Constitutional Law

Taking on West Virginia's Racial Profiling Problem

By Seth DiStefano, ACLU of West Virginia

(Originally posted on Daily Kos.)

The 2010 regular session of the West Virginia State Legislature offered some long overdue good news with respect to the state's racial profiling problem. While those concerned with profiling have known it to be a reality for a long time, the hard evidence was not available until early 2009 when the results of the WV Traffic Stop Study were released. Bottom line, those drivers who are perceived to be racial and ethnic minorities (i.e. African-American or Latino) are 1.5 times more likely to be stopped. Once stopped, they are 2.5 times more likely to have their vehicles searched, even though (the same study showed) minority drivers are actually less likely to have anything illegal in their possession than their Caucasian counterparts.

Armed with this information, ACLU of WV was able to successfully advance legislative measures we hope will begin to ease the problem of racial profiling. The first positive effect was a policy developing racial profiling avoidance training and its mandatory implementation to all law enforcement personnel within the next 18 months.

This isa great example of how the Traffic Stop Study continues to pay dividends for the cause of racial justice in West Virginia. Training is a positive step and will serve to eliminate misconceptions about minority communities within the ranks of law enforcement. However, a few seminars will not eliminate racial profiling from society. That's why the ACLU of West Virginia also successfully fought for the passage of Senate Bill 649, which places important restrictions on police officers' use of consent-based searches.

"May I search your car?" "You don't mind if I take a look inside, do you?" The question comes in many different forms, but the motive is clear: if a law enforcement officer asks permission to search your vehicle, he or she does not have probable cause or other mitigating reason to do so. You have the right to say "no" to the request, but most people don't know they have the right to refuse. Those who do often feel intimidated and compelled to consent. Though some officers will respect a driver's right to refuse a search, others resort to tactics that are downright coercive, saying things like "only the guilty people say no," or "do we need to call your parents?" or even "we can always call the K-9 unit."

Evidence obtained through the Traffic Stop Study suggests that while this particular practice is a problem across the board, minority drivers in certain parts of the state are being placed in this uncomfortable situation at greater rates than their nonminority counterparts.

The study also showed that consent searches are often unproductive. Indeed, of all vehicle searches conducted via "consent," 53 percent — more than half — did not result in the discovery of contraband.

The overuse of consent-based searches against people of color contributes to West Virginia's racial profiling problem, and creates resentment between communities and law enforcement. Re-establishing trust between communities of color and the police is critical to protecting public safety.

Senate Bill 649 is landmark legislation. It will create badly needed standards governing the practice of consent-based motor vehicle searches. The policy, once fully enacted, will require law enforcement personnel in West Virginia to inform motorists of their right to refuse a consent-based search in writing. It will also require that consent, if given, be recorded either in writing or by some form of audio equipment.

While the final implementation of the policy has a ways to go, allies of racial justice and fair police practices are hopeful that this milestone for civil rights will begin to temper overly zealous policing that relies on race rather than suspicious activity. Such law enforcement tactics are wasteful, cripple the crucial trust that must exist between all communities and law enforcement, and inevitably lead to the unproductive and damaging practice of racial profiling. There is much more to accomplish in West Virginia when it comes to eradicating racial profiling and ensuring fair and constitutional police practices for all West Virginians. These policy measures, however, are a very good start.

Full post as published by Blog of Rights on April 12, 2010 (boomark / email).