First Line of Defense

The ACLU's campaign against racial profiling takes off in California.

By Nicole Davis May 15, 2001

In March 1999, Michael McBride, an African American man in his early 20s, was pulled over by San Jose police officers. They asked him to get out of the car, grabbed his groin area while they searched him, pushed him to the ground, and handcuffed him. While lying face down on the ground, one officer reportedly told him, "You’re lucky you’re not in Alabama or Mississippi. If you move I’ll break your fucking neck." After running his plates and license number through the computer, the police released McBride without a ticket or an apology.

A youth minister at the Bible Way Christian Center in San Jose, McBride has used the story of his assault to help build support and momentum for a statewide campaign against racial profiling.

Michelle Alexander, a civil rights attorney and former consulting professor at Stanford Law School, came to the ACLU of Northern California in June 1998 to direct their newly formed Racial Justice Project. Alexander has a long commitment to civil rights law and criminal justice issues. "It’s always been odd to me that the mass incarceration of people of color and the evisceration of the fourth amendment [prohibiting unreasonable search and seizure] haven’t been higher priorities for civil rights organizations, given what’s gone on in the past 10 to 20 years," she says.

If media reports reflect reality, most people would assume racial profiling is a new phenomenon. In reality, communities of color have been targeted by the police since law enforcement agencies were created.

"What is new, however, is the invention of the term ‘racial profiling’ to describe the phenomenon," says Fran Beal, a research associate with the ACLU’s Racial Justice Project. "It’s a concept that everyone now recognizes, and by developing the phrase ‘racial profiling,’ civil rights groups and community organizations have been able to lend more legitimacy to a fight that’s been going on for years. Racism has been reduced to ‘diversity’ and ‘multiculturalism.’ Racial profiling puts the spotlight back on institutional oppression."

Mark Toney, executive director of the Center for Third World Organizing, a national racial justice organization, agrees: "Racial profiling as a term is used today like ‘racism’ was in the 1960s. It’s a powerful concept because it describes something that is simultaneously institutional and individual in nature. Racial profiling is a powerful weapon that enables us to shed new light on the practice of racism."

The original focus of the Racial Justice Project was to combat the anti-affirmative action ballot initiative, Proposition 209, passed by California voters in 1998. But the project’s focus shifted soon after a roundtable discussion among several organizations working on criminal justice issues. After three days of intense discussion and debate, "there was complete consensus that challenging racial profiling would be the most productive public education and litigation strategy for reducing racial bias in the criminal justice system," recalls Alexander. "There are almost no checks on police officers’ discretion when they make that initial decision of who to stop, search, and detain. Reducing the number of people of color who wrongly have contact with the criminal justice system in the first place will help to reduce cumulative bias over all."

Prove It!

Law enforcement agencies across the country routinely collect data on the number and type of crimes committed in a given area, whether a weapon was used and if so what kind, and the race and gender of the victim and person committing the crime. However, information is seldom collected about the practices of the police.

"Data collection of racial profiling by the police is the first line of defense against the mass incarceration of black and brown people," Beal says. "We must be able to prove it in order to stop it."

Until 1998, no law enforcement agencies in the country collected data by race on traffic stops. People of color have long collected anecdotal evidence of racial profiling by law enforcement, but there was no way to prove the extent of the practice because there were simply no statistics. Former President Clinton signed an executive order mandating that federal law enforcement agencies collect data on the race and ethnicity of people they stop, but no such requirements are in place for local law enforcement agencies. While Clinton’s gesture was significant, the fact remains that most federal officers do not conduct routine traffic stops.

In 1998, the ACLU approached Senator Kevin Murray, an African American Democrat from Los Angeles, about sponsoring a bill in the state senate to require mandatory data collection for all California law enforcement agencies. The substance of the bill was simple: for each person stopped, law enforcement agencies would track information on the individual’s race and ethnicity, whether a search was conducted, if anything was found, the result of the stop, and the reason for the stop.

Although the bill moved through the legislature with relative ease, then Governor Pete Wilson vetoed it in September 1998. In response to the veto, the ACLU launched its Driving While Black or Brown (DWB) hotline, a toll-free number that people could call from anywhere in California to report instances of racial profiling. The hotline received over 100 calls in its first three minutes of operation, crashing the system temporarily. To date, the hotline, which is publicized on both English and Spanish radio, has received more than 3,000 calls reporting instances of racial profiling by various law enforcement agencies.

"A really central theme of the campaign is to get people to tell their stories and have them be taken seriously," says Alexander. "In the judicial process it’s so common for people of color to tell their stories and be disbelieved, and for law enforcement to be taken at its word. This was an opportunity for us to flip the script."

Through the hotline, the Racial Justice Project was able to gather stories of thousands of people across the state who were victims of racial profiling. These stories were then used to build momentum and credibility for the campaign. Project organizers developed a multi-pronged strategy using a combination of media outreach, lobbying, litigation, and grassroots organizing.

"We were developing a new model of advocacy," says Alexander. "We didn’t want the project to be driven by litigation. We wanted to give thought to how to use these stories, and translate people’s interest in working on the issue into real impact. Something more meaningful than a couple of isolated lawsuits."

Currently, 60 law enforcement agencies in California voluntarily collect racial data on traffic stops–a significant increase from zero in 1998, but a long way from the ACLU’s goal of mandatory data collection for all law enforcement agencies statewide. Voluntary collection means the data that does get collected is often arbitrary and not very useful.

"Despite the fact that there’s an overwhelming cry from the community to have consistent and effective data collection, law enforcement agencies are basically doing whatever the hell they want," says Renee Saucedo, director of the Day Laborers Program at La Raza Centro Legal in San Francisco and a member of the Racial Justice Coalition. "It just makes it that much more difficult to learn what we need to learn from the data when different departments are doing it differently."

Not discouraged by Wilson’s veto of the data collection bill, Murray and the ACLU introduced the bill again in February 1999 when Governor Gray Davis took office. With high expectations for the Democratic governor, neither the ACLU, nor Murray, anticipated what happened next. In October 1999, Davis vetoed the mandatory data collection bill, saying he didn’t believe racial profiling was a problem in California.

"The veto really stunned communities of color across California, who assumed Davis would do the right thing," Alexander says. "Signing the bill was the minimal thing he could do, and he didn’t do it."

In response, the Racial Justice Project quickly formed the Racial Justice Coalition, drawing from the pool of people they had been working with since the hotline was launched. The coalition, which brought together individuals and organizations dedicated to eradicating racial profiling and passing mandatory data collection legislation, kicked off its first meeting following Davis’ veto, in November 1999.

Unlike many coalitions spearheaded by civil rights organizations, the Racial Justice Coalition has a strong grassroots focus. The ACLU usually focuses on legislation and litigation. But in this campaign, Beal says, "the ACLU Racial Justice Project functions as the nerve center for grassroots organizing that has struck a responsive chord among those most affected by police misconduct throughout the state."

Escalating Tactics

The goal was to bring people together who were interested in challenging Davis directly, not groups who had a personal or political interest in keeping him happy. A community organizer, not a lawyer, was hired to coordinate the activities of the coalition, and the group launched an ambitious campaign to build support for the bill and pressure the governor to sign legislation. With Murray as a solid advocate for the legislation, and Davis beholden to communities of color for his election, there was reason for optimism.

In March and April 2000, the Racial Justice coalition organized town hall meetings in Salinas, San Jose, East Palo Alto, Oakland, Sacramento, Stockton, Los Angeles, and Fresno to bring attention to the issue of racial profiling. Each meeting was designed to ensure maximum input from community members. Law enforcement officials were invited to the meetings but allowed to listen only. "It was an opportunity for them to learn what the community’s concerns were. Not being able to speak allowed law enforcement to come and not feel like they had to defend themselves," says Alexander.

The town hall meetings culminated on April 27, 2000 in a demonstration at the state capitol in Sacramento. With a thousand people from across the state showing their support for data collection, the coalition believed they had assembled a show of force that would send a message to the governor that the community’s demands could not be ignored. They were mistaken. Instead, Murray, the sponsor of the bill, came to the podium and announced to the stunned crowd that he had struck a deal with Davis. Murray agreed to introduce a new bill, without data collection, and Davis agreed to sign it.

"In retrospect it’s probably the best thing that could have happened for the coalition," Alexander says. "It forced us to make the choice: do we play along and pretend this compromise bill is a good thing for our communities, because to say otherwise would be to risk challenging and embarrassing the African American and Latino legislators. Or do we tell the truth and make it clear that this bill was not going to do anything for people of color. We decided that not only were we going to oppose the bill, but we were going to launch a campaign against it and expose it as a fraud."

Murray’s compromise bill had three basic components: it would ban racial profiling, provide diversity training for police officers, and mandate that officers hand out business cards when conducting routine traffic stops.

"Racial profiling is already illegal and has been since the dawn of time," says Catherine Lhamon, a staff attorney with the ACLU in Southern California working on race-based civil rights cases. "This bill included no new civil or criminal penalties. People in the community don’t feel protected with this law. There’s no way to enforce it. If a police officer pulls you over and harasses you and doesn’t give you a business card with their name on it, there’s no way to call and report it because you don’t know who that officer was. It has no legal teeth."

Over the next several months, the coalition engaged in some intensive organizing to defeat the compromise bill. On August 8, 2000, youth groups from throughout California led a protest in Sacramento against the bill. Report cards sent to the capitol gave Davis an "F" on a host of racial justice issues, including racial profiling. Congresswoman Maxine Waters (D-California) and Congressman John Conyers (D-Michigan) were approached and asked to publicly oppose the bill. The ACLU took out a full-page ad in the New York Times condemning Davis’ veto. Hundreds of people in communities throughout California wrote letters to their state senators making it clear that they were not fooled by the politics behind Davis’ and Murray’s actions. And when it came time for a vote on the compromise bill, it did not make it out of committee and died on the senate floor. For a minute anyway.

"We were thrilled our message had gotten through," says Alexander of the compromise bill’s defeat. But in the final days of the legislative session, again with no notice, Murray introduced yet another bill. Again, this bill called for no data collection, but instead asked for more diversity training for police officers, diversity training to be conducted by the same group that already trains officers and adamantly opposes data collection. Davis signed this bill.

"It was disappointing that the bill slipped through," Alexander explains, "but at the same time we were successful in educating communities about the critical need for data collection, and they knew this bill was not the answer. We also demonstrated that communities of color can organize effectively, even when their representatives who are black and brown aren’t standing up for their interests."

Where to Go From Here

"Southern California is somewhere in the 1950s in terms of advancement on racial justice issues," says Lhamon. "What you hear most often from people is terror, terror about speaking up. People feel the police will get their names and license numbers and come after them. And it’s not an unfounded fear."

Transforming this fear into action is a huge hurdle for any organizer. The Racial Justice Project has made strides throughout California by helping to start local Racial Justice Coalitions in San Jose, Sacramento, and Los Angeles. These groups are bringing together individuals and organizations to pressure local law enforcement agencies to adopt data collection programs, while simultaneously building local support for another shot at a statewide mandatory data collection bill.

As this story went to press, a new bill was introduced in California’s legislature to outlaw racial profiling. The bill, introduced by Assemblymember Marco Firebaugh and Assemblymember Jerome Horton, would also call for statewide mandatory data collection. "This bill clarifies what should be obvious–namely, that race may never be relied upon when an officer makes decisions regarding whom to stop, detain, interrogate, or search–unless there is a specific suspect description," said Michelle Alexander. "There is no excuse for the police to be relying on race in any other situation."

For Michael McBride and countless other people of color, Driving While Black is more than a personal issue.

"To me, racial justice is not a white or black issue," he says. "It has to do with basic human rights."