Thursday, April 16, 2009

An anachronistic debate over 'racial profiling' data

While I was busy on Tuesday at a House Criminal Jurisprudence subcommittee meeting and then watching the House Human Services Committee discuss the Great Eldorado Polygamist Roundup, the Senate Criminal Justice Committee was hearing a bill that I've long supported - SB 1120 by Royce West - creating a central repository of so-called "racial profiling" data generated by law enforcement officers at Texas traffic stops.

Listening to the hearing this afternoon (video is here, starting at the 35:45 mark), I was surprised how this has become a veritable cause celebre for the police unions. They attacked it like a beachfront they were storming. My old pals Charlie Wilkinson of CLEAT, Tom Gaylor of TMPA, and Mark Clark of the Houston Police Officers Union all lined up one after another to rail against the bill.

I've got a lot of history with this legislation, as did most of the folks testifying in opposition. I worked on the original bill requiring the gathering of data and the installation of cameras in police cars when I was Police Accountability Project Director for the ACLU of Texas back in 2001. And for a while, when the data first started coming in, I worked closely with statisticians and staff at the Texas Criminal Justice Coalition to create a private repository there based on annual open records requests, which for years was managed by the indefatigable Molly Totman.

So I got to see up close exactly what the data did and didn't show, and in fact the push for a repository has always been, in part, about the fact that many agencies don't compile reports, respond to open records requests, or produce data in a usable or meaningful format. Some agencies' data was useful and informative, and for others internal discrepancies made it difficult to even perform basic calculations.

The debate over this bill seems like something out of a time capsule, with Gaylor stridently complaining that the purpose of data collection was to "determine if racism exists in law enforcement." But that's not really how the law played out on the ground. As Sen. West got Charlie Wilkinson to admit, nobody can point to a single example of an officer ever disciplined for racial profiling without due process. The fears expressed seemed to ignore the state's 8 years of history with data collection that generated none of the ill effects they predicted.

To further demonstrate the odd, time-capsule quality of this debate, here's something I wrote about a similar bill two years ago that almost exactly mirrors what I'm inspired to write in reaction to Gaylor and Clark:
We've learned a lot from this data over the years since police began to collect it. Before departments gathered racial profiling data in Texas, it was common for police to claim there were not disparities in how many minorities received tickets compared to white people, or how often they were subjected to searches. The existence of those disparities has been confirmed by the data once and for all, and now the debate has shifted to the CAUSE of the disparities and how to reduce them. That change alone to me was worth the price of admission, inching us one step closer to admitting and dealing with race in law enforcement in a more honest way.

But a funny thing happened along the way in that debate - it turned out oversearching in Texas isn't only about race. Indeed, often racial disparities aren't the biggest ones. Some departments have a policy of searching more often at traffic stops generally in ways that affect everyone, white folks included. As I wrote based on Molly's report two years ago, in
My hometown of Tyler, for example in Northeast Texas, [police] searched blacks 2.6 times more than whites, compared to the town of Longview down the road which searched blacks 2.7 times more often. Sounds pretty similar, right? Well, check out the numbers as a percentage of traffic stops:

How many Tyler/Longview drivers were searched
as a percentage of local traffic stops by race




Tyler PD




Longview PD




So once again, while both department's search patterns exhibit racial disparties, as a percentage of total stops, Longview is engaging in MANY more unnecessary searches than the Tyler PD. Indeed, whether a department has a policy of oversearching is a more significant factor than race: a white driver in Longview is more than twice as likely to be searched at a traffic stop as a black driver in Tyler.

To me, the debate over racial profiling isn't about accusing cops of racism, it's about treating people fairly and giving the public and departments tools to measure police practices to see if they're fair. These stats show that disparate treatment at traffic stops is about more than just race -- it's about documenting police practices that are eroding the Fourth Amendment for everybody.
I swear I was about to write the same thing, including the hometown example, before having a moment of deja vu and retrieving this item from 2007. Obviously, though, those arguments aren't enough because the legislation didn't pass and the opposition to the bill is more strident and focused than ever.

So something else is needed. Perhaps a mea culpa will help: We mis-framed this bill from the beginning. It should have never been pitched as "racial profiling data," but as "traffic stop data." It's supervisory functions should have been more strongly emphasized, and its goal should have been firmly stated as bolstering the Fourth Amendment.

Indeed, the data from Sen. West's SB 1074 in 2001 gave supervisors more information about what their officers did in the field - both in terms of numbers on the form and video from new dashcams in police cars - than they'd ever had before. But the racial angle has been used by Gaylor and Co. to drum up populist fervor among their ranks to try to convince their members that Sen. West and the bill's supporters were out to pillory them as racist.

That's really a mis-characterization. In retrospect, having seen up close what the data does and doesn't prove, I'd argue the data is useless for "proving racism" and anyone who has that as a goal will want to find another path to pursue.

That said, this information tells us more about basic police practices at traffic stops than we ever knew before, in particular honing in sharper focus on the practice of "consent searches," where disparities were a) often higher than disparities among drivers stopped and b) were a function of officers' discretion as opposed to a reaction to probable cause.

Some agencies began requiring written consent at traffic stops of their own accord after the first couple of rounds of data came out, and in 2005 the Legislature passed (but Governor Perry vetoed) a bill to require written or recorded consent for police to search at traffic stops, largely as a result of the data generated by this bill.

Gaylor objected to centralizing the data in a repository because it would take it out of context, but Longview's high numbers would have no context if they couldn't be compared to other, similar communities. Tom's got it exactly backward.

Bottom line: So-called "racial profiling" data in Texas is not identifiable by officer and is only reported in aggregate numbers. For that reason, it's useless for "attacking" individual officers, as Gaylor and Clark alleged, but instead puts pressure on supervisors to justify their use of resources. Why would Longview search so many of its citizens? This calls into question how management prioritizes its officers' time and focus, not any individual officer's decisions.

The key change to the data gathered under the bill would require officers to check off whether they find contraband or not when they perform consent searches. That would actually give agencies a performance measure to tell whether these tactics were justified. Would Longview continue to search at so high a rate if they could measure how many more cases were made? This would give the department another tool to evaluate that choice in an objective, evidence-based fashion.

Sen. West's SB 1074 back in 2001 was a better bill than we knew at the time, and for different reasons. His SB 1120 builds on what worked best in that 2001 legislation while, to my mind, entirely avoiding the misuses that his detractors insist will inevitably happen. Another example of interest groups opposing a reform more out of habit than reason.


TxBluesMan said...

I didn't notice that any of the police unions railed against the bill.

All Charlie wanted was some form of due process for officers that don't work in a Chapter 143 municipality. Charlie said the rest of the bill was fine. Is there a problem with officers accused of misconduct getting due process? Or should they just be fired on a whim, with no recourse?

Tom just wanted a definition, and to determine what data was desired first before a state database was created. He also stated that the rest of the bill was fine.

It appeared to me that they were on board with most (as Senator West said, 99%) of the bill, they just had a couple of minor concerns, in areas that should not be an issue unless one just does not believe that police officers should be treated fairly and have due process rights.

You're not opposed to due process for non-civil service police officers, are you?

TxBluesMan said...

BTW, full disclosure - I work in the police labor field of law.

Anonymous said...

I never did understand how these statistics every proved racial profiling.

Woe to the white police officer that works in a part of town with a black majority! The only people he would stop would be black. Would that make that officer a racist?

Woe to the black officer that works in a part of town where the majority of people are white! He would only stop white people! What a bigot.

Or if you worked in a community like I did the majority of people that you would stop would be white, or white Hispanic. I remember that I only searched and arrested one black person in a year. So does that make me a bigot in regards to white people or white Hispanics?

The statistics say what politicians want them to say.

Let me tell you the facts, the police tend to hang around where the action is. I mean lets face it, I didn't go into police work to sit in a donut shop. I want to get criminals off of the street. In order to do this, you go to the part of town with the most crime. Unfortunately in many cases the "poor" part of town happens to have a "minority" population. With few jobs and an ailing education system a culture of crime forms in those areas. This is where the racial disparity comes from. This is not a problem that the police caused nor is it a problem that the police can solve although they can suppress crime and insurrections from time to time.

Instead of spending millions of dollars in more paperwork, use that money for underdeveloped areas so that those people will learn to trust the government again. Offer tax breaks or low interest loans for businesses in poorer areas of cities. Pay great, experienced teachers incentives to work in schools that service poor areas. Use that money to fund after school programs, sports, et cetera...

I know, I know... I'm just a cop but dammit, I figure someone would think of this stuff.

Now I agreed with video cameras in patrol cars. That was an excellent idea. I always felt great that I would always have an impartial witness when I had to drop a drunk that was swinging at me!

Common Sense Cop....

Gritsforbreakfast said...

Common Sense Cop: I guess you missed the part of the story that said, "As Sen. West got Charlie Wilkinson to admit, nobody can point to a single example of an officer ever disciplined for racial profiling without due process." How does that jibe with your critique?

Bluesy, the unions' concerns are "minor," it's true. Trivial even. That's because, after 8 years, they have no real-world complaints about the law and so make up bogus ones. That's my beef: Sen. West has acquiesced to every legitimate concern and now they're only pushing illegitimate ones. E.g., the law already has a definition of racial profiling, contrary to Tom's complaint. It says, "In this code, "racial profiling" means a law enforcement-initiated action based on an individual's race, ethnicity, or national origin rather than on the individual's behavior or on information identifying the individual as having engaged in criminal activity."

Charlie's more reasonable about it, but what Tom and Mark want is for the old law to either be repealed or become an unenforced dead letter. That's why they oppose it, IMO; the specific concerns they expressed wouldn't otherwise justify their opposition.

Anonymous said...

“The key change to the data gathered under the bill would require officers to check off whether they find contraband or not when they perform consent searches.”

Someone is behind the times. The agency I retired from has been doing this for years.

“Bottom line: So-called "racial profiling" data in Texas is not identifiable by officer and is only reported in aggregate numbers.”

Again, my agency has been doing this for years as have others because we have the same software package.

West can call for any reporting procedures he wants to. The problem is as with most requirements in the Texas CCP, there are no penalties for not complying.

“We've learned a lot from this data over the years since police began to collect it. Before departments gathered racial profiling data in Texas, it was common for police to claim there were not disparities in how many minorities received tickets compared to white people, or how often they were subjected to searches. The existence of those disparities has been confirmed by the data once and for all, and now the debate has shifted to the CAUSE of the disparities and how to reduce them.”

Well, are we going to get a list of the agencies where alleged disparities exist and do not exist or is it going to be the usual “lump ‘em all together mentality?”

Gritsforbreakfast said...

"are we going to get a list of the agencies where alleged disparities exist"?

For the most recent data I'm aware of, in this case specifically focused on consent search data, see this report (pdf) from the Texas Criminal Justice Coalition. The department-specific data begins on p. 24 of the pdf.

Gritsforbreakfast said...

To clarify, departments have produced local reports since then, but I believe that's the last survey where anyone compiled the reports statewide.

TxBluesMan said...


Would you have a problem if Tom and Mark's objections were ignored, and Charlie's suggestion for some sort of due process procedure for officers not under Ch. 143 or a local (like Dallas) civil service?

Also, there needs to be more teeth in sanctions against agencies that won't provide the information.

Gritsforbreakfast said...

Depending on the language, I'd personally be fine requiring due process before disciplining someone based on data collected under this statute, particularly if in exchange CLEAT would support the central repository, standardized format, etc. Since it's never happened that someone was disciplined in that way, I don't view it as a big problem, but it'd be fine with me if that's what it'd take to make them feel better.

In Dallas, though, the example you mention, they have their own due process even if it's not Ch. 143. Simply requiring a hearing wouldn't change how they do business, I'm afraid.

We agree on putting teeth into sanctions, but how do you check compliance without a central repository and standardized data reporting? It seems like enforcing the rules presumes a central authority compiling and vetting the reports.

doran williams said...

Here is a first draft thought 9not really thought out in detail) about the central repository matter.

Years ago, most State agencies which issued licences, permits, etc., had their own hearing officers to preside over and made decisions on contested cases. That has changed to a great extent, I think, with the creation of the State Office of Hearing Examiners (is that the correct handle?). Now, most if not all contested cases are heard by these hearing officers, rather than by employees of the agency which issued or denied a permit, etc. There has been some added belief in the integrity of the hearings process as a result.

Something along this line, but without the hearings authority, could be done for all agencies which collect data from cities, counties, police departments, water well drillers, etc. This agency would do little more than collect and protect the integrity of the data. It might do some collating and statistical analysis at some point.

Whadya think Grits? Tx?

TxBluesMan said...


Perhaps I wasn't clear. Dallas was just an example of an non-Chapter 143 brand of civil service. They do have due process built in, so I wasn't proposing that a hearing/due process requirement be added.

My point, as I believe Charlie's was also, is that officers employed by what is commonly called an 'at-will' agency should be afforded some basic due process rights.

As far as sanctions without a central repository (and I do not object to the repository), each agency is required to collect the data and to prepare a report, if I understand the law correctly. If they do not respond to a request, it can be documented and sanctioned, with or without the central database.


Sounds like a good idea to me. By the same token, the SOHE could be used to provide the due process hearings for the officers in at-will departments.

TxBluesMan said...

BTW, both Grits and Doran can actually be quite reasonable when they are agreeing with the right side (LOL, pun intended) of the issue....

All we have to work on now is getting y'all to agree with me more often...

doran williams said...

tx, why should peace officers, employees of towns, cities and counties, have any more due process rights in employment matters than any of the other employees of those entities?

TxBluesMan said...

I don't have a problem with the others have due process either, but as a matter of practicality, you don't see many clerks and janitors being fired for political expediency...

doran williams said...

I don't see very many peace officers being fired for that reason, either.

In fact, I don't see many peace officers being fired for really good reasons. Like shooting an unarmed, fleeing suspect in the back, instead of running him down and tackling him.

TxBluesMan said...

What are all of the facts in that case, without the anti-police bias?

Gritsforbreakfast said...

There's no anti-police bias that I can see in Doran's description of the type of case that routinely receives no discipline: "shooting an unarmed, fleeing suspect in the back, instead of running him down and tackling him." That's a pretty straightforward description, Bluesy, you're just dodging his point.

And his point is well-taken: The issue of politicized personnel policies cuts both ways. It's also inappropriately politicized when bad cops stay on the force because the police union is more politically powerful than the chief.

I support due process for police officer employees but I break with the unions when they start to pretend that politicization of employment rules only cuts one direction. I also see lots of problems with how the rules are politicized in ways that protect bad cops.

Of course, none of this has anything to do with Senator West's racial profiling legislation, since that data is never reported at the officer-specific level. That's why Charlie's suggestion IMO is just an excuse to oppose West's bill, not something anyone really thinks is needed. It's never come up in the eight years the law has been in effect.

TxBluesMan said...


What was the nature of the call that the officer answered? Was the suspect believed to be armed, or did a caller state he was armed? What was the crime?

What was the physical condition of the suspect compared to the officer? Was the suspect accused of a violent offense? Was he an escaping prisoner? Did the suspect make a movement that made the officer fear that he was reaching for a weapon?

All of the above play into the determination of if it were a bad shooting or not. The simplified statement displays a bias against the officer by not showing all of the facts.

It could very well be that the shooting was unjustified, but without additional facts, there is no way to know that.

I have seen cases where an officer was accused of shooting a suspect in the back, but where it was justified due to reaction time - the suspect pointed a weapon, then turned while the officer was drawing and firing. The politicians tried to throw him under the bus - the media called for his hide - the liberals were outraged, but when the evidence was shown, the officer had done exactly what he needed to do.

So yes, his post shows an anti-police bias, assuming that it was a bad shooting with no supporting facts one way or the other.

doran williams said...

Tx, you are the one with the bias. Any criticism of police conduct evokes from you an accusation of anti-police bias.

If you were representing the Trash And Garbage Collectors Union of Plano [TAGCUOP] rather than members of a police union, any complaint against garbage collectors -- that they didn't pick it up, they made a mess, they were too noisy -- would probably evoke from you an accusation of anti-garbage collector bias.

Given your employment situation, I could understand your knee-jerk response, probably, if you were on this blog using your real name. But you aren't. You are hiding behind a nom de plume, for god's sake. There is no good reason why you have to be advocating for your clients at all times, contrary to common sense, to facts, and to what we all know goes on all too often in police work.

You could show some intellectual honesty every now and then, without embarassing your clients. Lawyers in other fields learn to do that. Lawyers who represent criminal defendants do not generally support the idea that criminal conduct is good. Lawyers who represent wife beaters and child abusers do not generally support wife beating and child abuse. Creditors Rights practitioners do not, generally speaking, think all debtors are dead beats. Lawyers who represent landlords do not, as far as I've noticed, think all tenants are creeps or all landlords are the salt of the earth.

You remind me of those people who respond to any criticism of Israel, any suggestion that US polcy vis a vis Israel should change, with accusations of anti-semitism.

It is impossible to carry on a conversation, a discussion with you, aimed at making changes in the way things work, when you are not prepared even to admit -- anonymously -- how things work.

Get over it.

TxBluesMan said...


I noticed that you didn't address any of the facts - it is obvious from your comment that a Grand Jury did not indict the officer. In the first place, had he been indicted, almost every department in the state will suspend or fire the officer. In the second place, all indictments have to be reported to TCLEOSE within 30 days, and they typically will take action against the licensee if there is a problem.

Since neither of these events happened, that tends to indicate that there were other factors that you omitted, facts that would likely show that the officer was justified in his actions.

I called it like I saw it. If that offends your sense of decorum, I can't help that. I can tell by your lack of response on the main issue that there are other factors that have been omitted - if you don't want to go into all of them, just give me the name (if you don't want to do so publicly, post it as a message in my blog and I'll make note of the name and reject the post). I'll look up the facts of the case and if I'm wrong, I'll come back and say so.

Anonymous said...


I know that there have not been any officers disciplined for racial profiling statistics.

That was really not my point.

I am just saying that spending millions of dollars creating new layers of paperwork is not going to fix the underlying problem in "racial profiling."

Poor neighborhoods have more crime. Just as soldiers tend to gravitate to where wars are, firemen tend to gravitate to where fires are, police tend to gravitate to where the "action is."

This "action" is something that police officers DO in fact crave. I still enjoy going after people that exploit others. I would be the first to "high five" when we located a car thief, find drugs on a drug dealer, or when we got a drunk man off of the streets (such as the individual that accidentally drove his car into a body of water and killed his five children in Houston).

These days, police officers are actually asked to hide their excitement about these aspects of our job.

Let me tell you a secret, I was in corrections for 2 1/2 years and I have been in law enforcement for over 6 years. Although I am in an investigation position that routes out corruption, and am not on the streets anymore, it is still exciting to me. I get a thrill when I find that I have a caught a public servant that was nothing more than a criminal using the authority of the state. The job is still exciting to me and as soon as it is not, I will retire or move on to another occupation (maybe law school).

But I digress. If the racial profiling statistics are to be used to indicate anything it is not necessarily racism. My belief, at least from my investigative experience, is that racial disparity of pedestrian and traffic stops (searches, found contraband, et cetera) in cities and to a lesser degree counties is indicative of poverty, not racism. We don't need racial profiling paperwork to tell us where the "poor" part of town is. Everyone knows.

Acts of criminal racism are not state sanctioned nor systemic as they were in the past. Racism is no longer a government project, it is a personal choice.

The money spent on collecting racial profiling data could be used on tax breaks for businesses that open in poor communities or that offer cheap, quick transportation from poorer areas to where there ARE jobs.

I think that the cameras in patrol vehicles was a great idea and I even support video taping custodial interrogations (with some res gestae exceptions).

Oh, and to answer a question from Doran Williams about shooting a fleeing unarmed person in the back.

That is an extreme situation. These situations are actually thoroughly investigated and if necessary, prosecuted. Most of the time, the police officer did what he had to do and reacted to real a threat. MOST of the time, although there are notable exceptions. The BART shooting comes to mind.

However let me give you a more common scenario. A police officer stops the mayor for a traffic violation and discovers that he has slurred speech and a strong odor of an alcoholic beverage. He is obviously to inebriated to drive.

An officer that has no "due process" can rest assured that they will be retaliated against with little or no recourse. The officer with no protections will have to let the mayor go and face accusations of favoritism in order to feed his family.

An officer that is protected by due process can actually do his job. Is there a chance that he will be retaliated against? You betcha. However, he can sometimes rely on due process when all of the political leaders desert him/her.

Think this isn't a common occurrence? It happened to me. I wanted to arrest the mayor, and the Sheriff ordered me not too and drove him home. I had to swallow my pride, follow orders, and continue working until I was picked up as a state peace officer. I now work in a department that is less political, but hey "why should peace officers, employees of towns, cities and counties, have any more due process rights in employment matters than any of the other employees of those entities?"

That's why. I would also include state peace officers as well.

Check out this story:$46209. That was what happened when an officer didn’t shoot. Boy a cop’s life can be rough but the protections that police have are necessary.

Sanitation workers do not have to arrest members of the city council nor their children. Cops do. Or at least they should from time to time to include other cops.

I know it was a long post but I find a lively debate a healthy diversion! Have a great evening all.

Common Sense Cop...

doran williams said...

Tx, why don't you clarify this discussion by stating when it is just fine, really okay in your opinion, for a peace officer to shoot an UNARMED, FLEEING, SUSPECT, in the back?

Notice the facts, Tx: No weapon, running AWAY from the peace officer, and SUSPECT -- not an escaping prisoner. You threw these and other make-believe conditions into the situation I described, and then used those factoids as the basis for accusing me of anti-police bias. I think you made my subsequent point: That you are professionally, if not inherently, incapable of dealing with criticism or questioning of police conduct without accusing someone of bias.

Maybe you can use your online research capabilities to find an opinion out of the Third Court of Appeals. I cannot recall the style and have lost my paper copy. The opinion is about two or three years old and describes the way fleeing suspects can be and probably should be apprehended.

The case involved Austin Police Officer Paul Johnson. He chased a fleeing suspect down, tackled him, and made an arrest. No shots fired. If this is the Officer Paul Johnson who is a friend of mine, I can tell you that Paul is about 5'6", and slightly built: You might expect someone of that size to resort to the gun rather than to the chase, but Paul is the son of a preacher man, and very well motivated for police work.

He is not the kind of cop who summarily executes a fleeing, unarmed suspect. That is the basic problem, I suspect, in situations where suspects are shot in the back: The officer/shooter is inclined to do such things by his own character.

deTRUFF said...

First of all, racial disparity data must reflect comparisons across races rather than within race (i.e., searches/stops of blacks, browns and whites compared to the total of searches/stops). In that instance, my best bet is that we'd see that more blacks and browns are stopped in the first place relative to total stops, and that more blacks and browns are searched relative to total searches. As has been implied, adding community profile data would be helpful (i.e., population total and demographics, police demographics and average years-on-force, crime index, etc.).

Secondly, there already is due process for everybody, including the police. So we must maximize the use of the data and what it tells us, and acknowledging its limitations, as a tool for professional development and management (with appropriate sanctions, including termination).

As has been said, let us not ignore the reality of racial disparities -racism - in policing and throughout the criminal justice system. We must be reasoned if we are to change the course. And we must do so without the distractions of the unions' push for protections, arguments of reverse discrimination, and discourse on the sociology of poverty and crime.

TxBluesMan said...


If the officer "summarily" executed an individual, why wasn't he indicted?

There are facts that you are omitting from the case.

Just to make it clear, if an officer shot an unarmed fleeing suspect in the back and there are no other facts that would justify his use of force, then that officer should be prosecuted.

If he were prosecuted, then you wouldn't be complaining that he was still employed by the department - they would have terminated him, and there is nothing in Chapter 143 that would protect him from that.

Since he is still employed, which likely means that he was either no billed or the case wasn't presented by the DA, that tells me (and anyone else that is unbiased in the matter) that there are significant facts that you are omitting from the discussion.

The only incident I could find in Texas involved Wayne Williamson, in Austin - and he was fired, so unless he has won his job back through due process, I doubt that this is the case, since Williamson didn't hit the suspect.

Again, if you will provide the name and/or the facts, this could be discussed rationally, but based on what you have posted thus far, I stand by my assertion of bias on your part.