N.J. Troopers Fight Retirement Rule
By Jan Hefler
Inquirer Staff Writer

The troopers, saying they are fit and want to stay in law enforcement, contend the requirement that they retire by age 55 is discriminatory and outdated.

The lawsuit, filed in state Superior Court in Trenton and seeking class-action status, mirrors legal challenges mounted in other states. Troopers in New York, Massachusetts, and Kentucky have won similar age-bias lawsuits, receiving millions in back pay and health benefits.

In Pennsylvania, however, the state Supreme Court in 1987 upheld the state police retirement cap, which was set at age 60 and remains in force for the roughly 4,500 troopers.

"The mandatory retirement age falls outside the scope of the Age Discrimination in Employment Act's ban on age discrimination because it is a bona fide occupational qualification," the court wrote. It upheld lower court rulings, saying: "Good health and physical strength are job qualifications" of being a trooper.

Many state police agencies have mandatory retirement ages, mainly because they are paramilitary forces steeped in tradition and respect for physical prowess, says Maki Haberfeld, professor of police training and ethics at the John Jay College of Criminal Justice at the City University of New York.

"But this is not a profession where people just chase bad guys. It's a profession that requires thinking and good judgment, and these things become better with age," said Haberfeld, who holds a doctorate in criminal justice.

Haberfeld also noted that at one time a person who was 55 was considered "in advanced life," but now life spans are longer. Whether someone can do the job should be based on agility and experience, not age, she said.

The New Jersey complaint was filed by William H. Buckman, a Moorestown lawyer who specializes in civil-rights cases. It names the State of New Jersey, the Office of the Attorney General, the Division of State Police, and the Division of Pensions.

Lee Moore, spokesman for the attorney general, said that his office had not yet received the document and that it would have no comment until it prepares a response. There are about 3,000 troopers patrolling state highways.

"The '55 and out' requirement serves no meaningful purpose in this day and age other than to discriminate against otherwise qualified members," the lawsuit states.

The 10-page suit also says the age restriction deprives the state of "some of the most experienced officers" and raises pension costs at a time when the state has a deepening budget deficit.

"Deferring the pensions of plaintiffs who wish to continue their service will greatly reduce the pension liability of New Jersey citizens," the suit says.

The lawsuits seek a declaratory judgment voiding the forced retirement as long as the troopers "can carry on the usual and ordinary functions of a police officer." Retirement should be based on physical standards, not age, the lawsuit says.

Contact staff writer Jan Hefler at 856-779-3224 or jhefler@phillynews.com.

Gun-Shy? Not About One Trooper
By JOHN SULLIVAN

MICHAEL STRING tossed the last crate into his pickup, turned on the headlights and started across the parking lot outside Sandy's Market. It was after midnight in the small Pinelands town of Tabernacle, and few other cars were in sight.

Just then, a man with a close-cropped haircut and ramrod posture stepped into the headlights and waved Mr. String to a stop. When he walked up to the truck, Mr. String would later say, the strong smell of alcohol wafted through the open window.

''Where is John?'' the man demanded, to which Mr. String responded that he did not know what he was talking about. After a few more questions, the man grew impatient, reached inside his coat and, Mr. String said, pulled out a black automatic pistol and pointed it within a foot of his head.

Terrified, Mr. String explained that he was a volunteer fireman picking up empty wooden crates for his department. The gunman accepted the story, and ordered Mr. String to drive off.

Mr. String did indeed drive off -- straight to the State Police barracks in Red Lion. But is was not until weeks later that he was given a strange explanation for the episode: the man with the gun was an off-duty state trooper looking for his troubled 18-year-old son.

The story got even stranger.

On May 1, Trooper Donald L. Golden resigned from the State Police to avoid criminal charges that he had threatened Mr. String with his 9 millimeter automatic pistol. Yet that same day, he went to work for Attorney General John J. Farmer Jr. as a senior investigator in the office of consumer protection.

It seems that Mr. Golden, who is the son of Carl Golden -- an influential Republican in the state who was a top aide to two former governors, Tom Kean and Christie Whitman -- was hired after his father called the attorney general on his behalf.

In an interview, Mr. Farmer acknowledged that he had spoken to Mr. Golden about his son, but that the conversation had little to do with the decision to hire the 13-year veteran of the State Police. Instead, he said the circumstances of the resignation convinced him that Mr. Golden deserved a second chance. When he made that decision, Mr. Farmer said, he was aware that people might accuse him of political favoritism.

''The political thing for me to do would have been to say no,'' said Mr. Farmer, who like Carl Golden was appointed to his job by Mrs. Whitman when she was governor. ''That would have been the political thing for me to do, but it would not have been the right thing to do.''

Mr. Golden also insisted that politics played no role in his son's case. ''I have been out of state government for five years,'' he said. ''I left state government before John Farmer became attorney general.''

Nonetheless, the case of Donald Golden has raised questions among some critics of the State Police, which has been troubled by accusations of unfairly disciplining its officers and favoritism within its ranks. Minority troopers and whistle-blowers have long complained that they have been treated more harshly than others on the force. More than two years ago a federal court in Newark appointed a special monitor to oversee the discipline system as part of its investigation of racial profiling, though so far no changes have been recommended.

Critics say Mr. Golden was treated far more leniently than other troopers. For example, Mr. Golden was allowed to remain on active duty for more than a year after he told prosecutors that he drew his pistol on Mr. String. He was eventually suspended and agreed to resign after he was charged by prosecutors with official misconduct.

''In one sense, it is highly irregular and highly suspect,'' said William H. Buckman, a lawyer who has represented troopers in civil rights cases against the State Police. ''In another sense, it is par for the course for the good-old-boy system under which this agency operates.''

State Police officials declined to comment on the case. Sgt. Al Della Fave, a department spokesman, said that department policy prevented him from commenting on specific cases, and also maintained that it was unfair to compare different cases because facts varied.

As for the incident involving Trooper Golden, it began just before midnight on Sept. 18, 1999, when he was driving home from a late dinner and saw his son's pickup parked at a strip mall in Tabernacle.

James J. Gerrow Jr., the executive assistant Burlington County prosecutor, said Mr. Golden, who was off duty at the time, became concerned because the police had been investigating criminal incidents in the area.

''There was some connection with a motorcycle group,'' Mr. Gerrow said. ''There had also been a stabbing.''

Later that night, prosecutors said, Mr. Golden drove to the local State Police barracks in Red Lion and told his his superiors about the incident, though according to Mr. Gerrow, Mr. Golden did not disclose that he had pointed his pistol at Mr. String.

''He told the sergeant that when he motioned for the truck to stop, he noticed his service weapon was exposed,'' Mr. Gerrow said.

Mr. Gerrow said that the State Police referred the case to the county prosecutor's office, and that his office and State Police detectives took more than a year to investigate the case.

In February, 2000, Mr. Gerrow said, Mr. Golden gave a voluntary statement in which the trooper admitted that he ''produced the weapon,'' but denied pointing it at Mr. String's head.

''His version was that he was pointing it at the sky, directly in front of him,'' Mr. Gerrow said. ''What is uncontroverted is that a weapon was produced.''

For more than a year after giving his statement, Mr. Golden -- who remained on active duty during the investigation -- was assigned to desk duty with the State Police detail responsible for patrolling the New Jersey Turnpike.

According to a review by The New York Times of 10 cases in 2000 and 2001 involving the investigation of troopers, all but Mr. Golden were placed on suspension for the duration of the investigation. Mr. Golden was not suspended until March, when he was formally charged with official misconduct, a second-degree crime that carries a maximum sentence of 5 to 10 years in prison.

But in this case, Mr. Gerrow said that Mr. Golden was allowed to enter a program called pretrial intervention rather than stand trial. As part of the arrangement, Mr. Golden agreed to resign from the State Police and not apply for any police jobs for a year. At the end of that period, which comes next March, the charges against him will be dismissed.

In making the agreement with Mr. Golden, Mr. Gerrow said prosecutors took into consideration that the trooper had acted out of concern for his son, and that he had no police record.

Moreover, Mr. Gerrow said that Mr. Golden's new job as an investigator for the Department of Consumer Affairs did not violate the agreement because he did not have to carry a firearm. He also said both Mr. String and the prosecutors felt the loss of Mr. Golden's job was sanction enough.

''We felt this was the appropriate outcome,'' Mr. Gerrow said.

But Mr. String said he did not agree with Mr. Gerrow. Indeed, his lawyer, Linda Kenney of Red Bank, said that the response of state officials -- both in failing to suspend Mr. Golden and in giving him another state job -- showed a disregard for the seriousness of his action.

''If they had immediately suspended him and gotten rid of him, it would have lessened the liability,'' Ms. Kenney said.

She also disagreed with the prosecutors' contention that Mr. Golden was treated like anyone else. ''Anybody else would be in jail,'' Ms. Kenney said.

On the contrary, Mr. Golden's lawyer, William Sitzler of Mount Holly, insisted that his client had been treated more harshly than the average citizen and that it was proper that he was not charged criminally or forced to resign.

''This is not a case where a guy is on a rampage,'' Mr. Sitzler said. ''He lost sight of all the things he should do in the proper order as a trained state trooper and gave in to being a father who was more concerned for the safety and welfare of his son.''

After the case was resolved, Mr. Farmer said, Carl Golden called him and asked if it would be appropriate for his son to apply for a job with the attorney general's office. Mr. Farmer said he told Mr. Golden that he would not block the application, but that the decision to hire the former trooper would be up to others in the department.

''He described from his perspective what had happened,'' Mr. Farmer said. ''I told him there were no guarantees.''

Still, Mr. Farmer said that he signed off on the decision to hire Donald Golden to the $51,900-a-year job.

''The reason I decided it was the right thing to do was this was not the case of a trooper who was engaging in discriminatory conduct, physically abusing people on duty,'' he said. ''This was a person who overreacted out of concern for his son.''

Photos: Carl Golden, left, who for a time was Gov. Christie Whitman's press secretary, asked Attorney General John J. Farmer Jr. to give his son, Donald, a state job after he was forced to quit the State Police.

By Allison Singer

By Richard G. Jones

NEWARK, Oct. 1 — Officials with the New Jersey attorney general’s office said on Monday that the state had agreed to a $400,000 settlement in a lawsuit filed by a former state trooper who said that he was beaten and harassed by members of a secret group of rogue officers within the State Police.

The former trooper, Justin Hopson, filed the lawsuit in 2003. In it, he described a series of beatings, threats and acts of vandalism that he said occurred after he refused to support an arrest by another trooper in 2002.

Mr. Hopson said that he was attacked by members of a loose-knit group within the State Police known as the Lords of Discipline. For years, minority and female troopers have complained that they have been harassed by members of the group.

In 2005, the state attorney general’s office issued a report that found seven troopers guilty of harassing their colleagues. The troopers received punishments ranging from reprimands to 45-day suspensions, but the attorney general’s office said it found no evidence that the Lords of Discipline existed within the State Police.

In a telephone interview on Monday, Mr. Hopson, who left the State Police this year, said he came forward to make the public aware of the group and to spur changes in the culture of the State Police.

“It’s somewhat bittersweet because there’s still work to be done,” said Mr. Hopson, who added that the Lords of Discipline is still active.

David Wald, a spokesman for the attorney general, Anne Milgram, called the settlement “fair and reasonable.”

Mr. Hopson, 33, filed suit after the March 2002 arrest of a woman for drunken driving, which he said was improper because the woman had not been behind the wheel. At the time of the arrest, Mr. Hopson had been on the job just 11 days.

When Mr. Hopson refused to endorse fellow troopers’ versions of events surrounding the arrest, court papers said, a campaign to silence him began. First, there were threatening notes left around his station house in the Troop A region, which covers much of South Jersey.

Then, Mr. Hopson said, his car was vandalized. By the time he sued the state in December 2003, Mr. Hopson said that he had been the victim of a series of beatings at the hands of another trooper.

“It’s been a long, arduous process,” Mr. Hopson said.

Mr. Hopson’s lawyer, William H. Buckman, said that the Lords of Discipline is part of an unseemly subculture within the State Police.

The agency is operating under the auspices of a federal monitor because of findings that it had improperly targeted drivers for moving violations because of their race. The monitor has found that the State Police had made strides toward ending racial profiling, but Mr. Buckman said that the state had tacitly endorsed the Lords of Discipline by denying its existence.

“It’s nonsensical,” Mr. Buckman said, referring to the disparity between the accounts of Mr. Hopson and other troopers who have complained about Lords of Discipline and the official finding that the group does not exist. “But for the tragic consequences of this, we would have the makings of a good outline for a ‘Saturday Night Live’ skit.”

Racial profiling on South Carolina Interstates

I went to the South Carolina Association of Criminal Defense Lawyers Blues, Bar-B-Q and Bar CLE in Greenwood, S.C. last Friday, and had a good time. One way I've found to stay excited about criminal defense and to stay current on what everyone else is doing in the field is to attend as many SCACDL and NACDL conferences as I can find time for. It is one way to re-charge and be reminded of why we do what we do.

The Greenwood CLE is always fun, coinciding with a blues and bar-b-q festival. This year I skipped the bands and the bar-b-q, but had a good time nonetheless, spent some time with old friends and learned a thing or two at the conference.

William H. Buckman traveled from New Jersey to give a presentation on methods of proving racial profiling in interstate cases, a topic that needs to be given more attention in the South where Jim Crow is alive and well on our interstates. I took a look at Mr. Buckman's website, where he has shared various materials on racial profiling challenges, and it looks like an excellent resource.

The Fourth Amendment is useless as a tool for specifically challenging racial profiling, but Buckman's suggestion is to make a threshold prima facie showing of racial disparity under the Fourteenth Amendment's Equal Protection Clause, sufficient to convince the Court to grant greater leeway in discovery. Certain documents can be obtained under the Freedom of Information Act (FOIA), which should allow for more complete discovery of agency records if a prima facie case of racial profiling/ an equal protection violation can be made.

Buckman has been successful in New Jersey in racial profiling litigation, exposing the methods used by the New Jersey State Police on the N.J. turnpike. In South Carolina, there are several "hotspots" where racial profiling occurs as well - I-85 through Spartanburg and Oconee County is one, and I-95 through Dillon County is another. It is time for more South Carolina defense lawyers to fight racial profiling on South Carolina's highways.

Attorneys don't often take drug trafficking cases to trial, usually because if the suppression hearing is lost there is no good defense at trial, and it is well known that S.C. judges are loathe to suppress any significant quantity of drugs. But if we do not challenge these cases consistently, nothing is going to change. Cops are going to continue what they are doing, and judges are going to continue slapping down the defense in the rare case that is challenged. We need to make some noise and bring more attention to what is being done to minorities on the roadside.

What's the problem, if drugs are being found and taken off the street? The problem is the thousands of innocent persons who are detained, harassed, and whose cars are tossed and sometimes dismantled, because they are Black or Hispanic. The problem is that lawyers and judges need to be enforcing the State and Federal Constitution, and not giving law enforcement license to break the law and lie in our courtrooms in order to obtain convictions or in order to fund their agencies.

Challenging Racial Profiles:
Attacking Jim Crow on the Interstate

By William H. Buckman & John Lamberth

Jim Crow is alive on America’s highways, trains and in its airports. Minorities are suspect when they appear in public, especially when they exercise the most basic and fundamental freedom of travel.1 In an uncanny likeness to the supposedly dead Jim Crow of old, law enforcement finds cause for suspicion in the mere fact of certain minorities in transit. But the Jim Crow of today is more troubling: Despite overwhelming evidence of its vitality, law enforcement denies its existence, hides the evidence of its perpetration and criticizes those who even dare to complain.2 Jim Crow is disguised as the “officer’s training and experience” in airport profiles. Jim Crow dons the pretext of the myriad and minutia of traffic codes on the highway. Jim Crow is something gone horribly wrong — as in secret government programs to train officers in profiles which target minorities,3 or law enforcement policies which thwart civilian review. Jim Crow on the highways is the use of seemingly benign traffic safety codes as a pretext to subject countless numbers of innocent minority citizens to the trauma, humiliation and danger of a search on the shoulder of an interstate.4

Around the nation Jim Crow exists as a by-product of a “War on Drugs” spun out of control. A hue and cry of politicians to get tough on or “declare war” on drugs from the early 80s well into the 90s produced a corresponding effort by police departments to show results. Using simplistic and circular logic, police focused on minorities in the hope of increasing the probability of contraband seizures.5

The war analogy is apt. Focusing on minorities in the “War on Drugs” is akin to the inflated and misleading body counts of the Vietnam War. The emerging fact is that as few as one in 30 stops nets contraband even as small as a single joint.6 This figure could be achieved in random stops of all travelers. However profilers cynically exploit a sad truth — an illegally searched innocent minority member is less likely to have the resources to mount a lawsuit or expose inadequate internal investigation procedures than a white yuppie. Until recently, the profiler had the green light. His illegal searches on innocent motorists were invisible and unreported. His “hits” made him a hero. Apathetic courts and politicians turned a blind eye to the innocent collateral damage, especially when the police denied the very existence of the practice — let-alone the damage.

Racial profiling is a national phenomenon which defense lawyers have seen anecdotally for at least a decade.7 But, after nine years of litigation one challenge ultimately prevailed. The authors were involved in that challenge, State v. Soto, et al as well as other civil and criminal actions. 1999 WL 558520 (N.J. Super. L.) as well as civil challenges against profiling, including Wilkins v. Maryland State Police (Dr. Lamberth).8 Other challenges can succeed as well by building on the lessons learned in these recent battles where racial profiling has been, or is being, successfully challenged. This article lays out some lessons learned from these cases and sets out suggestions for other practitioners to challenge profiling.

Racially Motivated Law Enforcement Is Unconstitutional:
Reclaiming Lessons from the Past
The Fourteenth Amendment to the Constitution requires that no state shall “deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction equal protection of the laws.”9 The Fifth Amendment requires the federal government to abide by this principle as well. Not long after the Fourteenth Amendment was passed, the United States Supreme Court held to the substance and spirit of this provision at least with respect to Chinese. In Yick Wo v. Hopkins,10 the Supreme Court dealt with an ordinance of the city of San Francisco which prohibited the conduct of laundries in non-masonry buildings unless the operator of the laundry “first obtain[ed] the consent of the Board of Super-visors.”11

The Court observed that at the time the complained of ordinance was passed there were:

about 320 laundries in the City and County of San Francisco, of which about 240 were owned and conducted by subjects of China and of the whole number, viz., about 310 were constructed of wood, the same material that constitutes 9/10 of the houses in San Francisco.

. . . It is alleged that in the petition that your petitioner, and more than 150 of his countrymen have been arrested upon the charge of carrying on business without having such special consent, while those who are not subjects of China and who are conducting 80 odd laundries under similar conditions, are left unmolested and free to enjoy the enhanced trade and profits arising from this hurtful and unfair discrimination. The business of your petitioners and those of his countrymen similarly situated is greatly impaired and in many cases, practically ruined, by this system of oppression of one kind of men, and favoritism to others.12

On its face the ordinance was not aimed at Chinese, but the Court accepted reasonable proof of a disparate impact upon Chinese. In doing so, the court did not require absolute statistical certainty; “about 310 were constructed of wood,” there were “about 320 laundries in the city” and “about 240 were owned and conducted by subjects of China.” The Court keyed in to a central characteristic of discrimination, the unbridled discretion of officials to pick and choose, employing laws which do not actually contain discriminatory words. It was also willing to accept what the lay public at the time knew about discrimination aimed at Chinese.

That it does mean prohibition, as to the Chinese, it seems to us must be apparent in every citizen of San Francisco who has been here long enough to be familiar with the course of an act of an aggressive branch of public opinion and of public notorious events. Can a court be blind to what must be necessarily known to every intelligent person in the state?13

Yet in the wake of Yick Wo, African Americans who sought the same common sense protection given to their Chinese brethren were disappointed. The history of Yick Wo in the United States Supreme Court and the lesser courts is one of retreat and hair splitting distinction. In the 113 years since Yick Wo, the Supreme Court has not upheld a single challenge of selective criminal prosecution.14 Somehow, only 10 years later the Supreme Court even “reconciled” Yick Wo with the notion that laws calling for “customary” segregation, under pain of arrest, of African Americans in trains, schools, etc. was constitutional as long as those segregated facilities were supposedly “equal.”15

An Indulgent Judiciary Accepts Jim Crow Masquerading as Drug Courier Profiles
Profiles are not an accumulation of individualized facts upon which probable cause or reasonable suspicion attach to a suspect. Instead, profiles are an accumulation of often innocent facts which supposedly justify police detention and/or search of suspects.16 Early in the review of drug courier profiles courts struggled to reconcile this non-individualized suspicion with the notion that for a search to be reasonable, suspicion must focus on individualized facts in individual cases. In Reid v. Georgia,17 the Supreme Court found three of four points in a profile to be circumstances which would “describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the court to conclude that as little foundation as there was in this case could justify a seizure.”18

But critical analysis of profile rationalizations has not been a hallmark of Supreme Court decisions before or since Reid. In United States v. Mendenhall,19 the Court sidestepped the difficult issue of profiling, opting instead for a tour de force which allowed it to find that the defendant had “consented” to a strip search of her person by law enforcement strangers which netted cocaine in her underpants.20

Although Mendenhall was decided only one month before Reid, three Justices in Mendenhall praised the non-individualized schemes advanced. Those Justices said:

The public interest in preventing drug traffic is great, and the intrusion upon the respondents privacy was minimal. Specially trained agents acted pursuant to a well planned, and effective federal law enforcement program. They observed respondent engaging in conduct they reasonably associated with criminal activity. Furthermore, the events occurred in an airport known to be frequented by drug couriers. . . . In applying a test of “reasonableness” courts need not ignore the considerable expertise that law enforcement officials have gained from their special training and experience. The careful and commendable police work that led to the criminal conviction at issue in this case satisfies the requirement of the Fourth Amendment.21

Beyond the assertions of the DEA agents in Mendenhall, there was nothing in the evidence factually to support the claims of profile reliability. In Reid, the Court did not assert that courier profiles are inappropriate — only that the one employed there was insufficient. Taking their cue from the uncritical acceptance of profiles and their foundations by at least three Justices in Mendenhall, law enforcement went to work articulating profiles which indulgent courts accepted.

Accordingly, in United States v. McCranie,22 the court sanctioned the use of a drug profile as a basis to detain and question suspects. Like three Justices in Mendenhall, the McCranie court accepted the factual validity of a profile without proof of the accuracy of any of its underlying premises. “We are mindful that law enforcement officials have been exposed to special training and expertise.”23 Although the validity of that training or expertise received little if any scrutiny in the cases, this pivotal judicial supposition served as evidence to sanction practices that would affect the very core of minority citizens’ right to travel as well as their rights to security and dignity while in transit.24

Early on, some dissenting judges noticed the pernicious effects and lack of underlying factual support for profiles.

[W]e know little or nothing about the characteristics that make up the profile. Nor do we know about the standards or criteria that guide an agents application of it to particular individuals. We have only broad, self-serving police assurances that reliance on the profile and the agents’ judgment as well founded.25

Judge McCay also warned: “Even worse, the device ratified here not only readily lends itself to unreviewable racial bias but in all probability already incorporates and routinely implies it.”26

Other dissenting judges were more detailed and more vociferous in their objection to profiles particularly because of their increasing racial impact. In United States v. Vasquez,27 Judge Oakes protested that in addition to acceptance of profiles on the mere self serving and self perpetuating assurance of law enforcement, profiling had taken on race as a criterion.28 Foreshadowing complaints of abuse of discretion in the operation of profiles, Judge Oakes noted that the government in Vasquez had admitted as a

factual matter, there is no national profile; each airport unit has developed its own set of drug courier characteristics on the basis of that units experience. While many of the salient characteristics are common to the guidelines of most, if not all units, there are some differences based on the particular experiences of different units and the peculiar characteristics of each airport. Furthermore, the profile is not rigid, but is constantly modified in light of experience. . . . If airports can support special police conduct, why not other public places, bus terminals, railroads stations, subway stops, restaurants, bars? . . . [W]hy not any other officer ‘trained’ to observe ‘suspicious conduct’? Once the dam is broken, a flood is likely to occur.29

Judge Nathan Jones of the Sixth Circuit was troubled by the racial connotation of profiles.

I cannot come away from this case without feeling deeply troubled: Troubled that this nation’s citizens are receiving disparate treatment at the hands of police officers primarily on the basis of race, troubled that such unequal racial treatment is considered increasingly appropriate by trial courts, and most troubled by this court’s conclusion that such race based treatment is entirely unobjectionable as a legal matter. It is undoubtedly tragic when a significant number of black Americans fear that they are presumptively under suspicion of criminal activity in the eyes of the law merely because of their race. Infinitely more tragic is the strong possibility that their fear may be justified.30

The district court in Williams had found that the drug courier profile employed there focused on travelers who were “(1) African-American males; (2) arriving into Cleveland from Detroit; (3) using the Greyhound bus systems; (4) arriving in the late evening or early morning hours; (5) carrying no luggage; and (6) not met by family members or acquaintances.”31 The decision of the Williams court from which Judge Jones dissented was “one bereft of any evidence, statistical or otherwise, to rebut the entirely plausible, common sense supposition” that many of the points in the profile, other than race, were entirely innocent. To the same effect is Judge Pratt’s satirical dissent in United States v. Hooper.32

In another case, the dissent noted:

[W]e have no reliable statistical numbers telling how many innocent people are stopped, questioned and sometimes searched by law enforcement officers proceeding on little more than intuition. Testimony from drug agents in some airport stop cases, however, shows that only a small percentage of travelers stopped are ever arrested. In one case, the district court calculated that the DEA agent involved had arrested only 3 to 5 percent of the airport suspects he stopped.33

That judge also said that “the ‘War on Drugs’ has resulted in the stopping and searching of individuals based exclusively upon race.”34 The observation by dissenting judges that race had become a major component of the profile was by no means confined to a few maverick judges. 35

Nevertheless, although apathetic courts may have abdicated their authority to supervise the government, some rocks remain with which to build the foundation of a profile challenge. Equality under the law remains the standard.36 Ironically, although courts have, without evidence, uncritically accepted rationalizations to justify profiles, defense lawyers must shoulder a “heavy burden”37 to show the invalidity of those rationalizations and their discriminatory impact. The task is not insurmountable. Public scrutiny of the disgrace of racial profiling now may help convince more courts to come forward and right an injustice they helped create. As the Supreme Court once said about Chinese selective enforcement victims, “Can a court be blind to what must be necessarily known to every intelligent person in the state?”38 Moreover, in light of the discussion below, some of the “defeats” which the dissents of Judges Jones and Pratt represent underscore the need to explore tactics of challenge under the Fifth and Fourteenth Amendments (and like state counterparts and statutes) along with the tactics of the Fourth Amendment (and state counterparts).

Defense Lawyers Become Civil Rights Lawyers:
Establishing a ‘Colorable Basis’ and a ‘Prima Facie Case’
“Counting the cars on the New Jersey Turnpike . . . ”39 is literally what it took ultimately to mount a successful challenge to the N.J. State Police (hereafter “NJSP”) racial profile on the New Jersey Turnpike (hereafter “Turnpike”) in consolidated cases for 22 defendants. The defense team in State v. Soto filed a Motion to Suppress under the Fourteenth Amendment charging that the NJSP operated pursuant to a racially biased profile on the Turnpike. To prove that accusation the defense had to shift to principles which govern in civil rights and discrimination law. Ultimately, the trial judge agreed that a motion to suppress under the Fourteenth Amendment rested at the confluence of criminal and civil rights law principles.40

Profile challenges skew the bias through which the media and courts often view defense lawyers as those who help drug dealers ply their trade. By challenging profiles, defense lawyers expose the collateral damage of these racist schemes. Whether the challenge arises in a criminal or civil context, it demonstrates the impact on innocent minorities.

Criminal or civil, the challenge statistically compares 1) the minority population on the highway; 2) the overall percentage of persons violating traffic laws, i.e. speeding, etc and thus eligible to be stopped; 3) the minority percentage of the eligible population and 4) the actual percentage of minorities stopped. Most importantly, this means that profiling challenges must begin through collaboration and strategy between lawyers and statistical experts.

Profiling challenges can’t be treated like the normal criminal case. They rely extensively on principles long established in civil rights cases. Defense lawyers must cross an interdisciplinary line to invoke the law of civil rights. “The requirements for a selective-prosecution claim draw on ‘ordinary equal protection standards.’”41 They also rely on a right which civil litigants in money matters enjoy, yet, courts routinely deny to criminal defendants: liberal discovery. To succeed in a profile challenge the defense must gain access to extensive material in the possession of the police. Because of this fact, the discovery stage may be the most perilous in a profiling challenge.

Relationship Between the Necessary Showing for Discovery and Prevailing on a Prima Facie Case — Using Statistics
“A selective-prosecution claim asks a court to exercise judicial power over a ‘special province’ of the Executive. . . . As a result, ‘[t]he presumption of regularity supports’ their prosecutorial decisions and, ‘in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.’ 42 But a prosecutor’s discretion is “subject to constitutional constraints.”43 Under the Equal Protection component of the Fourteenth Amend-ment and the Due Process Clause of the Fifth Amendment prosecutors may not act on “an unjustifiable standard such as race, religion, or other arbitrary classification,”44 Where prosecutions are “directed so exclusively against a particular class of persons . . . with a mind so unequal and oppressive’ that the system of prosecution amounts to ‘a practical denial’ of equal protection of the law” courts must intervene.45 But a criminal defendant must present “clear evidence” to overcome the presumption of validity attached to prosecutors’ actions.46

Because selective-prosecution claims draw on “ordinary equal protection standards,” claimants must demonstrate that the policy “’had a discriminatory effect and that it was motivated by a discriminatory purpose.’”47 Establishing a discriminatory effect in a race case requires claimants to show that similarly situated individuals of a different race were not prosecuted.48 Experience has now shown, and the Supreme Court has assured, that the similarly situated requirement is difficult but not impossible to prove.

In United States v. Armstrong, the Supreme Court relied on the cases of Hunter v. Underwood and Batson v. Kentucky 49 as illustrative examples. Those examples strongly imply that statistics are acceptable to initiate and prove profile challenges. Hunter invalidated a state law disenfranchising persons convicted of crimes involving moral turpitude.50 In Hunter, there was “convincing direct evidence that the State had enacted the provision for the purpose of disenfranchising blacks and indisputable evidence that the state law had a discriminatory effect on blacks as compared to similarly situated whites: blacks were ‘by even the most modest estimates at least 1.7 times as likely as whites to suffer disfranchisement under’ the law in question.”51 In Soto the evidence ultimately showed that blacks were 4.85 times more likely to be stopped than whites. Mounting evidence suggests that the Soto figure may not be uncommon on other interstates.52

Batson considered:

[t]he standards for assessing a prima facie case in the context of discriminatory selection of the venire “in a criminal trial.” We required a criminal defendant to show “that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race” and that this fact, the potential for abuse inherent in a peremptory strike, and “any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.”53

However the Armstrong Court warned “[i]f discovery is ordered, the Government must assemble from its own files documents which might corroborate or refute the defendant’s claim. Discovery thus imposes many of the costs present when the Government must respond to a prima facie case of selective prosecution.” 54

Many different phrases have been used to express the showing necessary to obtain discovery such as “colorable basis,” “substantial threshold showing,” “substantial and concrete basis,” or “reasonable likelihood.” The Armstrong Court treated these terms as similar, and employed a phrase which underscores the fact that properly constructed profile challenges can survive the discovery phase. “However, the many labels for this showing conceal the degree of consensus about the evidence necessary to meet it. The courts of appeal ‘require some evidence tending to show the existence of the essential elements of the defense,’ discriminatory effect and discriminatory intent.”55

Some evidence tending to show the existence of discriminatory effect, Armstrong reasoned, requires defendants “to produce some evidence that similarly situated defendants of other races could have been prosecuted . . ., ‘[s]elective prosecution’ implies that a selection has taken place.’”56 Most important for profile claimants, “some evidence” of similarly situated people who have not been prosecuted does not mean that specific persons who were not stopped on a busy highway or in a crowded airport must be identified. Armstrong implicitly accepted the statistical showing of Hunter. The example of one state appellate court which clarified this approach is worth review.

In State v. Kennedy,57 the claimants were minorities represented by the public defender who challenged the profiling activities of the state police on an interstate in New Jersey.58 They moved to consolidate numerous stop and search cases brought about by the state police on that road claiming a policy, de facto or otherwise, by the state police in the conduct of traffic stops and resultant searches.59 They also moved for an extensive array of internal state police documents to investigate and buttress their claim. The motion to suppress claimed that even if objectively reasonable, the stops “. . . were tainted by a long standing, systematic practice of invidious discrimination against minorities reflected in the selective enforcement of New Jersey’s traffic laws.”60

In support of their initial, trial level request for extraordinary discovery Kennedy’s claimants submitted a statistical study which only analyzed the racial composition of persons stopped for traffic offenses on I-80 who were ultimately searched and arrested for an indictable offense.61 The Appellate Division found the survey “. . . marginally sufficient to raise a colorable claim of selective enforcement. At the very least, the data contained in the study took ‘the question past the frivolous state and raise[d] a reasonable doubt’ as to whether the state police are enforcing the traffic laws in an evenhanded fashion without regard to non-germane racial criteria.”62

Significantly, the Kennedy court did not saddle claimants with the burden advanced by the state and trial court, that claimants must show the racial mix of those most likely to be stopped for traffic violations.63 In allowing that a “colorable basis” is proven on the study presented, Kennedy implicitly accepted that all is not well in a system where the stark majority of defendants arrested on an interstate artery are minority when the racial mix in the population of all defendants generally is quite different. The court explained:

Despite these deficiencies, the Public Defender’s survey raises disturbing questions concerning whether, as defendants claim, members of minority groups are being targeted or singled out for prosecution of traffic infractions. To be sure, we would have been more comfortable had the Public Defender been precise in estimating the racial composition of those who exceed the speed limit on the western stretch of Route 80 and those who are arrested by the State Police for that offense. This much conceded, it is not far fetched to assume that the racial composition of the Warren County Public Defender’s clients is approximately the same as those who violate the traffic laws on Route 80 as it passes through that county. As to the racial composition of those arrested for traffic violations by the State Police on Route 80, the State is in a poor position to complain concerning flaws in the Public Defender’s survey. These are the very statistics defendants seek to obtain. We emphasize that most of the relevant proof in selective prosecution cases will normally be in the exclusive control of government agencies.64

The court went on to state that to prove a “colorable basis” defendants do not have to establish a full prima facie case (a case that if left unrebuted will support a finding of discrimination).

Civil claimants in equal protection cases can use statistical proof to make their case in chief.65 Kennedy made it clear that statistical proof could be used for the initial “colorable basis” stage and strongly implied that such proof could be used by claimants in their prima facie case or case in chief. Soto explicitly accepted statistical proofs as competent for a prima facie showing.66

To establish a colorable basis, the court in Kennedy directed that profiling claimants need to show two fundamental statistics: 1) the racial composition of that group of motorists who violate the traffic laws and thus make up the group that is subject to a stop; and 2) the racial composition of the motorist population that is in fact stopped.67 The court went on to note that the racial composition of the motoring public on the highway who “violate the traffic laws” is the “pool of persons from which state troopers must select violators.”68

Ultimately, clear statistical evidence can prove discriminatory effect and purpose.69 Some evidence of racially disproportionate stops compared against the actual incidence of violations by race can serve as the basis for inferring racially selective law enforcement.70 The Batson court also allowed that purposeful discrimination can be proven through direct and circumstantial evidence of disproportionate impact. “[U]nder some circumstances, proof of discriminatory impact ‘may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on non-racial grounds.’”71 The pattern of challenges themselves may support “the necessary inference of purposeful discrimination.”72 A prima facie case of purposeful discrimination may be made by a showing that the “totality of the relevant facts give rise to an inference of discriminatory purpose.”73

Simply stated, “ordinary Equal Protection” principles open an avenue of challenge which criminal defense attorneys had thought was closed after United States v. Whren.74Successful highway profile challenges essentially prove the use of traffic codes as a pretext for profile stops. Relying on Equal Protection principles, Kennedy stressed the notion of a “policy”; “officially sanctioned or de facto,” to target minorities for stop and search.75 Kennedy also speaks approvingly of objective evidence of the “course of conduct” of members of an agency, as evidenced by statistics. Moreover, even the Whren Court excepted policies of racial discrimination from the license to employ pretexts it otherwise granted to individual officers in individual cases under the Fourth Amendment.76

When powerful statistics rule out randomness as an explanation for grossly disproportionate representation of blacks in stops such as the “stark” statistics shown in Soto, a prima facie case of discriminatory effect and purpose exists.77 In Whitus v. Georgia,78 blacks were 27.1 percent of taxpayers yet only 9.1 percent veniremen. Such a disparity is substantial enough to establish through statistics alone, a prima facie case of intentional discrimination.79 The New Jersey Supreme Court has recognized that comparative disparities of over 50 percent are “strong evidence” of disparate representation in a sample, under the Fourteenth Amendment.80 The defense case in Soto featured far more glaring absolute and comparative disparities such as a comparative disparity in excess of 200 percent. Other highways and airports in the nation may yield statistics as stark.81

Lastly, implicit in the acceptance of statistics by the courts is the fact that claimants do not have to show that only minorities are stopped. Statistics showing that the selection of minorities for enforcement (stop) exceeds, in statistically significant fashion, their actual percentage in the violator group is what is at stake. As the court in Hunter perceived, even “an additional purpose to discriminate against poor whites would not brand as nugatory the purpose to discriminate against all blacks.”82 That police obviously stop some whites is irrelevant to the question of whether a disproportion between the percentage of blacks in the violator population and in the stopped population is so stark that racial non-neutrality is certain. A policy which would allow the police in any given time period to stop 99 percent black and only 1 percent white or alternatively all black out of thousands of stops and only one white person would defeat any responsible attempt to supervise racist activities.

Mounting the Challenge: Invoking Equal Protection and a Colorable Basis
State v. Pedro Soto, et al began as a challenge to racial profiling by the New Jersey State Police in March 1990 (six years before a trial court decision). Soto was initiated by a number of near simultaneous motions. Foremost, Soto was initiated as a motion to suppress under the Fourteenth Amendment and its state counterpart.83 The operative language of a Fourteenth Amendment motion/profiling motion seeks to:

[suppress] all items seized and/or any information obtained by the New Jersey State Police as a result of the warrantless stop and search in this matter because it represents a pattern and practice by New Jersey State Police of targeting for stop black patrons on the New Jersey Turnpike. Defendant will submit that the stopping of motor vehicles occupied by black patrons on the New Jersey Turnpike constitutes a clear pattern and practice by the New Jersey State Police in violation of defendant’s constitutionally protected rights to be free from racial discrimination and freedom of travel, and freedom from selective enforcement of law.

Along with this motion the defense submitted a showing similar to Kennedy and moved to consolidate all Turnpike profile cases venued in the county. However, in light of experience it is suggested that counsel instead submit the population and violator surveys described herein. Even the Kennedy court noted that it would have been more “comfortable” with the type of showing Soto mustered for its case in chief. Other courts may seize on their lack of “comfort” to defeat any challenge. Certainly defendants will not have complete stop data at this initial stage. Instead of full stop data however, defendants should analyze tickets (which are public documents and only one step removed from stop data). Some states do have liberal Freedom of Information Act-type statutes which actually require release of stop data.84 Public and political pressure is mounting in other states to make such data public in the wake of revelations about profiling.85

Nevertheless, from Yick Wo through Armstrong the Supreme Court has been consistent, there must be statistical evidence to support the plaintiff or defendants’ claim. In Yick Wo, 97 percent of the laundries were wooden, 75 percent of them were conducted by Chinese, 100 percent of the individuals arrested for ordinance violation were Chinese and no non-Chinese were cited for this violation. The heart of the case is in showing that minorities are primarily targeted for stop or search. This was essential for success in Soto and so far in Wilkens.

The legal and statistical requirements for this showing are analogous. The legal team and its experts must establish a benchmark against which the evidence of selective enforcement or discrimination can be compared. Arrest statistics are not sufficient as they say nothing about who was eligible to be stopped in the area in question. On the highway the question is who is eligible to be stopped; who is violating the traffic laws. Of those, what is the racial makeup of the eligible, i.e., violator population. Experience to date has shown most highway drivers are violating the law. When this is the case the central issue emerges in base relief: Why are minorities stopped in such great proportion to their numbers 1) on the highway generally and 2) among traffic violators?

The benchmark referred to earlier is probably the most misunderstood requirement an attorney faces, particularly when working with a statistician who is not familiar with case requirements. Knowing the minority percentage of those stopped, searched and/or arrested by law enforcement only takes on significance when it can be meaningfully compared to the percentage of that group who are eligible to be stopped. While a court can order a police agency to provide the data which they have, governmental agencies normally do not have (or won’t admit to having) the data necessary to establish the benchmark. It is necessary for the attorney/expert to collect these data.

The benchmarks in Soto and Wilkens were nearly identical: the percentage of drivers violating traffic laws on the roads in question and the black “population” of the New Jersey Turnpike or I-95 in Maryland subject to being stopped? There are no Census Bureau figures to determine how many of the people traveling on a highway over a given period of time are African Americans and how many of them are violating traffic laws. Soto and Wilkens may be the only such studies.

The first step in establishing a benchmark is to determine the particular minority population of the roadway. In New Jersey, observers were placed by the side of the road and assigned to count the number of cars and the race of the occupants in every car that passed them. These observations were done in 21 randomly selected three-hour blocks of time over a two-week period.86 Roughly 43,000 cars were counted of which 13.5 percent had one or more black occupants. There are, however, other methods to determine the relevant minority population such as combining this aspect with the violations survey discussed below.

To determine the number of motorists violating traffic laws a “violators survey” was conducted. This survey assigned a driver and assistants in a car with a calibrated speedometer to drive at a constant five miles above the speed limit. The survey team noted the number of cars that passed the team car(speeders), the number of cars the team car passed and the race of the occupants of those cars. They also noted other traffic violations. The Soto team found that approximately 15 percent of the cars violating traffic laws had a black occupant. The 13.5 percent and the 15 percent did not differ statistically. Throughout the hearing in Soto, the defense maintained and the state disputed the 15 percent benchmark against which to compare the percentage of motorists stopped.

The statistical comparisons that were relied upon in Soto are fairly straightforward once the benchmark and the police data are in hand. The team found overall that 35 percent of those stopped by the state police were black and that at the southern end of the Turnpike, where the traffic and violators surveys were conducted, fully 46 percent of those motorists stopped were black.87 Analyzed under standard statistical tests these results could occur by chance less than one in many billions of times. To phrase this difference in another statistical way, black motorists on the southern part of the turnpike were 4.85 times as likely to be stopped as motorists who are not black.

While these statistics were overwhelming, there were arguments raised by the opposing statistician. Ironically, one became one of the most compelling for the defense. The state’s expert mistakenly argued that radar was race blind and when tickets issued using radar were compared to tickets issued by pacing (troopers following a speeder), the percentages of blacks ticketed were essentially equal. However, while the radar gun itself is race neutral, the operator is not and the defense was able to show this in a most convincing way.88

At the time of Soto, the New Jersey State Police had three different units operating on the Turnpike. The “Radar Unit” operated out of a van usually parked on an overpass. The radar operator radioed ahead to chase cars and told them which cars to stop. The operator could not see the driver of the vehicle and the chase cars stopped the car they were instructed to stop. The “Tactical Unit” was charged with patrolling at high accident areas and were primarily interested in making sure that traffic flowed smoothly and safely. Finally, the general patrol troopers were involved with all types of patrol, especially drug interdiction. When the Soto claimants compared the tickets issued by the three units, the results were startling. The radar unit issued 18 percent of its tickets to blacks, the tactical unit issued 23.8 percent of its tickets to blacks and the general patrol troopers issued 34.2 percent of its tickets to blacks. As trooper discretion increased, black tickets increased dramatically.

Wilkens adopted the approach used in Soto to obtain a benchmark, i.e. a violators survey. This survey indicated that 17.5 percent of violators were black. Since the stationary survey in Soto had taken place only 17 miles from the northern terminus of I-95 in Maryland it was not necessary to redo it in that the results of the violators survey were similar to the earlier results in Soto. The additional data that were available in Wilkens were search data which the state police maintained. The 17.5 percent benchmark was compared to the 28.8 percent black motorists stopped and to the percentage of black motorists searched. Here the data were even more skewed. Fully 72.9 percent of the motorists who were searched were black. Not only did troopers use their discretion to stop more black motorists than their number on the road violating traffic laws would dictate but they escalated the discriminatory impact of their actions in selecting which motorists to search.

An Overview on Discovery: Finding Statistics,
Managing Data And Corroborating Intent
Two overall discovery themes must guide requests in the case of selective prosecution. Materials from which statistical inferences can be made and factual materials that can be used to corroborate the statistical arguments, i.e intent to discriminate. As noted above, powerful statistics which rule out randomness go a long way to prove effect and intent. Under civil rights concepts, agency-wide acceptance of a policy can be seen either by the hierarchy’s deliberate indifference to widespread allegations of profiling or evidence of explicit acceptance of the policy.89 The defense team in Soto found different variations of this theme: evidence that the state police did some limited statistical analysis touching on allegations of racial profiling but mostly consciously avoided its ability to statistically analyze the problem.90

Mining for Statistics

The sheer volume of requested records poses logistical problems for defense analytic resources. Here again it is essential to work with statistical experts. Where records are voluminous, experts can help the defense randomly select portions for statistical analyses.

The Soto team initially requested three years of operations reports (police reports) prepared by all troopers working out of the barracks which patrolled the relevant section of the Turnpike. It also requested copies of “radio logs” (radio dispatcher’s log of stops which the trooper called in) for that period of time as well as copies of all troopers’ patrol logs (troopers maintain a log of personal time entries of their activities as opposed to the more detailed “patrol reports”) also for that period and copies of all motor vehicle summonses and “warnings” issued for that period. Some explanation of the nature of these items should help underscore their necessity.

Police Stop Data: Reports, Logs, Tickets and Warnings

Data on the number, type and racial makeup of police stops can be assembled from a number of sources. The basics are police reports, patrol logs, radio logs or dispatch records, tickets and warnings.

New Jersey State Police Standard Operating Procedures (“SOPs”) require that whenever a trooper pulls over a car s/he must radio in their position, the license plate of the car stopped as well as the number and race of the occupants. This is supposedly for troopers’ protection inter alia to find the culprit should a trooper be attacked during an encounter. According to the same SOPs, radio dispatchers must maintain a written log on preprinted forms of all communications to and from patrol cars. Radio Logs theoretically are a record of all stops/encounters by troopers with motorists and an account of the race of those motorists.91 In lieu of radio logs the state police and other departments now have CAD systems (Computer Assisted Dispatch) which log actions of officers. However these systems can supply printouts of troopers’ activity entries.

Motor vehicle tickets and “warnings” further document stops. Theoretically, police must have an observed basis to stop in most cases — the motor vehicle code. Although tickets and warnings do not (in New Jersey) contain race data, troopers often write descriptions of the driver on the back so they can make an identification if the case goes to traffic court. Ask for both sides of summonses.

“Warnings” deserve special mention. The NJSP had an undefined “Warning Program.” The apparent rationale of this “program” was to visibly enforce traffic laws, or to provide an appearance of propriety to a particular stop. “Warnings” are ticket lookalikes that aren’t tickets. They purportedly document a stop for a traffic offense where a trooper exercised discretion not to issue a ticket with its attendant fines, points, etc. “Warnings” helped prove one of the essential elements of the “profile” namely that general patrol troopers exercise almost unbridled discretion. No SOP guided trooper discretion in the “program” yet supervisors routinely critiqued troopers on their participation or lack thereof. Factual testimony from former state troopers ultimately established that “warnings” were often the after-the-fact justification for a profile stop.

Warnings were a rich vein of information. They helped establish basic stop data. But they also corroborated the wink and nod participation of the hierarchy in programs of unbridled trooper discretion which encouraged as many stops as possible.

The New Jersey State Police also prepare monthly statistical reports for each station or barracks. These reports list the name of each trooper attached to the station, his/her number of traffic summonses, warnings, “motorist assists,” DUI arrests and “criminal investigations.” These reports contain a wealth of information and important inferences.

Although the New Jersey State Police, like most agencies, decry quotas, the monthly stats have all the appearance of quotas. At least during Soto, all troopers were listed, the document was posted on the barracks bulletin board and included supervisors comments on troopers’ performance in the various “programs” so it had all of the appearance of a comparison among troopers. Indeed, the Soto team learned that the coveted “Trooper of the Year” award usually went to those with the most “criminal arrests” i.e. apparent profilers. Examination of the monthly stats to scrutinize warnings and arrest figures often pointed the way toward the most active profilers. At trial the vague and often evasive explanation of supervisors as to the unwritten meaning of the “warning program” or the “criminal program” provided valuable insight into the unwritten ways in which the agency maintained a culture and atmosphere which fostered profiling.

Caution: Police Statistics Might Be Misleading or Inaccurate

During its pending class action suit in Maryland, the ACLU was approached by 25 black individuals who claimed that they were searched by the Maryland State Police on the targeted portion of I-95. Twenty of those 25 individuals names did not appear in the data base the Maryland State Police provided in the ongoing litigation. In Soto, testimony revealed that stops and searches were conducted of minorities but often were not called in unless contraband was found. Two New Jersey State Police troopers are presently under indictment for failing to report stops or falsely reporting the race of motorists stopped.

Accordingly, police records may well underestimate the extent of profiling and steps need to be taken to assure that the records provided are checked. One way to do this is to note all police “stops” while violator surveys are being conducted and to compare these observations to police data bases or other records as a check on the accuracy of the data provided by police.

FOIA Statutes

Many states have a Freedom of Information law similar to that which exists in the federal realm. There is also a right embodied in case law which predates and encouraged so-called Freedom of Information laws known as the common law “right of access.” Additionally, many states have a statutory system of data collection known as Uniform Crime Reports or the Uniform Crime Reporting system. These schemes are implemented by state attorney general or state police administrative regulations. They exist to allow exchange of information with other law enforcement agencies and brief the governor and legislature on crime statistics, trends, etc.

Corroborating Existence of the Profile; Intent
New Jersey State Police SOPs cover a wide range of police operations. One SOP governed “consent” searches but often was not honored. That same SOP required that troopers fill out data forms on each supposed consent search. These forms seemed to be constructed for the purpose of data collection. Yet the failure of the hierarchy ever to analyze the data in these forms led to the inference that they consciously avoided the analysis (or refused to disclose their analysis).

Another SOP required troopers to “call in” their stops as described above. The failure of the state police to enforce this SOP was evidence of supervisory tolerance of an aspect of profile mechanics: leaving no evidence of the stop unless the trooper decided to take action.

Readers should note that in all likelihood SOPs govern training. For example the New Jersey State Police Academy was required to approve all training programs and was required to maintain a record of materials and syllabi. Mysterious absences of material are telling. These items also document who the trainers may have been such as Drug Enforcement Administration (DEA) officials, or state attorney general assistants.

Lastly, there is usually a SOP on document retention setting forth how long documents must be maintained. When evaluating the inevitable “that document is missing” or “no longer available” there is probably an underlying document retention SOP violation. For example, the SOP which created the infamous New Jersey State Police “Drug Interdiction Training Unit”(“DITU”) required it to maintain a wealth of material and data about its activities. It was also required to make regular reports to the state police colonel on its activities. The fact that the DITU “couldn’t find” most of this material or supposedly never provided reports as required was most telling as no one in the DITU was ever called on the carpet to explain its failure to abide by the SOP which governed its existence.

Unit Construction

As noted above, the defense found strong statistical proof of profiling when it discovered that the state police had different units operating on the New Jersey Turnpike. Comparing the statistics of the Radar and Tactical Units against each other and with the general patrol troopers revealed stark discriminatory patterns. SOPs document the creation or existence of units. Practitioners should also search for the existence of “drug interdiction” type units. Sometimes the names of these units are disguised such as the “Special Traffic Interdiction Force in Maryland and the “Special Emphasis Team” in North Carolina.

Training Records and Materials

In Soto the defense enjoyed the cooperation of two former state troopers who provided copies of materials. The state police looked particularly disingenuous by denying the existence of items the defense possessed. One handout from a drug interdiction training given by the Drug Interdiction Training Unit stated “Hispanics mainly involved.”

“Operation Pipeline” was a drug interdiction training video produced by the DEA with help from the state police of New Jersey and New Mexico. Its opening noted that the “techniques” taught were developed partially by the New Jersey State Police. Through the help of a sympathetic attorney in New Mexico, the Soto team located a copy of “Operation Pipeline” geared toward New Mexico/ and or the Southwest. Ultimately the Soto court was troubled by the tape’s implication that Hispanics were prime suspects and that the motor vehicle codes could be employed as a pretext to make stops.92

The DITU trained troopers one on one by patrolling with them. At first the unit’s supervisors claimed that none of its records could be found. Near the end of the six-month Soto hearing, some DITU items miraculously appeared. Those were “checklists” of many of the one on one sessions. These checklists contained statements by DITU trainers indicative of the fact that profiling was the main lesson plan.93

Addresses from the leadership to the troops should be explored. In the wake of widespread allegations of profiling, Colonel Pagano of the New Jersey State Police taped a statement to be shown to troopers at station roll calls. This address turned out to be a chilling window into state police disregard of the rights of motorists and tolerance of profiling at the highest levels.94

Lastly, explore if police personnel have trained police in other jurisdictions. To those who are familiar with the breadth of the Soto revelations the nationwide reach of profiling comes as no surprise. At the behest of the DEA New Jersey State Police, primarily DITU personnel, taught their “techniques” to agencies around the country.

Awards Programs

New Jersey’s “Trooper of the Year” award is discussed above. It turns out that profilers were the usual recipients of these awards.95 But the Soto team also learned that when troopers made a “big” arrest they received a letter of commendation signed jointly by the state police commander and the state attorney general. This commendation was not based on the quality of the arrest, its legality or whether the arrest ultimately held. In combination with the “Trooper of the Year” award these letters fostered a competition among troopers to make as many stops as possible to “dig” for arrests.96

Joint Enforcement Activities

In conjunction with the DEA and other state police agencies the New Jersey State Police launched concerted “enforcement” activities. One such action, known as “Operation Co-Flame,” was a massive interdiction effort on a pre-ordained day. On that date, law enforcement from Florida to Maine were out in force on I-95. A secret memo directed that in dealing with the media “[a]gain, the releases should focus on traffic enforcement and highway safety issues so as not to unnecessarily generate complaints from ACLU members and other such groups who oppose interdiction per se.”97 One must wonder whether DEA , FBI and Customs personnel who participated issued many traffic tickets and subsequently appeared in traffic court.

Managing Data and Discovery

The volume of discovery is a management challenge. Here again it is essential to work with statistical experts. Where records are voluminous, experts can randomly select portions of records and perform statistical analyses of the data contained within those records. The Soto team expert selected 35 days at random for the time period in question. Thereafter the defense received discovery of statistical materials only for those 35 days. The benefits of this approach are obvious. However, lawyers and experts are cautioned that the number of days selected and the method used to randomly generate those days should be based on defensible scientific methodology.

In Soto it was also impossible to do any of the surveys for a full 24 hours a day for days or weeks at a time. Defense experts must be able to devise a defensible method to randomly select days and time periods within days during which surveys occur.

Once discovery is in hand, expert help is necessary to manage the data. The Soto experts constructed a computer data base. With this tool the experts were able to make calculations for statistical analysis. However, before the data base is constructed lawyers and experts must confer about the types of discovery that may be uncovered to assure that the data base can achieve analysis of the various forms of data, i.e. a comparison of different operating units and documents.

Epilogue
Early in the jurisprudence of selective prosecution, Yick Wo was a promising sign. Since then, victims of profiling have had an uphill battle in the courts. Public outcry against the injustice of profiling coupled with some recent successes helps shed light on these practices. But the legal history of selective prosecution challenges is not a proud one. Few judges have shown the independence and intellectual honesty demonstrated by the court in Soto. While nobly intoning “equality under the law” as the standard, courts have held profile victims to “heavy burdens” while uncritically accepting self serving and contradictory rationalizations from law enforcement. Courts will seek to limit profile challenges because of the disturbing picture they paint. In reality, judicial hostility is the heaviest burden that profiling claimants face. Defense lawyers must lay challenges on solid statistical foundations.

Notes
1. See generally David Harris, Driving While Black and All Other Traffice Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544 (1997); Tracey Macklin, Race And The Fourth Amendment, 51 Van. L. Rev. 333 (1998); Joseph Neff & Pat Stith, Highway Drug Unit Focuses on Blacks, News And Observer (Raleigh, North Carolina) July 28, 1996; Joe Collum, Without Just Cause, WOR -TV (Secaucus, N.J.) August 23, 24, 25 & 26, 1989; State v. Soto, et al, ___ A.2d___, 1999 WL 558520 (N.J. Super. L.)
2. State v. Soto, supra, briefs on behalf of State of New Jersey (on file with the Superior Court of New Jersey, Appellate Divvision under Docket Number A-1084-95T3); Letter from David B. Mitchell to John Lamberth dated Sept 11, 1998 (on file with the authors); New Jersey State Police Memo From Lt. R. Long To Major Trent Dated 3/30/1990, Operation Co-Flame (on file with the authors and in evidence in Soto, supra Defense Exhibit D-36.
3. Drug Enforcement Administration, New Jersey State Police and New Mexico State Police, Operation Pipeline, (on file with the authors and in evidence in Soto, supra as Defense Exhibit D-29; Operation Co-Flame, supra at note 2; New Jersey State Police, The Jamaican Posses, (training video on file with the authors and in evidence in Soto, supra as State Exhibit P-9; Gary Webb, DWB, Esquire magazine, April 1999.
4. Without Just Cause, note 1, supra; Driving While Black, supra note1 at 563 - 571;American Civil Liberties Union, Driving While Black, Special Report, published on the Internet at -www.aclu.org/profiling/report,-www.aclu.org/profiling/report,— June 1999.
5. Driving While Black, supra note 1 at 571 - 573; Attorney General of New Jersey, Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling, April 20, 1999 (on file with the authors and published on the Internet at www.state.nj.us/LPs-www.state.nj.us/LPs— at 65 -75.
6. United States v. McKines, 933 F.2d 1412 (8th Cir. 1991)(dissent by McGill, J.); Interim Report, supra at 25 - 29,36 -37, 66 - 68; Soto, supra. Drug Interdiction Unit Training Checklists submitted in evidence as Defense Exhibits D-71, D-71a, D-71b; DWB, Esquire magazine.
7. Soto, supra; Race and The Fourth Amendment, supra note 1 at 333 - 336; 344 - 349; Nancy Hollander and Gary Nelson, In Search of a Reasonable Suspicion on the Road to California: Stops, Searches and Seizures and the Drug Courier Profile, Vol. XI The Champion 7 (1987).
8. Soto, supra; Wilkins v. Maryland State Police, United States District Court, District of Maryland, Docket No. CCB - 93 -468 (Dr. Lamberth).
9. U.S. Const. Amendment 14.
10. 118 U.S. 356 (1886).
11. Id.
12. Id. at 357 (emphasis added).
13. Id. at 362. (Quoting case of Wo Lee, Opinion of Circuit Judge Sawyer, 26 Fed.Rpt. 471).
14.See generally United States v. Armstrong, 517 U.S. 456 (1996); McClesky v. Kemp, 481 U.S. 279 (1987); Ah Sin v. Wittman, 198 U.S. 500 (1905); Plessy v. Ferguson, 163 U.S. 537 (1896).
15. Plessy v. Ferguson, supra note 14.
16. Reid v. Georgia, 448 U.S. 438 (1980)
17. Id.
18. Id. at 440 - 441.
19. 446 U.S. 544 (1980).
20. Id. at 560.
21. Id. at 566-67.
22. 703 F.2d 1213 (10th Cir. 1983)
23. Id. at 1216.
24. Some of this highly touted training was exposed to daylight in Soto, supra. A training video entitled “The Jamaican Posses” was produced by the New Jersey State Police and shown, at least, to all 2700 members of that force. To show the supposition that all “Jamaican Posse” members are “violent” the video employed, without permission, portions of the movie “The Harder They Fall” starring Jimmy Cliff. One inflammatory scene depicted Cliff slashing another man’s face with a straight razor. On cross examination the NJSP author of Jamaican Posses admitted that the sections from The Harder They Fall were entirely fictional and that he knew of no case or investigation that remotely resembled those scenes. Nevertheless he had used those scenes to instruct troopers on how violent the “Jamaican Posse” members are and how they should be on their guard when encountering suspected posse members. The “training” video further instructed that “Jamaican Posse” members are astute enough to shed their dreadlocks and appear like any African American, thus converting all blacks to potentially violent suspects. See note 3, supra; Testimony of Det. Carl Douglas in Soto, Jan. 10 & 11, 1995.
25. McCranie, supra; McKay, Circuit Judge, dissenting at 1218-1219.
26. Id.
27. 612 F.2d 1338 (2nd Cir.1979)
28. Id. at 1352. (dissent by Oakes, CJ).
29. Id.
30. United States v. Williams, 949 F.2d 220, 222-223 (6th Cir. 1991).
31. Id.
32. 935 F. 2d 484, 499 (2nd Cir.1991).
33. United States v. McKines, 933 F.2d 1412, 1436 (8th Cir. 1991) (dissent by McGill, J.) (citations omitted).
34. Id.
35. See generally United States v. Harvey, 16 F.3rd 109, 113 (6th Cir.1994); Sherry Lynn Johnson, Race and the Decision to Detain a Suspect, 93 Yale L.J. 214, 234 (1983); Morgan Cloud, Search and Seizure by the Numbers: The Drug Courier Profile and Judicial Review of Investigative Formulas, 65 B.U.L.Rev. 843 (1985).
36. Even the Supreme Court in United States v. Whren, 517 U.S. 806, 813 (1996) so stated.
37. Armstrong, supra at 468.
38. Yick Wo, supra. at 362.
39. Paul Simon, “They’ve all come to look for America”; See infra discussion on “benchmarks.”
40. Soto, supra at 9-10.
41. Armstrong, 517 U.S. 456, 465 (1996) quoting Wayte v. United States, 470 U.S. 598, 608 (1985).
42. Id. at 464. (Citations omitted).
43. United States v. Batchelder, 442 U.S. 114, 125 (1979).
44. Id. (Quoting from Oyler v. Boles, 368 U.S. 448, 456 (1962)).
45. Id. (Quoting from Yick Wo v. Hopkins, 118 U.S. 356,373 (1886)).
46. Id. (Citations omitted).
47. Id. at 465 citing Oyler v Boles, supra, at 456)
48. Id.
49. Hunter v. Underwood 471 U.S. 222 (1985); Batson v. Kentucky, 476 U.S. 79 (1986)
50. Hunter, supra at 233.
51. Id., at 229-231
52. Wilkens, supra; notes 1, 4 & 6.
53. Armstrong, supra at 467.
54. Id. at 468.
55. Id. at 465. (Citing United States v. Berrios, 501 F.2d 1207, 1211 (CA2 1974)(emphasis added).
56. Id. at 469 (citations omitted).
57. State v. Kennedy, 247 N.J. Super 21 (App. Div. 1991).
58. Id. at 27.
59. Id. at 26.
60. Id. at 26.
61. Id. at 34.
62. Id. at 33 (citations omitted).
63. Id. at 33-34.
64. Id. at 34.(citations omitted)(emphasis added).
65. United States v. Bell, 86 F.3d 820, 823 (1996) (citing Swint v. City of Wadley, Alabama, Wadley, Ala., 51 F.3d 988, 1000 (11th Cir. 1995)). Also see Castaneda v. Partida, 430 U.S. 460, 495-501, 97 S. Ct. 1272,1280-83 (1977); Wards Cove Packing Company v. Atonio, 490 U.S. 642, 109 S. Ct. 2115 (1989).
66. Soto, supra at 9.
67. Kennedy, supra, 588 A.2d at 839-40.
68. Id. at 33.
69. United States v. Olvis, 97 F.3d 739 (4th Cir. 1996).
70. United States v. Bell, 86 F.3d 820, 823 (1996) (citing Swint v. City of Wadley, Alabama, Wadley, Ala., 51 F.3d 988, 1000 (11th Cir. 1995)). Also see Castaneda v. Partida, 430 U.S. 460, 495-501, 97 S. Ct. 1272,1280-83 (1977); Wards Cove Packing Company v. Atonio, 490 U.S. 642, 109 S. Ct. 2115 (1989).
71. 476 U.S. at 93, 106 S. Ct. at 1721, quoting Washington v. Davis, 426 U.S. 229, 242, 96 S. Ct. 2040, 2049 (1976).
72. Id.
73. Id. Also see Washington v. Davis, supra at 96 S. Ct. 248-249.
74. Whren, supra. Also see , Driving While Black, supra at 546 -547.
75. Kennedy, supra at 29 - 30.
76. Whren, supra at 813.
77. Soto, supra at 9-10; Castaneda, supra at 496 fn. 17. (opining that two or three standard deviations is sufficient to establish statistical significance).
78. 385 U.S. 545, 551, 605 (1967)
79. Id.
80. See State v. Ramseur, 106 N.J. 123, 221 (1987).
81. The defense in Soto ultimately learned that the more aggressive “profilers” violated this SOP routinely so their would be no record of the stops that did not net arrests. Many times race was not recorded on the radio log.
82 Hunter, supra at 227.
83. This is not to say that defense lawyers should abandon Fourth Amendment logic entirely. Clearly, stops based on race are “unreasonable.” Note however, that Whren, supra accepts the notion that race-based stops are illegal but must be challenged under the Equal Protection Clause. Whren, supra at 813.
84. Highway Drug Unit Focuses On Blacks, supra, note 1.
85. Driving While Black, supra at 580, n.211. Organizations such as NACDL should lobby for the creation of statutes requiring public availability of stop data.
86. See discussion on data management and random selection, infra.
87.Discovery and cross-examination revealed that a specialized unit of the NJSP known as the Drug Interdiction Training Unit was particularly active on the portion of the Turnpike hoping to find drug couriers as they entered New Jersey from the south.
88. Soto, supra at 4.
89. See generally Monelle v. Department of Social Services, 436 U.S. 658 (1978); City of Canton, Ohio v. Harris, 489 U.S. 378 (1989); Thompson v. City of Los Angelas, 885 F.2d 1439 (9th Cir. 1989); Doe v. Barrington, 729 F. Supp. 376 (D.N.J. 1990); Wilson v. Chicago, 707 F. Supp. 376 (N.D. Ill. 1989); Soto, supra at 12 - 14.
90. Id.
91. Soto, supra at 2, n. 5.
92. Id. at 12.
93. Id. at 6-7.
94. Id. at 8.
95. Douglas Campbell and Howard Goodman, The Path to Glory for N.J. Troopers: Arrests, Arrests Waging a War On Drug Traffickers, the State Police Have Lost Sight of Public Safety, Some Troopers, Others Say, The Philadelphia Inquirer, (Phila., Pa.) March 7, 1999.
96. Interim Report, supra at 39, 43 - 44; Testimony of former N.J. State Trooper Kenneth Ruff in Soto, supra. December 12, 1994.
97. Note 2, supra