Racial Profiling?

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The New York Sun

After a brief hiatus, the issue of racial profiling is making its way back into the news. Although not for the reason you may be thinking.

In the face of a terrorist plot disrupted last week that some have speculated would have been “another 9/11,” the call for a common-sense approach to combating terrorism has increased.

“Suicide bombers and terrorists fit a very specific intelligence profile, and race and ethnicity are very much a part of that profile,” New York State Assemblyman Dov Hikind said during a recent press conference. “Let’s get real. There is a terrorist profile.”

Earlier this summer, Mr. Hikind, a Democrat and a twelve-term legislator who represents Brooklyn’s 48th District, announced the introduction of Assembly bill A.11536. The bill, he said, would assist in the war on terror by allowing law enforcement to “consider race and ethnicity as one of the many factors that could be used in identifying persons who can initially be stopped, questioned, frisked and/or searched.”

“We cannot bury our heads in the sand and tie the hands of the NYPD when millions of lives are on the line,” he added.

Reacting in the same way the group has responded with each step lawmakers have taken in preventing further acts of terrorism, Donna Lieberman, executive director of the American Civil Liberties Union in New York, denounced the act by calling it racial and ethnic profiling. Singling out a person based on race for police investigation or interaction, she said, was “anathema to principles of equality.”

Yet before the ACLU or other groups get too worked up taking shots at Mr. Hikind’s proposed legislation, there is a comforting fact they may have overlooked — racial profiling was outlawed one hundred and thirty eight years ago.

In the mid-nineteenth century, as the Civil War drew to a close, Republicans in Congress (yes, Republicans) championed the cause of granting rights to African Americans who had been liberated from the bondage of slavery. A group of federal legislators known as the Radical Republicans, led in the American capitol by men like Thaddeus Stevens and Charles Sumner, viewed the time period as a “golden moment” for social change.

In 1865, they pushed for both passage of the constitution’s Thirteenth Amendment to outlaw slavery and the creation of the Freedman’s Bureau to assist in integrating newly freed men (hence the name) into Southern society. By 1868, they had forced ratification of the Fourteenth Amendment as a condition of reentry into the Union by former Confederate states.

This amendment, containing more words than the previous thirteen amendments combined, attempted to deal with a number of critical issues confronting a nation whose unification was so recently tested. These included defining citizenry, guaranteeing due process, incorporating the Bill of Rights to the states, compensation (or lack thereof) for emancipating slaves and the barring of former Confederates from holding office.

But the most relevant clause concerning race (both in their time and in the century and a half that has since transpired) could be found in the last five words of section 1: “No state shall … deny to any person within its jurisdiction the equal protection of the laws.”

By affording protection to its citizens on an equal basis, no representative of the state, including law enforcement or ambitious state assemblymen, has the right to treat one person in a manner different than another due to the color of that person’s skin.This includes the unfair and biased practice of racial profiling.

Stories of racial profiling, some real and some conjured, filled columns in city newspapers throughout the 1990’s and into the first months of this century. President Bush decried the illicit practice in his first State of the Union speech in February 2001 by stating that it was “wrong and we will end it in America.”

Despite the information present in these news dispatches and from the presidential bully pulpit more citizens have a distorted view of the illegal practice than truly understand it. Locally, racial profiling is defined in Section 14-151 of the New York City Administrative Code as “an act of the force of the police department or other law enforcement officer that relies on race, ethnicity, religion or national origin as the determinative factor in initiating law enforcement action against an individual.”

What the law does not do, as most people misperceive, is prohibit the use of race by law enforcement in every capacity. You can imagine the problem created if police officers are confronted with the victim of a violent crime and, being unable to use the race of the suspect as one of many factors in conducting a comprehensive search, can only go by hair color and/or shoe size to close the case.

What the law does is prohibit the use of race as the determinative factor. Many other cities, in a redundant reaffirmation of the 1868 amendment, have similar laws prohibiting such action.

No rational person in 2006 could possibly argue that the detainment of a person, either briefly or for a prolonged period of time, on the sole basis of that person’s race is anything but a violation of an individual’s civil rights. It may be better left for others to debate whether Mr. Hikind’s bill would be unconstitutional in violation of the Fourteenth Amendment since it does not rely on race as a sole or determinative cause but as one of many factors.

On his website, Mr. Hikind cites legal standing for his proposal in the Supreme Court case Grutter v. Bollinger as precedent for using race as one of many factors in making decisions that are in the “compelling government interest.”

The ACLU, in opposing the assemblyman’s bill, may find itself in the strange position of relying on the work of nineteenth-century Republicans (yes, Republicans) to support their position.

Mr. Coll is a NYPD detective assigned to the Emergency Service Unit and an adjunct professor of history at Nassau and Suffolk Community Colleges.

The New York Sun

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