S. HRG. 112–944 

ENDING RACIAL PROFILING IN AMERICA 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS AND HUMAN RIGHTS 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

APRIL 17, 2012 

Serial No. J–112–70 

Printed for the use of the Committee on the Judiciary 

( 
ENDING RACIAL PROFILING IN AMERICA 
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20–969 PDF 2016

S. HRG. 112–944 

ENDING RACIAL PROFILING IN AMERICA 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS AND HUMAN RIGHTS 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

APRIL 17, 2012 

Serial No. J–112–70 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND HUMAN RIGHTS

DICK DURBIN, Illinois, Chairman 

PATRICK J. LEAHY, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

LINDSEY GRAHAM, South Carolina, 

Ranking Member 

JON KYL, Arizona 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TOM COBURN, Oklahoma 

JOSEPH ZOGBY, Democratic Chief Counsel 

WALT KUHN, Republican Chief Counsel 
(III) 

C O N T E N T S 

APRIL 17, 2012, 10:00 A.M. 

STATEMENTS OF COMMITTEE MEMBER 

Page 

Durbin, Hon. Dick, a U.S. Senator from the State of Illinois .............................. 1 

prepared statement .......................................................................................... 129 

WITNESSES 

Witness List ............................................................................................................. 43 

Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland ............. 4 

prepared statement .......................................................................................... 45 

Chu, Hon. Judy, a Representative in Congress from the State of California ..... 9 

prepared statement .......................................................................................... 49 

Clegg, Roger, President and General Counsel, Center for Equal Opportunity, 

Falls Church, Virginia ......................................................................................... 20 

prepared statement .......................................................................................... 51 

Conyers, Jr., Hon. John, a Representative in Congress from the State of 

Michigan ............................................................................................................... 5 

Davis, Ronald L., Chief of Police, City of East Palo Alto, California .................. 12 

prepared statement .......................................................................................... 59 

Ellison, Hon. Keith, a Representative in Congress from the State of Minnesota .................................................................................................................... 8 

prepared statement .......................................................................................... 66 

Gale, Frank, National Second Vice President, Grand Lodge, Fraternal Order 

of Police, Denver, Colorado .................................................................................. 17 

prepared statement .......................................................................................... 67 

Gutierrez, Hon. Luis V., a Representative in Congress from the State of 

Illinois ................................................................................................................... 6 

prepared statement .......................................................................................... 76 

Harris, David A., Professor of Law and Associate Dean for Research, University of Pittsburgh School of Law, Pittsburgh, Pennsylvania ............................ 21 

prepared statement .......................................................................................... 81 

Romero, Anthony, Executive Director, American Civil Liberties Union, New 

York, New York .................................................................................................... 15 

prepared statement .......................................................................................... 100 

Wilson, Hon. Frederica, a Representative in Congress from the State of 

Florida ................................................................................................................... 10 

prepared statement .......................................................................................... 127 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

African American Ministers in Action (AAMIA), A Project of People For 

the American Way, Minister Leslie Watson Malachi, Director, statement ..... 131 

African American Ministers in Action et al., April 17, 2012, letter .................... 507 

Alliance for a Just Society, LeeAnn Hall, Executive Director, statement .......... 141 

American-Arab Anti-Discrimination Committee (ADC), Washington, DC, 

statement .............................................................................................................. 166 

American Civil Liberties Union (ACLU) of Illinois, Harvey Grossman, Legal 

Director, statement .............................................................................................. 145 

American Friends Service Committee (AFSC), Philadelphia, Pennsylvania, 

statement .............................................................................................................. 150 

American Immigration Lawyers Association (AILA), Washington, DC, statement ...................................................................................................................... 162 
Page

IV 

Americans for Immigrant Justice, Cheryl Little, Executive Director, statement ...................................................................................................................... 168 

Amnesty International USA, Suzanne Nossel, Executive Director, statement .. 172 

Anti-Defamation League® (ADL), Deborah M. Lauter, Director, Civil Rights, 

Michael Lieberman, Washington Counsel, and Stacy Burdett, Washington 

Director, statement .............................................................................................. 183 

Arab American Institute, The, Danielle Malaty, Manager, Government Relations in Domestic Policy, statement ................................................................... 187 

Asian American Center for Advancing Justice, April 17, 2012, statement ........ 192 

Bill of Rights Defense Committee (BORDC), Shahid Buttar, Executive Director, statement ....................................................................................................... 195 

Black Alliance for Just Immigration (BAJI), Gerald Lenoir, Executive Director, statement ....................................................................................................... 198 

Brennan Center for Justice at New York University School of Law, Faiza 

Patel and Elizabeth Goitein, Co-Directors, Liberty and National Security 

Program, statement ............................................................................................. 201 

‘‘Call the NYPD,’’ photo campaign on social media, statement ........................... 213 

Center for Constitutional Rights (CCR), Vincent Warren, Executive Director, 

statement .............................................................................................................. 216 

Center for Latino Progress—CPRF, Yanil Tero ́n, Executive Director, statement ...................................................................................................................... 225 

Citizens United for Rehabilitation of Errants (CURE)—Virginia, Carla Peterson, Executive Director, statement ..................................................................... 607 

City of Riverside Police Department, Riverside, California, Sergio G. Diaz, 

Chief of Police, statement .................................................................................... 228 

City of Seattle Immigrant and Refugee Commission, Seattle, Washington, 

Jesus Y. Rodriguez and Devon Abdallah, Co-Chairs, statement ..................... 231 

Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA), Los Angeles, California, Angelica Salas, Executive Director, statement ........................ 235 

Comunidad Liberacio ́n/Liberation Community, Rev. Anne Dunlap, Pastor, 

statement .............................................................................................................. 239 

Council on American-Islamic Relations (CAIR), Robert S. McCaw, statement .. 253 

Council on American-Islamic Relations (CAIR-Chicago), Chicago, Illinois, 

statement .............................................................................................................. 242 

Defending Dissent Foundation (DDF), Woody Kaplan, President, statement .... 257 

Delta Sigma Theta Sorority, Incorporated, Cynthia Butler McIntyre, President, statement .................................................................................................... 264 

Desis Rising Up and Moving (DRUM), Fahd Ahmed, Legal and Policy Director, statement ....................................................................................................... 267 

Drug Policy Alliance, Jasmine L. Tyler, Deputy Director, National Affairs, 

statement .............................................................................................................. 272 

Episcopal Church, The, Bishop Stacy F. Sauls, Chief Operating Officer, statement ...................................................................................................................... 282 

Hip Hop Caucus, April 17, 2012, statement .......................................................... 289 

Homies Unidos, Alexander Sanchez, Executive Director, statement .................. 293 

Houston United/Houston Unido, Jannell Robles, Crimmigration Committee 

Chair, statement .................................................................................................. 297 

Human Rights Watch, Antonio M. Ginatta, U.S. Program Advocacy Director, 

statement .............................................................................................................. 302 

Illinois Association of Chiefs of Police (ILACP), R.T. Finney, President and 

Retired Chief, Champaign Police Department, Champaign, Illinois, statement ...................................................................................................................... 306 

Illinois Coalition for Immigrant and Refugee Rights (ICIRR), Fred Tsao, 

Policy Director, statement ................................................................................... 310 

Immigration Equality, Rachel B. Tiven, Executive Director, statement ............ 312 

Indo-American Center (IAC), Jay Luthra, Executive Director, statement ......... 315 

Interfaith Alliance, Rev. Dr. C. Welton Gaddy, President, statement ................ 318 

Inter-Faith Committee on Latin America (IFCLA)—St. Louis, Missouri, 

Marilyn Lorenz-Weinkauff, Program Coordinator, statement ......................... 519 

International Center for Advocates Against Discrimination (ICAAD), 

Hansdeep Singh and Jaspreet Singh, Co-Founders and Legal Program Directors, statement ................................................................................................ 320 

Japanese American Citizens League (JACL), Floyd Mori, National Executive 

Director, statement .............................................................................................. 327 

Kalamazoo Department of Public Safety, Kalamazoo, Michigan, Chief Jeff 

Hadley, statement ................................................................................................ 332 

Lawyers’ Committee for Civil Rights Under Law, Washington, DC, statement 333 
Page

V 

Leadership Conference on Civil and Human Rights, The, et al., Washington, 

DC, April 16, 2012, letter .................................................................................... 342 

Leadership Conference on Civil and Human Rights, The, Wade Henderson, 

President and Chief Executive Officer, statement ............................................ 554 

Maine People’s Alliance (MPA), Charlene Childs, Assistant to the Executive 

Director, statement .............................................................................................. 347 

Meiklejohn Civil Liberties Institute, Ann Fagan Ginger, Executive Director 

Emeritus, statement ............................................................................................ 352 

Metro Atlanta Task Force for the Homeless, Anita L. Beaty, Executive Director, statement ....................................................................................................... 356 

Migrant Justice, Burlington, Vermont, April 17, 2012, statement to Senator 

Durbin ................................................................................................................... 359 

Migrant Justice, Burlington, Vermont, April 17, 2012, statement to Senator 

Leahy ..................................................................................................................... 363 

Missouri Immigrant and Refugee Advocates, Vanessa Crawford, Executive 

Director, statement .............................................................................................. 367 

Montana Organizing Project, Molly Moody, and Indian People’s Action, 

Michaelynn Hawk, statement ............................................................................. 371 

Montgomery County Civil Rights Coalition (MCCRC), Sue Udry, Co-Founder, 

statement .............................................................................................................. 375 

Muslim Advocates and 27 American Muslim, Arab, Middle Eastern, and 

South Asian Organizations, April 17, 2012, statement .................................... 379 

Muslim Legal Fund of America, Coleen Rowley, Vice President, Board of 

Directors, statement ............................................................................................ 390 

Muslim Public Affairs Council (MPAC), Salam Al-Marayati, President, statement ...................................................................................................................... 407 

National Action Network (NAN), Reverend Al Sharpton, President and 

Founder, Reverend Dr. W. Franklyn Richardson, Chairman, and Tamika 

Mallory, National Executive Director, statement .............................................. 417 

National Asian Pacific American Bar Association (NAPABA), Tina Matsuoka, 

Executive Director, statement ............................................................................. 420 

National Association for the Advancement of Colored People (NAACP), 

Benard H. Simelton, President, Alabama State Conference of the NAACP, 

statement .............................................................................................................. 135 

National Association for the Advancement of Colored People (NAACP), Hilary 

O. Shelton, Director, Washington Bureau, and Senior Vice President for 

Advocacy and Policy, statement .......................................................................... 412 

National Association of Social Workers (NASW), Melvin H. Wilson, Manager, 

Department of Social Justice and Human Rights, statement .......................... 424 

National Black Caucus of State Legislators (NBCSL), LaKimba B. DeSadier, 

Executive Director, statement ............................................................................. 426 

National Coalition for Immigrant Women’s Rights (NCIWR), April 17, 2012, 

statement .............................................................................................................. 437 

National Congress of American Indians (NCAI), Washington, DC, statement .. 443 

National Council of La Raza (NCLR), Laura Vazquez, Immigration Legislative 

Analyst, statement ............................................................................................... 446 

National Gay and Lesbian Task Force Action Fund, Rea Carey, Executive 

Director, statement .............................................................................................. 457 

National Hispanic Media Coalition (NHMC), Alex Nogales, President and 

Chief Executive Officer, statement ..................................................................... 461 

National Immigrant Justice Center (NIJC), Mary Meg McCarthy, Executive 

Director, statement .............................................................................................. 285 

National Immigration Forum, Ali Noorani, Executive Director, statement ....... 464 

National Immigration Law Center (NILC), April 17, 2012, statement ............... 467 

National Korean American Service and Education Consortium (NAKASEC), 

Morna Ha, Executive Director, statement ......................................................... 474 

National Network for Arab American Communities (NNAAC), Nadia Tonova, 

Director, statement .............................................................................................. 478 

NETWORK, A National Catholic Social Justice Lobby, Sr. Mary Ellen Lacy 

D.C., statement .................................................................................................... 482 

New England Muslim Bar Association (NEMBA), Shannon Erwin, President, 

statement .............................................................................................................. 485 

North American South Asian Bar Association (NASABA), Jolsna John, President, statement .................................................................................................... 490 

Oregon Action, Ron Williams, Executive Director, statement ............................. 494 

Our Lady of Victory Missionary Sisters, Sister Beatrice Haines, OLVM, President, statement .................................................................................................... 497 
Page

VI 

Pax Christi USA, April 13, 2012, statement ......................................................... 500 

Providence Youth Student Movement (PrYSM), Chanravy Proeung, Executive 

Director, statement .............................................................................................. 501 

Rights Working Group (RWG), Margaret Huang, Executive Director, statement ...................................................................................................................... 509 

San Francisco District Attorney’s Office, San Francisco, California, George 

Gasco ́n, District Attorney, statement ................................................................. 522 

Sikh American Legal Defense and Education Fund (SALDEF), Jasjit Singh, 

Associate Executive Director, statement ............................................................ 524 

Sikh Coalition, New York, New York, statement ................................................. 528 

Sisters of the Most Precious Blood of O’Fallon, Missouri, The Leadership 

Team, statement .................................................................................................. 531 

Sojourners, Lisa Sharon Harper, Director of Mobilizing, statement ................... 533 

South Asian Americans Leading Together (SAALT), Deepa Iyer, Executive 

Director, statement .............................................................................................. 538 

South Asian Bar Association of New York (SABANY), Neha Dewan, President, statement .................................................................................................... 546 

South Asian Bar Association of Northern California, Minal J. Belani, Esq., 

Civil Rights Co-Chair, statement ........................................................................ 544 

Southern Poverty Law Center (SPLC), Mary Bauer, Legal Director, statement ...................................................................................................................... 549 

Virginia Organizing, Joe Szakos, Executive Director, statement ........................ 608 

Washington Community Action Network (Washington CAN), Jill Reese and 

Rachel Berkson, Co-Executive Directors, statement ......................................... 611 

Washington Defender Association (WDA), Travis Stearns, Deputy Director, 

statement .............................................................................................................. 615 

Women’s Voices Raised for Social Justice, Alice Serrano, statement .................. 620 
(1) 

ENDING RACIAL PROFILING IN AMERICA 

TUESDAY, APRIL 17, 2012 

UNITED STATES SENATE, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS

AND HUMAN RIGHTS, COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10 a.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Dick Durbin, Chairman of the Subcommittee, presiding. 

Present: Senators Durbin, Franken, Coons, Blumenthal, and 

Graham. 

OPENING STATEMENT OF HON. DICK DURBIN, 

A U.S. SENATOR FROM THE STATE OF ILLINOIS 

Chairman DURBIN. Good morning. This hearing of the Subcommittee on the Constitution, Civil Rights and Human Rights will 

come to order. 

Our hearing today will focus on a civil rights issue that goes to 

the heart of America’s promise of equal justice under law: protecting all Americans from the scourge of racial profiling. 

Racial profiling is not new. At the dawn of our Republic, roving 

bands of white men known as ‘‘slave patrols’’ subjected African 

American freedmen and slaves to searches, detentions, and brutal 

violence. During the Great Depression, many American citizens of 

Hispanic descent were forcibly deported to Mexico under the socalled Mexican repatriation. And during World War II, tens of 

thousands of innocent Japanese Americans were rounded up and 

held, confined in internment camps. 

Twelve years ago—12 years ago—in March 2000, this Subcommittee held the Senate’s first ever hearing on racial profiling. 

It was convened by then-Senator John Ashcroft, who would later 

be appointed Attorney General by President George W. Bush. 

In February 2001, in his first Joint Address to Congress, President Bush said that racial profiling is ‘‘wrong and we will end it 

in America.’’ We take the title of today’s hearing from the promise 

President Bush made that night 11 years ago. 

In June 2001, our former colleague Senator Russ Feingold of 

Wisconsin, my predecessor as Chairman of this Subcommittee, held 

the Senate’s second, and most recent, hearing on racial profiling. 

I was there. There was bipartisan agreement about the need to end 

racial profiling. 

Then came 9/11. In the national trauma that followed, civil liberties came face to face with national security. Arab Americans, 
2 

American Muslims, and South Asian Americans faced national origin and religious profiling. To take one example, the Special Registration program targeted Arab and Muslim visitors, requiring 

them to promptly register with the INS or face deportation. At the 

time I called for the program to be terminated. There were serious 

doubts if it would help us in any way to combat terrorism. 

Terrorism experts have since concluded that Special Registration 

wasted homeland security resources and, in fact, alienated patriotic 

Arab Americans and American Muslims. More than 80,000 people 

registered under that program; more than 13,000 were placed in 

deportation proceedings. Even today, many innocent Arabs and 

Muslims face deportation because of Special Registration. So how 

many terrorists were identified by the Special Registration program? None. 

Next Wednesday, the Supreme Court will hear a challenge to Arizona’s controversial immigration law. The law is one example of a 

spate of Federal, State, and local measures in recent years that, 

under the guise of combating illegal immigration, have subjected 

Hispanic Americans to an increase in racial profiling. 

Arizona’s law requires police officers to check the immigration 

status of any individual if they have ‘‘reasonable suspicion’’ that 

the person is an undocumented immigrant. Well, what is the basis 

for reasonable suspicion? Arizona’s guidance on the law tells police 

officers to consider factors such as how someone is dressed and 

their ability to communicate in English. Two former Arizona Attorneys General, joined by 42 other former State Attorneys General, 

filed an amicus brief in the Arizona case in which they said, ‘‘application of the law requires racial profiling.’’ 

And, of course, African Americans continue to face racial 

profiling on the streets and sidewalks of America. The tragic, tragic 

killing of Trayvon Martin is now in the hands of the criminal justice system, but I note that, according to an affidavit filed by investigators last week, the accused defendant ‘‘profiled’’ Trayvon Martin and ‘‘assumed Martin was a criminal.’’ The senseless death of 

this innocent young man has been a wake-up call to America. 

And so 11 years after the last Senate hearing on racial profiling, 

we return to the basic question: What can be done to end racial 

profiling in America? 

We can start by reforming the Justice Department’s racial 

profiling guidance issued in 2003 by Attorney General John 

Ashcroft. The guidance prohibits the use of profiling by Federal law 

enforcement in ‘‘traditional law enforcement activities,’’ and that is 

a step forward. 

However, this ban does not apply to profiling based on religion 

and national origin, and it does not apply to national security and 

border security investigations. In essence, these exceptions are a license to profile American Muslims and Hispanic Americans. As the 

nonpartisan Congressional Research Service concluded, the guidance’s ‘‘numerous exceptions’’ may ‘‘invite broad circumvention’’ for 

‘‘individuals of . . . Middle Eastern origin’’ and ‘‘profiling of 

Latinos . . . would apparently be permitted.’’ 

Today Congressman John Conyers and I are sending a letter, 

signed by 13 Senators and 53 Members of the House, asking Attor-
3 

ney General Holder to close the loopholes in the Justice Department’s racial profiling guidance. 

Congress should also pass the End Racial Profiling Act, and I 

welcome the attendance of my colleague and a former Member of 

this Committee, Senator Cardin of Maryland, who has taken up 

this cause from our colleague Senator Feingold, and he is here 

today to testify. 

Let us be clear, and I want to say this and stress it: The overwhelming majority of law enforcement officers perform their jobs 

admirably, honestly, and courageously. They put their lives on the 

line to protect us every single day. But the inappropriate actions 

of the few who engage in racial profiling create mistrust and suspicion that hurt all police officers. We will hear testimony to what 

has been done in a positive way to deal with this issue by a superintendent of police. That is why so many law enforcement leaders 

strongly oppose racial profiling. 

Racial profiling undermines the rule of law and strikes at the 

core of our Nation’s commitment to equal protection for all. As you 

will hear from the experts on our panel today, the evidence clearly 

demonstrates that racial profiling simply does not work. 

I hope today’s hearing can be a step toward ending racial 

profiling in America at long last. 

Senator Graham is running a little late. Senator Leahy is out of 

the Senate this morning but was kind enough to allow me to convene this hearing, and I am sure he will add a statement to the 

record. 

[The prepared statement of Chairman Dick Durbin appears as a 

submission for the record.] 

Chairman DURBIN. I am going to open the floor to Senator 

Graham when he does arrive, but for the time being, because we 

have many colleagues here who have busy schedules of their own, 

I want to turn to the first panel of witnesses. 

At the outset, I do want to note that I invited the Department 

of Justice to participate in today’s hearing, but they declined. 

We are honored to be joined today by our colleagues from the 

Senate and the House. In keeping with the practice of this Committee, first we will hear from Members of the Senate, then Members of the House, a practice which I loathed in the House, but now 

that we are running this show, I am afraid you are just going to 

have to live with it, my House colleagues. 

Each witness will have 3 minutes for an opening statement. Your 

complete written statement will be included in the record. 

The first witness is Senator Cardin—he is a former Member of 

this Committee—Senate sponsor of S. 1670, the End Racial 

Profiling Act, which I am proud to cosponsor. This is Senator 

Cardin’s second appearance before this Subcommittee. He testified 

before us last year at the first ever hearing of this Committee on 

the civil rights of American Muslims. 

Senator Cardin, we are pleased that you could join us today and 

please proceed. 
4 

STATEMENT OF HON. BENJAMIN L. CARDIN, 

A U.S. SENATOR FROM THE STATE OF MARYLAND 

Senator CARDIN. Well, Senator Durbin, first let me thank you for 

your leadership on this Subcommittee. The fact that we have this 

Subcommittee is a testament to your leadership in making clear 

that civil and human rights are going to be a priority of the U.S. 

Senate. So I thank you for your leadership and thank you very 

much for calling this hearing. 

It is a pleasure to be here with all my colleagues, but I particularly wanted to acknowledge Congressman Conyers and his extraordinary life of leadership on behalf of civil rights and these 

issues. Congressman Conyers was a real mentor to me when I was 

in the House, and he still is, and we thank you very much for your 

leadership on this issue. 

Senator Durbin, you pointed out that the Nation was shocked— 

if I could ask unanimous consent to put my entire statement in the 

record along with the list of the many organizations that are supporting the legislation that I filed, S. 1670. 

As you pointed out, Senator Durbin, the Nation was shocked by 

the tragedy that took place in Sanford, Florida, the tragic death of 

17-year-old Trayvon Martin, a very avoidable death. And the question I think most people are asking—and we want justice in this 

case, and we are pursuing that, and we have a Department of Justice investigation, and we all very much want to see that investigation carried out, not only to make sure that justice is carried forward as far as those responsible for his death, but also as to how 

the investigation itself was handled. 

But I think the question that needs to be answered is whether 

race played a role in Trayvon Martin being singled out by Mr. Zimmerman, and that, of course, would be racial profiling, an area that 

we all believe needs to be—we need to get rid of that as far as the 

legitimacy of using racial profiling in law enforcement. 

In October of last year, I filed the End Racial Profiling Act, and 

as you pointed out, carrying on from Senator Feingold’s efforts on 

behalf of this legislation. I thank you very much for your leadership as a cosponsor. We have 12 Members of the Senate who have 

cosponsored this legislation, including the Majority Leader, Senator 

Harry Reid, is a cosponsor. 

Racial profiling is un-American. It is against the values of our 

Nation. It is contrary to the 14th Amendment to the Constitution’s 

‘‘equal protection of the laws.’’ It is counterproductive in keeping us 

safe. It is wasting the valuable resources that we have, and it has 

no place in modern law enforcement. We need a national law, and 

that is why I encourage the Committee to report S. 1670 to the 

floor. 

It prohibits the use of racial profiling, that is, using race, ethnicity, national origin, or religion in selecting which individual is 

to be subject to a spontaneous investigation, activity such as a traffic stop, such as interviews, such as frisks, et cetera. It applies to 

all levels of government. It requires mandatory training, data collection by local and State law enforcement, and a way of maintaining adequate policies and procedures designated to end racial 

profiling. The States are mandated to do that or risk the loss of 

Federal funds. The Department of Justice is granted the authority 
5 

to make grants to State and local governments to advance the best 

practices. As I pointed out, it has the support of numerous groups, 

and you will be hearing from some of them today. 

Let me just conclude—because my statement will give all the details of the legislation—by quoting our former colleague Senator 

Kennedy when he said, ‘‘Civil rights is the great unfinished business of America.’’ I think it is time that we move forward in guaranteeing to every citizen of this country equal justice under law, 

and S. 1670 will move us forward in that direction. 

[The prepared statement of Senator Cardin appears as a submission for the record.] 

Chairman DURBIN. Thanks, Senator Cardin. 

I might also add that we are at capacity in this room, and anyone unable to make it inside the room, we will have an overflow 

room in Dirksen G50, which is two floors below us here. 

Senator Graham suggests that we proceed with the witnesses. 

Next up is Congressman John Conyers, the House sponsor of the 

End Racial Profiling Act and Ranking Member of the House Judiciary Committee. Serving in the House of Representatives since 

1965, John Conyers is the second longest serving Member, I think 

second to another Member from Michigan, if I am not mistaken. 

Congressman Conyers testified at both the previous Senate hearings on racial profiling in 2000 and 2001. 

Congressman Conyers, we are honored to have you here as a witness, and the floor is yours. 

STATEMENT OF HON. JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN 

Representative CONYERS. Thank you, Mr. Chairman, and to your 

colleague, who is another former House Member, if I remember correctly, and Senator Ben Cardin as well. All of you are working in 

the backdrop of a huge discussion that has been going on for quite 

some time. 

When I came to the Congress and asked to go on the Judiciary 

Committee in the House and that was granted, Emanuel Celler 

was then the Chairman, who did such landmark work in the Civil 

Rights Act of 1964. And then we followed up with the Voter Rights 

Act of 1965. And from that time on, a group of scholars, activist 

organizations, civil rights people, and Americans of good will have 

all begun examining what brings us here today and accountable for 

the incredible long line that is waiting to get into this and the holding room today. 

I come here proud of the fact that there is support growing in 

this area. Only yesterday we had a memorial service for John 

Payton, known by most of us here for the great work that he has 

done and contributed in civil rights, not just in the courts and in 

the law but in what I think is the purpose of our hearing here 

today, namely, to have honest discussions about this subject so that 

we can move to a conclusion of this part of our history. And so I 

am just so proud of all of you for coming here and continuing this 

discussion because it is going to turn on more than just the legislators or the Department of Justice, and I am with you in improving 

some of their recommendations, and I commend Eric Holder for the 

enormous job that he has been doing in that capacity. 
6 

But this is a subject that is a part of American history. The one 

thing that I wanted to contribute here is what racial profiling is 

not. Racial profiling does not mean we cannot refer to the race of 

a person if it is subject-specific or incident-specific. We are not trying to take the description of race out of law enforcement and its 

administration. What we are saying is that racial profiling must 

not be subject-specific or incident-specific. That is what we are trying to do here today. 

It is a practice that is hard to root out. I join in praising the 

overwhelming majority of law enforcement men and women who 

want to improve this circumstance, but, you know, one of the greatest race riots in Detroit that occurred was because of a police incident was started. We have in Detroit right now a coalition against 

police brutality. Ron Scott, an activist and a law student, is working on that, has been working there for years. 

And so we encourage not only this legislative discussion about an 

important subject, but we—and we praise our civil rights organizations that have been so good at this—the NAACP, the Legal Defense Fund of NAACP, the American Civil Liberties Union, and 

scores of coalitions of community and State organizations that have 

all been working on this, just as we have and are. 

So I believe that there is going to be a time very soon when we 

will pass the legislation that you have worked on in the House and 

the Senate and that we will enjoy that day forward when we will 

celebrate this movement forward to take the discussion of race out 

of our national conversation, not because we are sick and tired of 

it, but because it is not needed any further. 

I thank you very much for this invitation. 

Chairman DURBIN. Congressman Conyers, it is an honor to have 

you in the Senate Judiciary Committee hearing. I thank you very 

much. 

Our next witness is my friend and Illinois colleague Congressman Luis Gutierrez, who represents the 4th Congressional District 

and has done so since 1993. He chairs the Congressional Hispanic 

Caucus’ Immigration Task Force, and he is a long-time champion 

for immigration reform. There are many outstanding Hispanic political leaders in America, but none more forceful and more articulate and more of a leader than my colleague Congressman Gutierrez. 

Thank you for joining us. 

STATEMENT OF HON. LUIS V. GUTIERREZ, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF ILLINOIS 

Representative GUTIERREZ. Thank you so much, Chairman Durbin and Ranking Member Graham, for inviting me to testify here 

today. One of the proudest things I am being from the State of Illinois is the senior Senator from my State. I am so happy and delighted to be here with you, Senator Durbin. 

I have traveled from coast to coast to visit dozens of cities and 

communities and to listen to immigrants’ stories. Some of my colleagues have visited their cities that are here with me today. And 

immigrants everywhere tell me that they are regarded with suspicion. They tell me they are frequently treated differently because 

of the way they look, sound, or spell their last name. 
7 

In Alabama, I met 20-year-old Martha, a young woman raised in 

the U.S. One late afternoon, while driving, she was pulled over. 

She was arrested for driving without a license and jailed so her 

status could be checked. Because her U.S. citizen husband was not 

present, their Alabama-born 2-year-old son was taken from the 

back seat of her car and turned over to the State welfare agency. 

In South Carolina, I met Gabino, who has been in the U.S. for 

nearly 13 years. He is married, the father of two South Carolinaborn kids; he works hard and owns his own home. Gambino was 

stopped because he was pulling into his mobile home community, 

one of three other Hispanic residents stopped that evening. 

Gambino was arrested for driving without a license, and he was 

then placed in deportation proceedings. 

We can all guess why the police chose to stop Gabino and Martha. Profiling Hispanics and immigrants is the most efficient way 

to get someone deported. But you cannot tell if someone is undocumented by the way they look or dress or where they live. 

In Chicago, a Puerto Rican constituent of mine was detained for 

5 days under suspicion of being undocumented. Indeed, sadly, Senators, there are hundreds if not thousands of cases of unlawfully 

detained U.S. citizens and legal residents in the United States each 

year in violation of their constitutional rights. Some of them have 

even been deported and then been brought back to the United 

States of America. That is not an old story. That is a story of today. 

The Federal Government took a step in the right direction when 

it legally challenged the ‘‘Show me your papers’’ laws in Alabama, 

South Carolina, and Arizona because the State laws are unconstitutional and interfere with the Federal Government’s authority to 

set and enforce immigration policy. But it makes no sense to file 

suit against unconstitutional laws on the one hand and on the 

other hand allow those same laws to funnel people into our detention centers and deportation pipeline. 

Gabino has been denied relief from deportation because he has 

been stopped too many times, according to the Federal Government, for driving without a license. The Government is complicit in 

such serial profiling because while the States cannot deport Gabino 

and break up his family of American citizens, the Federal Government is doing just that. And programs like 287(g) and Secure Communities end up ensnaring tens of thousands of Gabinos every 

year. Because of the racial profiling, the programs incentivize. 

If we are serious about truly ending racial profiling, we need to 

back up our lawsuits with actions that protect families and citizens 

and children and uphold our Constitution. 

I guess the gist of it is I am happy when the Federal Government says this is racial profiling, we are going to fight it, and they 

go into the Federal court in Arizona, in South Carolina, and in Alabama. But until we tell the local officials if you continue your serial 

profiling, we are not going to deport those people, they are going 

to continue to do it. It just incentivizes. So I hope we can have a 

conversation about that also. 

Thank you so much for having me here this morning. 

[The prepared statement of Representative Luis V. Gutierrez appears as a submission for the record.] 

Chairman DURBIN. Thank you, Congressman Gutierrez. 
8 

Congressman Keith Ellison of Minnesota is serving his third 

term representing the 5th Congressional District in that State. He 

co-chairs the Congressional Progressive Caucus. Congressman 

Ellison enjoys a moment in history here as the first Muslim elected 

to the U.S. Congress. Previously he served two terms in the Minnesota House of Representatives. 

Congressman Ellison, welcome. The floor is yours. 

STATEMENT OF HON. KEITH ELLISON, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF MINNESOTA 

Representative ELLISON. Thank you, Senator Durbin. Also, thank 

you, Senator Graham. Thank you for holding this important hearing. Also, thank you for urging Attorney General Holder to revise 

the Justice Department’s racial profiling guidance. It is very important. As you know, that guidance has a loophole allowing law enforcement to profile American citizens based on religion and national origin. 

While any profiling of Americans based on race, ethnicity, religion, or national origin is disturbing, I think it is important also 

to note that it is poor law enforcement. Law enforcement is a finite 

resource. Using law enforcement resources for profiling as opposed 

to relying on articulable facts based on behavior suggesting a crime 

is a waste of that law enforcement resource. It leaves us less safe 

and more at risk when we do not target based on conduct and behavior suggestive of a crime but based on other considerations informed by prejudice. 

My comments today will focus on the religious profiling of American Muslims. Up to 6 million Americans know what it is like to 

be looked upon with suspicion in post-9/11 America, perhaps even 

before. Although Muslim Americans work hard and play by the 

rules and an infinitesimally small number do not, many even live 

the American dream and send their kids to college and earn a living just like everyone else. Yet many know all too well what it 

means to be pulled off of an airplane, pulled out of line, denied 

service, called names, or even physically attacked. 

Like other Americans, Muslim Americans want law enforcement 

to uphold public safety and not be viewed as a threat, but as an 

ally. When the FBI, for example, shows up at the homes and offices 

of American Muslims who have not done anything wrong, it makes 

them feel targeted and under suspicion, and it diminishes the important connection between law enforcement and citizen that is 

necessary to protect all of us. 

When Muslim Americans get pulled out of line at an airport and 

are questioned for hours, asked questions—and these are questions 

actually asked: ‘‘Where do you go to the mosque?’’ ‘‘Why did you 

give them a $200 donation?’’ ‘‘Do you fast?’’ ‘‘Do you pray?’’ ‘‘How 

often?’’ When questions like this are asked which have nothing to 

do with conduct or behavior suggestive of a crime, it erodes the important connection between law enforcement and citizen. No Americans should be forced to answer questions about how they worship. 

I was particularly disturbed when I heard stories coming out of 

the controversy in New York about kids being spied on in colleges 

at Muslim Student Associations. I was very proud when my son 

was elected president of the Muslim Student Association at his col-
9 

lege, but I wonder: Was my 18-year-old son subject to surveillance 

like the kids were at Yale, Columbia, and Penn? He is a good kid, 

has never done anything wrong, and I worry to think that he might 

be in somebody’s files simply because he wanted to be active on 

campus. 

I am a great respecter of law enforcement, and I recognize and 

appreciate the tough job they have to keep us safe. But I think it 

is very important to focus on the proper use of law enforcement resources and not to give an opening for someone’s stereotype or prejudice. 

As one Bush administration official once said, ‘‘religious or ethnic 

or racial stereotyping is simply not good policing,’’ and it threatens 

the values Americans hold dear. To fix this problem once and for 

all, I urge the Attorney General to close the loophole in the Justice 

Department’s racial profiling guidance, and I urge my colleagues in 

Congress to pass the End Racial Profiling Act. 

Thank you. 

[The prepared statement of Representative Keith Ellison appears 

as a submission for the record.] 

Chairman DURBIN. Thanks, Congressman Ellison. I could have 

added in my opening statement comments made by President 

George W. Bush after 9/11, which I thought were solid statements 

of constitutional principle, particularly when it came to those adherents of the Muslim faith, that our war is not against this Islamic religion but against those who would corrupt it, distort it, 

and misuse it in the name of terrorism. And I thank you for your 

testimony. 

Representative ELLISON. Thank you, sir. 

Chairman DURBIN. Congresswoman Judy Chu represents the 

32nd District in California since 2009. She was the first Chinese 

American woman ever elected to Congress. She chairs the Congressional Asian Pacific American Caucus. Formerly she served in the 

California State Assembly. 

We are honored that you are here today. Please proceed. 

STATEMENT OF HON. JUDY CHU, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF CALIFORNIA 

Representative CHU. Thank you, Senator. 

As Chair of the Congressional Asian Pacific American Caucus, I 

am grateful for the opportunity to speak here today about ending 

racial profiling in America. Asian Americans and Pacific Islanders, 

like other minority communities, have felt the significant effects of 

racial profiling throughout American history, from the Chinese Exclusion Act to the Japanese American interment and the post-9/11 

racial profiling of Arabs, Sikhs, Muslims, and South Asian Americans. We know what it is like to be targeted by our own Government. It results in harassment, bullying, and sometimes even violence. 

In the House Judiciary Committee, we really listened to the anguished testimony of Sikh Americans constantly humiliated as they 

were pulled out of lines at airports because of their turbans and 

made to wait in glass cages like animals on display. They were 

pulled into rooms to be interrogated for hours, and even infants 

were searched. This has forced Sikh Americans and Muslim Ameri-
10 

cans to fly less frequently or remove religious attire just to accommodate these unfairly targeted practices. 

And just last year, I was shocked to learn about the activities of 

the New York Police Department and the CIA who were secretly 

spying on Muslim Americans. Despite the lack of any real evidence 

of wrongdoing, officers were monitoring Muslim American communities and eavesdropping on families, recording everything from 

where they prayed to the restaurants they ate in. The NYPD entered several States in the Northeast to monitor Muslim student 

organizations at college campuses. These students had done nothing suspicious. The only thing they were guilt of was practicing 

Islam. 

This type of behavior by law enforcement is a regression to some 

of the darkest periods of our history where we mistrusted our own 

citizens and spied on their daily lives, and it has no place in our 

modern society. 

When law enforcement uses racial profiling against a group, it 

replaces trust with fear and hurts communication. The community 

and law enforcement instead need to be partners to prevent crimes 

and assure the safety of all Americans. 

When the civil liberties of any group are violated, we all suffer. 

In fact, over 60 years ago, during World War II, 120,000 Japanese 

Americans lost everything that they had and were relocated to isolated internment camps throughout the country because of hysteria 

and scapegoating. In the end, not a single case of espionage was 

ever proven, but there were not enough voices to speak up against 

this injustice. 

Today there must be those voices that will speak up. We must 

stand up for the rights of all Americans. That is why I urge all 

Members of Congress to support the End Racial Profiling Act. We 

must protect the ideals of justice and equal protection under the 

law so that our country is one where no one is made to feel unsafe, 

unequal, or un-American because of their faith or ethnicity. 

Thank you. 

[The prepared statement of Representative Judy Chu appears as 

a submission for the record.] 

Chairman DURBIN. Thank you, Congresswoman. 

The next witness is Congresswoman Frederica Wilson. She represents the 17th Congressional District, which, as I understand, includes Sanford, Florida. Previously she served in the Florida House 

of Representatives from 1999 to 2002 and in the Florida Senate 

from 2003 to 2010. 

Congresswoman Wilson, thank you for joining us today, and proceed. 

STATEMENT OF HON. FREDERICA WILSON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA 

Representative WILSON. Thank you. I represent Miami, where 

Trayvon is from. He was murdered in Sanford. Thank you. 

Thank you, Chairman Durbin, Ranking Member Graham, Senator Blumenthal, and other Members of the Subcommittee. I thank 

you for inviting me to testify today on the issue of racial profiling. 

Last week, after 45 days, an arrest was finally made in the 

shooting death of my constituent, Trayvon Martin. Trayvon was a 
11 

17-year-old boy walking home from a store. He was unarmed and 

simply walking with Skittles and iced tea. He went skiing in the 

winter and horseback riding in the summer. His brother and best 

friend is a senior at Florida International University of Miami. A 

middle-class family, but that did not matter. He was still profiled, 

followed, chased, and murdered. This case has captured international attention and will go down in history as a textbook example of racial profiling. 

His murder affected me personally, and it broke my heart again. 

I have buried so many young black boys. It is extremely traumatizing for me. When my own son, who is now a school principal, 

learned how to drive, I bought him a cell phone because I knew he 

would be profiled, and he was. He is still fearful of law enforcement 

and what they might do when he is driving. I have three 

grandsons, a 1-, a 3-, and a 5-year-old. I hope we can solve this 

issue before they receive a driver’s license. I pray for them even 

now. 

There is a real tension between black boys and the police, not 

perceived but real. If you walk into any inner-city school and ask 

the students, ‘‘Have you ever been racially profiled?’’ everyone will 

raise their hands—boys and girls. They have been followed as they 

shop in stores. They have been stopped by the police for no apparent reason. And they know at a young age that they will be 

profiled. 

I am a staunch child advocate. I do not care what color the child 

is. I was a school principal, a school board member, a State legislator, and now in Congress. I desperately care about the welfare of 

all children. They are my passion. But I have learned from my experiences that black boys in particular are at risk. Years of economic and legal disenfranchisement, the legacy of slavery and Jim 

Crow have led to serious social, economic, and criminal justice disparities and fueled prejudice against black boys and men. Trayvon 

Martin was a victim of this legacy—this legacy that has led to fear, 

this legacy that has led to the isolation of black males. This legacy 

has led to racial profiling. 

Trayvon was murdered by someone who thought he looked suspicious. I established the Council on the Social Status of Black Men 

and Boys in the State of Florida when I was in the State Senate. 

I believe we need a council or commission like this on the national 

and Federal level. Everyone should understand that our entire society is impacted. A Federal Commission on the Social Status of 

Black Men and Boys should be established specifically to focus on 

alleviating and correcting the underlying causes of higher rates of 

school expulsions and suspensions, homicides, increases, poverty, 

violence, drug abuse, as well as income, health, and educational 

disparities among black males. 

I have spent 20 years building a mentoring and dropout prevention program for at-risk boys in Miami-Dade County public schools. 

It is called the Five Thousand Role Models of Excellence Project. 

Boys are taught not only how to be productive members of society 

by emulating mentors who are role models in the community; they 

are also taught how to respond to racial profiling. It is a sad reality 

that we have to teach boys these things just to survive in their own 

communities, but we do. 
12 

We need to have a national conversation about racial profiling 

now, not later. The time is now to stand up and address these 

issues and fight injustice that exists throughout our Nation. 

Enough is enough. 

Thank you, Mr. Chairman. 

[The prepared statement of Representative Frederica Wilson appears as a submission for the record.] 

Chairman DURBIN. Thank you, Congresswoman. 

Unless my colleagues have questions of this panel, I will allow 

them to return to their Senate and House duties, and thank you 

very, very much for being here today. 

Chairman DURBIN. Now we will turn to our second panel of witnesses, and each of them will please take their place at the witness 

table. 

Before you take your seats, I will wait until everyone is in place 

and ask you to please stand and be sworn. Do you affirm the testimony you are about to give before the Committee will be the truth, 

the whole truth, and nothing but the truth, so help you God? 

Chief DAVIS. I do. 

Mr. ROMERO. I do. 

Mr. GALE. I do. 

Mr. CLEGG. I do. 

Professor HARRIS. I do. 

Chairman DURBIN. Thank you very much, and let the record reflect that the witnesses all answered in the affirmative. 

The first witness is Ronald Davis, chief of police for the city of 

East Palo Alto, California, since 2005; before that, 19 years with 

the Oakland Police Department, where he rose to the rank of captain. Chief Davis served on the Federal monitoring teams overseeing police reform consent decrees between the U.S. Department 

of Justice, Washington, DC, and Detroit. Among other publications, 

he has co-authored the Justice Department monograph, ‘‘How to 

Correctly Collect and Analyze Racial Profiling Data: Your Reputation Depends on It.’’ He has a bachelor’s of science degree from 

Southern Illinois University in Carbondale. He testified at both the 

previous Senate hearings on racial profiling, and sorry it has been 

so long since we have resumed this conversation, but it is an honor 

to have you return a few years later to bring up to date. 

At this point, Chief Davis, the floor is yours for 5 minutes. 

STATEMENT OF RONALD L. DAVIS, CHIEF OF POLICE, 

CITY OF EAST PALO ALTO, CALIFORNIA 

Chief DAVIS. Thank you, Mr. Chairman. 

Good morning, Mr. Chairman and distinguished Subcommittee 

Members. I am Ronald Davis. I am currently the chief of police for 

the city of East Palo Alto, California. I am humbled to provide testimony at today’s hearing. As was mentioned, I did have the honor 

of testifying at the last Senate hearings on racial profiling in 2001. 

When asked to come before this Committee today, the first 

thought that came to my mind was actually a question: What has 

changed since my testimony in 2001 when President Bush then 

stated, ‘‘Racial profiling is wrong and we will end it in America’’? 

My testimony today is based on three diverse perspectives: first, 

as a racial profiling and police reform expert; second, as a police 
13 

executive with over 27 years’ experience working in two of the 

greatest and most diverse communities in the Nation—Oakland 

and East Palo Alto; and, third, as a black man and a father of a 

teenage boy of color. 

First, from my perspective as an expert, I think it is fair to say 

that law enforcement has made progress, albeit limited, in addressing the issue of racial profiling and bias-based policing. Over the 

past 10 years, the Department of Justice Civil Rights Division, 

through its ‘‘pattern and practice’’ investigations, has worked with 

law enforcement agencies nationwide to provide guidance on racial 

profiling policies and promote industry best practices. Most recently, the COPS Office, in partnership with the National Network 

for Safe Communities, is working on issues of racial reconciliation 

in communities to further strengthen these relationships and reduce crime and violence in those communities. Today there are 

very few police agencies in the United States that do not have some 

type of policy prohibiting racial profiling and bias-based policing. 

This progress, however, is seriously undermined by two focal 

points. First, there exists no national, standardized definition for 

racial profiling that prohibits the use of race, national origin, and 

religion, except when describing a person. Consequently, many 

State and local policies define racial profiling as using race as the 

‘‘sole’’ basis for a stop or any police action. 

Unfortunately, this policy is misleading in that it suggests using 

race as a factor for anything other than a description is justified, 

which it is not. Simply put, Mr. Chairman, race is a descriptor not 

a predictor. 

To use race when describing someone who just committed a 

crime is appropriate. However, when we deem a person to be suspicious or attach criminality to a person because of the color of 

their skin, the neighborhood they are walking in, or the clothing 

they are wearing, we are attempting to predict criminality. The 

problem with such predictions is that we are seldom right in our 

results and always wrong in our approach. 

The same holds true within the immigration context as well. Because a person ‘‘looks’’ Latino or Mexican does not mean that that 

person is undocumented, and it should not mean that they are 

stopped or asked for their ‘‘papers.’’ Yet, according to recent laws 

in Alabama and Arizona, the police are not just encouraged to 

make these types of discriminatory stops; they are actually expected to do so. 

Most police chiefs will agree that engaging in these activities actually makes our communities less safe. This is one reason why I 

joined the Major Cities Police Chiefs Association and 17 current 

and former chief law enforcement executives in filing a brief challenging the Arizona law. 

We need to pass the End Racial Profiling Act of 2011. This legislation puts forth a standard definition for racial profiling. It requires evidence-based training to curtail the practice and provides 

support in developing scientific-based data collection and analysis 

practices. We also need the U.S. Department of Justice to revise its 

Guidance Regarding the Use of Race by Federal Law Enforcement 

Agencies. This will close, as mentioned in previous testimonies, 

loopholes that could permit unlawful and ineffective profiling. It 
14 

makes no sense to exclude religion and national origin from the 

prohibition on profiling or to treat terrorism or immigration enforcement differently from other law enforcement efforts. 

I also fear that without this legislation, we will continue business 

as usual and only respond to issues when they surface through 

high-profile tragedies such as the Oscar Grant case in Oakland and 

the Trayvon Martin case in Florida. 

The second factor that undermines our progress is the dire need 

for us to reform the entire criminal justice system. The last top-tobottom review of our system was conducted in 1967 through the 

President’s Commission on Law Enforcement and Administration 

of Justice. 

We must now examine the entire system through a new prism 

that protects against inequities such as racial profiling, disparate 

incarceration rates, and disparate sentencing laws. I strongly encourage the passage of the National Criminal Justice Commission 

Act of 2011. 

Mr. Chairman, from my perspective as a police executive with 

over 27 years of experience, I know firsthand just how ineffective 

racial profiling is. As an example, in East Palo Alto, my community, we are more than 95 percent people of color—60 percent 

Latino, approximately 30 percent African American, and a rapidly 

growing Asian and Pacific Islander community. In 2005, the city 

experienced, unfortunately, the second highest murder per capita 

rate in California and the fifth highest in the United States. 

In January 2006, with just 6 months serving as chief of police, 

East Palo Alto police officer Richard May was shot and killed in 

the line of duty by a parolee just 3 months out of prison. With this 

crime rate and this violence against a police officer, my community 

had two distinct choices: we could either declare war on parolees, 

we could engage in enforcement activities that would further the 

disparate incarceration rate of young men of color, or we could do 

something different. We chose to use problem-solving, we chose to 

strengthen our relationships, we chose not to engage in racial 

profiling. We started a parole reentry program, the first in California, in which we actually were contracted by the Department of 

Corrections to provide reentry services. Police officers now are part 

of treatment, and we provide cognitive life skills, we provide drug 

awareness and treatment programs, and together we were able to 

reduce the recidivism rate from over 60 percent to under 20 percent. After 5 years, the murder rate in 2011 was 47 percent lower 

than it was in 2005. Our incarceration rates have dropped, and I 

am very confident in saying that we have better police and community relations. 

I think for me and my community, we recognize that racial 

profiling, the focus on people of color, especially young men, is more 

likely to occur when law enforcement uses race to start guessing. 

I am here to really reinforce that is a very ineffective policing practice. It is sloppy. It is counting on guess work. I think the notion 

that we as a community or we as a Nation must use racial profiling 

to make ourselves secure or to sacrifice civil liberties is not only 

false, it reeks of hypocrisy. 

If we were truly worried about national security in the sense of 

compromising civil liberties, then it would make sense that we 
15 

would also ask—or those who are engaging in racial profiling would 

also ask for the prohibition of firearms. We have lost over 100,000 

Americans to gun violence since 9/11. That is more than we have 

lost in terrorism and the wars in Afghanistan and Iraq combined. 

Yet there is not this equal call for gun laws. And I am not suggesting that there should be. I am just offering the idea of compromising civil rights for national security does not work. 

What is equally troubling with the idea of using race, national 

origin, or religion in the national security context is that it suggests the most powerful Nation in the world, a Nation that is 

equipped with law enforcement and national security experts that 

are second to none, must rely on bias and guess work to make ourselves secure versus human intelligence, technology, experience, 

and the cooperation of the American people. I want to strongly emphasize this point, Senator: There is no reason to profile on the 

basis of race, religion, national origin, or ethnicity. 

Last, and importantly, my last perspective is as a black man in 

America. I am still subject to increased scrutiny from the community, from my own profession, and from my country because of the 

color of my skin. 

As I mentioned earlier, I am a father of three, but I have a 14- 

year-old boy named Glenn, and even though I am a police chief 

with over 27 years’ experience, I know that when I teach my son 

Glenn how to drive, I must also teach him what to do when 

stopped by the police—a mandatory course, by the way, for young 

men of color in this country. 

As I end my testimony today, I want to thank you, Mr. Chairman, and the rest of the Senators, for your leadership. And as 

much as I am honored to be here today, and as much as I was honored to be here 10 years ago or 12 years ago, I truly hope that 

there is no need for me to come back in another 10 years. 

Thank you. 

[The prepared statement of Chief Ronald L. Davis appears as a 

submission for the record.] 

Chairman DURBIN. Thank you, Chief Davis. 

Since September 7, 2001, Anthony Romero has been executive director of the American Civil Liberties Union, the Nation’s oldest 

and largest civil liberties organization, with more than 500,000 

members. He is the first Latino and openly gay man to serve in 

that position. He co-authored, ‘‘In Defense of Our America: The 

Fight for Civil Liberties in the Age of Terror.’’ He graduated from 

Stanford University Law School and Princeton University’s Woodrow Wilson School of Policy and International Affairs. 

Mr. Romero, please proceed. 

STATEMENT OF ANTHONY ROMERO, EXECUTIVE DIRECTOR, 

AMERICAN CIVIL LIBERTIES UNION, NEW YORK, NEW YORK 

Mr. ROMERO. Good morning, Senator Durbin and Ranking Member Graham. Thank you for having me this morning. Senator 

Franken, Senator Blumenthal. I am delighted to testify before you 

today. 

I am the national director of the American Civil Liberties Union. 

We are a nonpartisan organization with over half a million members, hundreds of thousands of additional activists and supporters, 
16 

and 53 State offices nationwide dedicated to the principles of equality and justice set forth in the U.S. Constitution and in our laws 

protecting individual rights. 

For decades, the ACLU has been at the forefront of the fight 

against all forms of racial profiling. Racial profiling is policing 

based on crass stereotypes instead of facts, evidence, and good police work. Racial profiling fuels fear and mistrust between law enforcement and the very communities that they are supposed to protect. Racial profiling is not only ineffective, it is also unconstitutional and violates basic norms of human rights both at home and 

abroad. 

My written testimony lays out how race, religion, and national 

origin are used as proxies for suspicion in three key areas of national security, of routine law enforcement, and immigration. 

In the context of national security, recently released FBI documents demonstrate how the FBI targets innocent Americans based 

on race, ethnicity, religion, national origin, and First Amendmentprotected political activities. Such counterproductive FBI practices 

waste law enforcement resources, damage essential relationships 

with those communities, and encourage racial profiling at the State 

and local level. 

In my native New York, the New York Police Department has 

targeted Muslim New Yorkers for intrusive surveillance without 

any suspicion of criminal activity. According to a series of Associated Press articles, the New York Police Department dispatched 

undercover police officers into Muslim communities to monitor 

daily life in bookstores, cafes, night clubs, and even infiltrated 

Muslim student organizations in colleges and universities, such as 

Columbia and Yale universities. When we tolerate this type of racial profiling in the guise of promoting national security, we jeopardize public safety and undermine the basic ideals set forth in our 

Constitution. 

In the context of routine law enforcement, policing based on 

stereotypes remains an entrenched practice in routine law enforcement across the country. The tragic story of Trayvon Martin has 

garnered national attention and raised important questions about 

the role of race in the criminal justice system. And while we yet 

do not know how this heart-breaking story will end, we do know 

that stereotypes played a role in this tragedy, and yet they have 

no place in law enforcement. 

Racial profiling undermines the trust and mutual respect between police and the communities they are there to protect, which 

is critical to keeping communities safe. Additionally, profiling 

deepens racial divisions in America and conveys a larger message 

that some citizens do not deserve equal protection under the law. 

In the context of immigration, racial profiling is exploding. State 

intrusion into Federal immigration authority has created a legal 

regimen in which people are stopped based on their race and ethnicity for inquiry into their immigration status. The Department of 

Justice needs to continue to expand its response to these State 

laws using robust civil rights protections. Additionally, Congress 

must defund the Department of Homeland Security 287(g) and Secure Communities programs which promote racial profiling by 

turning State and local law enforcement officials into immigration 
17 

agents. When police officers not trained in immigration law are 

asked to enforce the Nation’s immigration laws, they routinely resort to racial stereotypes about who looks or sounds foreign. But 

you cannot tell by looking or listening to someone about whether 

or not they are in the U.S. lawfully. 

In order to achieve comprehensive reform, Congress needs to provide law enforcement with the tools needed to engage in effective 

policing. We need to pass the End Racial Profiling Act, which 

would prohibit racial profiling once and for all. And we should urge 

the administration to strengthen the Department of Justice guidance using the use of race by Federal law enforcement agencies to 

address profiling by religion and national origin and to close loopholes for the border and national security. 

In America in 2012 and beyond, policing based on stereotypes 

must not be a part of our national landscape. Law enforcement officers must base their decisions on facts and evidence; otherwise, 

Americans’ rights and liberties are unnecessarily discarded and individuals are left to deal with the lifelong circumstances of such intrusion. 

On behalf of the ACLU, I wish to thank each of you for your 

leadership on this critical issue. I also would like to thank you, 

Chairman Durbin, in particular for your willingness to partner 

with our Illinois office to address the issue of profiling. I look forward to working with you in the years ahead. 

[The prepared statement of Anthony Romero appears as a submission for the record.] 

Chairman DURBIN. Thanks, Mr. Romero. 

Frank Gale is the national second vice president and Colorado 

State president of the Fraternal Order of Police. He served for 23 

years in the Denver County Sheriff’s Department where he had responsibility for the courts and jails. Captain Gale is currently the 

commander of the Training Academy and the Community Relations 

Unit and the public information officer. He has received numerous 

awards and decorations from the Fraternal Order of Police and the 

Denver Sheriff’s Department. 

Captain Gale, it is an honor to have you here today, and please 

proceed. 

STATEMENT OF FRANK GALE, NATIONAL SECOND VICE 

PRESIDENT, GRAND LODGE, FRATERNAL ORDER OF POLICE, 

DENVER, COLORADO 

Mr. GALE. Thank you. Good morning, Mr. Chairman and distinguished Members of the Senate Subcommittee on the Constitution, 

Civil Rights and Human Rights. My name is Frank Gale. I am a 

23-year veteran of the Denver County Sheriff’s Department and 

currently hold the rank of captain. I am the national second vice 

president of the Fraternal Order of Police, which is the largest law 

enforcement labor organization in the country, representing more 

than 330,000 rank-and-file law enforcement officers in every region 

of the country. 

I am here this morning to discuss our strong opposition to S. 

1670, the End Racial Profiling Act. I want to begin by saying that 

it is clear that racism is morally and ethically wrong, and in law 

enforcement is not only wrong but serves no valid purpose. It is 
18 

wrong to think a person a criminal because of the color of their 

skin, but it is equally wrong to think that a person is a racist because they wear a uniform and a badge. This bill provides a solution to a problem that does not exist unless one believes that the 

problem to be solved is that our Nation’s law enforcement officers 

are patently racist and that their universal training is based in 

practicing racism. This notion makes no sense, especially to anyone 

who truly understands the challenges we face protecting the communities we serve. 

Criminals comes in all shapes, colors, and sizes, and to be effective as a law enforcement officer, it is necessary to be colorblind as 

you make determinations about criminal conduct or suspicious activity. There is the mistaken perception on the part of some that 

the ugliness of racism is part of the culture of law enforcement. I 

am here today not only to challenge this perception, but to refute 

it entirely. We can and must restore the bonds of trust between law 

enforcement and the minority community. To do so would require 

substantial effort to find real solutions. Restoring this trust is critically important because minority citizens often suffer more as victims of crime, especially violent crime. 

I do not believe that S. 1670 will help to repair the bonds of trust 

and mutual respect between law enforcement and minority communities. In fact, I believe it will make it more difficult because it 

lends the appearance that all cops are racist and that we are engaged in a tactic which has no other purpose than to violate the 

rights of citizens. That notion or belief is inhibitive of building 

trust and respect and can result in a base belief by the community 

that law enforcement officers should not be trusted or respected. 

This bill proposes to prohibit racial profiling, which it defines 

very broadly and is not a legitimate police practice employed by 

any law enforcement agency in the United States that I know of. 

In Whren v. United States, the Supreme Court made it very clear 

that the Constitution prohibits selective enforcement of the law 

based on considerations such as race. Further, as one court of appeals has explained, citizens are entitled to equal protection of the 

laws at all times. If law enforcement adopts a policy, employs a 

practice, or in a given situation takes steps to initiate an investigation of a citizen based solely upon the citizen’s race without more, 

then a violation of the Equal Protection Clause has occurred. 

The United States Constitution itself prohibits racial profiling, 

and yet here we have a bill that proposes to prohibit it. The very 

premise of the bill seems at odds with common sense in current 

law. The bill does not prohibit racial profiling, as the definition of 

racial profiling in the bill is far too broad. And, thus, it ends up 

prohibiting officers from the exercise of legitimate routine investigatory action aimed at determining involvement in a crime or 

criminal activity. The bill purports to allow exceptions to these prohibitions when there is a race description provided by a trustworthy eyewitness or other evidence of a specific suspect’s race or 

ethnicity, but in real life this is not practical. 

In the practice of routine investigatory action, law enforcement 

officers receive and develop information through a wide range of 

activities and methods that are designed to identify suspects, prevent crime, or lead to an arrest. This bill would ban many of these 
19 

types of method; therefore, a whole range of legitimate law enforcement methods would be prohibited beyond the already unconstitutional, purely race-based activities. 

The legislation also threatens to penalize local and State law enforcement agencies by withholding Federal law enforcement funding unless these agencies comply with the requirements of the bill 

to provide all officers training on racial profiling issues, collect racial and other sociological data in accordance with Federal regulation, and establish an administrative complaint procedure or independent audit program to ensure an appropriate response to allegations of racial profiling. 

The FOP has testified before you about the dire and dangerous 

consequences of budget cutbacks for law enforcement in the past. 

How can we fight the battle if we also propose to deny these funds 

to agencies that need them because they cannot afford new training or new personnel to document allegations of racial profiling 

issues? How can we achieve a colorblind society if the policies of 

the Federal law require the detailed recording of race when it 

comes to something as common as a traffic stop? And what if the 

officer is unable to determine the driver’s race? Will police officers 

now be required to ask for ‘‘driver’s license, registration, and proof 

of ethnicity, please’’? 

At a time when many citizens and lawmakers are concerned with 

protecting their personal information, be it concerns about the 

REAL ID Act, voter identification laws, or cyber crime, it seems at 

variance with common sense and sound public policy to ask yet another representative of the Government—in this case, a law enforcement officer—to collect racial or other personal data and turn 

that data over to the Federal Government for analysis. Why would 

something as simple and routine as a traffic stop require such an 

extraordinary imposition on a driver? 

I submit to this Subcommittee that we do have a problem in our 

Nation today: the lack of trust and respect for our police officers. 

Police officers have a problem in that they have lost the trust and 

respect and cooperation of the minority community. This is tragic 

because, as we have already discussed, it is minorities in our country that are most hurt by crime and violence. This bill, however, 

is not the solution. It will make matters worse, not better. 

For these reasons, the Fraternal Order of Police strongly opposes 

the bill, and I urge this Subcommittee to reject it. 

Mr. Chairman, I want to thank you for the opportunity to appear 

before the Subcommittee. 

[The prepared statement of Frank Gale appears as a submission 

for the record.] 

Chairman DURBIN. Thank you very much, Office Gale, for being 

here. 

Roger Clegg is the next witness, president and general counsel 

of the Center for Equal Opportunity. He has held a number of senior positions in the Justice Department during the Reagan and 

George H.W. Bush administrations, including Deputy Assistant Attorney General in the Civil Rights Division and Deputy Assistant 

Attorney General in the Environment and Natural Resources Division, Acting Assistant Attorney General in the Office of Legal Policy. He is a graduate of Yale University Law School. 
20 

Thank you for being here, Mr. Clegg, and please proceed. If you 

would turn your microphone on, it is in that box in front of you 

there. 

STATEMENT OF ROGER CLEGG, PRESIDENT AND GENERAL 

COUNSEL, CENTER FOR EQUAL OPPORTUNITY, FALLS 

CHURCH, VIRGINIA 

Mr. CLEGG. Thank you very much, Senator Durbin, for inviting 

me here today. I am delighted to be here. Let me just summarize 

briefly my written statement. 

The first point I make is that care has to be taken in defining 

the term ‘‘racial profiling.’’ And, in particular, I think that it is important to bear in mind that racial profiling is disparate treatment 

on the basis of race. Good police activities that happen to have a 

disparate impact on the basis of race are not racial profiling. 

The second point I make is that the amount of racial profiling 

that occurs is frequently exaggerated and that care needs to be 

taken in analyzing the data in this area. 

All that said, racial profiling, as I define it, is a bad policy, and 

I oppose it for the reasons that many of my co-panelists here are 

giving. 

There is one possible exception that I would make, and that is 

in the antiterrorism context. In brief, I think that it is quite plausible to me that in the war on terror, where we are fighting an 

enemy that has a particular geopolitical and perverted religious 

agenda, it may make sense in some circumstances to look at organizations that have particular religious and geopolitical ties. I am 

not happy about doing that. I think it should be done as little as 

possible. But the stakes are so high that I am not willing to rule 

it out altogether. 

The last point I would make is that there are problems with trying to legislate in this area in general, and I think that the End 

Racial Profiling Act in particular is very problematic. I do not think 

that this is an easy area for Congress to legislate a one-size-fitsall policy that is going to apply to all law enforcement agencies at 

all levels of Government at all times in all kinds of investigations. 

And I think it is also a bad idea to encourage heavy judicial involvement in this area. And these are things that the End Racial 

Profiling Act does. 

Let me also say that I think that Chief Gale does a very good 

job of identifying some additional costs in the End Racial Profiling 

Act: The fact that it is insulting, that data collection is time-consuming, and that inevitably we are going to either have to guess 

inaccurately about people’s racial and ethnic background or else 

train the police on how to identify people racially, which is a pretty 

creepy enterprise. 

With respect to my other panelists’ testimony, I will just say 

briefly that in the terrorism and border security context, as I read 

some of this testimony, they would equate racial profiling with taking a particular look at visitors from particular countries, at considering immigration and citizenship status, and at considering language. I do not consider any of those things to be racial profiling. 

Let me make one last point. I think that this is an important 

point to make whenever we are talking about racial disparities. As 
21 

I said, Mr. Chairman, I am opposed to profiling, particularly to 

profiling in the traditional law enforcement context where frequently it is African Americans who are the victims of that 

profiling. I am against that. 

Nonetheless, I think we have to recognize that it is going to be 

tempting for the police and individuals to profile so long as a disproportionate amount of street crime is committed by African 

Americans. And there will be a disproportionate amount of street 

crime committed by African Americans for so long as more than 

seven out of ten African Americans are being born out of wedlock. 

I know that this is not a popular thing to say, but I think whenever 

we are discussing racial disparities in the United States, that is the 

elephant in the room, and it has to be addressed. 

So, ultimately, people like me and everyone else, I think, in this 

audience who do not like racial profiling are going to have to face 

up to this problem. Thank you. 

Chairman DURBIN. I would ask those in attendance here to 

please maintain order. 

Mr. CLEGG. Thank you, Mr. Chairman, and I think I am at the 

end of my 5 minutes, anyway. 

[The prepared statement of Roger Clegg appears as a submission 

for the record.] 

Chairman DURBIN. Thank you, Mr. Clegg. 

David Harris is a distinguished faculty scholar and associate 

dean for research at the University of Pittsburgh Law School. He 

is one of the Nation’s leading scholars on racial profiling and author of the book in 2000, ‘‘Profiles in Injustice: Why Racial Profiling 

Cannot Work,’’ and in 2005, ‘‘Good Cops: The Case for Preventive 

Policing.’’ Like Congressman Conyers and Chief Davis, Professor 

Harris appeared at both of the previous Senate hearings on racial 

profiling, so welcome back. 

STATEMENT OF DAVID A. HARRIS, PROFESSOR OF LAW AND 

ASSOCIATE DEAN FOR RESEARCH, UNIVERSITY OF 

PITTSBURGH SCHOOL OF LAW, PITTSBURGH, PENNSYLVANIA 

Professor HARRIS. Thank you very much, Senator Durbin, Members of the Subcommittee. I am grateful for the chance to talk to 

you today. 

Senator Durbin’s statement opened by recalling for us President 

Bush’s promise that racial profiling ‘‘is wrong and we will end it 

in America.’’ Sad to say that that promise remains as yet 

unfulfilled. Instead, we have a continuation of profiling as it existed then with a new overlapping second wave of profiling in the 

wake of September 11th, as other witnesses have described, directed mostly at Arab Americans and Muslims. And now we have 

a third overlapping wave of profiling, this one against undocumented immigrants. But the context and the mission of whatever 

these law enforcement actions are does not change the fundamentals. The fundamentals are these: Racial profiling does not work to 

create greater safety or security. Instead, racial profiling, ethnic 

profiling, and religious profiling all make our police and security 

personnel less effective and less accurate in doing their very difficult jobs. 
22 

I would define racial profiling as the use of racial, ethnic, religious, national origin, or other physical characteristics of appearance as one factor, not the sole factor but one factor, among others, 

used to decide who to stop, question, frisk, search, or take other 

routine law enforcement actions. This is very close, if you look at 

it, to the definition in the profiling guidance of the Justice Department, and I would note that it does not include actions based upon 

description—description of a known suspect, a person who has been 

seen by a witness. That is not profiling. That is good police work. 

All of profiling falls on the same set of data—data from across 

the country, different law enforcement agencies, different missions—and it is all about hit rates. When we talk about effectiveness, what we are asking is: What is the rate at which police officers and security officers succeed or hit when they use race, ethnic 

appearance, religious appearance, as opposed to when they do not? 

And the evidence, the data on this question is unequivocal. It 

comes from all over the country. 

When police use race or ethnic appearance or religious appearance this way, they do not become more accurate. In fact, they do 

not even just stay as accurate. They become less accurate than police officers and security agents who do not use these practices. In 

other words, racial profiling gets us fewer bad guys. 

Why is this? Because a lot of people find this counterintuitive. 

There are two big reasons. 

Number one, profiling is the opposite of what we need to do in 

order to address as yet unknown crimes by as yet unknown suspects. That is addressed most effectively through observation, careful observation of behavior. And when you introduce race even as 

just one factor into the mix, what happens is the observation of behavior becomes less accurate, measurably so, and police officers’ efforts are damaged and wasted. 

Second is that using profiling affects our ability to gather crucial 

intelligence and information from communities on the ground, and 

this is true whatever the context is in which profiling is used. Particularly in the national security context, this is absolutely critical. 

If we are in danger, if there is a threat from international terrorists, and if, as some say, those international terrorists may be hiding in communities of Arab Americans and Muslims, the people we 

need right now as our partners, like we have never needed other 

partners, are people in those Arab American and Muslim communities. And I want to say that those communities have been strong, 

effective, continuously helpful partners to law enforcement in case 

after case across the country. These communities have helped. But 

if we put the target of profiling on these whole communities, we 

will damage our ability to collect intelligence from them because 

fear will replace trust. 

In response to some of the comments made by my fellow panelists, a bill like S. 1670, which deserves support, is not insulting to 

law enforcement. It is all about accountability, and everybody who 

is in law enforcement or any other pursuit needs accountability, 

just like I do as a professor, just like everybody else does. Racial 

identification is not an issue. You will not have police officers asking people what their race or ethnic group is. In fact, that is not 
23 

what we would want at all because it is all about the perception 

of the officer. That is all that would have to be recorded. 

And black street crime, respectfully I have to disagree, is not the 

issue. The issue is how we deploy our law enforcement officers in 

ways that are effective, fair, and carry out the most important 

ideals of our society. So for those reasons, I would support any efforts to pass S. 1670, the End Racial Profiling Act, and to revise 

the Department of Justice’s profiling guidance. 

I thank you very much for the opportunity to talk to you, and 

I look forward to the Committee’s questions. Thank you. 

[The prepared statement of Prof. David A. Harris appears as a 

submission for the record.] 

Chairman DURBIN. Thank you very much, Professor Harris. 

Chief Davis, you have spent your lifetime in law enforcement, 

and you have heard the testimony of Officer Gale that suggested 

in very strong and pointed language that raising this question of 

racial profiling really, he says, unless you believe police are racist, 

he suggests this is unnecessary. 

So what is your answer to that? As I said at the outset, you 

trust, we trust, these men in uniform—women as well—who risk 

their lives every day for us. And the question he has raised is if 

we cannot trust their judgment and assume that they are going to 

violate the Constitution and the law, then we are suspicious of 

them when we should be more trusting. 

Chief DAVIS. Thank you, Mr. Chairman, for the question. I completely disagree with my colleague. The idea that a police officer or 

a police department should not be held accountable is counter to 

the idea of democracy. If any group should be held accountable, it 

must be the police. We have awesome powers and responsibility, 

the power to take a life and the power to take freedom. The idea 

that we could not collect data to ensure that that power is used judiciously and prudently would be counter to sound managerial 

principles. 

We collect data every day. We collect data on crime. We collect 

data for budget purposes. We collect data for our very justification 

and existence. We use it to tell you that you need to increase budgets to the State. We use crime to justify why we deploy resources. 

The idea of using data means that you are using intelligence, and 

intelligence-led policing prevents the need to do guess work or biasbased policing. 

And so while I do appreciate the notion that we should respect 

law enforcement, as a law enforcement officer I think there is no 

more noble profession. But the idea that I am exempt from the 

Constitution or exempt from accountability is counter to why I got 

into the job. And I do not think it is insulting. I think what is insulting is to allow police officers to come under the perception, 

under the threats of accusations of racial profiling and not be in 

a position to counter it, not be in a position to make sure that your 

own policies and practices do not make them unintentionally engage in this practice. Laws are designed to set standards, to hold 

us accountable, and to really send a clear message. And I think 

that is what we’re doing. 

Chairman DURBIN. Before I turn to Officer Gale, I would like to 

also note that this celebrated case, notorious case involving 
24 

Trayvon Martin involved a person being accused who was not a law 

enforcement official per se. He was an individual citizen as part of 

a Neighborhood Watch. Forty-nine States now, my own State being 

the only exception, have a concealed-carry law which allows individuals under some circumstances to legally carry a firearm. In 

this case, I do not know if Mr. Zimmerman complied with Florida 

law. That will come out, I am sure, in terms of what it took to have 

a concealed weapon. 

But it certainly raises a question that was not before us as much 

10 years ago. We are not just talking about professionalizing law 

enforcement and holding them accountable. We are talking about 

a new group of Americans who are being empowered to carry deadly weapons and to make decisions on the spot about the protection 

of their homes and communities, which I think makes this a far 

more complex challenge than it was 10 years ago. 

I would like your response. 

Chief DAVIS. Yes, sir, I agree. The issue for California, we have 

the issue of open-carry, the carrying of loaded firearms, with very 

minimal requirements. So I think the idea that people should be 

held accountable, including our community, is very real. 

The issue of racial profiling, why it is also important, why we 

need the data, is in many cases—and maybe the Trayvon Martin 

case may bring this out later—gets into also what role law enforcement plays with its own community’s bias. And so when people call 

the police and say, ‘‘There is a suspicious person walking in my 

neighborhood,’’ what makes that person suspicious? And the police 

must ask those questions. And the idea that we simply respond 

and stop without inquiring why the person is suspicious—is it their 

behavior? Is it the fact that they were basically engaged in criminal 

activity? Or is it because they are wearing a hoodie and because 

they are black? And at some point, the law enforcement must stand 

firm. 

Now, this is where we need the justification with the law to 

stand firm and even tell community members, ‘‘No, I am not going 

to stop this person because he or she has done nothing.’’ 

So we do have to look at the idea that law enforcement not enforces the law, they also set in many ways the moral authority of 

its community on how to interact with each other. 

Chairman DURBIN. Officer Gale, your statement was very strong, 

but the conclusion of it raised a question. And I do not have it in 

front of me, but as I recall—and tell me if I am stating this correctly—you said that many members of the law enforcement community were not trusted in the minority communities. Can you explain that? 

Mr. GALE. Well, I think it is—— 

Chairman DURBIN. You need to turn the microphone on, please. 

Mr. GALE. I apologize. I think it is pretty clear from what we 

have seen in media reports, especially recently. But, you know, 

over the course of several years, there is work to be done by law 

enforcement in the minority community to rebuild trust. And I say 

that openly. I think the FOP acknowledges that and, in fact, we are 

engaged in activities in which we are attempting to help law enforcement officers and agencies do just that through community 

work. So I think that is an important piece. 
25 

I think the professor talked about the fact that a lot of times in 

minority communities you have people in those communities that 

are a valuable resource to law enforcement. I agree with that, and 

the aspect of law enforcement and the professional law enforcement, it is necessary to have people in communities where crime 

is occurring assist you with the enforcement activities. And so I 

think the problem has become that we seem to want to blame the 

enforcers for everything that goes wrong. And the problem with 

that is that the enforcers show up on the scene to deal with a situation with the information that they have available to them at the 

time. And our job, when we show up, is to stabilize the situation. 

Chairman DURBIN. But you do not quarrel with—I hope you do 

not quarrel with Chief Davis’ premise that the law enforcement 

community has extraordinary power in the moment—the power to 

arrest, the power to detain, the power to embarrass. And holding 

them accountable to use that power in a responsible, legal, constitutional way, you do not quarrel with that premise, do you? 

Mr. GALE. I do not think the FOP quarrels with the fact that law 

enforcement officers have that power, nor do we quarrel with the 

fact that law enforcement officers should be held accountable. In 

fact, we are accountable. I think my testimony illustrated situations where the court had ruled that officers had to be accountable 

in issues of race, and we accept that and embrace it because we 

believe it is proper, we believe it is appropriate. 

Chairman DURBIN. Mr. Clegg, you said a number of things which 

caught my attention, and you said that you thought the war on terror justified some measure of profiling. 

Mr. CLEGG. Well—— 

Chairman DURBIN. Let me come to a question, and then you can 

certainly explain your position. And I wrote notes as quickly as I 

could. ‘‘We need to look at organizations with geopolitical and political ties,’’ I think is something that you said in the course of that. 

You have heard testimony here from Congressman Ellison and 

others about what is happening to Muslim Americans across the 

board, and many of them are not affiliated with any specific organization. They are affiliated with a faith, and it appears that that 

has become a premise for surveillance and investigation. 

I worry, as an amateur student of history, how you could distinguish what you just from what happened to Japanese Americans 

in World War II, where 120,000 were rounded up with no suspicion 

of any danger to the United States and their property taken from 

them, detained and confined because they happened to be part of 

an ethnic group which had just attacked the United States—the 

Japanese, I should say, attacked the United States and, therefore, 

they were branded as possibly being a danger in the Second World 

War because of some connection they might have with a geopolitical or political group. 

How would you make that distinction? Or do you happen to think 

Japanese internment camps were justifiable? 

Mr. CLEGG. No, I do not, and when I say that in some limited 

circumstances some consideration of individuals’ or organizations’ 

geography and religion can be justified in the war on terror, I am 

not saying that that means that any consideration under any circumstances of ethnic profiling and religious profiling is okay. All I 
26 

am saying is that I am unwilling to say that it can never be used. 

And I give examples in my testimony. 

For instance, suppose that on 9/11 the FBI had gotten reliable 

information that an individual on one of the grounded airplanes, 

one of the grounded jetliners, had a backup plan and that he was 

going to fly a private plane filled with explosives into a skyscraper. 

Would—— 

Chairman DURBIN. But there is a clear distinction. There is a 

clear distinction, and let us make it for the record: a predictor and 

a descriptor. 

Mr. CLEGG. No, no, no—— 

Chairman DURBIN. When you talk about the class of people 

guilty for 9/11 and say, ‘‘Why wouldn’t we go after that class of people in training to fly,’’ and so forth and so on, that is a descriptor 

that law enforcement can use. But when you conclude that because 

they were all Muslim we should take a look at all Muslims in 

America—— 

Mr. CLEGG. I did not say that. 

Chairman DURBIN [continuing]. You have crossed the line. 

Mr. CLEGG. Well, I did not say that. And I think that the line 

that you are drawing between predictor and descriptor is inevitably 

a gray one, and this is one reason why I think that legislation in 

this area is a bad idea. 

Isn’t it predictive when the FBI in my hypothetical says, you 

know, the individual who is going to fly this plane into a skyscraper is not somebody identified—it has not already been done. 

We are trying to predict who it is going to be, and we are going 

to look at the passenger lists on the grounded airplanes, and we 

have only limited resources and limited time—we are working 

against the clock here—and we are going to start by looking at individuals with Arabic names. 

Now, that is racial profiling, according to your bill, but I think 

it would be eminently reasonable. 

Chairman DURBIN. I certainly disagree, and that is why I am—— 

Mr. CLEGG. You do not think that that would be reasonable? 

Chairman DURBIN. No, I do not. I really think that when you 

start going that far afield, why do you stop with Arabic names? 

Why wouldn’t you include all of Muslim religion then? I mean, that 

just strikes me as the very core of the reason we are gathering 

today, that if we are going to say to people across America, ‘‘You 

have certain rights and freedoms because you live in America and 

we have certain values,’’ it does create perhaps more of a challenge 

to law enforcement. A police state may be much more efficient in 

many respects. But it is not America. 

Mr. CLEGG. Well, listen, in my testimony, I and my whole organization’s whole focus is on the principle of ‘‘E pluribus unum.’’ I take 

that very seriously, Mr. Chairman. But what I am saying is that 

there are going to be some circumstances where I think it would 

be very unwise for Congress to say that law enforcement agencies 

cannot give some limited consideration to an individual’s or an organization’s geopolitical and religious background. 

Chairman DURBIN. I would like to defer now to Senator Graham, 

who has patiently waited for his opportunity. 
27 

Senator GRAHAM. Thank you all. Well, I guess what we are trying to highlight is how complicated this issue is. 

Mr. Gale, do you think you have ever been racially profiled? 

Mr. GALE. Probably. 

Senator GRAHAM. I cannot say I understand, because I do not. I 

have never been in that situation. But the fact that you are a law 

enforcement officer and you probably some time in your life have 

been viewed with suspicion by police makes your testimony pretty 

persuasive to me in the sense that you are now sitting in the role 

of a law enforcement official trying to protect a community. And 

the Zimmerman case is a private individual, not a law enforcement 

organization. And I just really—I think I understand the problem. 

I just do not know where the line between good law enforcement 

and racial profiling ends and begins, because let me tell you one 

thing about Congress. We will be the first one to jump on you when 

you are wrong. When you get a phone call that somebody looks suspicious in a neighborhood and you ask a bunch of questions, well, 

that does not seem to justify us going in, and that persons winds 

up killing somebody or robbing or raping somebody, we will be the 

first ones to blame you. So you are in an untenable situation. 

And when it comes to the war on terror, Mr. Clegg, I could not 

agree with you more. The reality of the fact is that I wish we had 

done more with Major Hasan and not less. There are some websites 

out there that I am glad we are monitoring. There are some groups 

within America that are saying some pretty radical things, and I 

hope we follow the leaders of these groups to find out what they 

are up to, because homegrown terrorism is on the rise. How do you 

fight it without fighting a religion? How do you fight homegrown 

terrorism without fighting people who are very loyal to America 

who belong to a particular faith? I do not know, but I know this: 

that if the law enforcement community in this country fails to find 

out about the Major Hasans, we are the first one to be on your 

case. Why didn’t you follow this website? He said these things in 

these meetings, and why didn’t the supervisor tell the wing commander you have got somebody who is really out of sorts here? And 

as a Air Force officer, when do you go to your wing commander and 

say this person said something that makes me feel uncomfortable 

and you do so at your own peril? 

So I just do not know what the answer is. I know what the problem is. And I think in the last decade we have made some progress, 

Chief Davis, and maybe having legislation that makes us focus on 

this problem more might make some sense, quite frankly. Maybe 

we would look at redefining it, but just collecting information to 

show exactly what happens day in and day out in America so we 

can act logically on it. 

I know you want to say something, Mr. Clegg, but when it comes 

to fighting the war on terror, the fact of the matter is that Great 

Britain and France are going through this very similar situation 

right now where they have groups within the country that are espousing some pretty radical ideas, and they just expelled someone, 

I think, from Great Britain just today or yesterday, an imam who 

was saying some pretty radical things. 

So I do not know when national security starts and individual 

liberties begin. What is your thought? 
28 

Mr. CLEGG. Well, I want to endorse what some of my co-panelists 

have said, that it is very important in the war on terror that we 

have the cooperation of the overwhelming majority of individual 

Americans, Arab Americans and Muslim Americans, who—— 

Senator GRAHAM. Don’t you think one of the great strengths of 

our country is that even though homegrown terrorism is on the 

rise, generally speaking American Muslims have assimilated in our 

society and our culture; thousands serve in the military; and that 

we are actually the example to the world of how you assimilate? 

Mr. CLEGG. That is right, and I think that stereotyping is very 

dangerous in this area. You know, most Arab Americans are not 

Muslims, for instance. I believe they are Christian. You cannot just 

look at somebody’s name and conclude things about them. And as 

my co-panelists said, it is very important to have the cooperation 

and the trust of Arab American communities. So I do not want to 

give the impression that I think that it should be open season on 

anyone on account of their ethnicity or their religion. I am simply 

saying—— 

Senator GRAHAM. Do you agree that—— 

Mr. CLEGG [continuing]. That there are going to be circumstances 

where—— 

Senator GRAHAM. Well, what we should be looking for is actions 

by individuals within groups, statements made that send signals 

that this is not where, you know, practicing religion should be taking one, it is the activity on the Internet. 

Mr. CLEGG. Well, as Professor Harris has said, it is—— 

Senator GRAHAM. That is what you were talking about. That is 

what I want us to—— 

Mr. CLEGG [continuing]. We are looking at—— 

Senator GRAHAM [continuing]. And how we do that I think is 

very complicated because when you monitor these websites, maybe 

you capture some innocent conversation. So having judicial oversight I think is important. But I guess that is what I am looking 

for, is sort of objective indicators of, you know, this is getting out 

of bounds here. 

Professor HARRIS. Senator Graham, you are absolutely right. It 

is about behavior. That is the key to everything. And making statements, whether out loud or on the Internet, that is action, that is 

behavior. 

Senator GRAHAM. And here is the problem we have. If you are 

an Air Force member and you have an American Muslim in the 

group and they say something that alarms you, you have to think, 

‘‘Well, if I say something, am I going to get myself in trouble?’’ 

Mr. ROMERO. But, Senator, if I may interject—and it is nice to 

see you again, Senator. Thank you for yielding to me. I think part 

of the challenge we have in a country that is dedicated to free 

speech is how you draw that line well in a way that does not quell 

speech we want to protect. I know that perhaps my organization 

and you have different points of view on abortion, for instance, and 

yet I think you and I would completely coincide—from the moments 

I have shared with you, I know you and I would completely coincide that anyone who dares to blow up an abortion clinic is a criminal. 

Senator GRAHAM. That is not speech. 
29 

Mr. ROMERO. And yet then would you feel comfortable surveilling 

the antiabortion websites for individuals who perhaps would be 

willing to blow up an abortion clinic just because they may share 

the points of view of the radicals who would blow up a clinic? I 

know you would not feel comfortable, if I could put words in your 

mouth. 

Senator GRAHAM. I know exactly what you are saying. 

Mr. ROMERO. And so the context is not that different in the context of speech that perhaps we find odious, perhaps we find difficult, but that is what America is about. Democracy is a great 

many things, but it should never be quiet. But we all agree that 

it is not the America we know and love, sir. 

Senator GRAHAM. I guess here is maybe where legislation can 

help, and my time is up. You know, having thoughts the Government or expressing yourself in an aggressive way, you can be radically pro-choice, radically against abortion; you can feel the way 

you would like to feel; you can speak your mind. But there comes 

a point in time when the rest of us have to defend ourselves and 

our way of life. And what I hope we will do in this discussion is 

not ignore the threats that do exist. There is a lurking, looming 

threat against this country and against our way of life, and I hope 

we will not get so sensitive to this dilemma that we will basically 

unilaterally disarm ourselves. 

And when it comes to basically, you know, the immigration issue, 

if there was ever a reason to fix our immigration system, this hearing highlights it. You have got millions of people here who are undocumented, illegal, and I would just be greatly offended if I were 

a corporal coming back from Afghanistan who happened to have a 

Hispanic last name and got stopped because somebody thinks I am 

here illegally. I could be greatly offended, but the fact of the matter 

is that, you know, there is a downside of illegal immigration in 

terms of crime, and the way to solve that problem, it is clear to me, 

is comprehensive immigration reform. 

Thank you all. This has been a very good hearing, and we will 

see if we can work with Senator Cardin to find something maybe 

more bipartisan. 

Chief DAVIS. Mr. Chairman, could I just answer one question the 

Senator asked? You asked Captain Gale had he ever been profiled, 

and I will take a shot at that. Unequivocally yes. But I think it was 

telling not only have I been profiled, but as a law enforcement officer, I have profiled. And I think that is the part that we bring to 

the table, that in many cases it may be implicit bias, it may be no 

malice intended; but at the end of the day, the result is that you 

have a disparate effect on people of color that you need most to 

help address some of the issues that are at the table. 

So I think for us not to acknowledge that it exists, to acknowledge that implicit bias is a human behavior that no one is exempt 

from, for us to require that we are trained in it, that we hold ourselves accountable so that we do not have these disparate outcomes 

is really what we are talking about. And it is easy to focus on the 

small percentage. I agree with the opening statement. Only a small 

percentage of our profession I believe are racists. But if the issue 

was as simple as racism, it would be an easy problem to fix. This 
30 

is a much bigger issue, and I think we have to tackle it at that 

level. 

Senator GRAHAM. Well said. 

Chairman DURBIN. Thank you, Senator Graham. And I am going 

to take an extraordinary risk here and put this Committee in the 

hands of Senator Franken. 

[Laughter.] 

Chairman DURBIN. In all seriousness, we are in a roll call vote, 

and Senator Graham and I have to vote. Senator Franken, I am 

going to recognize you, and I will let you monitor your own time 

used and watch Senator Blumenthal proceed, and then I will return. Thank you. 

Senator FRANKEN [presiding]. You may regret this. 

[Laughter.] 

Senator FRANKEN. I have the gavel now. In that case, I will turn 

it over to Senator Blumenthal. 

Senator BLUMENTHAL. If I may, I have a question, Chief, to followup on the remark that you made at the close of Senator Graham’s questions. Under what circumstances have you profiled? And 

if you could talk a little bit more about what limiting principles you 

think should apply to profiling when it is used legitimately, if it 

can be used legitimately, in your view. 

Chief DAVIS. Yes, the example that stands out for me when I was 

a police officer in Oakland, and you would have an area that we 

would identify as high crime, and this area was actually—it was 

very accessible to the freeway, so we had customers from out of 

town coming in to buy narcotics, and quite often they were actually 

white, and so the presumption on my part and many others is that 

any white person in that neighborhood would then be buying narcotics. 

The problem with that assessment, one, it attaches criminality to 

the entire neighborhood so that the only way that neighborhood 

could be judged is based on the actions of a few, which means you 

are criminalizing everyone that lives there; and, two, that also suggests that the only reason why a white person would visit someone 

black is to buy drugs. 

So besides being ineffective, besides being insulting to the neighborhood, it was not very—it just did not work. So as we got better 

and moved on, we learned how to watch behaviors. So now someone leaning in a car, someone basically exchanging money, somebody yelling signals that a drug buy was about to take place or 

that the police officers are coming works a lot better, doing proper 

investigations. 

The circumstances in which I think profiling could work would 

be probably under the category of criminal profiling when you are 

looking at behavioral aspects of what a person is doing. In other 

words, people when they are selling drugs, they engage in certain 

behaviors, whether it is how they drive, whether it is furtive movements in a car, something that would be specific to their actions. 

I cannot think of any context in which race is appropriate other 

than when you are describing someone who has committed a crime. 

And, in fact, Senator, I would say that what race ends up doing is 

being a huge distractor. So now we have seen this time and time 

again. We did Operation Pipeline in California where we targeted 
31 

so-called drug carriers, and we basically did not get what we were 

looking for because we were so buy looking for black or brown people driving on a freeway. And we were proven wrong time and time 

again, and then we lose the support of our community. 

Senator BLUMENTHAL. And added to that problem is the difficulty often of using eyewitness testimony where somebody supposedly identifying a potential defendant in a lineup can be just 

plain wrong because of race being a factor. Would you agree to 

that? 

Chief DAVIS. Yes, and, in fact, there is much work in science now 

into looking at some of the dangers of basing convictions and even 

arrests merely on lineups because they can be inaccurate. And if 

I may, I guess one of the questions that came up earlier was also 

about officers guessing on race. And if I can say, it is really interesting because we are supposed to assess race. And so the idea— 

I do not think we are suggesting that race has no place. So if something comes out on a radio that you are looking for a black male, 

six-foot tall, 225 pounds, and very handsome that did a robbery, 

then it would make sense why you would stop me. I can understand that. 

[Laughter.] 

Senator FRANKEN. Objection. 

[Laughter.] 

Chief DAVIS. But the officer has to make an assessment at the 

time, so there is a time and place to, just not when you are trying 

to predict criminal behavior. 

Senator BLUMENTHAL. Mr. Gale, if I may ask you to comment on 

the general principle that race or other similar characteristics 

alone, if used for identifying or profiling individuals, can be either 

distracting or undermining to credibility, and really should be used 

in combination—if anything, in combination with other, if at all, 

characteristics, mainly conduct, behavior, and so forth, what would 

you think about that? 

Mr. GALE. Conduct is what drives it all. You know, I am the commander of the training academy in my department, and we are 

training officers all the time. One of the things we talk about is, 

you know, the stop-and-frisk Terry stop type of situations. It is all 

driven by conduct. If you are going to properly teach that, you 

teach that it is driven by the conduct of the person and you are 

determining that their conduct indicates that they are involved in 

criminal activity. Race has no place in that. I think the distraction 

is that now you would have criminals who are involved in criminal 

activity who will now use, you know, the racial profiling as a distraction as they complain of being arrested or stopped because of 

their criminal conduct. And I think there is a presumption by 

some, and wrongly so, I believe, that, you know, no criminals ever 

complain against police officers and that no criminals ever, you 

know, do not just acknowledge that they do crime. My experience 

in 23 years is that it is very rare to roll up on someone engaged 

in criminal conduct and have them say, ‘‘Ah, you got me, copper. 

I am guilty.’’ They do not do that. They look for any way they can 

to try to get out of that process. 

Conduct is what drives all of it. The distraction is now that if you 

pass a bill like this, you are going to now say here is something 
32 

you can use in addition. I think the courts already addressed it. 

The courts have already told law enforcement agencies very clearly, 

‘‘You cannot use race as the basis for how you do this.’’ So conduct 

is it. 

The bulk of my testimony is really that I think we are trying to 

fix something that does not need to be fixed because you are trying 

to fix it with a law as opposed to just saying, hey, there is a problem, and the problem is bad police work. 

Senator BLUMENTHAL. And I am sympathetic as one who has 

been involved in law enforcement for actually more than 23 years, 

combining both Federal and State, as U.S. Attorney and then as 

Attorney General of my State in Connecticut, and I would be very 

loath to create what you have charitably called ‘‘distractions,’’ ‘‘defenses,’’ ‘‘impediments’’ to effective law enforcement. But I think 

that one of the roles of legislation is also to provide guidance, raise 

awareness, and perhaps provide direction to police or their departments who may not be as aware as you are or even other witnesses 

here. Mr. Romero. 

Mr. ROMERO. Yes, thank you, Senator Blumenthal. Officer Gale, 

I guess I must take some time to visit your fair city of Denver because it does not look like any of the major cities that I visited in 

my 11 years’ tenure as director of the ACLU. And with all due respect, you will forgive me for having to point out that your very optimistic assertion that all is well is just not borne out by the data 

that we already have. Let me give you data that I know quite well 

in New York City, the country’s large police department. 

From 2002 to 2011, there were more than 4.3 million street 

stops—4.3 million. Eighty-eight percent of those—that is nearly 3.8 

million—were of innocent New Yorkers. That means they were neither arrested for a summons or—neither issued a summons or arrested. 

Now, let us break it down by race because, obviously, it is a 

much better place, if you are Puerto Rican like me and maybe live 

in Denver, but in New York it is not a very good place for people 

who are African American or Latino. In 2011, a record 685,000 

New Yorkers were stopped by the New York City Police Department. Eighty-eight percent were totally innocent of any crime; 53 

percent of those were black, 34 percent were Latino, 9 percent 

white. And a remarkable number of guns was found on 0.2 percent 

of all stops. 

Now, with all due respect, Officer Gale, I must demur when you 

say that this is all conduct-driven, because clearly these facts beg 

otherwise. The fact is that there is a problem, and I would assert 

that the reason why—and I think one point where we agree is that 

the Fraternal Order of Police nationwide lacked the trust from 

communities of color. I think you have said as much, that you have 

a PR problem, if you will, with communities of color. And I would 

assert that the reason why you might have that difficulty with the 

communities of color you are there to serve is because they know 

these facts. They may not know them the way I know them, but 

they experience it. And that is precisely why the End Racial 

Profiling Act is essential. The data we have already tells us there 

is a problem. Let us collect more data, and let us put in place some 

remedies. 
33 

Your point about the Supreme Court and the Equal Protection 

Clause giving sufficient comfort to those who have been wronged 

by the police, that is just simply not true. The Supreme Court case, 

lamentably, in the case of Whren, which I can cite for you, basically 

allows police officers to make pretextual stops based on race, ethnicity, and national origin. It is the law of the land, according to 

our Supreme Court. At times our Supreme Court gets it wrong, 

which is why we exhort this Congress and this Senate to step in 

and to enact a law when we know that there is a problem that has 

yet not come to the attention of our Supreme Court. 

So with all, I thank you for—— 

Senator BLUMENTHAL. Thank you. My time is up, but I want to 

thank all of the witnesses. This has been a very, very important 

and useful hearing, and we have some areas of disagreement which 

I think we need to explore further. But I want to thank particularly Mr. Gale and Chief Davis for your excellent work over the 

years in law enforcement, and I thank the Chairman and substituting Chairman for their tolerance and patience. 

Senator FRANKEN. I think you actually call me ‘‘Chairman.’’ 

[Laughter.] 

Senator FRANKEN. That is the protocol. 

Senator BLUMENTHAL. You know, I think I need the advice—I 

have a right to remain silent. 

[Laughter.] 

Senator FRANKEN. Unfortunately, I do have an appointment, so 

I am going to ask my questions, and then you will get the gavel. 

Then you will be the Chairman and get every due respect being 

called ‘‘Chairman.’’ Thank you, Senator Blumenthal. 

Everyone here has talked about the importance of cooperation 

between law enforcement officers and the communities they serve, 

and it seems that everyone agrees that racial profiling can undermine trust in the authorities and can cause resentments among the 

targeted groups. Minnesota is home to a large population of Somali 

Americans. In my experience, no community was more upset than 

the Somali community when we learned that a few Somali Americans had gone back to Somalia and become involved with AlShabaab. 

When I talked to both FBI Director Mueller and, maybe more importantly, when I went back to the Twin Cities and talked to the 

special agent in charge there, both said that the Somali community 

had been cooperative in FBI investigations, and I think it was because of actually very good police work and very good work by the 

FBI in making sure that they earned the trust of the Somali community there. 

My questions are to Chief Davis and to Officer Gale. Both of you 

have served as law enforcement officers. How do you earn the trust 

of the diverse communities that you serve, some of whom may be 

initially skeptical of the police? 

Chief DAVIS. Thank you, Senator. One stop at a time, 1 day at 

a time, one interaction at a time. I think when people—I think we 

have to, one, acknowledge the history that police have played, the 

role of law enforcement with regards to race in this country. I 

think we still have generations of people that remember desegregation. We have generations of people that are still here that remem-
34 

ber when the police were the enforcement tool and the rule of law 

with regards to Jim Crow laws and Black Codes. And so we have 

to acknowledge that we may start off with this lack of trust and 

confidence. So it is one interaction at a time. 

I think the first thing law enforcement can do is acknowledgment, to take our heads out of the sand and acknowledge that we 

have this horrific history. We should acknowledge that we, whether 

intentionally or not, still are engaging in practices that have a very 

disparate result with regards to people of color, whether intended 

or not. 

We should put our defensiveness down and realize we are here 

to serve, not to be served. And we have to realize that we are only 

going to be successful if the community engages with us. And the 

more we engage in that, the safer we make them. And the safer 

we make our communities, the more they will then partner with 

us. 

With the evidence showing time and time again in each major 

city and community the stronger the relationship between the police and minority communities, the greater the crime reduction is 

going to be. So we do it one interaction at a time, and we do it by 

holding officers accountable, but we also do it by acknowledging 

that which is in front of us. I think there is no greater insult as 

a minority than for someone to look me in my eyes and insult my 

intelligence by telling me that there is not profiling, when everything about me knows that it is. And I think that is what happens 

with our communities, and we need to stop doing that. 

Senator FRANKEN. Officer Gale. 

Mr. GALE. I think I agree with the chief that you have to do it 

one person at a time, but I think you have to be more global. You 

have to look at the community you serve and the different populations in that community, and you have to make a concerted effort 

to be in those communities and having dialogue with those people, 

and you have to listen. And it does not matter that you might not 

agree with the things that they say. 

Years ago, I was in the military, and I went to a leadership 

school, and they had a manual that said, ‘‘Any problem, whether 

real or perceived, is still a problem.’’ And I agree with that, and 

I have held to that. It does not matter if it is not the actual problem. If it is perceived to be a problem by someone or by a group 

of someones, then we have to listen, we have to validate it, and we 

have to dialogue through it. And I think we have to take agencies 

and train agencies to understand who these populations are that 

they are serving and what the concerns of those agencies are. 

I agree also with Chief Davis that, you know, we have to acknowledge the history of law enforcement has not always been one 

of stellar conduct, and I think that that is being done in a lot of 

organizations. I think in the Fraternal Order of Police we talk 

about it very honestly and very candidly with our membership and 

say this is the way you need to go to improve your relations with 

the communities that you serve. 

And so it is important to do those things, to hear what they have 

to say, but it is also important to explain to them what the challenges are, what we have to do if we are going to protect people, 

you know, what we are faced with as the challenges when we are 
35 

protecting communities. And it is important for us to illustrate that 

to individuals in the community because, you know, no one is perfect, but if we understand each other better and we dialogue more, 

I think when there are these honest misunderstandings, we can 

move past them. 

Senator FRANKEN. Thank you. 

Mr. Romero, in your written testimony on behalf of the ACLU, 

you wrote about recently uncovered FBI training materials that 

rely on bigoted stereotypes of Muslims. I think we can all agree 

that those materials are not acceptable. FBI Director Mueller acknowledged that those materials damaged the FBI’s relationship 

with Muslim communities, and I commend Chairman Durbin for 

his recent letter to the FBI on this subject, and I am working on 

a letter to express my concerns as well. 

Mr. Romero, what actions should the FBI take to show that it 

is serious about reforming its training programs? 

Mr. ROMERO. Thank you for the question, Senator Franken, and, 

yes, what I would first point out is, of course, those memos and 

files and training manuals surprised us. When we use the Freedom 

of Information Act, we go asking for documents that we do not 

know exist. And so we use the Freedom of Information Act as democracy’s X-ray, how to get documents that we need, questions, 

hunches based on conduct of what we have seen already, when the 

FBI has been tracking young Muslim men between the ages of 18 

and 33 asking them to come in for voluntary fingerprinting and 

photographing, mapping out mosques, we had a hunch that they 

had to have some training materials that were going to be troubling and problematic. And, lamentably, our hunches were borne 

out. 

I think, frankly, one thing that the FBI needs to do that I would 

encourage—and Director Mueller is a man with whom we have 

great disagreements. We have sued him dozens of times. 

[Laughter.] 

Mr. ROMERO. But, for the record, he is a man of enormous credibility. He is probably the man in the Justice Department both 

under the Bush and the Obama teams in whom I have the greatest 

personal regard and respect sine qua non. And with all that, I 

would encourage you to encourage him to take a much more active 

position on these threat assessments, which I fear are only the tip 

of the iceberg. The Attorney General guidelines allow now them to 

begin investigations on anyone they choose so long as they can 

claim they are doing it to gain information on criminal activities, 

national security, or foreign intelligence. And the amount of reporting on those threat assessments is rather limited, as we all know. 

Asking those tough questions, how many of these threat assessments have been opened, how many of them are going, they allow 

them to collect unlimited physical surveillance, we encourage the 

Attorney General to retire the use of these threat assessments. But 

at least at the very first step, you can ask the FBI to do more vigorous reporting to you, even if it is in camera. 

Retraining is essential because, remember, all the folks who got 

that lovely little chart showing how the Arab mind is a cluster 

mind, and I am quoting verbatim, ‘‘is a clustered thinker, while the 

Western mind tends to be a linear thinker,’’ they were trained on 
36 

this. So until we retrain them and tell them that that is not the 

case, was never the case, they are going to continue to do those activities. 

And so I think retraining is essential, and probing into the assessments and how those assessments have been used, particularly 

in the Muslim context, I think would be a place of important focus. 

Senator FRANKEN. Thank you, Mr. Romero. And thank you, Mr. 

Chairman. I noticed you are back, so I will—you already took the 

gavel, didn’t you? 

[Laughter.] 

Senator FRANKEN. Thank you all. 

Chairman DURBIN [presiding]. Senator Coons. 

Senator COONS. Thank you, Chairman Durbin. Thank you for 

calling this hearing and for your long and passionate and vigilant 

advocacy for civil rights and for your real leadership in this area, 

for this legislation and for this hearing. 

In my own role prior to becoming a Senator as a county executive, I worked hard in supervision of about a 380-sworn-officer department to ensure that we had effective and strong outreach, not 

just to traditionally subject to harassment or questioning, communities like the African American or Latino communities, but also 

post-9/11 making sure there was better training and outreach and 

relationships with our Muslim community, given some incidents 

that occurred with our LGBT community, and just making sure 

that we stayed as a policing organization engaged and accountable. 

I just wanted to start, Officer Gale and Chief Davis, but thanking you for your leadership in the policing community and for your 

service to the public. I would appreciate your starting by just helping me understand what is the impact on a police force that practices racial profiling, where it is either part of policy or training, 

part of history, or part of current practice. What is the impact on 

professionalism, promotion advancement, and cooperation with 

communities? That has been touched on, but as you have noticed, 

because of votes a number of us have had to step in and out, and 

I would be interested in your response to that. 

Chief DAVIS. Thank you, Senator. I think it is multiple parts, if 

I may. Inside the organization, which we did not talk about, an 

agency that does engage in systemic racial profiling usually has 

very low morale because now you have officers inside the organization that are opposed to it, those that are engaging in it, and it 

causes a conflict within itself. 

Within a community I would also probably argue that the community is suffering because now you have a practice in which they 

are losing touch with their community, which makes them very ineffective, and, quite frankly, in today’s society it makes them much 

more expensive because now you have the cost of crime going up, 

you have the cost of litigation because people are now seeking some 

type of redress through the court system, and you have low morale 

issues, which means you have increases in sick leave and workers’ 

comp claims. So it is a very expensive venture when you engage 

in systemic racial profiling. And, most importantly, you have a 

community that is denied some of their basic rights. So as you 

know as a county executive, you cannot serve the community effectively if they do not trust you. 
37 

So there is some historic trust. There is always going to be some 

challenges and strains. But to the extent that there is a legitimate 

outreach, to the extent which we are trying to—and I agree with 

Captain Gale—listen and respond and respect, I think we have a 

better chance of being successful. 

So the issue of racial profiling, although we are talking about 

race, from a chief’s perspective, from an executive’s perspective, is 

poor managerial practice. It results in loss of revenues, support, 

causes internal strife. It just is not an effective strategy. 

Senator COONS. Thank you. 

Captain Gale, would you agree? Is this bad policing? Does it have 

consequences internally? 

Mr. GALE. Absolutely. I mean, the consequences of bad management in any agency result in these perceptions in the community 

that the police are not responsive and that they are victimizing citizens and that they are somehow or another a rogue force. That is 

where it all derives from. It all derives from the management philosophy of the organization. And the chief is right. It does result 

in low morale. 

But it also results in low morale not just because you are going 

to have people in the agency that would disagree with the practice 

or the fact that there is no appropriate accountability for officers 

who are clearly operating outside the code of professional conduct. 

It has low morale when the community that we serve then becomes, you know, complaining about us being unprofessional or 

about the reputation of the agency being, you know, that of a victimizer as opposed to a protector. And the chief is absolutely right. 

It starts with the management. It starts with the very top person 

and the top-level people allowing these things to occur in individuals that they won’t hold accountable. 

As a captain in my agency, I believe it is my charge to hold people accountable when they conduct themselves unprofessionally, 

and I do so. You know, I think some people have said here that, 

well, you know, there seems to be some kind of great thing going 

on in Denver or what have you. I am just going to tell you—and 

I love my city, and it is a great city, and please feel free to visit 

anytime. 

[Laughter.] 

Mr. GALE. But I am just going to tell you, we hold people accountable in my agency. We hold them accountable, and that is expected. You know, we do not have to have specific rules that say 

you cannot do this, because we all know what bad behavior is when 

we see it. And if you challenge people and you hold them accountable, then there will not be a problem. But the end result is that 

officers will just shut down and not conduct any type of police 

work, and then the city does not get protected. 

Chief DAVIS. Senator, if I may add one point, there is a phrase 

we have, especially for chiefs, and it talks about a moment of 

pause. And what happens is when an agency does not have the 

type of trust and confidence that we are alluding to, that we are 

discussing, in many cases you have racial powder kegs that are sitting there. And if you look at our history, there has usually been 

some type of incident. And it gets confusing because quite often the 

incident may not be—it may be a legal incident. It may be some-
38 

thing that really by itself would not make sense to call such a response. But it reflects years of abuse and neglect; it reflects the 

kind of—I think one of the Congresspersons said earlier, ‘‘Enough 

is enough.’’ And so when agencies are blind to this or systematically engaging in it, they are sitting on these powder kegs that an 

incident like a Trayvon Martin or an Oscar Grant in Oakland can 

ignite. And then that is when we see large demonstrations and you 

start having race riots, because it is not the incident by itself as 

much as it the buildup to that incident, the lack of acknowledgment of where we were before. 

Senator COONS. And, Chief, if I have heard all the members of 

the panel right who have said that racial profiling is bad policy, it 

is not just those powder keg moments; it is also the simmering distrust, the disconnect from the community you seek to protect and 

to serve that can also have a negative impact on your effectiveness, 

on your ability to effectively police. That is something we have 

heard across the whole panel. 

I wanted to move, if I could, Professor Harris, to a question about 

standards. If you look at the reasonable suspicion standard that 

controls the ability of law enforcement to stop and question an individual as opposed to probable cause, which covers the rest, 

profiling appears to me just at first blush to be a much larger problem potentially in the area of reasonable suspicion. How have you 

seen that play out? What do you think is important in fighting that 

standard? And then I am going to want to move to this bill and 

why it might be necessary. Professor? 

Professor HARRIS. Thank you for the question, Senator. You are 

absolutely right. You put your finger on something very important. 

The reasonable suspicion standard arises in Terry v. Ohio, the case 

that allows police officers to use stop-and-frisk when there is reasonable fact-based suspicion. The problem is and where this can 

intertwine with profiling is that reasonable suspicion is a very low 

legal standard. It is lower than probable cause. When I am in class, 

I like to say probable cause is somewhere near my waist, reasonable suspicion is below my knees. 

And you have a standard where you can use very little evidence 

to take significant police action, and where we see this showing up 

in the context of profiling, to give you one example, is in the stopand-frisk activity in New York City over many years, and it is a 

good example because there is a very significant amount of data on 

this. We often find that even though the standard is reasonable 

suspicion, there is hardly anything recorded and sometimes nothing at all recorded reflecting reasonable suspicion or the idea is 

simply thought of as boilerplate. So with that low a standard, 

profiling and other ineffective approaches to law enforcement run 

rampant, and we have the kind of statistics that Mr. Romero cited 

just a minute ago. 

Senator COONS. Thank you. 

Mr. Romero, if I might, if racial profiling can be a violation of 

civil rights, as I believe it is under a whole line of cases—Martinez, 

Forte, Brignoni-Ponce, Montero, Camargo—these are not cases I am 

familiar with personally, but that is the line of analysis, I think, 

by the Supreme Court that has laid this out. Why do we not see 

more enforcement actions for racial profiling by the Department of 
39 

Justice? And if you would just followup on Professor Harris’ comment, how do we, in the gap between the formal policies, create police entities that, as Captain Gale describes it, are accountable, are 

professional, and where at all levels are engaged in moving us forward toward a more just and effective policing community? 

Mr. ROMERO. Thank you for the question, Senator Coons. When 

you look at the testimony we submitted, you will see that we detail 

a number of the seminal racial profiling cases, in fact, some of 

them brought by David Harris. What might be instructive for why 

this piece of legislation is essential is to track when the incident 

occurred and when the case was decided, because you will note that 

in many instances—and the one I am looking at now—you are looking at a span of several years of time between when you will get 

pulled over by a police officer on a highway in the case of Robert 

Wilkins and ultimately when that case was decided by a court. And 

for many minority group members, especially those in our communities and families who lack resources to hire private attorneys, it 

is not simple or economic to retain private counsel, even when you 

have been wronged. We turn away many, many cases and individuals who write to us every day simply because we lack the resources to take on every single case. We take on cases where we 

think we have an ability to have a high impact and change systemically at the highest levels. 

The number of heart-breaking letters I send back saying, ‘‘I understand you were profiled by the police, but we have them under 

a consent decree and so we will throw your fact scenario into the 

consent decree,’’ does not really give the individual who has often 

been aggrieved, even if they are willing to step forward, much comfort. 

I think that is really what is at stake here. I think the burden 

on hundreds of thousands of New Yorkers, let us say the 400,000- 

plus that I cited that have been wrongfully stopped by the police, 

the idea that you would ask 400,000 New Yorkers who were innocent and yet stopped by the police to file all individual lawsuits, I 

cannot believe that any Member of this chamber would believe that 

would be an efficient use of our resources. This is one of the times 

when by the Senate taking action and putting in place a legal regime and being able to stop the type of rush to the courthouse 

steps you do both the economy and our civil liberties a service. 

Chief DAVIS. Senator, if I may, the one area going to the question 

you had about the lawsuits or why people cannot file the complaint 

is in many cases I think the bigger challenge is that it may actually follow a legal stop. This is why the legislation is critical, why 

data collection is critical. I think when you think of profiling, people sometimes, unfortunately, think that the stop itself may not 

have legal cause. So we have a phrase in policing, ‘‘Give me a car, 

2 minutes, and a vehicle code, and I will find a reason to stop you.’’ 

And so the stop may be justified—cracked windshield, bald tires— 

you know, you will see those low discretionary stops being used 

quite often to get to, as the Whren decision talked about, a pretext 

for other things. 

So where it makes it hard on an individual basis is a person is 

complaining about being stopped, but, in fact, they did have a 

cracked tail light, and it makes it hard for that individual case, 
40 

which then what you do is track holistically to see that that is the 

10,000th cracked windshield and 90 percent of them may be all of 

one group of color. 

Senator COONS. I see that I am well past my time, and I appreciate the concerns that have been raised by this conversation in 

this hearing today about the definition of racial profiling, about the 

importance of being narrowly targeted in a legislative response, but 

I am grateful, Chairman Durbin, for your crafting a bill that insists 

on training, on data collection, and on a narrowly crafted response 

to a significant problem. Thank you very much. 

Chairman DURBIN. Thanks, Senator Coons. And following up on 

your question, I think one of the obstacles—and Mr. Romero probably can back this up—is that when you are dealing with the question of whether or not race or ethnicity or profiling was the sole 

cause for the stop, you run into a real obstacle. Our staff did a little research on this, and it turns out this is not the first time that 

Congress has talked about this. Arguing that discrimination should 

only be prohibited if it is based solely on race and ethnicity has an 

unfortunate congressional lineage. Segregation has attempted to 

gut the Civil Rights Act of 1964 by offering an amendment that 

would have limited the Act’s reach to discrimination based solely 

on race. 

Senator Clifford Case of New Jersey argued in opposition. He 

said, ‘‘This amendment would place upon persons attempting to 

prove a violation of this section, no matter how clear the violation 

was, an obstacle so great as to make the title completely worthless.’’ 

And Senator Warren Magnuson of Washington said limiting the 

Civil Rights Act to discrimination based solely on race would ‘‘negate the entire purpose of what we are trying to do.’’ 

So the courts have set a standard which makes it extremely difficult, and, Chief Davis, your examples—and it might be a cracked 

tail light was the reason they are being pulled over. What we found 

in Illinois, incidentally, to go to my own State, consent searches by 

the Illinois State Police between 2004 and 2010, Hispanic motorists 

in my State were 2 to 4 times more likely to be searched, African 

American motorists 2 to 3 times more likely to be subject to consent searches than white motorists. However, white motorists were 

89 percent more likely than Hispanic motorists and 26 percent 

more like than African American motorists to have contraband in 

their vehicles. So it made no sense from a law enforcement viewpoint to do this, and yet it is done. 

I thank you for this hearing, and I am sorry it took 10 years to 

get back together, and I am sorry that we need to get back together. But to put it in historic perspective, if you go back to our 

Nation’s very beginning, our Founding Fathers started wrestling 

with issues of race and gender and religion, and this year’s Presidential campaign wrestles with issues of race and gender and religion. It is an ongoing debate in this Nation. There have been moments of great leadership, and there have been moments of ignominious conduct. 

As far as accountability is concerned, yes, this would hold law 

enforcement accountable. But I hope we hold every person in our 

Government accountable, including Members of Congress. And let 
41 

me concede I came to this job saying—remembering what Bill Clinton once said when he was being interviewed before he became 

President: ‘‘Is there any issue you will not compromise on?’’ He 

said, ‘‘I will never compromise on race.’’ He said that as a man who 

grew up in Arkansas and saw segregation. I thought, ‘‘That is a 

good standard, Durbin. You saw it, too, in your hometown. Hold to 

that standard.’’ 

And I look back and remember in my time in the House of Representatives voting for a measure that turned out to have a dramatically negative racial impact: the establishment of the crack cocaine standard in sentencing of 100:1. Years later, I was given an 

opportunity on this Committee to try to make that right and bring 

it back to 1:1. I could not get the job done. Because of the nature 

of compromise, it has been reduced to 18:1—still a terrible disparity, but a dramatic improvement. 

What happened as a result of that bad vote by black and white 

Congressmen? We lost trust in the African American community. 

Many people serving on juries said, ‘‘I am not going to do this. I 

am just not going to send that woman, that person, away for 10 

or 20 years because of a crack cocaine violation.’’ We lost their 

trust, Office Gale, and I could see it when the judges came and 

talked to us about it. We have moved back to try to establish some 

trust in that community by doing the right thing, but we need to 

be held accountable, this Senator and all of us. Whether we are in 

elected or appointed office in our Government, we serve. We serve 

the public. And that accountability has to be part of that service. 

This is not going to resolve the issue. I think it is, as I mentioned 

earlier, more complicated today because of concealed-carry and 

some of the standards being established in States, more complicated today, as Mr. Clegg has said, because the war on terror 

raises legitimate concerns about the safety of our Nation and how 

far will we go to respect our national security without violating our 

basic values under the Constitution. 

I thank you all for your testimony. It has been a very positive 

part of this conversation, which we need to engage in even further. 

There is a lot of interest in today’s hearings: 225 organizations submitted testimony. Thank goodness they did not come here to speak, 

but we are glad to have their testimony, and we will put it in the 

record, without objection. It will include the Episcopal Church, the 

Illinois Association Chiefs of Police, the Illinois Coalition for Immigrant and Refugee Rights, the Japanese American Citizens League, 

the Leadership Conference for Civil and Human Rights, Muslim 

Advocates, NAACP, National Council of La Raza, National Integration Forum, the Rights Working Group, the Sikh Coalition, the 

South Asian Americans Leading Together, and the Southern Poverty Law Center. These statements will be made of the record, 

which will be kept open for a week for additional statements. 

[The information appears as a submission for the record.] 

Chairman DURBIN. It is possible someone will send you a written 

question. It does not happen very often, but if they do, I hope you 

will respond in a timely way. 

Without further comment, I thank all of my witnesses for their 

patience and for attending this hearing, and I look forward to 

working with all of you. 
42 

[Whereupon, at 12:20 p.m., the Subcommittee was adjourned.] 

[Additional material submitted for the record follows.] 
(43) 

A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
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PREPARED STATEMENT OF SENATOR BENJAMIN CARDIN
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PREPARED STATEMENT OF REPRESENTATIVE JUDY CHU
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PREPARED STATEMENT OF ROGER CLEGG
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PREPARED STATEMENT OF CHIEF RONALD L. DAVIS
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PREPARED STATEMENT OF REPRESENTATIVE KEITH ELLISON
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PREPARED STATEMENT OF FRANK GALE
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PREPARED STATEMENT OF REPRESENTATIVE LUIS V. GUTIERREZ
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PREPARED STATEMENT OF PROF. DAVID A. HARRIS
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PREPARED STATEMENT OF ANTHONY ROMERO
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PREPARED STATEMENT OF REPRESENTATIVE FREDERICA WILSON
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PREPARED STATEMENT OF CHAIRMAN DICK DURBIN
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MISCELLANEOUS SUBMISSIONS FOR THE RECORD
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Æ