initial resistance. The
union is about 11,000 members of the Customs Service in the
bargaining unit. There were concerns and questions through the
union. But I think management went out and explained the reason
for it. As the Lieutenant said before, you have to give the
rationale, the reasons, to the employees as to why they're
doing it. I think part of it was that they saw themselves
becoming more professional, more like full players in the law
enforcement community, and I think this was part and parcel to,
you might say, their development. And it was--I think you can
see by the numbers that it's been accepted, and it was accepted
relatively quickly. Yes, there was initial resistance, but I
think they realized themselves that there wasn't adequate
supervision, that there wasn't adequate control, so that there
wasn't adequate data collection. Some places were collecting
data, other places were not, and we explained this to them.
At the same time, we made most of these changes just prior
to Senate Finance Committee hearings that were to take place,
three sessions on the Customs Service in the spring of 1999 to
be modeled after, to a certain extent, the hearings that the
Senate Finance had on the IRS earlier.
So we tried to impress on them the necessity of making
change; this is the right thing to do; let's all get on board.
I think a lot of the confluence of the events came together and
was accepted relatively early on, with much to my pleasant
surprise.
Mr. Cummings. One last comment. You know, I think that if
they had to go through and be subjected, as a part of the
exercise of sensitivity, being searched and, you know, body
search and all that kind of stuff, I think maybe they might
look at it a little differently, because I think what happens
is--Martin Luther King, Jr. said, ``you cannot lead where you
do not go, and you cannot teach what you don't know.'' And so
often I think people need to be sensitized to that extent,
because I don't think they like to see that happen to their
wife or to themselves or relatives.
Thank you, Mr. Chairman.
Mr. Cannon. Thank you, Mr. Cummings.
I'd like to, first of all, salute you, Ms. King and
Lieutenant Boykin, for your organizations' efforts in ending
racial profiling. And I want you to know that I join you in
condemning this offensive practice and calling the State and
local and other prosecutors to seek to stop this illegal act.
I also want to see us have some reaction to those people
who falsely accuse law enforcement officers of racial
profiling.
I might just point out here as a side-bar, Ms. King, are
you familiar with the study last year or so of racial profiling
in Salt Lake City?
Ms. King. A little bit, yes.
Mr. Cannon. My recollection is we came out of that pretty
well as a police force. And in part we have a number of
Hispanics on our police force. The chief of police is Hispanic.
I think there was a great deal of sensitivity to it, and I
think people just thought it was wrong. So I'm pleased that, by
far, the largest city police force in the State of Utah came
away from that clean. And by the way, that happened in the
context of an increase of 128 percent in our Hispanic
population over a 10-year period. So I think there was a
difficult challenge there, and we met that pretty well in Salt
Lake.
Would the two of you describe your organizations' efforts
to help support the use of audio-visual technology as one of
the possible tools that can help eliminate racial profiling?
Ms. King. Ah, yes, sure. As I guess I was talking before
you came in about our support of H.R. 2074, which we would very
much like you to consider becoming a sponsor of, And one aspect
of that bill is a grant program that provides moneys to
jurisdictions to do these kind of best practices programs,
setting up data collection programs, oversight programs,
accountability programs, training programs and video cameras if
that's what the jurisdiction feels would be beneficial to them.
So that's one area right now that's pending where we're
actively promoting that legislation.
Mr. Cannon. Are you doing anything in the community beyond
the legislative action?
Ms. King. We're doing all kinds of stuff on this. I mean,
we're bringing litigation, and we're working both at the State
and Federal level and on legislation and also on public
education. This is one of our top priorities.
Video cameras per se, as I said earlier, I don't see that
as the sole solution to the problem of racial profiling, so
we're really focusing more on data collection. I think in an
ideal world, we'd have the technology like they have in
Montgomery County, which is video cameras in every car and also
hand-held devices, like those described earlier. And in an
ideal world, everybody would have both pieces of technology,
but it's not an ideal world.
Although we support video cameras, we wouldn't want to see
funding go to video cameras if it meant taking it away from
data collection programs.
Mr. Cannon. The really cool thing is that the cost of these
devices are coming down so dramatically. Maybe we'll see more
of it over time.
Lieutenant Boykin.
Mr. Boykin. Yes, Mr. Cannon. As my colleague had indicated,
we're strongly in support of in-car video systems as a method
to combat racial profiling. And like she indicated, we also
recognize that's only one of many aspects that we need to look
at. One that we might want to start at is our hiring practices.
If you traditionally and historically look at the types of
people that law enforcement have hired, and even the way that
we try to attract them, if you would actually take a close look
at the commercials and the brochures that police departments
are putting out, they're high-action types of videos. They're
high-action types of brochures with police dogs and helicopters
and SWAT teams and people with guns. That's the type of people
you're going to get. That's the type of psychological profile
of the individual you're going to get if that's what you're
actually putting out as a persona for what you're looking for.
I think we need to take a close look at that as an aspect.
We certainly need to look at our training and education aspect.
And like Ms. King, we're doing quite a bit in the community,
because we believe that it's a full-circle process. We're
actively out there.
And as I stated in my opening statements, that I think
NOBLE is in a very unique situation because many times our
members and executives are faced with some of the same
challenges that are the minorities. We live in many of these
communities that are receiving this level and type of services.
So we believe that we have an obligation to these minority
communities to make a marketable change.
For that reason we have many community-based programs.
We're trying to educate both young and old of their actual
constitutional rights in the community. We went in partnership
with Allstate Insurance Co. and created a brochure and
videotape entitled, ``The Law and You,'' which actually speaks
loud to actually what individual rights are. The highlighted
message is whether you're right or wrong. And we've seen
incident after incident that the street is not a good
battleground for a citizen to try to take up their cause. So
that's important to us.
Additionally, we went in partnership with the Community
Policing Consortium, in which we go to police departments and
provide training in the community. We're actually bringing
community in with the police department and talking about
what's important to them, developing problem-solving modules.
So that's just a little bit of what we believe is the
solution to this.
Mr. Cannon. Thank you very much, Ms. King and Lieutenant
Boykin.
I understand that the ACLU and NOBLE have long supported
the use of audio-visual technology as a tool to substantiate
charges of police brutality. Are you aware of how effective
this technology has been in regard to preventing or documenting
police brutality?
Ms. King. I don't know about any studies on it. The
anecdote that I gave in my testimony was of a racial profiling
incident where both patrol cars actually had videos on board.
So I think that if police want to figure out a way to avoid
having the cameras document what's going on, they can do so. Of
course, sometimes the cameras help to the benefit of the
officer as well who has been wrongfully charged, but I don't
know of any studies that show effectiveness.
Mr. Boykin. I would just have to echo what Ms. King
indicated. Again, referring back to my opening statements of
what I said, I think it's a pretty well and common known fact
that people generally behave better in front of cameras,
whether you're a criminal or a police officer. So that added
benefit right there certainly, I believe, would not only
benefit the police department, but also the community at large,
and that's very important. We have a vested interest in our
community to make sure that all communities are receiving the
proper and adequate quality level of police law enforcement
services.
Mr. Cannon. Thank you, Ms. King.
Ms. King, today we've seen how audio-visual technology can
both substantiate charges of racial profiling and, likewise,
perhaps to disprove some claims.
In addition to what your organization has done as far as
this technology in Texas, where else has the ACLU supported
State legislative efforts to support the use of this technology
to combat racial profiling?
Ms. King. Well, I'm aware of legislation pending currently
in Indiana and Minnesota. I'm quite certain our affiliates
would support both of those bills, especially the Minnesota
bill. It's a very good piece of legislation.
And other than that, in terms of legislation--I guess New
Jersey wasn't legislation. It was under consent decree. And
North Carolina was, I believe, legislation for their video
cameras, and we did support that bill.
Mr. Cannon. Thank you----
Ms. King. And Missouri as well.
Mr. Cannon. Ms. King and Lieutenant Boykin, it's our
understanding that audio-visual tape evidence is admissible
evidence in court. Do you agree with that?
Ms. King. Uh-huh.
Mr. Boykin. Most definitely. We believe that it certainly
should be admissible.
Mr. Cannon. Mr. Kelly, please, would you describe for the
committee how the Customs Service uses audio-visual technology
to record activity, and specifically how such evidence is used
when Customs agents are accused of inappropriate actions?
Mr. Kelly. It's not used in that regard. The only aspect of
technology that's used as far as personal search is concerned
is a body scan--the body-imaging machines that are now at
airports at 10 major cities throughout the country. Basically
what that does is an x-ray light looks through the clothing of
an individual, but not through the body, and that is only done
on a voluntary basis. That's when someone has been singled out
for a pat-down. If that individual does not want to be touched,
they can volunteer to go in front of this machine. It looks
through, as I say, the clothing and not the body.
If that person does not have contraband in their
possession, that picture is immediately destroyed. The
supervisor has the responsibility to seeing to that happening.
If, in fact, drugs are found, the contraband is found, that
picture is taken. So that is a visual aspect of the technology
that's in place now in the Customs Service.
There has been some talk about the possibility of audio-
visual components being used as far as personal search is
concerned. I think there are some privacy issues that might
arise there. In fact, if you use them, say, in a room where
someone is asked to take off a piece of their clothing, that's
an area of concern. It's been discussed, but to the best of my
knowledge, the agency hasn't moved forward in that regard.
Mr. Cannon. Mr. Cummings, do you have any other questions?
Mr. Cummings. I don't have anything else. I want to thank
you all for being with us, and your testimony has been
extremely helpful.
Mr. Cannon. I would also like to repeat our thanks to you
for your patience under these long and trying circumstances,
and thank you for coming. And the committee will stand
adjourned.
[Whereupon, at 4:35 p.m., the committee was adjourned.]
[Additional information submitted for the hearing record
follows:]
[GRAPHIC] [TIFF OMITTED] T7191.082
[GRAPHIC] [TIFF OMITTED] T7191.083
[GRAPHIC] [TIFF OMITTED] T7191.084
[GRAPHIC] [TIFF OMITTED] T7191.085
[GRAPHIC] [TIFF OMITTED] T7191.086
[GRAPHIC] [TIFF OMITTED] T7191.087
[GRAPHIC] [TIFF OMITTED] T7191.088
[GRAPHIC] [TIFF OMITTED] T7191.089
[GRAPHIC] [TIFF OMITTED] T7191.090
[GRAPHIC] [TIFF OMITTED] T7191.091
[GRAPHIC] [TIFF OMITTED] T7191.092
[GRAPHIC] [TIFF OMITTED] T7191.093
[GRAPHIC] [TIFF OMITTED] T7191.094
[GRAPHIC] [TIFF OMITTED] T7191.095
[GRAPHIC] [TIFF OMITTED] T7191.096
[GRAPHIC] [TIFF OMITTED] T7191.097
[GRAPHIC] [TIFF OMITTED] T7191.098
[GRAPHIC] [TIFF OMITTED] T7191.099
[GRAPHIC] [TIFF OMITTED] T7191.100
[GRAPHIC] [TIFF OMITTED] T7191.101
[GRAPHIC] [TIFF OMITTED] T7191.102
[GRAPHIC] [TIFF OMITTED] T7191.103
[GRAPHIC] [TIFF OMITTED] T7191.104
[GRAPHIC] [TIFF OMITTED] T7191.105
[GRAPHIC] [TIFF OMITTED] T7191.106
[GRAPHIC] [TIFF OMITTED] T7191.107
-