[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 2132 Introduced in Senate (IS)]
108th CONGRESS
2d Session
S. 2132
To prohibit racial profiling.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 26, 2004
Mr. Feingold (for himself, Mr. Corzine, Mrs. Clinton, Mr. Lautenberg,
Mr. Kennedy, Mr. Schumer, Mr. Durbin, Mr. Kerry, Mrs. Boxer, Mr. Reid,
Mr. Dodd, Ms. Cantwell, Ms. Mikulski, and Mr. Edwards) introduced the
following bill; which was referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To prohibit racial profiling.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``End Racial
Profiling Act of 2004''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.
TITLE I--PROHIBITION OF RACIAL PROFILING
Sec. 101. Prohibition.
Sec. 102. Enforcement.
TITLE II--PROGRAMS TO ELIMINATE RACIAL PROFILING BY FEDERAL LAW
ENFORCEMENT AGENCIES
Sec. 201. Policies to eliminate racial profiling.
TITLE III--PROGRAMS TO ELIMINATE RACIAL PROFILING BY STATE AND LOCAL
LAW ENFORCEMENT AGENCIES
Sec. 301. Policies required for grants.
Sec. 302. Best practices development grants.
TITLE IV--DEPARTMENT OF JUSTICE REPORTS ON RACIAL PROFILING IN THE
UNITED STATES
Sec. 401. Attorney General to issue reports on racial profiling in the
United States.
Sec. 402. Limitation on use of data.
TITLE V--DEFINITIONS AND MISCELLANEOUS PROVISIONS
Sec. 501. Definitions.
Sec. 502. Severability.
Sec. 503. Savings clause.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress finds the following:
(1) Federal, State, and local law enforcement agents play a
vital role in protecting the public from crime and protecting
the Nation from terrorism. The vast majority of law enforcement
agents nationwide discharge their duties professionally and
without bias.
(2) The use by police officers of race, ethnicity,
religion, or national origin in deciding which persons should
be subject to traffic stops, stops and frisks, questioning,
searches, and seizures is improper.
(3) In his address to a Joint Session of Congress on
February 27, 2001, President George W. Bush declared that
``racial profiling is wrong and we will end it in America.'' He
directed the Attorney General to implement this policy.
(4) In June 2003, the Department of Justice issued a Policy
Guidance regarding racial profiling by Federal law enforcement
agencies which stated: ``Racial profiling in law enforcement is
not merely wrong, but also ineffective. Race-based assumptions
in law enforcement perpetuate negative racial stereotypes that
are harmful to our rich and diverse democracy, and materially
impair our efforts to maintain a fair and just society.''
(5) The Department of Justice Guidance is a useful first
step, but does not achieve the President's stated goal of
ending racial profiling in America: it does not apply to State
and local law enforcement agencies, does not contain a
meaningful enforcement mechanism, does not require data
collection, and contains an overbroad exception for immigration
and national security matters.
(6) Current efforts by State and local governments to
eradicate racial profiling and redress the harms it causes,
while also laudable, have been limited in scope and
insufficient to address this national problem. Therefore,
Federal legislation is needed.
(7) Statistical evidence from across the country
demonstrates that racial profiling is a real and measurable
phenomenon.
(8) As of November 15, 2000, the Department of Justice had
14 publicly noticed, ongoing, pattern or practice
investigations involving allegations of racial profiling, and
had filed 5 pattern and practice lawsuits involving allegations
of racial profiling, with 4 of those cases resolved through
consent decrees.
(9) A large majority of individuals subjected to stops and
other enforcement activities based on race, ethnicity,
religion, or national origin are found to be law abiding and
therefore racial profiling is not an effective means to uncover
criminal activity.
(10) A 2001 Department of Justice report on citizen-police
contacts in 1999 found that, although African-Americans and
Hispanics were more likely to be stopped and searched, they
were less likely to be in possession of contraband. On average,
searches and seizures of African-American drivers yielded
evidence only 8 percent of the time, searches and seizures of
Hispanic drivers yielded evidence only 10 percent of the time,
and searches and seizures of white drivers yielded evidence 17
percent of the time.
(11) A 2000 General Accounting Office report on the
activities of the United States Customs Service during fiscal
year 1998 found that--
(A) black women who were United States citizens
were 9 times more likely than white women who were
United States citizens to be x-rayed after being
frisked or patted down;
(B) black women who were United States citizens
were less than half as likely as white women who were
United States citizens to be found carrying contraband;
and
(C) in general, the patterns used to select
passengers for more intrusive searches resulted in
women and minorities being selected at rates that were
not consistent with the rates of finding contraband.
(12) In some jurisdictions, local law enforcement practices
such as ticket and arrest quotas, and similar management
practices, may have the unintended effect of encouraging law
enforcement agents to engage in racial profiling.
(13) Racial profiling harms individuals subjected to it
because they experience fear, anxiety, humiliation, anger,
resentment, and cynicism when they are unjustifiably treated as
criminal suspects. By discouraging individuals from traveling
freely, racial profiling impairs both interstate and intrastate
commerce.
(14) Racial profiling damages law enforcement and the
criminal justice system as a whole by undermining public
confidence and trust in the police, the courts, and the
criminal law.
(15) In the wake of the September 11, 2001, terrorist
attacks, many Arabs, Muslims, Central and South Asians, and
Sikhs, as well as other immigrants and Americans of foreign
descent, were treated with generalized suspicion and subjected
to searches and seizures based upon religion and national
origin, without trustworthy information linking specific
individuals to criminal conduct. Such profiling has failed to
produce tangible benefits, yet has created a fear and mistrust
of law enforcement agencies in these communities.
(16) Racial profiling violates the equal protection clause
of the Constitution. Using race, ethnicity, religion, or
national origin as a proxy for criminal suspicion violates the
constitutional requirement that police and other government
officials accord to all citizens the equal protection of the
law. Arlington Heights v. Metropolitan Housing Development
Corporation, 429 U.S. 252 (1977).
(17) Racial profiling is not adequately addressed through
suppression motions in criminal cases for two reasons. First,
the Supreme Court held, in Whren v. United States, 517 U.S. 806
(1996), that the racially discriminatory motive of a police
officer in making an otherwise valid traffic stop does not
warrant the suppression of evidence. Second, since most stops
do not result in the discovery of contraband, there is no
criminal prosecution and no evidence to suppress.
(18) A comprehensive national solution is needed to address
racial profiling at the Federal, State, and local levels.
Federal support is needed to combat racial profiling through
specialized training of law enforcement agents, improved
management systems, and the acquisition of technology such as
in-car video cameras.
(b) Purposes.--The purposes of this Act are--
(1) to enforce the constitutional right to equal protection
of the laws, pursuant to the Fifth Amendment and section 5 of
the 14th Amendment to the Constitution of the United States;
(2) to enforce the constitutional right to protection
against unreasonable searches and seizures, pursuant to the
Fourth Amendment to the Constitution of the United States;
(3) to enforce the constitutional right to interstate
travel, pursuant to section 2 of article IV of the Constitution
of the United States; and
(4) to regulate interstate commerce, pursuant to clause 3
of section 8 of article I of the Constitution of the United
States.
TITLE I--PROHIBITION OF RACIAL PROFILING
SEC. 101. PROHIBITION.
No law enforcement agent or law enforcement agency shall engage in
racial profiling.
SEC. 102. ENFORCEMENT.
(a) Remedy.--The United States, or an individual injured by racial
profiling, may enforce this title in a civil action for declaratory or
injunctive relief, filed either in a State court of general
jurisdiction or in a district court of the United States.
(b) Parties.--In any action brought pursuant to this title, relief
may be obtained against--
(1) any governmental unit that employed any law enforcement
agent who engaged in racial profiling;
(2) any agent of such unit who engaged in racial profiling;
and
(3) any person with supervisory authority over such agent.
(c) Nature of Proof.--Proof that the routine or spontaneous
investigatory activities of law enforcement agents in a jurisdiction
have had a disparate impact on racial, ethnic, or religious minorities
shall constitute prima facie evidence of a violation of this title.
(d) Attorney's Fees.--In any action or proceeding to enforce this
title against any governmental unit, the court may allow a prevailing
plaintiff, other than the United States, reasonable attorney's fees as
part of the costs, and may include expert fees as part of the
attorney's fee.
TITLE II--PROGRAMS TO ELIMINATE RACIAL PROFILING BY FEDERAL LAW
ENFORCEMENT AGENCIES
SEC. 201. POLICIES TO ELIMINATE RACIAL PROFILING.
(a) In General.--Federal law enforcement agencies shall--
(1) maintain adequate policies and procedures designed to
eliminate racial profiling; and
(2) cease existing practices that encourage racial
profiling.
(b) Policies.--The policies and procedures described in subsection
(a)(1) shall include--
(1) a prohibition on racial profiling;
(2) the collection of data on routine investigatory
activities sufficient to determine if law enforcement agents
are engaged in racial profiling and submission of that data to
the Attorney General;
(3) independent procedures for receiving, investigating,
and responding meaningfully to complaints alleging racial
profiling by law enforcement agents of the agency;
(4) procedures to discipline law enforcement agents who
engage in racial profiling; and
(5) such other policies or procedures that the Attorney
General deems necessary to eliminate racial profiling.
TITLE III--PROGRAMS TO ELIMINATE RACIAL PROFILING BY STATE AND LOCAL
LAW ENFORCEMENT AGENCIES
SEC. 301. POLICIES REQUIRED FOR GRANTS.
(a) In General.--An application by a State or governmental unit for
funding under a covered program shall include a certification that such
unit and any agency to which it is redistributing program funds--
(1) maintains adequate policies and procedures designed to
eliminate racial profiling; and
(2) has ceased any existing practices that encourage racial
profiling.
(b) Policies.--The policies and procedures described in subsection
(a) shall include--
(1) a prohibition on racial profiling;
(2) the collection of data on routine investigatory
activities sufficient to determine if law enforcement agents
are engaged in racial profiling, and submission of that data to
the Attorney General;
(3) independent procedures for receiving, investigating,
and responding meaningfully to complaints alleging racial
profiling by law enforcement agents;
(4) procedures to discipline law enforcement agents who
engage in racial profiling; and
(5) such other policies or procedures that the Attorney
General deems necessary to eliminate racial profiling.
(c) Noncompliance.--If the Attorney General determines that a
grantee is not in compliance with conditions established under this
title, the Attorney General shall withhold the grant, in whole or in
part, until the grantee establishes compliance. The Attorney General
shall provide notice regarding State grants and opportunities for
private parties to present evidence to the Attorney General that a
grantee is not in compliance with conditions established under this
title.
SEC. 302. BEST PRACTICES DEVELOPMENT GRANTS.
(a) Grant Authorization.--The Attorney General may make grants to
States, law enforcement agencies and other governmental units, Indian
tribal governments, or other public and private entities, to develop
and implement best practice devices and systems to ensure the racially
neutral administration of justice.
(b) Uses.--The funds provided pursuant to subsection (a) may be
used to support--
(1) development and implementation of training to prevent
racial profiling and to encourage more respectful interaction
with the public;
(2) acquisition and use of technology to facilitate the
collection of data regarding routine investigatory activities
in order to determine if law enforcement agents are engaged in
racial profiling;
(3) acquisition and use of technology to verify the
accuracy of data collection, including in-car video cameras and
portable computer systems;
(4) development and acquisition of early warning systems
and other feedback systems that help identify officers or units
of officers engaged in or at risk of racial profiling or other
misconduct, including the technology to support such systems;
(5) establishment or improvement of systems and procedures
for receiving, investigating, and responding meaningfully to
complaints alleging racial, ethnic, or religious bias by law
enforcement agents; and
(6) establishment or improvement of management systems to
ensure that supervisors are held accountable for the conduct of
their subordinates.
(c) Equitable Distribution.--The Attorney General shall ensure that
grants under this section are awarded in a manner that reserves an
equitable share of funding for small and rural law enforcement
agencies.
(d) Authorization of Appropriations.--The Attorney General shall
make available such sums as are necessary to carry out this section
from amounts appropriated for programs administered by the Attorney
General.
TITLE IV--DEPARTMENT OF JUSTICE REPORTS ON RACIAL PROFILING IN THE
UNITED STATES
SEC. 401. ATTORNEY GENERAL TO ISSUE REPORTS ON RACIAL PROFILING IN THE
UNITED STATES.
(a) Reports.--
(1) In general.--Not later than 2 years after the enactment
of this Act, and each year thereafter, the Attorney General
shall submit to Congress a report on racial profiling by
Federal, State, and local law enforcement agencies in the
United States.
(2) Scope.--The reports issued pursuant to paragraph (1)
shall include--
(A) a summary of data collected pursuant to
sections 201(b)(2) and 301(b)(2) and any other reliable
source of information regarding racial profiling in the
United States;
(B) the status of the adoption and implementation
of policies and procedures by Federal law enforcement
agencies pursuant to section 201;
(C) the status of the adoption and implementation
of policies and procedures by State and local law
enforcement agencies pursuant to sections 301 and 302;
and
(D) a description of any other policies and
procedures that the Attorney General believes would
facilitate the elimination of racial profiling.
(b) Data Collection.--Not later than 6 months after the enactment
of this Act, the Attorney General shall by regulation establish
standards for the collection of data under sections 201(b)(2) and
301(b)(2), including standards for setting benchmarks against which
collected data shall be measured. Such standards shall result in the
collection of data, including data with respect to stops, searches,
seizures, and arrests, that is sufficiently detailed to determine
whether law enforcement agencies are engaged in racial profiling and to
monitor the effectiveness of policies and procedures designed to
eliminate racial profiling.
(c) Public Access.--Data collected under sections 201(b)(2) and
301(b)(2) shall be available to the public.
SEC. 402. LIMITATION ON USE OF DATA.
Information released pursuant to section 401 shall not reveal the
identity of any individual who is detained or any law enforcement
officer involved in a detention.
TITLE V--DEFINITIONS AND MISCELLANEOUS PROVISIONS
SEC. 501. DEFINITIONS.
In this Act:
(1) Covered program.--The term ``covered program'' means
any program or activity funded in whole or in part with funds
made available under--
(A) the Edward Byrne Memorial State and Local Law
Enforcement Assistance Programs (part E of title I of
the Omnibus Crime Control and Safe Streets Act of 1968
(42 U.S.C. 3750 et seq.));
(B) the ``Cops on the Beat'' program under part Q
of title I of the Omnibus Crime Control and Safe
Streets Act of 1968 (42 U.S.C. 3796dd et seq.), but not
including any program, project, or other activity
specified in section 1701(d)(8) of that Act (42 U.S.C.
3796dd(d)(8)); and
(C) the Local Law Enforcement Block Grant program
of the Department of Justice, as described in
appropriations Acts.
(2) Governmental unit.--The term ``governmental unit''
means any department, agency, special purpose district, or
other instrumentality of Federal, State, local, or Indian
tribal government.
(3) Law enforcement agency.--The term ``law enforcement
agency'' means a Federal, State, local, or Indian tribal public
agency engaged in the prevention, detection, or investigation
of violations of criminal, immigration, or customs laws.
(4) Law enforcement agent.--The term ``law enforcement
agent'' means any Federal, State, local, or Indian tribal
official responsible for enforcing criminal, immigration, or
customs laws, including police officers and other agents of
Federal, State, and local law enforcement agencies.
(5) Racial profiling.--The term ``racial profiling'' means
the practice of a law enforcement agent relying, to any degree,
on race, ethnicity, religion, or national origin in selecting
which individuals to subject to routine or spontaneous
investigatory activities, or in deciding upon the scope and
substance of law enforcement activity following the initial
investigatory procedure, except when there is trustworthy
information, relevant to the locality and timeframe, that links
persons of a particular race, ethnicity, religion, or national
origin to an identified criminal incident or scheme.
(6) Routine or spontaneous investigatory activities.--The
term ``routine or spontaneous investigatory activities'' means
the following activities by law enforcement agents: interviews;
traffic stops; pedestrian stops; frisks and other types of body
searches; consensual or nonconsensual searches of the persons
or possessions (including vehicles) of motorists or
pedestrians; inspections and interviews of entrants into the
United States that are more extensive than those customarily
carried out; immigration related workplace investigations; and
such other types of law enforcement encounters compiled by the
FBI and the Justice Department's Bureau of Justice Statistics.
SEC. 502. SEVERABILITY.
If any provision of this Act or the application of such provision
to any person or circumstance is held to be unconstitutional, the
remainder of this Act and the application of the provisions of such to
any person or circumstance shall not be affected thereby.
SEC. 503. SAVINGS CLAUSE.
Nothing in this Act shall be construed to limit legal or
administrative remedies under section 1979 of the Revised Statutes of
the United States (42 U.S.C. 1983), section 210401 of the Violent Crime
Control and Law Enforcement Act of 1994 (42 U.S.C. 14141), the Omnibus
Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3701 et seq.),
and title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.).
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