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Letter: NYCLU Calls City Council Racial Profiling Bill “Unenforceable”

June 28, 2004 City Council Member Philip Reed 250 Broadway New York, NY 10007 Dear Council Member Reed: I write regarding the NYCLU’s continued opposition to proposed legislation (Int. 142-B) that is intended to prohibit “racial or ethnic profiling” by law enforcement officers. The NYCLU supported, with some qualifications, the bill as originally introduced (Int. 142); and in testimony before the Public Safety Committee I urged the City Council to pass legislation that adopted the basic framework of that bill. Upon reviewing the amended bill (Int. 142-A) I raised a number of concerns/objections regarding the legislation, which I communicated to you and to staff counsel. I summarized these concerns in a letter, dated February 23, 2004, to all City Council members. As I explained when we met last week, it is the position of the NYCLU that the newly amended bill (Int. 142-B) is still deficient in several important respects and therefore should not be passed by the City Council. It is my understanding that the City Council will proceed with a floor vote on Int. 142-B. I appreciate your having offered me the opportunity to enter the NYCLU’s objections into the record prior to the Public Safety Committee’s vote on Int. 142-B. I was unable to appear at the City Council that morning. I offer this letter in lieu of my public comments. The NYCLU’s opposition to the 142-B is based upon the following grounds:

  1. The prohibition of racial profiling is defined in a manner that is all but unenforceable. The original bill defined the prohibited act of “racial or ethnic profiling” to mean certain law enforcement actions predicated upon race, ethnicity or national origin rather than upon the behavior or other information that led police to believe an individual is or has been engaged in criminal activity. (Int. 142, § 14-300.1) The amended bill significantly alters this definition, making the prohibition applicable when a police officer relies on “race, ethnicity, religion or national origin” as “the determinative factor” in undertaking a police action (Int. 142-B, §14-151(a)(1)). It is the NYCLU’s position that the “determinative factor” standard is ambiguous; and any attempt to apply it will be undermined by uncertainty as to its meaning on the part of police officials. There would be no objection to a prohibition of “profiling” that recognizes it is permissible to rely on race or ethnicity along with other identifying factors – for example, time and place – when race or ethnicity is one aspect of the description of a suspect that links an individual to an identified criminal incident or scheme. However the “determinative factor” test provides insufficient clarity and guidance as to when the use of race or ethnicity is used inappropriately as the basis for a police action. The definition lacks a clear, affirmative requirement that a police officer must have specific information, other than race or ethnicity, linking a person to suspected wrongdoing before initiating a police action against a person or persons. I have attached definitional language from two alternative legislative models (one of which was included in the NYCLU’s formal testimony submitted to the City Council on February 23, 2004) that provide greater clarity as to precisely what type of police conduct is meant to be prevented by a prohibition of “racial or ethnic profiling.”
  2. Int. 142 required the collection and reporting of information regarding police stops of vehicles as well as police actions involving stop-and-frisk activity. That bill would have required the reporting of such data on a “city-wide, borough-wide, patrol borough, precinct-by-precinct, command-by-command, tour-by-tour and month-by-month basis.” (See §14-303) Int. 142-B deletes this provision. Without these data it is all but impossible to assess the extent to which the NYPD or any of its units or precincts engage in the prohibited practices defined as “racial or ethnic profiling.” Patterns or practices of the prohibited conduct cannot be discerned without the provisions of the original bill that require the collection and reporting of demographic data regarding persons who are the subject of a law-enforcement action.
  3. Int. 142-B also eliminates from the original legislation disciplinary sanctions for violation of the prohibition against racial or ethnic profiling. Without addressing the aforementioned issues, it is unlikely that disciplinary sanctions would ever be imposed against a police officer for engaging in racial or ethnic profiling. However, it is nevertheless important to recognize that Int. 142-B provides no disciplinary consequence for engaging in “racial or ethnic profiling.”

For the foregoing reasons, the NYCLU is opposed to the City Council’s passing Int. 142-B. Yours sincerely, Robert A. Perry Legislative Director c: Council Member Peter Vallone, Jr. Chair, Public Safety Committee Encs: W. Va. Code §30-29-10 (2003); H.R. 3847 (2003 Congress)

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