A bill prohibiting profiling by law enforcement in Oregon is on its way to becoming law after passing Oregon’s house and senate.
It doesn’t criminalize profiling, as laws in 17 other states do, but it does require all law enforcement agencies statewide to establish policies prohibiting officers from profiling. It also requires each department to set up a system for investigating profiling complaints, which under the bill, can be submitted a number of different ways, including anonymously.
While profiling by law enforcement is now illegal, an individual complaint is unlikely to lead to any disciplinary action on its own. Local attorneys say proving a stop was racially motivated is close to impossible unless the officer says something discriminatory in front of witnesses.
The system for combating profiling under this bill will rely heavily on the accumulation of citizen complaints, which when analyzed together can point to patterns of systematic profiling – but in order for there to be data to analyze, profiling victims have to complain.
In Portland, where profiling is already prohibited, the number of official complaints submitted doesn’t reflect the bureau’s Stops Data Collection. The 2014 report shows African Americans, Hispanics and Native Americans were disproportionately pulled over for minor equipment violations. The report also showed African Americans and Hispanics were more likely than whites to be searched during traffic stops, but they were far less likely than whites to be found with contraband.
But, according to Derek Reinke, senior management analyst at Portland’s Independent Police Review, only 19 complaints alleging “disparate treatment” – his agency’s category for profiling – were submitted against Portland police in 2014. It’s a number, he says, that is pretty typical.
To date, he says the commission has not reviewed any complaints of disparate treatment that had enough evidence to lead to serious disciplinary action.
According to the Portland Police Bureau’s Discipline Guide (PDF), if an officer was found to have committed disparate treatment, the punishment would range from one day suspension without pay to three work weeks suspension without pay, depending on how many prior violations the officer has incurred, and a wide range of other factors including the officer’s general performance and whether or not the action led to injury or property damage.
Reinke says that oftentimes when someone submits a complaint alleging profiling, when his agency looks at the police report, it might say the officer stopped them because they fit the description of a suspect.
“There isn’t typically much we can do in terms of sustaining and disciplining when it’s trying to prove a thought in an officer’s head,” he explains. “That’s pretty tough to do.”
The passage of House Bill 2002, Reinke says, will not make it any easier to prove these cases. He says the state law will strengthen PPB’s current policy, “but we’ve certainly had the authority to hold people accountable for that for a long, long time. If it’s fairly obvious that the person’s out there just pulling over people that meet a certain profile without any other reasons, then we’ve got a problem,” he says. “That kind of a thing could lead to some very serious discipline, but we just haven’t seen that kind of a case with that kind of evidence.”
The legislation requires law enforcement agencies statewide to adopt policies prohibiting profiling and procedures for accepting and investigating complaints by January 1, 2016. Departments will also be required to send copies of complaints to a data review committee supported by Portland State University, which will be funded with $250,000 of general fund money.
The legal definition of profiling under the bill includes bias based on a person’s age, race, ethnicity, language, color, religion, national origin, mental disability, political affiliation, sexual orientation, gender or housing status.
According to Kimberly McCullough, the legislative director at Oregon ACLU, the passage of the bill “is a very positive and very powerful step toward addressing profiling.
“The fact that it’s going to include all of these categories will be a really good opportunity for educating law enforcement about the fact that profiling isn’t just based on race, it happens with all these other things,” she says. “Policies and training alone are never enough, but it certainly is part of the equation.”
The bill also establishes a work group that will prepare reports and make recommendations to the Legislature based on analysis of complaints alleging profiling. Before the passage of this bill, there was no statewide policy regarding profiling, nor was there a central agency to collect data on profiling.
Center for Intercultural Organizing originally brought the bill to legislature in 2013, and again this session. Inger McDowell, the End Profiling Director for the organization, says many victims of profiling may fail to complain because they don’t know how. “The other issue,” she says, “is fear of retribution.”
CIO plans to conduct outreach to educate people about how they can file a complaint, and how they can do so anonymously.
“If those complaints show that, consistently, an officer is harassing certain communities, there will be a tracking mechanism that, hopefully, will raise a red flag,” she says.
Portland attorney Melvin Oden-Orr is a co-creator of Driving While Black The App, a free app that informs drivers of their rights, has the ability to record interactions with police and offers a platform for filing complaints. He says he hears stories regularly from family and friends who feel police pulled them over because they were black.
“Many people feel as though they’ve been profiled, but if they do not register their complaint, then all it is, is anecdotal evidence. If they submit a complaint, it becomes a part of official public record,” he says. “Fast forward three years down the road, and a motorist dies at a traffic stop at the hands of an officer. The lawyer representing that victim can do a public records request for all complaints.”
Oden-Orr says if a pattern of profiling emerges from the complaints, there would be substantial evidence that not only was the officer guilty of profiling, but that the agency he works for knew about it, did nothing, and was therefore also responsible for the motorist’s death.
Portland police spokesman Sgt. Pete Simpson says signs that you’ve been profiled are very subjective. “I would suspect a lot of people believe they are being profiled but aren’t,” he says.
The department came under fire in 2013 when it instituted hot-spot policing by sending officers more frequently to high crime areas. Critics worried it would lead to increased racial profiling.
According to Sgt. Greg Stewart, the program is still operational, however the department has moved its focus beyond high-crime areas only, and is focused on the community policing aspect of it.
“An example of this,” he says “is that the calls were set up at high school football and basketball games. These had nothing to do with crime, but instead were set up to give officers a chance to interact more with the community.”
He says while the department is still in the process of analyzing the data, it “does not appear to be generating additional stops or searches. It actually looks as if it may be reducing them.”
Veteran criminal defense attorney Edie Rogoway filed a lawsuit last year alleging racial discrimination and seeking damages from two police officers and the City of Hillsboro on behalf of her African-American client, Jermaine Robinson, who, the suit claims, was assaulted by police in 2012.
Rogoway says racial profiling “is very, very difficult to prove.
“The reason for that is because, when a police officer gets on the stand and testifies under oath that someone didn’t signal, or didn’t have a bike light on, how do you prove that that wasn’t the reason?
“When you think about all of us that drive or ride our bike regularly, it’s impossible to do everything perfectly all the time. But the reality is that when you’re a 44-year-old Jewish woman who drives a Honda Civic – which is me – most of the things that I do that are possibly driving violations, even if a police officer saw it, if I’m not speeding excessively or doing something really outlandish, I’m not going to get pulled over.”
Jason Kafoury, an attorney whose firm has filed several discrimination suits says, “We have gone to juries at least three or four times over the last six years that I’ve been here, and we’ve never prevailed on a race discrimination case. I think the people in Portland don’t want to believe there’s racism, so they want to look for other reasons.”
In the case of Brenda Moaning, a woman who was falsely arrested for shoplifting at an H&M in 2011, Kafoury says, “She was the only African-American shopper in the store, and the video person was following just her, for three minutes, and still the jury couldn’t find that there was racial discrimination.” His firm did, however, prevail on the accusations of false arrest and battery.
Rogoway says getting a discrimination case before a jury is a challenge in itself because a judge can dismiss it due to qualified immunity – meaning that even if the officer’s action was inappropriate, if the judge thinks other officers would have acted in the same way, the officer is immune from prosecution.
Rep. Lew Frederick (D-Portland), who introduced the bill, told house representatives about his own experiences as an African American who’s been stopped “more times in a single year than most of you have in your lifetime.” He went on to say, “Your aye votes will mean a lot to me personally and a lot to communities across the state where people not only experience this, but live their lives anticipating the next encounter.”
Only five members of Oregon Legislature, all republican, voted against the bill. None responded to requests for comment.
The bill was backed by the Portland NAACP, Oregon AFL-CIO, Oregon Latino Health Coalition, Family Forward Oregon, Oregon Health Equity Alliance and the Oregon Association of Chiefs of Police, all saying it’s a significant step toward ending profiling across the state.
~ emily@streetroots.org
How do I know if I’ve been profiled?
According to attorney Melvin Oden-Orr, there are often three common components to a targeted stop:
• You are a person of color
• You’ve been stopped when you know you’ve done nothing wrong
• When the officer approaches you, he or she does not accuse you of any misdoing
Oden-Orr says it’s important not to confuse being detained and questioned with being approached casually by an officer engaged in community policing. In a community policing scenario, the officer may simply ask you how your day is going.
Attorney Jason Kafoury says other signs you may have been profiled include:
• Getting pulled over for something trivial, like failing to signal (or an equipment violation)
• Being followed by law enforcement prior to getting stopped or pulled over
• Comments from an officer that perpetuate stereotypes
• An officer uses a racial slur or other discriminatory language
Portland police spokesman Pete Simpson declined to list profiling indicators, saying they are very subjective. “I would suspect a lot of people believe they are being profiled but aren’t,” he says.
I think I’ve been profiled, now what?
As of Jan. 1, 2016, every law enforcement agency in Oregon will be required to have numerous ways for citizens to submit complaints, including anonymously by phone or via a third party.
If you file a complaint, include as much information about the incident as possible, including the officer’s name or badge number, when and where the incident took place, and – regardless of whether or not you can prove it – why you felt you were targeted. If you don’t know the officer’s information, include a physical description.
If there are witnesses, make sure you get their names and contact information to include in your complaint.
Even if there isn’t enough evidence for your complaint to result in disciplinary action, it could still make an impact.
If your complaint is similar to complaints other people have filed against the same officer or police department, it may help point to systematic profiling when reviewed by the state, which could lead to action or serve as evidence in future litigation.
But don’t wait too long – there is a statute of limitations. Each law enforcement agency must establish a time frame for accepting complaints that will be no fewer than 90 days and no longer than 180 days after the incident occurred.
If your incident involved an officer with the Portland Police Bureau, you can currently submit a complaint with the Independent Police Review Commission using its online form, available in 11 languages, at www.portlandonline.com/auditor/index.cfm?c=42860 or submit your complaint anonymously by calling the review board at 503-823-0146.
There’s an app for that!
An easy way to make sure you’re including all the right information in your complaint is to download the free Driving While Black The App, co-created by Oden-Orr, and use the form provided to fill out pertinent information immediately following the incident. The app will e-mail you the information you’ve entered in a form, which you can then forward to the appropriate law enforcement agency. The app will also help you to identify which department’s jurisdiction you were in when the incident occurred, along with its contact information. The app works on both iPhone and Android operating systems.