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77–191 PDF 2002

THE BENEFITS OF AUDIO-VISUAL TECHNOLOGY IN

ADDRESSING RACIAL PROFILING

HEARING

BEFORE THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

JULY 19, 2001

Serial No. 107–36

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS, Virginia

MARK E. SOUDER, Indiana

JOE SCARBOROUGH, Florida

STEVEN C. LATOURETTE, Ohio

BOB BARR, Georgia

DAN MILLER, Florida

DOUG OSE, California

RON LEWIS, Kentucky

JO ANN DAVIS, Virginia

TODD RUSSELL PLATTS, Pennsylvania

DAVE WELDON, Florida

CHRIS CANNON, Utah

ADAM H. PUTNAM, Florida

C.L. ‘‘BUTCH’’ OTTER, Idaho

EDWARD L. SCHROCK, Virginia

JOHN J. DUNCAN, JR., Tennessee

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, Washington,

DC

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

JANICE D. SCHAKOWSKY, Illinois

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

——— ———

———

BERNARD SANDERS, Vermont

(Independent)

KEVIN BINGER, Staff Director

DANIEL R. MOLL, Deputy Staff Director

JAMES C. WILSON, Chief Counsel

ROBERT A. BRIGGS, Chief Clerk

PHIL SCHILIRO, Minority Staff Director

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C O N T E N T S

Page

Hearing held on July 19, 2001 ............................................................................... 1

Statement of:

Dinh, Viet, Assistant Attorney General, U.S. Department of Justice .......... 25

King, Rachel, legislative director, American Civil Liberties Union; Raymond Kelly, former Commissioner, U.S. Customs Service; Brian

Boykin, fellow, National Organization of Black Law Enforcement Executives; and Chris Maloney, president, TriTech Systems, Inc. ............... 117

West, Hon. Royce, Texas Senate; Hon. Robert Duncan, Texas Senate;

Charles Dunbar, Jr., superintendent, New Jersey State Police; Mark

Finnegan, esq., Heberle and Finnegan, Ltd.; and Robert Wilkins, esq. ... 65

Letters, statements, etc., submitted for the record by:

Boykin, Brian, fellow, National Organization of Black Law Enforcement

Executives, prepared statement of .............................................................. 143

Burton, Hon. Dan, a Representative in Congress from the State of Indiana, prepared statement of .......................................................................... 7

Clay, Hon. Wm. Lacy, a Representative in Congress from the State of

Missouri, prepared statement of .................................................................. 15

Dinh, Viet, Assistant Attorney General, U.S. Department of Justice, prepared statement of ........................................................................................ 28

Finnegan, Mark, esq., Heberle and Finnegan, Ltd., prepared statement

of ..................................................................................................................... 75

Kelly, Raymond, former Commissioner, U.S. Customs Service, prepared

statement of ................................................................................................... 136

King, Rachel, legislative director, American Civil Liberties Union, prepared statement of ........................................................................................ 120

Maloney, Chris, president, TriTech Systems, Inc., prepared statement

of ..................................................................................................................... 148

Morella, Hon. Constance A., a Representative in Congress from the State

of Maryland, prepared statement of ............................................................ 62

Schakowsky, Hon. Janice D., a Representative in Congress from the

State of Illinois, prepared statement of ...................................................... 3

Shays, Hon. Christopher, a Representative in Congress from the State

of Connecticut, prepared statement of ........................................................ 23

Towns, Hon. Edolphus, a Representative in Congress from the State

of New York, prepared statement of ........................................................... 2

Wilkins, Robert, esq., prepared statement of ................................................. 82

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THE BENEFITS OF AUDIO-VISUAL TECHNOLOGY IN ADDRESSING RACIAL

PROFILING

THURSDAY, JULY 19, 2001

HOUSE OF REPRESENTATIVES, COMMITTEE ON GOVERNMENT REFORM, Washington, DC.

The committee met, pursuant to notice, at 10:25 a.m., in room

2154, Rayburn House Office Building, Hon. Dan Burton (chairman

of the committee) presiding.

Present: Representatives Burton, Barr, Gilman, Morella, Shays,

Platts, Cannon, Waxman, Owens, Maloney, Norton, Cummings,

Kucinich, Tierney, Turner, Clay and Watson.

Staff present: Kevin Binger, staff director; James C. Wilson, chief

counsel; David A. Kass, deputy chief counsel; Mark Corallo, director of communications; Andre Hollis, counsel; Kevin Long and Michael Canty, professional staff members; Sarah Anderson, staff assistant; Robert A. Briggs, chief clerk; Robin Butler, office manager;

Josie Duckett, deputy communications director; John Sare, deputy

chief clerk; Danleigh Halfast, assistant to chief counsel; Corinne

Zaccagnini, systems administrator; Phil Schiliro, minority staff director; Phil Barnett, minority chief counsel; Sarah Despres and

Tony Haywood, minority counsels; Denise Wilson, minority professional staff member; Ellen Rayner, minority chief clerk; and Jean

Gosa and Earley Green, minority assistant clerks.

Mr. BURTON. Good morning. A quorum being present, the committee will come to order. I ask unanimous consent that all Members’ and witnesses’ written opening statements be included in the

record, and, without objection, so ordered.

[The prepared statements of Hon. Edolphus Towns and Hon.

Janice D. Schakowsky follow:]

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Mr. BURTON. I ask unanimous consent that all articles, exhibits

and extraneous or tabular material referred to be included in the

record, and, without objection, so ordered.

I also ask unanimous consent that questioning in this matter

proceed under clause 2(j)(2) of House rule 11 and committee rule

14 in which the chairman and ranking minority member allocate

time to the committee members as they deem appropriate for extended questioning, not to exceed 60 minutes, equally divided between the majority and minority, and, without objection, so ordered.

Today we’re going to examine the issue of racial profiling. I think

we all understand what this means. Racial profiling occurs when

a law enforcement officer targets someone for a traffic stop or a

search or some other law enforcement action based solely on their

race, their ethnicity or their gender. This is something that should

never happen. It’s offensive to the basic values that we all hold

dear.

Police officers do have a tough job. We have to give them the

freedom they need to do their jobs. If they have probable cause to

believe someone is committing a crime, they have to take action,

but no one should ever be targeted because of their race. People

should be able to drive down a highway or walk down a city street

with the confidence that their civil rights will not be violated.

This is a tough issue. It’s hard to get a handle on how often this

happens and why it happens. I should say at the outset that I have

a lot of confidence in our law enforcement community. In my years

as a Congressman and a State legislator, I have met a lot of very

good law enforcement officers from all over the country. They’re

dedicated. They work very hard to protect our safety. I think most

police officers around the country would find the notion of targeting

people because of their race just as repugnant as Mr. Cummings

and I do.

On the other hand, I have no doubt that it happens. I have no

doubt that there are bad police officers out there who’ve pulled people over just because of their race. I wouldn’t be surprised to learn

that out of the thousands of police forces around the country, there

may have been a few that tolerated or even winked at that kind

of behavior.

I think it’s very difficult to quantify how often racial profiling

happens. It’s hard to get inside a police officer’s head and figure

out why he makes a certain decision. Maybe the best thing we can

do is focus on what can be done to prevent it from happening and

punish people who do it. That’s why Mr. Cummings and I wanted

to focus this hearing on the use of audio-visual technology.

It’s becoming more and more common to see video cameras in police cars. The reason is pretty obvious: When a police officer goes

to the scene of a crime, videotaping what happens creates evidence.

If a police officer is attacked or shot, a video camera might record

the identity of the attacker. By the same token, if a police officer

violates the rights of any citizen, it’s captured on videotape, and

that officer can then be punished.

The use of audio-visual technology should be a strong deterrent

to racial profiling. If a police officer’s actions are being recorded, he

or she will be much less likely to stop someone unless there’s an

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objective reason for doing it. If a police officer does target motorists

for no other reason than their race, there will be videotaped evidence to discipline him. On the other hand, if a police officer is

falsely accused of violating someone’s rights, there will be evidence

to exonerate him.

Today we’re going to hear from the Justice Department on this

issue. The Assistant Attorney General for Policy Development Viet

Dinh will testify. He will tell us what the Justice Department has

done to work with law enforcement agencies around the country to

promote the use of audio-visual technology and prevent racial

profiling.

We are going to hear from two State senators from Texas, Senator Royce West and Senator Robert Duncan. They spearheaded a

bipartisan effort to pass legislation in the Texas Legislature. It promotes the use of video cameras for just this purpose. Their bill was

signed into law earlier this year. It requires that Texas police departments either collect racial data on police stops or employ video

cameras to record stops.

We’re going to hear from the lawyer for several Hispanic individuals from Ohio. They were pulled over by a State police officer. Because they were all Hispanic, everyone in the car was asked to

prove that they were U.S. citizens. They sued the State police. The

entire incident was videotaped from the police car. The videotape

substantiated the charges against the police officer, and action was

taken.

We’ll also hear testimony about a New Jersey State trooper who

was accused of violating a motorist’s rights. The stop was

videotaped. The officer was exonerated by the videotape. The motorist pled guilty to lying in his complaint because of the videotape,

and the head of the New Jersey State Police, Colonel Charles Dunbar, is going to tell us what happened and how the use of video

cameras has affected his force.

We can see that video works in both ways. If a police officer does

something wrong, he should be held accountable. If a police officer

is falsely accused, he should be exonerated. This is the way it

ought to be. And that’s why there’s so much support for use of

video cameras from police groups and civil rights groups alike.

That’s not to say that audio-visual technology is the only solution

to the problem. We don’t want to downplay the potential contributions of data collection and other tools. Data collection can and

should continue, but it’s always good to be looking ahead to new

and better ways to attack these problems.

Our witnesses today will discuss a number of these approaches.

We’ll hear from the National Organization of Black Law Enforcement Executives as well as the ACLU. We’re also going to hear

from the former Commissioner of the U.S. Customs Service, Raymond Kelly. Mr. Kelly will testify about how the Customs Service

has dealt with the issue of racial profiling. We’ll also hear from a

Maryland attorney who believes that he was a victim of racial

profiling. Finally, we’ll hear from an executive of a California company that produces equipment for law enforcement agencies.

We have a lot of witnesses today. It is going to be a well-rounded

debate. I’ll end my opening statement here so we can get on with

it. Let me just close by saying that we all find racial profiling and

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discrimination repugnant. We want people to have confidence in

the fact that their police officers are there to protect them. We

want people to trust law enforcement officers and work with them.

That should be true if you’re African American, Hispanic, Asian or

White. That’s why it’s so important that we look for constructive

solutions to deal with the problems like the one we’re dealing with

today.

[The prepared statement of Hon. Dan Burton follows:]

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Mr. BURTON. Mr. Waxman, would you like me to yield to Mr.

Cummings for his opening statement, or would you like to make it?

Mr. WAXMAN. I thank you, Mr. Chairman and Mr. Cummings,

for allowing me to make my opening statement. I have to return

to a markup in the Commerce Committee on one of the key energy

bills before us this year, but I want to start today by thanking

Chairman Burton for his willingness to work with Congressman

Cummings and other Democratic Members to put together this

very important hearing, and I am pleased there is bipartisan consensus that the issue of racial profiling deserves serious attention.

And I’m glad our staffs were able to work together to organize this

hearing, and I want to particularly thank Congressman Cummings

for his leadership and commitment to this issue.

Earlier this week the Police Executive Research Forum, a national membership organization of progressive police executives, released a study funded by the Department of Justice on racial

profiling. The report included a survey of perceptions of racial

profiling of over 1,000 law enforcement officials who lead the bigcity police departments, sheriffs departments and other police

agencies. Nearly 60 percent of those surveyed said that racial

profiling is not a problem in their communities, and fewer than 20

percent have adopted policies to outlaw racial profiling.

While law enforcement officials may not see that racial profiling

is a problem, the people they stop on the highways do not agree.

A recent Washington Post survey found that more than half of African American men and one-fifth of Asian and Hispanic men say

they have been the targets of racially motivated police stops. Statistics validate this perception. In Maryland, for example, minority

drivers are stopped and searched at rates higher than can be explained by their numbers on the roads.

Today we are going to hear the testimony of people who know

firsthand that racial profiling is indeed a problem. Robert Wilkins,

an African American attorney from Washington, DC, will testify

about his personal experience of being stopped by Maryland State

Police officers while he was returning from a funeral with his family. Pursuant to racial profiling policy, Mr. Wilkins was stopped

and detained on the side of the road for no apparent reason for

over an hour while the officer tried to obtain his consent to search

his car. Mr. Wilkins subsequently sued the Maryland State Police,

and the case was settled. Pursuant to the settlement, the Maryland

Police agreed to collect data on traffic stops.

On the same panel attorney Mark Finnegan will testify about his

client, a Latino motorist who has also experienced racial profiling

and was able to prove it using audio-visual technology.

We’ll also hear testimony about possible solutions to this problem. We have two legislators from Texas, who will tell us about a

Texas law requiring law enforcement agencies to collect racial data

unless they have applied for or receive State funding to purchase

audio-visual technology. In addition, we’ll hear about local law enforcement agencies that use audio-visual technology in exonerating

police officers of charges of racial profiling. Other witnesses will

testify about the need to expand efforts to combat racial profiling

beyond audio-visual technology, including the important role of

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data collection and technological advances to improve data collection.

Former U.S. Customs Commissioner Ray Kelly will also testify

about the progress Customs has made in decreasing the number of

searches without experiencing any decline in the number of successful searches.

I look forward to all the perspectives we will hear today. Racial

profiling is an important and difficult issue we must confront at all

levels of government. Given that this is a national problem, it is

important that Congress take the lead on the issue. We need to examine all possible solutions, including data collection and the use

of new technologies. We need to use all the tools available to deal

with this problem. However, it would be very difficult to even begin

to solve the problem until we understand that the problem exists.

This is particularly true of law enforcement, without whose cooperation all proposed solutions will fail.

What the recent survey of law enforcement officials reminds us

is that we have yet to clear that first hurdle of getting law enforcement to understand that racial profiling is a problem that needs to

be addressed. I hope that today’s hearing helps to do that.

I thank the witnesses for coming today, and I look forward to

their testimony.

Mr. BURTON. Thank you, Mr. Waxman.

Before I go to Mr. Cummings, I’d like to welcome Representative

Watson to this hearing, and I ask unanimous consent that she be

allowed to participate in today’s hearing, and, without objection, so

ordered. Welcome. Glad to have you with us.

Mr. WAXMAN. Mr. Chairman, she’s a new member on the Democratic side of this committee.

Mr. BURTON. Oh, is that right? Well, we’re tickled to death to

have you with us.

Ms. WATSON. May I very quickly respond?

Mr. BURTON. Sure.

Ms. WATSON. Mr. Chairman, Chairman Burton, Congressman

Waxman and Congressman Elijah Cummings, thank you so much

for the privilege of serving on this committee. I look forward to involving myself in every issue that comes in front of us.

Today’s issue, the benefits of audio-visual technology and addressing racial profiling, is very significant. Racial profiling has

truly been a pervasive issue within my district. One of the cases

that we considered at the State level is the young man who took

my seat in the California State Senate. So I will be very much involved in this issue, and thank you for the privilege of serving on

the committee and with all of my colleagues.

Mr. BURTON. Well, once again welcome to the committee, and we

will now yield to Mr. Cummings, who’s been very, very hard-working on this issue. And I can think of no Member in the Congress

that’s worked harder on making sure that this issue is brought to

light and reviewed thoroughly than Mr. Cummings, and I want to

thank you very much for your hard work.

Mr. CUMMINGS. Mr. Chairman, I want to thank you for your cooperation, for working with us, and your staff and certainly my

staff, and we also, all of us, join in welcoming the Congresslady

from the great State of California Ms. Watson.

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Welcome, and we look forward to working with you.

Chairman Burton, earlier this year, as you may recall, I urged

this committee to apply its vast and powerful oversight jurisdiction

to examine the menacing problem of racial profiling, and I’m very

happy that our majority and minority staffs have been able to work

together to help make this hearing happen.

Mr. Chairman, racial profiling is a very new term that describes

a very old problem. We will hear a lot today about the role audiovisual technology can play and is already playing in addressing racial profiling. But the origins of racial profiling in the United

States predate patrol-car-mounted cameras with sound recording

equipment. In fact, they predate cameras, tape recorders and cars

altogether. We are talking about a problem as old as this country

itself, and, in fact, even older.

Drawing conclusions about character on the basis of immutable

superficial characteristics rather than on the basis of behavior

helped to justify slavery and segregation and now informs more

subtle forms of discrimination that occur today in the post-civilrights era in this country. Two months ago the Congressional Black

Caucus held a hearing on all facets of the racial profiling problem.

I’m glad that at least a slice of the issue has been presented here

in this forum for broader discussion, because racial profiling is not

just a problem for the Black Caucus or the Hispanic Caucus or the

Democratic Caucus, it is a problem for all of this Congress and

America to deal with. It offends our most basic common sensibilities as Americans because it directly contravenes our most sacred

principles, namely, freedom, liberty, fairness and equal justice

under the law.

Mr. Chairman, we didn’t have a Constitution when the evil seeds

of this problem were seen centuries ago, but we have one now, and

thank God it has evolved to the point where it is beyond question

to lawmakers that law enforcement action directed against citizens

because of their race is plainly obnoxious to the sacred principles

of due process and equal protection embodied to many of our—protection embodied in that enlightened document.

Evidently the notion is less clear to many of our Nation’s law enforcers. Indeed, a recent survey suggested a clear majority of police

executives surveyed believe that racial profiling is not a problem in

their jurisdictions, and fewer than 20 percent have adopted policies

to outlaw racial profiling. That must change. When President Clinton declared that racial profiling is the opposite of good policing, he

was absolutely right. His wisdom was borne out by the clear evidence in my State of Maryland, which sadly has been called the

‘‘driving while Black’’ capital of the world.

One of our witnesses today, Mr. Robert Wilkins, is a respected

attorney in Washington, who brought this situation to light. In

1992, he became an unfortunate victim of racial profiling; unfortunate for the police that is. As a result of the litigation that resulted

from the encounter, Wilkins v. Maryland State Police, the State police in my home State have been required to disclose detailed information about the Maryland motorists they stop and search. The results are shocking to the conscience and chilling.

During 1995 through 1997, minorities accounted for 22 percent

of both the motorists and the speeders along I–95. We were 34.5

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percent of those stopped. We were 77 percent of those who were

both stopped and searched along Interstate 95. Yet we also were

76 percent of the travelers who were stopped and searched and

were found to be innocent of carrying any contraband.

The Wilkins evidence demonstrated that targeting Black people

is ineffective as a police practice. It is, as President Clinton said,

the opposite of good policing.

Today, the evidence derived from the Wilkins and companion

cases is helping to bring about change in my home State, even

though the problem persists. On May 15th of this year, Maryland

joined 12 or more other States that have enacted legislation to address racial profiling. Like President Clinton’s Executive order,

which applies to Federal agencies, the Maryland legislation mandates the collection of data on State and local police stops. Other

States are taking similar contrasting approaches, including Texas,

as we’ll hear today.

Whether audio-visual technology is sufficient on its own to address this problem is a matter of debate, and we’ll hear arguments

on that subject this afternoon. What should be clear from the outset of the discussion, however, is that we as Americans cannot and

will not tolerate the practice of stopping and searching people for

no reason other than their race, whether it’s on the side of a highway, in an airport, in a public park or anywhere else.

This is national problem, and it is therefore incumbent upon this

Congress to demonstrate leadership on this issue. This hearing is

an important step, and I hope we have an opportunity to investigate thoroughly all potential solutions before we move forward

with Federal legislation. But surely, Mr. Chairman, Congress must

act. The data tells us so.

I look forward to hearing our witnesses today. I thank them for

participating, and hopefully we will find some solutions to this

menacing problem.

Mr. BURTON. Thank you, Mr. Cummings, and once again thank

you for all your help and effort on this issue.

Ms. Watson, I believe came next, and since she’s a new Member,

do you have an opening statement you’d like to make?

Ms. WATSON. I just made it.

Mr. BURTON. You’ve already made your statement.

We’ll go to Mr. Clay.

Mr. CLAY. Thank you, Mr. Chairman.

Very briefly I would like to say that I am very interested in hearing from the witnesses today. Representing Missouri, I helped draft

and pass a law last year that instituted data collection. We received our first report last month, and it’s just what I suspected:

more higher incidence of African Americans and other minorities

being stopped, vehicles being searched.

So my interest today is really to hear from our first witness, the

Justice Department, too, so that he can share with us on how we

attack the issue of racial profiling, how we address it, how we

eradicate it from police departments throughout this Nation. I have

a 7-month-old son, and I don’t want him to have to go through

what I have been subjected to, what other African Americans have

been subjected to, which is ‘‘driving while Black,’’ and I fear for

him and other young African Americans and people of color that

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are growing up now who may have to be subjected to this profiling.

So I am interested in hearing from the U.S. Justice Department to

hear what kinds of approaches they want to take. President Bush

as well as Attorney General Ashcroft have indicated to this country

that they want to eradicate racial profiling. So I am interested in

hearing what approaches the U.S. Department of Justice wants to

take to help eradicate this problem.

Thank you, Mr. Chairman.

Mr. BURTON. Thank you, Mr. Clay.

[The prepared statement of Hon. Wm. Lacy Clay follows:]

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Mr. BURTON. Mr. Owens.

Mr. OWENS. I have no opening statement, Mr. Chairman.

Mr. BURTON. You have no opening statement, you say, sir?

OK. Ms. Norton.

Ms. NORTON. Thank you, Mr. Chairman. May I commend your

initiative on holding this hearing. It’s not in this committee I expected to have the first hearing, and I was very pleased to find that

indeed there is jurisdiction in this committee for a hearing of this

kind at a time when this issue has assumed mammoth proportions.

Pending before the Transportation Committee as we speak is my

own bill, the Racial Profiling Prohibition Act, which I filed as a

member of that committee essentially to prohibit police stops based

on race alone. We, of course, know if you have a description of

somebody who is a Black male of a certain height or of a certain

weight, that the description of the person’s color could be informative, but if the police are looking for a Black male, that there is

something very wrong with that description, because the police

then can look for anybody, and the evidence is overwhelming that

is exactly what police have been doing. This is often because at the

very top, the kind of training and the kind of professionalism it

would take to use race correctly, just as you can use the color of

somebody’s hair correctly, has not been in place when it comes to

race. That is not unrelated.

So the way race has been treated in our country since the first

Black slaves landed on these shores, what this problem indicates

is that race and ethnicity as a basis for police stops has become so

pervasive and so systematic that it has blown a hole in our civil

rights protections. What is clear to us now, at a time when we

thought we were at the end of having to pass civil rights legislation

and merely had now to enforce it, is that there is a very important

piece of civil rights legislation lying on the table. So three Members

of Congress have introduced three different approaches to it.

My bill is introduced because I do not intend to sit in this Congress as a member of the Transportation Committee next year

when we authorize upwards of $250 billion in highway traffic funds

and see those funds continue to go to subsidize racial profiling, and

that is exactly what will happen if, in fact, we do not take the steps

to make sure that the unconstitutional use of Federal funds does

not occur. It is unconstitutional for Federal funds to be used in a

discriminatory way or to enforce discrimination. And so my bill

would require that States have standards that bar the use of race

and ethnicity as the reason for stopping somebody, and that the

data and ethnicity to show that the law is being enforced be collected.

The reason that I have used this approach, Mr. Chairman, is

that for a very real reason, it is the most natural way to get at this

practice. What we have now, of course, are people have to sue; they

have to look and see if their State legislation is good enough. I

don’t think anything but a proactive approach will truly work in

this climate. I don’t want to wait until Mr. Wilkins gets stopped

again and say, go sue again. I want the State to take action now

so that my son and every other Black man or Hispanic man who

are identifiable by their color do not have to wonder if they’re going

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to be stopped on the street, because the State has already moved

to make sure that does not happen.

And so what I looked at was how my committee, the Transportation Committee, had approached problems that it felt strongly

about, and what I found was that in disbursing transportation

funds, that the committee often required that in order to receive

those funds, States had to take very specific action. The reason you

have a national minimum driving age is not because all the States

wanted to do it, and the District of Columbia had one age and one

in Maryland and another in Virginia. A lot of people liked it that

way, and we said, no, you have to have the same age in order to

get this money. And highway money is the most coveted money in

the Congress, and they came into line because we said it was important enough.

We said it was important enough to get convicted drug offenders

off all of the roads, and so their licenses should not come back except after a period of time. And so we said, you’re not going to get

your highway money unless you pass a bill to that effect.

As I speak, we have said, unless you pass a law that, in fact, requires that those who are stopped meet the .08 blood alcohol content, you won’t get your highway money. So essentially I’ve said to

the Congress this is a test. Do you feel strongly about the outrage

of people being stopped on the street because they are Black and

Hispanic; do you feel strongly enough so that this Congress will

take action to make sure that we do not subsidize racial profiling,

because that is exactly what we are going to do.

I believe that the Congress is going to do that. I believe that my

committee, the Transportation Committee, is going to pass this legislation. I believe it because it is a very bipartisan committee, because the committee has often sustained goals and timetables and

other civil rights protections, and I believe that the outcry from literally every State in the Union is going to get this provision included in the transportation bill, the new TEA–21, when it comes

out next year.

I can’t thank the chairman enough, if I may say in closing, for

being the first committee to spotlight this problem and take action

to move us forward. Thank you, Mr. Chairman.

Mr. BURTON. Thank you, Ms. Norton.

Once again I want to tell the gentlelady from Washington that

Mr. Cummings has led the fight on this issue, and he’s to be commended for being so persistent, and that’s one of the reasons why

we’re having this hearing today, because of his hard work.

Mr. Tierney.

Mr. TIERNEY. I have no comment. Thank you.

Mr. BURTON. Mr. Shays.

Mr. SHAYS. Thank you, Mr. Chairman. Thank you, Chairman

Burton. Thank you so very much for convening this hearing on the

benefit of audio-visual technology in addressing racial profiling.

This bipartisan oversight initiative addresses a critical issue in

need of greater exposure, public debate and reform.

Decades ago, with the passage of the sweeping civil rights legislation, this Nation attempted to amplify and extend our constitutional commitment to equal protection and equal treatment under

the law. One remaining bastion of racial bias cynically turns the

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law and law enforcement against the very citizens it is the solemn

duty of both to protect. The practice of using race as a prima facie

criterion for questioning or arrest violates that commitment and

flies in the face of progress we have made toward racial equality.

With our colleague Mr. Conyers of Michigan, I am a grateful cosponsor of the End Racial Profiling Act, H.R. 2074, to require Federal law enforcement agencies to adopt policies and procedures to

eliminate racial profiling. The bill also holds States and localities

to the same high standard by making sure Federal funds are not

used to continue the practice.

Our bill will help protect citizens from the indignity and stigma

of profiling. It will also help law enforcement officers perform their

sworn duties impartially by encouraging use of the technology we

will be discussing today. Video and audio systems can serve as an

impartial third party, protecting citizens against arbitrary police

actions while reducing the risk of false or spurious racial profiling

charges against law enforcement personnel. These technologies

when used effectively should increase public confidence that arrests

are being made based on probable cause, not racial stereotypes.

Again, Mr. Chairman, thank you for focusing the committee’s attention on this issue. I truly look forward to the testimony of today’s witnesses, and I look forward to exploring other dimensions

of the problem and proposed solutions at future hearings. And I

thank my colleagues who are participating in this important hearing.

Mr. BURTON. Thank you very much, Mr. Shays.

[The prepared statement of Hon. Christopher Shays follows:]

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Mr. BURTON. We’ll now welcome our first panel to the witness

table, Assistant Attorney General Viet Dinh, and we’d like you to

please rise and raise your right hand.

[Witness sworn.]

Mr. BURTON. Do you have an opening statement, sir?

Mr. DINH. I do, sir, and it’s been submitted for the record. I’d like

to now give an oral statement, if I may.

Mr. BURTON. It’s fine. Without objection.

STATEMENT OF VIET DINH, ASSISTANT ATTORNEY GENERAL,

U.S. DEPARTMENT OF JUSTICE

Mr. DINH. Mr. Chairman and members of the committee, it’s an

honor be here, my first hearing since being sworn into office as Assistant Attorney General for Legal Policy. Thank you for this opportunity to inform you of the Department’s effort on racial

profiling and specifically how technology may assist in those efforts.

Improving the relationship between law enforcement and the

communities they serve is a priority for the Department of Justice

and for this administration. The Department recognizes that effective law enforcement requires trust between citizens and police officers, and police-community relationships may be threatened when

a citizen is treated unfairly by the police. Racial profiling is a particularly egregious example. No American should fear law enforcement action just because of his or her race.

We are committed to ensuring that all individuals are treated

equally under the law. The President and Attorney General have

made clear that the Department will take a leadership role in addressing the issue of racial profiling. In February, the President directed the Attorney General to review the use of race by Federal

law enforcement authorities, requested that the Attorney General

work with Congress to develop data collection methods, and asked

that the Attorney General report to him findings and recommendations for improved administration of the Nation’s laws.

To implement these directives, the Deputy Attorney General

Larry Thompson is conducting a comprehensive review of the policies and practice of Federal law enforcement agencies to determine

the nature and extent of any racial profiling. That review encompasses the four following elements: a summary of the available

data and studies relevant to the racial profiling issue; a description

of the types of contacts that occur between Federal law enforcement and a general estimate of the number of such contacts; a review of current policies of Federal law enforcement agencies concerning racial profiling; and fourth, a review of all judicial proceedings and professional responsibility inquiries involving allegations

of racial profiling by Federal law enforcement officials. The Deputy

Attorney General anticipates completing this review by the fall.

In addition to our work under the directive, the Department has

a number of ongoing initiatives relating to racial profiling. For example, the Community-Oriented Policing Services Office, the COPS

office, has provided resources for data collection and research on

racially biased policing and implemented a national training initiative through its regional community policing institutes. These programs proactively work with State and local law enforcement agenVerDate 11-MAY-2000 09:43 May 30, 2002 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 C:\DOCS\77191.TXT HGOVREF1 PsN: HGOVREF1
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cies to adopt best practices, to weed out the bad seeds, and to improve the trust between law enforcement agencies and the communities that they serve. Additionally, COPS introduced a targeted

grant program entitled Racial Profiling Prevention Strategies to develop best practice and technical assistance guides to prevent racial

profiling.

The Department’s Bureau of Justice Statistics [BJS], collects and

analyzes data on traffic stops and data collection procedures. The

Bureau of Justice Assistance recently published a Resource Guide

on Racial Profiling Data Collections Systems. And the National Institute of Justice has supported studies on racial profiling issues,

such as the North Carolina Highway Traffic Study, which addressed whether North Carolina Highway Patrol officers stopped

minorities at a higher rate than nonminorities and what factors

motivate highway stops.

Today you’ve asked me specifically to address the use of audiovisual technology as a law enforcement tool and its potential as a

means for eliminating racial profiling. Section 2 of my written

statement describes the nature of the technologies available and

the respective advantages and certain limitations.

I would like to spend the next few minutes describing the Department’s efforts to support deploying technologies to enhance police capabilities and improve efficiencies and prevent racial

profiling.

The Department, principally through the Office of Justice Programs and the Office of Community-Oriented Policing Services,

provides significant funding to State and local law enforcement

agencies to support the deployment of technologies which can be

used to purchase a wide range of equipment, including in-car and

other video and a variety of data collection systems. The COPS office also administers an In-Car Video Camera Grant Program to

provide law enforcement officials with this important tool during

traffic stops.

To leverage these investments, OJP and COPS have produced a

number of guides, references and other reports for use by the agencies in deciding what equipment to acquire and how best to collect

data on traffic stops. Among these are a tutorial published by the

Bureau of Justice Assistance that includes description of data collection programs in four United States and one foreign location,

and provides recommendations for traffic stop data collection systems; an executive brief on how video cameras are used in law enforcement published by the International Association of Chiefs of

Police under a National Institute of Justice cooperative agreement,

and finally, but not exhaustively, a National Institute of Justice

guide on how to select and apply law enforcement video surveillance equipment, which offers guidance on how to position cameras,

lighting, and focusing, and other requirements.

The NIJ is also engaged in research on a variety of technologies

to enhance capabilities and improve efficiency. Some of these technologies may also help to make police stops less personally intrusive and allow for a more objective determination of a need for a

stop. Among these research subjects are police palm top devices

that combine a number of technologies to allow the rapid completion and filing of reports from the field; the Voice Response TransVerDate 11-MAY-2000 09:43 May 30, 2002 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 C:\DOCS\77191.TXT HGOVREF1 PsN: HGOVREF1
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lator, a small device that allows officers to communicate one-way

in the same language as the subject being questioned; and conceal

weapon detection systems that may be used in certain circumstances in lieu of more intrusive body searches. Adaptive surveillance systems which can dynamically adjust the video parameters in a region of an image containing a face or other object of

interest to improve the quality of image is also another technology

that we are exploring.

Not all of these technologies, of course, are ready for deployment,

and some will not be for several years, and any technology, old or

new, may be employed in ways that raise significant concerns regarding privacy. Law enforcement agencies using any of these technologies must be cognizant of the privacy issues, seek guidance

from legal counsel, develop appropriate policies and provide training before them putting them into operation.

We look forward to working with the law enforcement agencies

and, more important, the Congress to answer these important

questions relating to privacy, but to the topic today, relating to

proactive steps we can take as a Department and as an administration to eliminate the practice of racial profiling across the land.

Thank you very much.

Mr. BURTON. Thank you, Mr. Dinh.

[The prepared statement of Mr. Dinh follows:]

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Mr. BURTON. Most of the questions that I had to ask you covered

very thoroughly. Let me ask you this question. The COPS program,

do you know how much money is allocated for that program?

Mr. DINH. There are a number of programs under the COPS initiative, and I have asked our people to assemble all those in a concrete number.

Mr. BURTON. Can you submit those for the record for us?

Mr. DINH. I will.

Mr. BURTON. What I’d like to find out right now, maybe your

staff that’s with us can help us with this, how much money has

been used for the visual technology, and is that being apportioned

out on a State-by-State basis, or is it being given to the States

based upon their requests?

Mr. DINH. We have awarded 41 State police agencies $12 million

to purchase 2,900 video cameras in the past—in last year actually.

This year we are continuing the program with $3 million to 6 additional States for 750 additional cameras. I do not know the specifics as to whether or not we make these grants selectively or whether they’re based upon an RFP that comes in and then we evaluate

those.

Mr. BURTON. I think those of us on the committee would like to

know if the Justice Department is pushing the States to accept

audio-visual technology for police surveillance in these police cars,

or if they’re waiting for there to be a request from the States. If

the Justice Department—I think it would be appropriate—and this

is just a suggestion—that the Justice Department push the States

to accept this, because I think racial profiling is a concern all

across the country, and there may be some States that are not as

active as far as requests are concerned, that if pushed a little bit,

may accept them, and it might speed up the process.

Mr. DINH. We take your suggestions very seriously, Mr. Chairman, and I take all suggestions from Congress very seriously. We

do have a program across the entire Department in making targeted grants more effective in achieving the objectives that Congress intended them to be, and this would fit right into that initiative, and I will personally commit to making that happen.

Mr. BURTON. Very good. I know the new administration has

made this one of their issues and priorities, and what we’d like to

do is maybe have you or somebody from the Justice Department

that’s conversant with this issue or working on it come back at

some future date. So would you be willing to come back and give

us an update on this in the not too distant future to see how it’s

progressing? In particular I’d like to know which States are actively pursuing the new technologies to make sure there’s not racial profiling and which States aren’t. I think if we make that public, it will kind of put a little pressure on the States that are not

accepting the new technology to make sure there’s not racial

profiling to get on with the program.

Mr. DINH. I will be honored to come back, and especially when

the Deputy Attorney General has completed his review of the Federal law enforcement policies and practices, and as we go into the

second phase of our proactive efforts, to effectuate the President

and Attorney General’s directive on this in the fall. I would appreVerDate 11-MAY-2000 09:43 May 30, 2002 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6633 C:\DOCS\77191.TXT HGOVREF1 PsN: HGOVREF1
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ciate an opportunity to address those issues in addition to the questions you have today.

Mr. BURTON. Mr. Shays, do you have some questions?

Mr. SHAYS. Yes.

Mr. BURTON. Excuse me. Just for the benefit of our colleagues,

we are under the 30-minute rule, and that’s why I went to Mr.

Shays, and then Mr. Cummings will have 30 minutes as well.

Mr. SHAYS. For the benefit of my colleagues, my questions will

probably be 5 to 10 minutes, and we will probably be able to give

you a half hour and some of our time. We’re happy to yield our

time as well.

Mr. BURTON. That’s fine.

Mr. SHAYS. Mr. Dinh, I just want to welcome you. I can get almost emotional seeing you at this desk and think that this is a

country that is very inclusive when it wants to be and very open,

and this American society is a very unique society. I would suspect

you probably weren’t born in this country.

Mr. DINH. I was not, sir. I came here in 1978 as a refugee from

Vietnam.

Mr. SHAYS. Well, it makes me very proud to have you here.

Mr. DINH. Thank you, sir.

Mr. SHAYS. And welcome.

I was speaking with Congressman Owens, and he was sharing

with me something that makes me wonder as well. The Federal

Government basically has a role to play in this whole issue of racial profiling, but law enforcement tends to be a local and a State

responsibility. I mean, that’s where it tends, I would think, we

would see most of the abuses. So let me ask you first off, what powers do you think the Federal Government has to deal with racial

profiling?

Mr. DINH. Of course, as Congresswoman Norton noted, the Constitution prohibits the use of race as the basis for law enforcement,

and that Constitution, of course, under Article VI of that great document, applies across the land to State and Federal actors alike,

but, as you noted, the Federal Government is limited in its law enforcement capacity. Most of the policing power is exercised by State

and local authorities. That’s why the Department of Justice in its

proactive efforts are reaching out to help State and local police

agencies in order to develop best practices, to weed out the bad

seeds, and to improve the trust between their law enforcement

agencies and the communities they serve.

With respect to your specific question for congressional

authority——

Mr. DINH. I would like to defer that to my colleagues in the Office of Legal Counsel and my new colleague the Solicitor General

Ted Olson. I am no longer a constitutional law professor. I’m now

a recovering academic in the guise of a government official. So I

have to respect their province of authority.

Mr. SHAYS. Let me ask you this way: Do you think there are

powers inherent in the Federal Government that can help us deal

with this issue?

Mr. DINH. Certainly there is the Federal spending clause that is

applicable, Section 5 of the 14th amendment are possible bases,

but, again, the devil’s in the details with respect to the employment

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of any one of these powers with respect to State intrusions upon

State sovereignty, and I think that any particular legislation or action by the Federal Government would have to be scrutinized

under the constitutional standards as set forth by the Supreme

Court.

Mr. SHAYS. I know you’re involved in the policy side, and I suspect that you’re not fully staffed and the Department isn’t yet fully

staffed, but can you tell me to what extent—and this is really a

question that in the dialog I was having with Congresswoman Norton. I want to know to what extent the administration is willing

to pursue this issue of racial profiling.

Let me put it in the context of this: There are some of us, a lot

on the Democratic side of the aisle and some of us on the Republican side of the aisle, that believe that hate crimes is an issue that

we need to deal with, hate crimes whether it be race or sexual orientation and so on, and the administration clearly doesn’t want to

move in that direction. I’m eager to know to what extent we are

going to pursue this issue of racial profiling.

Mr. DINH. This is a matter of high priority both for the President

and for the Attorney General. The review being undertaken by the

Deputy Attorney General is but one step in this process, as you

know. As you may know, the Attorney General in February issued

I guess I would call it an ultimatum to ask Congress to authorize

a Federal study, comprehensive study, of these practices within 6

months, and if not, he would undertake personally within the Department the study within our own Department and fund it

through sources that we can identify. And so this is a matter of

high priority for all of us in the administration, and we will pursue

working with Congress and the relevant agencies.

Mr. SHAYS. Two last questions, and let me ask them both now,

and maybe it will lead to another question. But have you had the

ability yet to determine where in what level of government racial

profiling tends to be the most egregious; and No. 2, are there particular areas of the country where we see it more prevalent? And

I don’t just mean in the South. I mean, we know that the civil

rights movement kind of marched to Washington and in some cases

stopped, and we can see segregation in a different way in the

North, where I live; wealthy people tending to live in wealthy areas

with wealthy White citizens, urban areas tending to have more of

the poor and the minorities. It’s more of a de facto segregation in

some ways. But my question is have you had an opportunity to look

at what level of government and where racial profiling tends to be

the most egregious?

Mr. DINH. No, sir. We have not had that opportunity. Our review

at this point is focused at the Federal law enforcement agency

level. We anticipate to be able to study, with congressional authorization and funding if possible, otherwise an independently authorized review by the Justice Department of the State and local data

that is available. Currently 12 States, I believe, require the collection of racial profiling data, and 37 States voluntarily do so, and

we look forward to the opportunity to take a more comprehensive

view of that data should it be funded by Congress.

Mr. SHAYS. Thank you, Mr. Chairman. Mr. Chairman, I have

completed my questions.

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Mr. BURTON. Thank you, Mr. Shays. Mr. Cummings we will recognize you for 30 minutes and if your side needs more, we will see

if we can’t get that for you.

Mr. CUMMINGS. Thank you very much, Mr. Chairman. Mr. Dinh,

I also welcome you to the hearing and I congratulate you on your

appointment and thank you for your testimony.

I just was wondering as you were answering Mr. Shays’ questions, you know, a lot of the racial profiling problem comes from,

I think, from a certain level of insensitivity and police officers who

already have come to certain conclusions before they even stop a

person. They—I see it in my own neighborhood. I have been a victim of it many times. And I was wondering, before we even get to

the audio-visual piece, are you all looking at any—that is, the Justice Department—looking at any programs, and is it something

that you believe is necessary to sensitize police officers to understanding that every African American male that they see driving

a modern car, or any kind of car, down the road is not a criminal?

I mean are you all looking at it from that angle because the problem begins actually a little bit before the stop actually takes place.

Mr. DINH. Yes, sir, the COPS program, the Community Oriented

Policing Services program, as part of its proactive training mechanism for State and local police officers and executives, has as a primary component what they call the ethics and integrity program;

in your words, sensitizing the chiefs and their rank and file to

these very, very significant issues.

That is one component of a much broader initiative in reaching

out and developing a best practices and also implementing those

best practices, encouraging the agencies to implement those practices throughout their rank and file, and so it is a problem that admits of both remedial but, as you noted, preventative measures;

and those preventative measures include changing the hearts and

minds and improving the trust between law enforcement agencies

and the communities they serve.

Mr. CUMMINGS. Now, going to the COPS program and the audiovisual opportunities that are presented, do you know why that

came about, why they first started with audio-visual, you know

making these cameras available; that is, grants for the cameras?

Mr. DINH. I am not familiar with the genesis of the grant program but I suspect with most OJP—Office Justice Program—grant

programs, that it was initiated by Congress. I do have, by the virtue of technology, two-way messaging, in answer to the earlier

question with respect to the breakdowns of the States in requesting

these programmatic funds. And I have been advised that all States

except three have now requested money for audio-visual equipment

for State police. One State not requesting is Hawaii, for the obvious

reason it does not have a State Highway Patrol, and the other two

States not requesting, for reasons unknown, are Ohio and Delaware.

Mr. CUMMINGS. OK. I look at the Baltimore City Police Department, when they make requests of the COPS program, they have

certain priorities. And one of their priorities was just basic computers so that the police knew what each other were doing in the various parts of the city. And I was just wondering if you have, say,

the COPS piece, the audio-visual piece; and then a city looks at

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that and says OK, yeah, we really do need the audio-visual but we

need some basic things before we get there, like police cars and

things of that nature.

I was just wondering whether one grant works against the other.

Are you following what I am saying?

Mr. DINH. Yes, I do, sir. The grant program that was described earlier, the $12 million last year and $3 million this year, is specifically for in-car video devices. The COPS program—the COPS office

and other offices within OJP have a significant number of other

grant programs on improvement of technologies generally, and

some of that money can be used for in-car video or they can be used

for other uses. The in-car program, the $12 million program, is specifically for this, but all of our programs are designed so that they

do not work against each. This one just happens to be targeted for

this particular priority, but there are many other technology-related grants that exceed, obviously, the hundreds of millions of dollars

in improvement in technology for the State and local law enforcement agencies.

Mr. CUMMINGS. Is there any research that you all have done or

that you are doing with regard to States that use the audio-visual

equipment and how that has affected this whole concept of racial

profiling? I guess it is a little early for that.

Mr. DINH. We have not performed any research or funded any

specific research within the Department of Justice, and I have undertaken a review of social science literature with respect to the

use of audio-visual and I have not seen any significant statistical

research. There has been some anecdotal research out there, I

think of two specific studies, but not any comprehensive ones.

That goes to one of the issues that was addressed in my written

remarks, is the obvious limitation, a common-sense one with respect to the use of audio-visual equipment is that there has to be

somebody reviewing the audio tapes and data, and that is a significant undertaking of reviewing those hours of tapes and data.

Mr. CUMMINGS. So how do you see that playing out? I know if

there was an issue, if someone, say, filed a complaint against the

police to their Internal Affairs Division and said, look, you know,

I was a victim, that is one issue. But it is a whole other issue when

you are trying to get a full view of the many stops—say, for example, with the Maryland State Police—and I guess that is a big manpower issue, and is there money available for that?

Mr. DINH. As you noted and as the chairman noted, there are a

number of technologies that can be deployed in order to prevent or

remedy racial profiling. Some of the anecdotal studies that I have

reviewed with respect to the use of audio-visual equipment specifically suggests a deterrent effect in the conduct of police officers

knowing that they are being recorded, and specifically of the motorist or the suspect when they are advised specifically that they are

being recorded, for the obvious reason that there is an audio-visual

recording of whatever actions or words that are spoken. And so

there is a deterrent effect, a general improvement effect. I stress

that it is only anecdotal, because it is not a statistical significant

sample for these studies.

Mr. CUMMINGS. Now, what is the OJ’s interpretation of the legality of racial profiling under the Federal statutes?

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Mr. DINH. As you may know, the Supreme Court in a case called

Whren, W-h-r-e-n, a fourth amendment case, noted in passing that

it is common—that it is obvious that the 14th amendment guaranteed equal protection, prohibits the law enforcement on the basis

of race, and I think that everybody in this room recognizes that

constitutional prohibition.

Mr. CUMMINGS. Now, if you were to find that a Federal officer

was one who was proven to be a racial profiler, what do you all

have available in Justice to address that?

Mr. DINH. Each one of the law enforcement agencies have procedures to ensure professional integrity within their rank and file,

and those procedures are very, very rigorous in order to weed out

the bad seeds, if you will, as I noted before.

In addition to that, the civil rights division of the Department of

Justice has authority under the statutes to investigate pattern and

practice violations by specific law enforcement agencies or officers,

and that authority is obviously being deployed throughout the

country when there is a need that warrants it.

Mr. CUMMINGS. Do you know whether there are any cases presently before Justice, following up on what you just said?

Mr. DINH. There is a working group within the Department of

Justice, again just addressed by Congressman Shays earlier,

whether or not this is a high priority. There is established within

the Department of Justice a working group that oversees and monitors all litigation affecting Federal agencies that involve racial

profiling. Any such litigation would be reported to the working

group.

My office is working intimately with that working group in order

to ensure that whatever litigation position’s taken in those litigation is consistent with our priority of eliminating, preventing, and

remedying racial profiling. I believe there is a case pending with

respect to the Customs Service in Chicago. I do not know the details of that case nor would my position allow me to comment on

pending litigation.

Mr. CUMMINGS. I understand. I just wanted to know whether we

would—whether there was anything—anybody who had been

brought up to—under any kind of charges. I didn’t need to know

the details.

Mr. DINH. Actually, if I may amplify, one of the four components

of the study undertaken by the Deputy Attorney General across the

entire law enforcement community is a review of all professional

responsibility complaints and/or litigation involving their personnel

on the issue of racial profiling, and that review is anticipated to be

completed within the fall. So I can have a much more full answer

and specific answer to you in my next report, sir.

Mr. CUMMINGS. I think you said that Larry Thompson was—is

doing some investigating now to determine what?

Mr. DINH. That is the study that the Attorney General ordered

Deputy Attorney General Thompson to undertake. It is a study

that reviews all Federal law enforcement agencies with respect to

their practices and policies on racial profiling.

The four components of that study, if I may briefly go into that,

is, one, a summary of the available data and studies relevant to the

racial profiling issues; two, a description of the types of contacts,

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the approximate number of contacts that the law enforcement

agencies have with the public; and, three, a review of current policies of Federal law enforcement agencies concerning racial

profiling; and, four, a review of all judicial proceedings and professional responsibility complaints, as I just explained a minute ago.

That study is continuing. We anticipate completion of that study

sometime in the fall.

Mr. CUMMINGS. OK. Now, I’m just trying to figure out, I mean

under the things that you just named, is there any research being

done as to any other tools that you all may need to properly address any violations?

Mr. DINH. Yes, sir. There is continuing review in appendices A

and B of my written testimony. There are a compendium of not

only the programs that we have but also the assessments procedures for the tools that we need. I anticipate that as we review

these matters, we will be making requests to you in your support

and funding, authorization and funding of these tools so that we

can better combat this problem that we all recognize is a matter

of high priority.

Mr. CUMMINGS. Now, last but not least, when the Congressional

Black Caucus met with President Bush, he said something that

was just—I guess it was just one of the more silencing moments

of our discussion. This was in, I think, around January, and he

said that he—it really bothered him that there are Americans who

believe that there are two standards of justice, or at least two

standards of justice: one for those who have; one for those who

have not; one for those who may be Black; one for those who may

be White. And he said that he would do everything in his power

to address that, so that every American would know that there’s

one system of justice.

And I was just wondering what, if any, other than maybe the

things you’ve said, directives have you all gotten with regard to

this issue to carry out what the President said to the Congressional

Black Caucus?

Mr. DINH. Thank you very much for that question, Congressman,

and it is a promise that I personally believe in also. I think that

the promise and opportunities of America that my family have been

so fortunate to realize should be available to all Americans regardless of immutable characteristics as you noted before.

Specific to your question, on February 27 of this year, the President issued a directive to the Attorney General specifically on the

issue of racial profiling, asking him to review the use of Federal

law enforcement authorities—by Federal law enforcement authorities—of race as a factor in conducting stops, searches, and other investigative procedures, and also to direct him to report back with

findings and recommendations for the improvement of just and

equal administration of our Nation’s law.

Now, as you may recall, the Attorney General also met with the

Congressional Black Caucus, at which time he announced his high

priority in this issue and issued the call to Congress to authorize

him funding to effect these directives within 6 months or he would

undertake the study himself, under existing Department of Justice

authorization and try to find funding elsewhere. I hope not from

my line budget, from my office, but certainly staff from my office.

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It is a matter of high priority, and we are all working very hard

toward that goal.

Mr. CUMMINGS. I think the Attorney General, when he met with

the Caucus said something about 6 months.

Mr. DINH. Yes.

Mr. CUMMINGS. For some reason that rings in my head. And that

was in February?

Mr. DINH. That was in February, sir. And that is why the Deputy Attorney General’s target date for completion of his study is

sometime in the fall. That 6 months would probably run approximately September 28.

Mr. CUMMINGS. OK. I yield to Mr. Clay.

Mr. CLAY. Thank you very much, Mr. Cummings.

Mr. Dinh, I am impressed with your testimony today, and hopefully the DOJ can make progress on this issue. You mentioned in

your testimony that you have several initiatives to address the

problem on States that have already conducted studies.

Here’s what I’m interested in: in seeing the DOJ come up with

a concerted effort, a coordinated strategy to address those areas

that we know are problems. And in the Missouri study, for example, we found that there were pockets and areas where police departments had very high incidents of stops and searches. You

talked about a weed-out-the-bad-seeds initiative. Have you all discussed or initiated any type of program directed toward States that

have already conducted the data collection and addressed the issue

of weed out bad seeds? Just how do you do that?

Mr. DINH. There are two components to your question. I’d like to

take each of them in turn.

Mr. CLAY. Sure.

Mr. DINH. The 6-month call to Congress for action that the Attorney General issued contemplates additional funding for us to study

the data that is collected voluntarily by 37 States and mandatorily

by legislation by the 12 States that are available. That is obviously

a significant undertaking because it is many different jurisdictions

and many different points of data, and so we would like to be able

to get congressional funding for that by the end of September, if

possible. If not, we will try to find mechanisms to do it ourselves.

With respect to your question about the proactive steps that we

can take, the early warning systems that the COPS program have

developed and worked with local and State law enforcement officials to encourage them to implement is one example of that in

order to identify problems and problem officers at an early enough

stage in order to take preventative measures.

This is obviously a very significant undertaking that will require

significant contemplation in terms of the data available, but also

in working out and coordinating a strategy. We are in the process

of implementing or formulating a strategy with respect to that, and

I would like to report to you back in the fall on our overall plan.

Mr. CLAY. Let me suggest that in your deliberations you also consider forming some type of Federal task forces that will send in

agents of color to those areas where you have high incidences of

traffic stops, of vehicle searches, so that they can report back to

DOJ, and you all make the determination whether there are bad

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seeds and how we eradicate those seeds from our local law enforcement. And so let me throw that out as a suggestion.

Also, have you all done any extensive studies of U.S. Customs

and the stops that they make at Customs? Is that completed yet

or not?

Mr. DINH. That is part of our study that Larry Thompson, our

Deputy Attorney General, is conducting. As you know, as Mr.

Cummings noted earlier, President Clinton ordered the collection of

data by certain law enforcement agencies, specifically the INS and

the U.S. Customs Service. We have that data. The Deputy Attorney

General is reviewing that and will report on that as part of his

overall objective, overall report.

With respect to your specific suggestion, of course we take that

very seriously and I will take that back. I also note that recently,

just last month, the Attorney General announced a memorandum

of understanding with the D.C. Police Department where there is

a cooperative effort between the D.C. Police Department and the

Department of Justice civil rights division in working together cooperatively in order to improve the practices of police. I think that

this type of cooperative mechanism is the kind of thing that you

are contemplating in your pattern and practice investigations.

Mr. CLAY. Sure. And with the Attorney General being from my

home State, I would hope he would want to eradicate any issues

that are outstanding in Missouri.

Final question: The video technology, video and audio technology,

in patrol cars where it is used now, do we have issues with law enforcement turning the cameras on, or is there enough technology

that once the car door opens, the camera is activated? Just tell me,

do we have problems with the technology itself?

Mr. DINH. I do not think there are specific questions with respect

to selective deployment of the technology. I believe a lot of these

systems are either automatically activated keen points or roundthe-clock kind of activations so that there is sufficient coverage.

I do note that one advance of technology is the movement from

analog—the normal VHS tapes that we see—to digital, the CD

ROMs that we see. That improvement in the technology will significantly improve the capacity of storage within each car and also

within each department so as to ensure continuous coverage of the

type that you contemplate.

Mr. CLAY. Thank you for that. Appreciate it, Mr. Chairman.

Mr. SHAYS [presiding]. I thank the gentleman. There’s more time

remaining, and, Ms. Norton, you have the floor.

Ms. NORTON. Thank you very much, Mr. Chairman.

Mr. Dinh, I’d first just like to establish what I will call a basic

understanding between the committee and yourself about the legal

and constitutional ground rules so we make sure we’re talking

about the same things. Could Federal funds flow to States which—

where there is evidence of pervasive racial profiling? That is to say,

stops on the basis of race or ethnicity, while—if that continued,

would we not have a prima facie violation of the Constitution and

would we have a prima facie violation of any Federal statute?

Mr. DINH. I’m afraid that I am not prepared to answer that question simply because I have not taken an in-depth review of the

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tion as it relates to the funding matter, but I would like to get back

to you in consultation with our Office of Legal Counsel on that.

Ms. NORTON. Well, I must say that if we got hung up at the level

of generality that I indicated, I’m afraid we are really in trouble.

I thought you indicated that you thought that there was a constitutional prohibition against the use of Federal funds, against Federal

subsidy of racial or ethnic discrimination. And now you say you are

not sure if it’s a prima facie violation even, and you can cite no

Federal statute where there might be a prima facie violation and

here when I say prima facie, because obviously that means that

you’ve only established that there may be a violation, and that is

rebuttable, and you are telling me you can’t even say in answer to

my question where there’s evidence that a State pervasively engages in racial profiling that there is a prima facie violation of the

Constitution?

Mr. DINH. Thank you for the opportunity to clarify, Congresswoman Norton. What I stated before in answer to the chairman’s

question was a citation to the United States v. Whren, which is a

1976 U.S. Supreme Court case, fourth amendment case, that noted

in passing the constitutional prohibition contained in the 14th

amendment that prohibited law enforcement on the basis of race.

I did not extend my remarks to the question you raised; that is,

the linkage to funding, the flow of funds to specific localities. That

is an additional question that I would have to consult with our Office of Legal Counsel—— Ms. NORTON. I thought you raised the notion of the spending authority as well in your answer.

Mr. DINH. I think in my answer to Congressman Shays, I noted

when he asked for speculation as to what authority that Congress

may have in addressing this issue, I noted that this funding clause

is a possible source, and also section 5 of the 14th amendment is

a possible source for congressional authority for action to redress

these problems.

Of course, as I said, the devil’s in the detail. Both of those answers, one, the recognition of the 14th amendment’s prohibition on

the use of race as a basis for law enforcement and, two, the source

of authority possibly under the spending clause and the section 5

of the 14th amendment, do not go to the specific nub of your question, which is whether the Constitution in and of itself prohibits

the flow of Federal funds to localities under certain circumstances.

I do note, however, that, as I noted before, that our civil rights

division has authority and responsibility that we take very seriously to investigate and prosecute pattern and practice violations,

and that is a matter of continuing priority for our Department.

Ms. NORTON. So we’ve established that there may be a constitutional basis for enacting legislation to forbid racial profiling under

the spending authority or under the 14th amendment.

Mr. DINH. I think that is correct. Of course the findings and actions and the like would have to pass constitutional muster——

Ms. NORTON. Of course.

Mr. DINH [continuing]. Under the Supreme Court’s division—for

example, City of Boerne v. Flores—for section 5 of the 14th amendment; South Dakota v. Dole for the spending clause. But those are

things that my colleagues in the Office of Legal Counsel and Office

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of Solicitor General are much more well equipped to answer than

I.

Ms. NORTON. I understand, Mr. Dinh. That is why I’m trying to

keep my questions very general, because I’m not trying to pin you

down on the details. I’m trying to establish, as I said the legal

ground rules. After all, I’m writing legislation and you can help me

to make sure it’s constitutional and that the President would want

to sign it and that the Justice Department would want to be helpful in making—— Mr. DINH. We always can help you in that regard.

Ms. NORTON. Could I read to you Title 6 of the 1964 Civil Rights

Act: No person in the United States shall, on the ground of race,

color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any

program or activity receiving Federal financial assistance.

My question went to the Constitution but it also went to any to

any Federal statute. Do we have a colorable violation of a Federal

statute, namely Title 6, if there is evidence of pervasive racial

profiling by one State which receives Federal funds in its highway

program or any Federal funds that are connected to the violation?

Mr. DINH. I will study your question in reference not only to

Title 6 of the Civil Rights Act but other provisions of Federal law

and will get back to you.

Ms. NORTON. I’m sorry. Would you repeat that?

Mr. DINH. I will study not only Title 6 but all the other provisions of the Civil Rights Act and other Federal law, as you requested, and seek the counsel of my colleagues and get back to you.

Ms. NORTON. Like you, Mr. Dinh, I’m a constitutional lawyer,

and I tell you that if I were in your position, and the Attorney General asked me that question, I would say the devil is in the details—to quote Mr. Dinh—but, sir, I think that there probably is

a prima facie violation and maybe you want me to indeed study the

details to make certain.

Has there ever been a case brought by the Justice Department

under Title 6 on the basis of racial profiling?

Mr. DINH. I’m not aware of any such case, but again that would

require a comprehensive review of all components, and I would like

to study that. We have a Department of 125,000 so I’d like not to

make a categorical answer without—— Ms. NORTON. That is very important for us to know. It is very

important to know under—you haven’t been there very long, so it

would almost surely have to be in some prior administration. I ask

you to in your written response to this committee, in your responses to the committee, to let us know whether or not in its entire history the Department has ever brought suit under Title 6 or

whether any department of the government, such as the Department of Transportation, has ever conducted a Title 6 investigation

based on racial profiling.

I see that I have a note that my good chairman has allowed me

to go overtime, and I appreciate it and I therefore yield back the

remainder of no time left.

Mr. SHAYS. Let me just say to you—I thank the gentlelady and

appreciate her questions, and we would recognize that you are new

into this position and we would like a more accurate answer than

61

one where you are not totally certain. But we would clearly want

the answers to her questions and would expect that you would provide that to the committee and make sure that your staff gets it

right away, Ms. Norton, as well as other members.

Before we have a vote, in fact what I’d like to do is recognize Mr.

Gilman for my time and let him have a statement.

Mr. GILMAN. Thank you, Mr. Chairman. I would just like to

make an opening statement before we have to go to the floor. I may

have to stay over there.

Chairman Shays, I would like to thank you and Chairman Burton for scheduling this extremely important hearing timely to investigate the benefits of any other methods of taking some steps to

prevent racial profiling; the benefits, for example, of the audio-visual technology in addressing racial profiling. I believe that advancing this kind of affordable and accessible technology can help curb

the highly questionable practice of using mandatory racial data collection and law enforcement. That technology can also act as an objective source in disproving claims against law enforcement officers

who have been wrongly accused of using racial profiling.

In short, the challenge we face is to make certain the civil liberties of our citizens and, at the same time, providing our law enforcement officers with the tools necessary to maintain law and

order.

I look forward to the testimony of today’s panel and working with

my colleagues on this important issue. Sound law enforcement certainly is dependent upon good trust between the citizens and police

officers and a sound police/community relationship. Racial profiling

as a law enforcement tool undermines that trust, which is why the

President has directed the Attorney General to undertake steps to

conduct a comprehensive review of the use of racial profiling by

Federal law enforcement authorities, and that is why we welcome

having a representative from the Department of Justice before us

today.

And just one quick question. Is there any question about the use

of audio-visual material in the courts?

Mr. DINH. No, sir. I can imagine certain challenges based on authentication and the like, but I do not know of any specific evidentiary or general evidentiary prohibition on the use of such materials.

Mr. GILMAN. Thank you very much and thank you, Mr. Chairman.

Mr. SHAYS. Thank you. We may be able to get on to the next

panel after the break. I don’t know if—I still have a little more

time on my time. Mr. Barr, you are here, Mrs. Morella, Mr. Platts,

would you——

Mrs. MORELLA. Mr. Chairman, I just simply want to ask permission that my opening statement be included in the record and point

out that I am a lead co-sponsor of the bill to End Racial Profiling

Act and am very interested in this hearing. Thank you.

Mr. SHAYS. Without objection.

[The prepared statement of Hon. Constance A. Morella follows:]

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63

64

Mr. SHAYS. Mr. Barr, opening comment or welcome?

Mr. BARR. Just a quick question for the witness.

Mr. SHAYS. Yes.

Mr. BARR. Thank you. Mr. Assistant Attorney General, thank

you for being with us today and congratulations on your recent appointment.

Would you agree with the following statement: that if in fact the

Department of Justice uncovers evidence of improper racial

profiling, it has tools under current law and regulation to address

that and take appropriate action?

Mr. DINH. Yes, sir. Most significantly, the pattern and practice

authority in our civil rights division.

Mr. BARR. Thank you. Thank you, Mr. Chairman.

Mr. SHAYS. Thank you. Mr. Platts, would you like to make a

comment before—would either of my colleagues like to make——

Mr. CUMMINGS. We have nothing else. Thank you.

Mr. SHAYS. Thank you.

Mr. DINH. Thank you very much.

Mr. SHAYS. Mr. Dinh, thank you so much. It’s wonderful to have

you here. You may be back again and we will look forward to that.

We will be in recess. We do have some votes. I think we may

have two votes, so our next panel may have about 15 to 20 minutes

if they want to quickly get a bite to eat, downstairs one floor. We

stand in recess.

[Recess.]

Mr. BARR [presiding]. I’d like to call to order the continuation of

our hearing in the Government Reform Committee on the benefits

of audio-visual technology in addressing racial profiling. We will

now move to our second panel, having already heard earlier this

morning from the Assistant Attorney General, Office of Legal Policy at the U.S. Department of Justice.

I’d like to welcome the members of our second panel. We have

two members, distinguished members of the Senate of the—is it

State or Republic of Texas?

Mr. WEST. State of Texas.

Mr. BARR. State of Texas. The Honorable Royce West and the

Honorable Robert Duncan. Senators, welcome. We appreciate your

being with us today. We know that both of you have extensive experience in this particular area, as I understand it, both of you

having been instrumental in the drafting of the Texas legislation

on anti-racial profiling.

We’re also happy and honored to have with us today the Superintendent of the New Jersey State Police, Colonel Charles Dunbar.

And I believe the gentlelady from New York has some welcoming

comments for the colonel.

Mrs. MALONEY OF NEW YORK. I just want to thank the chairman

on holding this hearing on this important issue, and Ranking Member Elijah Cummings for really requesting it and helping to make

it happen. I look forward to the testimony of all of the witnesses.

But I would particularly like to welcome Colonel Dunbar from

the great State of New Jersey, which is right next door to New

York, and we share many facilities between our two regions in the

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resents the region that I’m from, and I’m glad to see you. Glad you

are here.

Mr. BARR. Thank you, gentle lady.

The final two witnesses on our second panel are both gentlemen

who have also had actual experience with regard to the subject

matter at hand, and that is racial profiling. Two very distinguished

members of the bar: Mr. Mark Finnegan, a plaintiff’s counsel from

Ohio—Mr. Finnegan, we welcome your being with us today; and

Mr. Robert Wilkins with the District of Columbia Bar Association,

member of the D.C. Bar, who also has experiences that he would

like to relate to us today. Counsel, we very much appreciate your

being with us today.

At this time I’d like the four witnesses to stand and raise their

right hands to be sworn in.

[Witnesses sworn.]

Mr. BARR. Thank you. Let the record reflect that all five witnesses answered in the affirmative. We appreciate your all being

here. I believe you are all familiar with the procedures that we

have here in the committee. Each witness is afforded 5 minutes to

make an opening statement, and following that each member of the

committee will have 5 minutes to ask questions and you’ll have

time, obviously, to respond. If there is material that you would like

submitted in addition to your oral comments, submit them. The

record will remain open for—counsel, 7 days? For 7 days for the

submission of any additional material. And with that, I would like

to recognize Senator Royce West for 5 minutes, sir.

STATEMENTS OF HON. ROYCE WEST, TEXAS SENATE; HON.

ROBERT DUNCAN, TEXAS SENATE; CHARLES DUNBAR, JR.,

SUPERINTENDENT, NEW JERSEY STATE POLICE; MARK

FINNEGAN, ESQ., HEBERLE AND FINNEGAN, LTD.; AND ROBERT WILKINS, ESQ.

Mr. WEST. Thank you. Thank you, Mr. Chairman, and members

of the committee. It’s indeed a pleasure to appear before you to talk

about and be a part of the deliberation on dealing with this particular issue.

It’s a pleasure to appear before you today. The issue of racial

profiling, I don’t think I need to get into the issue of it, I think that

everyone in the United States perceives it as a problem. What I’d

like to do is to spend my time talking about potential solutions to

the issue of racial profiling.

In the State of Texas we passed Senate bill 1074, and I believe

that each of the members of the committee has a copy and also an

analysis of that particular bill.

What I’d like to do is to kind of go through the process, what we

attempted to accomplish and the process by which we accomplished

our goals.

Needles to say, being a veteran of the legislative process, albeit

the State legislative process, I didn’t get everything that I wanted

but I got some of the things that I wanted, and I believe that as

a result of working with my colleague, Senator Duncan, we were

able to pass a pretty good bill.

Central to this particular bill is in fact the issue of video-audio

recording. We believe that particular facet of the bill provides an

66

impartial third party to look at interactions between law enforcement and also citizens. We believe that particular aspect of the bill

not only helps deal with issues of racial profiling but also protects

officers from frivolous complaints, protects citizens from overzealous police actions, provides a very good training tool.

In addition, it provides evidence in criminal cases which may

very well have the impact of reducing the amount of time that citizens have to spend in the criminal justice system, through the judicial process and also prosecutorial time; and we have not been able

to, needless to say, measure that. I know that the past speaker was

asked a question about whether or not there’s any studies out in

academia or anyplace else to measure the impact of the use of

audio-visual as it relates to racial profiling. I know of no such studies, and we attempted to look at that when we were looking at passage of this particular bill. We believe that this is cutting edge and

that given the state of technology in this country and this world,

that we should in fact put in place video—audio-visual recording in

police vehicles.

How did we get to this particular juncture and what does 1074

provide? Believe it or not, we were able to bring in some of the Nation’s most notable and credible civil rights organizations and sit

them down at the table with rank-and-file law enforcement organizations in the State of Texas. The organizations that were a part

of crafting this particular bill and signed off on this particular bill

were as follows: No. 1, the NAACP State chapter in the State of

Texas, the ACLU, ERISA, MALDAF, all signed off on this legislation, as well as several rank-and-file organizations through the police agencies.

What Senate bill 1074 does is the following: No. 1, it puts in

place a reporting requirement, a collection and reporting requirement for police agencies. I want you to just kind of visualize this.

There’s a minimum reporting requirement and there’s an expansive

reporting requirement. If police agencies decide to put in place

audio-visual recording, then they are not subject to the more expansive reporting requirement but they still must continue the

minimum reporting requirement.

The minimum reporting requirement is pretty much akin to the

information that is currently collected, at least in the State of

Texas on traffic citations. What we have mandated in the State of

Texas as a result of passage of this bill is that the race ethnicity

of the person that is issued the citation be recorded, as well as to

record whether or not there was in fact a search and whether the

search was in fact consensual.

We also provide that each law enforcement agency must promulgate policies dealing with racial profiling and that the report of the

data that is being collected be turned over to the governing agency

of that particular law enforcement agency. If it’s a city council,

then the city council.

In addition, we require training that each law enforcement officer that is certified in the State of Texas, they must go through—

as part of their annual education, that they have to go through at

least, of course, dealing with the issue of racial profiling. Not only

the rank and file, but also the chief of police must also go through

such a training and, needless to say, be certified.

67

We require that the law enforcement agency that oversees police

officers in the State of Texas develop, help develop model policies

as it relates to racial profiling and also that the institution of higher education where many law enforcement officers seek training develop a course on racial profiling.

We believe that by putting in place the training component, the

audio-visuals and their collection and the reporting back to the

local unit of government, that it will help address the issue of racial profiling in the State of Texas. How are we funding this? The

State grappled with this particular issue. We sent out surveys in

terms of the number of police agencies that we have in the State

of Texas and how many police cars would need to be outfitted with

these cameras, and needless to say, we’ve gotten back probably

about a 62 percent response from the various police agencies.

The agencies reported that it was going to be in the neighbor- hood of some $34 million. What we’ve done in the State of Texas

because we cannot accurately gauge how much it’s going to cost, we set aside through general obligation bonds about $18 million in

order to begin to address the issue. If law enforcement agencies,

some of which have already received grants from the Federal Government, if those particular agencies come to the Department of

Public Safety, the agency that will be responsible for providing

vouchers and grants, and make a good faith effort in terms of applying for the audio-visual equipment, then—and if some particular

reason we don’t have the funds in order to accommodate those entities, then what we will do is provide them an exemption until the

State has put up the necessary funds for purposes of providing that

particular equipment.

It is my hope and desire that this noble body will also look at

the issue and provide the necessary funding to deal with the issue

of racial profiling.

Mr. BARR. Thank you very much, Senator. Senator Duncan,

you’re recognized for 5 minutes, sir.

Mr. DUNCAN. Thank you. I appreciate the opportunity to be here.

I think one of the reasons I was asked to come here was to comment a little bit on how we developed a bipartisan support for this

legislation in the State of Texas. I think it and, very briefly, I think

what happened there was, No. 1, you have to have leadership on

any issue. I think Senator West did an outstanding job of bringing

the issue forward. I think that he was assisted by a lot of folks.

One of those was President Bush. President Bush came forward,

Attorney General Ashcroft came forward, I believe, with this leadership on this issue and stated that racial profiling should not be

tolerated in this country, and I think Republicans generally in the

State of Texas and others do believe that there is really no conservative principle that can support prolonging or assisting racial

profiling by allowing it to continue to occur, not recognizing that

it may occur.

So we worked with Senator West and I think Senator West addressed the Republican caucus in the State of Texas, Senate of

Texas. We worked with Senator West because we know he has the

ability to pull people together. He did. He pulled together the law

enforcement community, I think, on this issue, which was a key to

that. The concern that we had was that we did not want this legisVerDate 11-MAY-2000 09:43 May 30, 2002 Jkt 000000 PO 00000 Frm 00071 Fmt 6633 Sfmt 6633 C:\DOCS\77191.TXT HGOVREF1 PsN: HGOVREF1
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lation to be more or less a Trojan horse for litigation under 42

U.S.C. Section 1983. We felt that under the Monnell decision there

were some protections that needed to be preserved and we didn’t

need to have loopholes or provide continued or expansion of litigation perhaps with regard to the collection of data, and so we

worked with Senator West.

We believe that the camera was the key to be able to balance

that. We provided in there that the collection of data, there is collection of data in this bill by everyone. It changes, if you have the

cameras; the level and the type of data that you collect is different.

If you don’t have cameras, you have to get very specific with all

data and the data that you collect is on all stops, traffic or pedestrian. If you do not, if you have the cameras and the collection requirement is simply on citations and arrest and it’s basically

whether the person consented, the race ethnicity, and then whether

or not they were searched and whether they consented to the

search, and that’s basically all you report. We felt like the cameras

were a good compromise. That was Senator West’s idea, and I

think that the cameras provide law enforcement functions. They

provide protection functions. They are deterrent, they provide a deterrent element to this, and we felt like it was a good investment.

Like Senator West, I believe that the States should participate

in assisting municipalities in acquiring this technology. I think

that it would also be helpful if the Federal Government should assist the States and the municipalities as well to make this a partnership because it is expensive, but it is a good law enforcement

tool and it protects the rights of our citizens. I believe it prevents

racial profiling, will help prevent it, which is what we really want

to do, and then I do believe it provides a lot of other law enforcement functions separate and apart from racial profiling.

So that basically wraps up pretty much where I am on this, and

I appreciate the opportunity to work with Senator West on this

issue.

Mr. BARR. Thank you, Senator. Colonel Dunbar, we are happy to

have you with us today and you are recognized for 5 minutes for

an opening statement.

Mr. DUNBAR. Thank you very much. First, let me just mention

to Senators Duncan and West that I think you’re certainly taking

the right road and if there’s anything that we can do to assist you,

we’ve been in this about 3 years, we’d be more than happy to work

with you.

The New Jersey State Police I think has the largest fleet of incar cameras in the country and we’ve had that. Virtually every one

of our patrol vehicles has had a camera in it going back to 1998.

I have over 23 years of experience in special agent of the Federal

Bureau of Investigation. Prior to becoming special agent I served

for 4 years as a New Jersey State trooper. In 1999 I was asked by

Governor Whitman of New Jersey to assume command of the New

Jersey State Police, an agency of just under 4,000 personnel, which

has 120 different law enforcement functions. At the time of my appointment the New Jersey State Police had been at the epicenter

of an issue involving racial profiling. The Attorney General of New

Jersey issued the interim final reports on the State police that

raised very serious questions regarding the organization. In addiVerDate 11-MAY-2000 09:43 May 30, 2002 Jkt 000000 PO 00000 Frm 00072 Fmt 6633 Sfmt 6633 C:\DOCS\77191.TXT HGOVREF1 PsN: HGOVREF1
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tion, the minority caucus of the State legislatures held hearings regarding the State police initiative, very critical report.

In December 1999, the New Jersey State Police signed a consent

decree with the U.S. Department of Justice which is scheduled to

last for 5 years. An independent Federal monitor has been appointed and has issued the first 4 of 22 expected quarterly reports.

Each of the reports have been very favorable with the monitor stating that the New Jersey State Police have in fact taken significant

strides in reform. In fact, after 11⁄2 years we are already over 70

percent compliant with the final phase of compliance in the decree.

The items still outside the compliance are computerization of our

management systems to track personnel activities and behaviors.

This computerized system is expected to be deployed later this

year.

When I assumed my responsibility, the need for strong internal

control, discipline and ability to assess how the job was being done

in the field was and is still paramount. It is my position that no

better tool exists for today’s law enforcement manager than the mobile video cameras, MVRs. There is no doubt that my present task

would have been much more difficult without the MVR.

When I assumed my position, the media and the public questioned how we performed our duties. There appeared almost daily

some question regarding our fairness in dealing with the public.

Complaints regarding field operations increased from 260 in 1998

to 350 in 1999, 580 in 2000 and this year we’re on a pace that we

would have 800 complaints. Complaints come from individuals of

all colors and stations of life. By consent decree we must thoroughly investigate each of these complaints and must make the

findings of our investigations available to a Federal monitor. This

has and will continue to be done. Without the video cameras I

would not have been able to demonstrate that the vast majority of

complaints received by the State police are unfounded and in some

cases brought about by opportunists.

You will see such a video today that is common in our complaint

cycle. When complaining as a professional who has written a very

convincing letter alleged—that I received and read within weeks of

my assuming office—a letter that based upon the individual’s background and the fact that it was notarized would have led me to

have serious questions regarding the conduct of the trooper involved, yet you will clearly see that the trooper involved in this

motor vehicle stop had every reason to stop the vehicle and conduct

themselves in a professional manner.

When mobile video recorders were first introduced, there were

those that resisted them. Today we have troopers that will not go

on patrol without them. My personal view of hundreds of videos

has truly been an education. I have found individuals who have absolutely no basis for their complaints, yet they use the complaint

process as a means to strike back at a trooper who is trying to do

his or her job.

We receive telephone calls where the complainant states he or

she will drop charges if the summons issued is dismissed. In one

case a complainant stated that he was an aggressive driver and

that he’d drove hard. He went on to state that the first time the

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trooper pulled in front of him, he tried to go around him and then

the trooper continued to try to pull him over.

On the other hand, we have also seen troopers who have been

rude, have lost their composure and in several occasions have conducted themselves in a manner that is a serious violation of our

rules and regulations. At the present I believe that less than 10

percent of our complaints have real merit.

MVRs are also an important tool in training. We have uncovered

countless training issues that we can then use in our teaching sessions. One of the issues of recent note is that troopers may engage

in conduct that they are not aware of. We have used the videotapes

as spot training for individual troopers. We are also using both

good and bad tapes for in-service and recruit training.

MVRs do bring with them costs for agencies and many additional

legal issues. We will be storing over 50,000 tapes per year. We anticipate that we will have an ongoing inventory of over 400,000

tapes. We are spending in excess of $500,000 for new storage facilities. We have had to create new video camera policies, hire new

staff. We are working on discovery issues as they pertain to tapes

and addressing a variety of technical issues. We are now exploring

the relocation of video cameras from within the vehicle to roof

lights.

Now, after 3 years we are still seeing that most of our video cameras will not last in the field for longer than 3 years. These cameras cost in excess of $3,000 each. At present, the technology requires minute for minute duplication. This is a very time consuming prospect. We have technical difficulties with microphones and

video cameras themselves.

When I began my assignment with the State police there was a

major concern that cameras would not be used in the manner required. We consider this to be a serious breach of responsibility.

Our legislature is pursuing possible criminal violations for tampering with video cameras and I support this. We require an officer

to initiate the camera prior to the stop and continue to operate the

camera until the stop is concluded. This includes activating a

microphone during this entire period. We are now directing that

whenever possible the video camera be activated to observe the actual violation. This is not practical in every case. However, it helps

greatly in resolving complaints, as you will see in the video that

will be shown.

In addition to our MVRs, we are an agency that is also heavily

involved in data collection. This is a component of our consent decree. Data collection will also provide management with additional

insight into field operations. However, while I do not fear data collection, I’ve already seen it misused. The ability to collect data, to

see exactly what officers are doing and to get an up to the minute

review is every administrator’s dream. At the same time, the very

data can be used out of context and lead to wrong conclusions. It

has been said, and I agree, that one can make data appear to support any side of an issue.

I have spoken to the State police and provincial police section of

the International Association for Chiefs of Police. Their position is

that they support voluntary data collection, but we agree that

MVRs will contribute more to resolving today’s law enforcement

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issues. As was stated by the Department of Justice, where MVRs

were needed, last year $12 million were made available and this

year only $3 million have been made available.

As you move forward in this area, I ask that you give strong consideration to providing Federal support and funding additional mobile video recorders. In my discussions with other law enforcement

leaders, I know that they are very interested in obtaining more

MVRs, but the cost of the units will require years of supplemental

budgets to fully integrate them into the field.

Last year the Department of Justice, as I said, made available— I thought it was $10 million for purchase of video cameras. This

tool is extremely important for both officer safety and professional

policing, and it should be a top priority of the Federal Government.

If the general public knows that both they and the officer are being

monitored, it will strengthen their confidence in the way the law

enforcement works.

As a law enforcement leader, it is always my hope that when an

individual does not perform in the way he or she should that the

individual’s behavior can be changed. Make no mistake, changing

behavior is no easy task. However, with the MVR if you cannot

change the behavior, you can at least modify it, and that is the

first step in ensuring that our police force protects the rights of all

our citizens.

My understanding is that you want to show the videotape. The

videotape that we’re going to be viewing is a stop that took place

in 1999. It took place on the New Jersey Turnpike. The trooper is

in an unmarked car operating the video. You will see on the

lefthand side of the screen there’s a black vehicle on the far side.

Now this is the New Jersey Turnpike, so I guarantee you that the

vehicles there are not going 55 miles an hour. The chances are

they’re probably all doing 70, and I give you that speed because the

comparison is the black Mercedes. I believe that is on the side of

the road. You will get a closer shot. I’ll also note that this videotape has been edited to delete the time it took the trooper to issue

the summons.

We did provide the committee with a full copy of this, so it’s not

edited to hide anything. The individual that is driving that vehicle

has indicated by letter to my office that he was a retired military

officer and a principal in a school. He submitted a written letter

which was notarized saying that the trooper stopped him, the

trooper spat on him, that there was no basis for the stop. And I

think the video pretty much will speak for itself.

The actual clock, what he’s doing now is pacing the vehicle and

the pace of the vehicle reaches up to 92 miles per hour. This section of the highway is a six-lane section. The troop vehicle which

will now be shifting over the car portion is actually operating in

the truck portion of the vehicle—of the roadway. Now, from a

profiling point of view, as you can see, it’s very difficult to see who

the occupants of the vehicle are at this point because he’s behind

the vehicle, and he has already made the decision when he switches over the other side of the highway. This is one of the breaks in

the roadway here. I’ll also have you notice when a vehicle is pulled

over you will notice there’s a very dangerous procedure, there’s almost a collision that takes place at the time that the vehicle pulls

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over. By now the trooper had determined that he’s going to make

the stop, and again, it’s very difficult to see who the driver of the

vehicle is.

Now, I don’t know, will they have the sound up high on this?

As you watch as he pulls over, the vehicle parks this way. Because on the New Jersey Turnpike our troopers never approach the

vehicle on the driver’s side of the vehicle because we’ve lost more

troopers like that than we have lost to gunfire. So the trooper will

always blade his car halfway between the roadway and the vehicle

and then will approach from the passenger side of the vehicle for

the trooper’s own safety. Sometimes the trooper will get out of the

vehicle and walk in between the two cars. Other times the trooper

will go behind the vehicle and approach completely on the passenger side of the vehicle.

For privacy’s sake we’ve edited out the license plate of the vehicle and we’ve also edited out the name of the trooper, and again,

if you look at the vehicle here, I think you should be able to see

that you really can’t tell who was in the vehicle. There are two passengers in there and—the passenger and a driver, I should say.

The M indicates that the microphone has come on. Our policy in

New Jersey, and this is an important policy, the microphone.

[Video playing.]

Mr. DUNBAR. The driver is saying he’s sorry he knows he was

speeding and he was in a hurry to get someplace.

What he’s saying there is since I have a perfect driving record

is it possible that I can get a warning. Now is the point where we

edit the film, you will see the time jump from 957 to 1010.

Now, we elected actually to prosecute this individual because he

had notarized the letter, and in fact I’ve liberalized the policy on

prosecution. For the first year we limited the prosecutions to only

five people because you had to do something extra. I did not want

to show complaints, but this is one of the ones we did in fact prosecute. He was found—actually pled guilty and received, I think, a

30-day, 30-day community service and $400 fine for his actions.

I would note for the Senators that one of the things that we

found extremely important is that the troopers were very reluctant

to turn off their microphones in their vehicle. We mandate that

from the time the stop begins and the time the stop ends that the

camera and microphone must be on. There’s too much that’s missed

in between and it leads to tremendous amount of suspicion, and

that was one more of the difficult things to overcome. But we hold

very strongly to the policy of activating the camera and issues of

tampering with cameras and things like that.

Mr. SHAYS [presiding]. Thank you, Colonel. Very helpful testimony and the film was very informative.

Mr. Finnegan.

Mr. FINNEGAN. Thank you for inviting me here to testify. My

name is Mark Finnegan and I have been certified by the Federal

Court as the attorney for a class of all Latino motorists and passengers driving in the State of Ohio. I’ve submitted written testimony which is already before the counsel, and I’ve been asked to

narrate a videotape. I wanted to say a couple of things of introduction for the tape and then it’s a very short tape.

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In Ohio what our lawsuit has shown and what the Federal Court

has ruled is that in Ohio every year thousands of people are

stopped during routine traffic stops in the State of Ohio by the

Ohio State Highway Patrol and although the Ohio State Highway

Patrol does not enforce Federal immigration law and does not give

its troopers any substantive immigration law, thousands of people

every year are interrogated and held for additional questioning on

the issue of their immigration status.

What our lawsuit said and what the judge agreed was because

the Ohio State Highway Patrol troopers have no training in immigration law and don’t really understand how it works, they use as

the sole reason for questioning people their Hispanic appearance.

In this room, if any of you happened to be driving through the

State of Ohio and got stopped, most of you would not be asked

about your immigration status, including me. When I ask troopers

under oath, including the troopers involved in the stop on the videotape, if they would demand to see my green card, one of the

troopers said you being you or you being Hispanic, and another

trooper said of course not because you’re a White man.

But then when we asked the troopers why are you asking certain

people for immigration cards, they knew better than to say because

they look like Mexicans to me. So they would say one of two things

and they said this under oath. No. 1, the motorist and passengers

acted in some way that was suspicious to me, that made me think

they were here without papers and, No. 2, oh, it was completely

consensual, we were just chatting about their immigration status

that I know gladly told me everything I wanted to know.

In the case that triggered the lawsuit, the situation, a middleaged couple with permanent resident alien cards which were completely legitimate were stopped by Highway Patrol troopers for

having a burned out parking light even though it was 1:30 p.m. on

Sunday, but it was true they were driving with their parking lights

and one of them was burned out. They weren’t given a ticket and

there’s no record of their stop. But they both had their green cards

confiscated and the Highway Patrol refused to give them a receipt

for the green cards, refused to explain to them why they were taking the card, refused to tell them how to get the cards back. That’s

what triggered the lawsuit.

This videotape was part of the evidence in the lawsuit and, like

I say, because the couple that was initially stopped, there was no

record of any sort of them having been stopped, this is a videotape

of a different stop. But it involves Latino drivers and passengers

and it involves the exact same troopers in a stop that triggered the

lawsuit.

In the course of the lawsuit the Highway Patrol admitted under

oath that it is routine for them when they stop people who appear

to be Latino that they start interrogating them about immigration

status and even if you’re a Puerto Rican and automatically a U.S.

citizen if you fail to produce a green card you will be held for additional questioning and the Border Patrol will be called. They will

ask you the question, did you pay for your green card? Anyone who

knows anything about immigration law knows that there is an application fee for a green card. Also, you usually have to hire an attorney to get one. You have to pay notaries, you have to pay all

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sorts of document fees. So of course the honest answer is yes, I

paid for green card. Troopers repeatedly testified under oath that

an answer that you paid for your green card made you suspicious

and was grounds for your card to be confiscated and destroyed.

Now, the Federal Court agreed with us, specifically found that

this was not consensual questioning about immigration status, that

it was coercive by nature, and ordered the Highway Patrol to stop

questioning people about immigration status based solely upon

their appearance and also stop seizing lawfully issued green cards.

The Highway Patrol appealed that decision and it’s currently pending before the Sixth Circuit Court of Appeals in Cincinnati.

Now today’s videotape, like I say, involves a different set of motorists, but what it will show, and it shows it relatively quickly, is

that the Chevy Suburban was pulled over for changing lanes without a signal, although that doesn’t show up in the videotape, and

that when the trooper approached and asked to see the driver’s license it was readily given but then for some reason the trooper demanded to see the driver’s license of both passengers in the vehicle,

which were readily given. Then the trooper asked to see the registration of the vehicle, which was readily given and is valid, as are

all three of the driver’s licenses. The trooper turns from the car and

radios in the three California driver’s licenses but for some reason

then turns on his heel and comes back and demands to see the

three people’s green cards, and that’s what the tape shows.

When I confronted the troopers with this videotape during their

deposition, they said I don’t remember, I make so many stops. I

don’t remember why I demanded to see the green card but it was

because the people in the vehicle were acting suspiciously.

Well, the videotape I think is helpful and the court found it was

helpful to see whether there was suspicious activity going on.

[Video played.]

Mr. FINNEGAN. See, in this tape we have no idea why the stop

was made.

[The prepared statement of Mr. Finnegan follows:]

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Mr. SHAYS. Thank you. Mr. Wilkins.

Mr. WILKINS. Thank you, Mr. Chairman. Thank you, Mr. Chair,

and I thank Chairman Burton, in his absence and Congressman

Cummings also in his absence, for their leadership in having this

hearing, and as well as the entire committee for your interest in

this issue.

I’m going to just try to briefly discuss what happened in my particular circumstance and lawsuit and then get to, right to the issue

of what I see as the benefits, but also the limitations of audio-visual technology in addressing racial profiling.

Unfortunately, I am a victim of racial profiling. I was with my

cousin and my uncle and his wife when we were returning from my

grandfather’s funeral when we were driving through western Maryland and stopped by the Maryland State Police allegedly for speeding, but rather than just writing a speeding ticket, the trooper demanded that we sign a consent to search form allowing him to

search our rental car for drugs or weapons. When I explained to

the trooper that—as well as my cousin, who was the driver—that

we did not wish to consent, his response was, well, if you’ve got

nothing to hide then what’s your problem and this is routine, nobody ever objects and basically that there was some sort of problem

or that we were suspicious or trouble because we weren’t willing

to consent to this search.

And when we wouldn’t consent, he said that we would have to

wait for a drug sniffing dog to be brought to the scene and I told

him the name and date of the U.S. Supreme Court case that said

that he couldn’t do that, but none of that seemed to matter to this

trooper, who responded that this was routine. And he knew that

I was a lawyer, and I told him that I was in fact a public defender

in Washington, DC. So I knew exactly what his rights were and

our rights were, but none of this mattered because he said they

were having problems with rental cars and drugs and therefore

they were going to have to take this action.

And indeed they did force us to wait for the dog to come and we

had to stand outside of our car in the rain as this German shepherd climbed all over and on top of and under our car sniffing for

drugs that weren’t there.

We sued and learned that the Maryland State Police had actually issued an intelligence bulletin, which is appended to my testimony, that directed their troopers to be on the lookout for Black

males in rental cars from Virginia traveling through that area

early in the morning and late at night because they were likely to

be drug traffickers, and so in our case we actually had a smoking

gun and we actually had the trooper’s statements that they were

concerned with rental cars and drugs that we could link to that

smoking gun, and that gave us some leverage in dealing with the

Maryland State Police as far as being able to make a case that they

were engaging in a pattern and practice of racial discrimination.

We used that leverage to extract a settlement that not only included new nondiscrimination policy and training, but also data

collection on who was being stopped and searched and for what

reasons and the race of the people being stopped and searched. And

with that data being available to us for several years so that we

could monitor that along with the Federal Court and see how they

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were doing with combating racial profiling, unfortunately that data

showed that the problem was persisting. And there’s more information about that in my written testimony, but suffice it to say the

data showed that when the Maryland State Police searched the

hundred Whites and the hundred Blacks they were just as likely

to find drugs or contraband. The problem is that for every 100

Whites they were searching they were searching 400 or 500 Blacks,

and so it was anything but equal justice under law and there was

no real reasonable explanation whatsoever for that disparity. And

unfortunately those disparities continue till today, though not quite

at as high a level.

So to get to audio-visual technology, I think that audio-visual

technology would have been helpful had it existed in 1992, when

we were stopped by the Maryland State Police, because we unfortunately were in a situation where it was going to be our word

against this trooper’s about what happened and what we said and

whether we were behaving suspiciously.

And I have appended to my testimony not only the settlement

agreement, but also the report that the trooper wrote after we notified the Maryland State Police that we intended to sue, and the report had some very important falsehoods in it that were designed

to show that we were more suspicious than we really were and that

he was more considerate of our rights than he really was and that

we were agreeable to all of this detention and drug sniffing dogs

when in fact we weren’t, and I did everything I could in the most

peaceful manner that I could to protest what he was doing.

And so it’s quite a powerless feeling when you’re going into a

lawsuit and you know that it is your word against someone else’s

and you don’t know whether the jury is going to believe you, even

though you know that you’re telling the truth, and so I think that

the audio-visual technology can help diminish that imbalance of

power that victims feel and provide an independent third party witness. But it’s not a panacea because, as you can even see from the

tapes that we reviewed, you can’t see everything and you can’t hear

everything during the incident, and so it’s not going to capture everything. Of course, it will be helpful, but also the videotapes can’t

really help you look at whether there are patterns and practices

the way that you can if you have data collection because you can’t

look at every single videotape as a police department manager and

you can’t really use the tapes as a substitute for data that will

show you trends in certain areas or with certain officers.

And so while I’m encouraged by this hearing and encouraged

that you’re interested in supporting in whatever ways you can the

expansion of audio-visual technology, I still think that you need to

support and consider legislation such as Congressman Conyers’ legislation and legislation that Congresswoman Norton mentioned

earlier today, because ultimately you need to take more strong

steps and proactive steps, and I think that the loss of Federal funding is a good incentive to encourage the State and local jurisdictions to be proactive.

Thank you.

[The prepared statement of Mr. Wilkins follows:]

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Mr. SHAYS. Thank you, Mr. Wilkins. I thank all of you. I apologize to my two colleagues in the elected side of our, of this panel

for missing your testimony. I’d like to just read a comment that

Sherman would have made had he been here to you, Senator West,

saying I personally want to congratulate you for your hard work to

combat racial profiling in Texas and for the bipartisan effort that

resulted in the passage of a new Texas law that prohibits racial

profiling. And also Senator Duncan, he said I also salute you and

other Texas Republicans’ efforts to work in a bipartisan fashion to

enact the Texas racial profiling law.

I think you described it in some measure. I would like either of

you to just tell me, was this something where both parties had consensus on or was there a bit of struggle at first? Was this, for instance—Mr. Duncan, did you have to be persuaded over time or did

you—were you aware of this problem originally? I would imagine,

for instance, Mr. West being, I assume, an African American, that

you would have been more aware of this kind of problem and so,

Mr. Duncan, maybe both of you could just respond from your own

perspectives as to how you did this.

Mr. DUNCAN. I think Senator West does an excellent job in the

Texas Senate of raising issues like this, that while those of us who

are not of African American descent or Hispanic descent may not

have those personal experiences or have our constituents talking to

us, he was more aware of it. He made this issue aware or made

our caucus aware of this in the Texas Senate, continued to pull all

of the law enforcement groups together. They worked with—including the Associations of the Chiefs of Police, and I think whenever

he was able to develop that undercurrent or the grassroots sort of

support from those associations, he got the attention of a lot of

members who normally wouldn’t be involved in that, proactively in

that type of an issue.

Mr. SHAYS. If you don’t walk in that moccasin you don’t always

know what it’s like.

Mr. DUNCAN. That’s right, or if you don’t represent a number of

constituents who walk in those shoes. So it helps to have someone

like Senator West to bring the issue forward and raise it to the

level that he did. I think President Bush helped and Attorney General Ashcroft whenever I think they took a proactive staff. I know

it did affect the members, the Republican and more conservative

members of the Texas Senate, that this is not an issue that is—

there is no conservative principle that supports anything that perpetuates the practice of racial profiling, and I think Senator West

got that across.

Mr. SHAYS. Senator?

Mr. WEST. And might I add, this was an unusual session for the

Texas Legislature, and if I had to kind of sum up what we did, we

dealt with a lot of civil and individual rights this session like none

other before in the history as far as I know. I mean hate crimes

passed in the State of Texas this time around and also racial

profiling. So did DNA that Senator Duncan kind of led the effort

on. So we had a whole host of individual and civil rights bills that

have been considered in previous legislation but had never been

passed and it was passed this session, racial profiling being one of

them.

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Mr. SHAYS. Colonel Dunbar, Mr. Finnegan, this is really a tremendous panel because we have people who help promulgate very

important law, we have both of you who can explain two sides of

the benefit of the visual look at an arrest or, excuse me, a question,

a stop issue, and, Mr. Wilkins, to have you as someone who has

gone through it from the side of being truly a victim of it. I thank

all of you for that contribution. Colonel, I would think and, Mr.

Finnegan as well, that if you know you’re an officer and you know

you’re on tape—they say it sometimes on the floor of the House,

Members act differently when there’s TV cameras on—I think they

would act differently but over time, and maybe I’ll start with you,

Mr. Finnegan, he knew, the officer knew he was on tape, and did

he not know he was doing something wrong or did he just forget

the TV was on or was it a combination of both? And maybe you

can respond from your perspective, Colonel, but first you, Mr.

Finnegan.

Mr. FINNEGAN. Well, what was interesting I thought about the

tape was that the trooper goes up and announces that it’s, you

know, you were paced slightly over the speed limit, and that is a

friendly warning, and yet there are five troopers wandering around

in the background. So we know that there was something funny

about the stop, and I thought a lot of the troopers were trying to

stay out of camera range.

Mr. SHAYS. I only thought there were three.

Mr. FINNEGAN. There were five as it turned out and a sixth one

showed up with the dog. That is what the questioning was about.

They were trying to hold them up, like with Mr. Wilkins, until the

dog got there. No, he really thought it was all right if you saw

someone with brown skin to start asking them about immigration

status, and he was the trooper that when I said would you demand

to see my green card, he said, you being you or you being Hispanic—and the Highway Patrol actually had a written policy still

in effect that said if a person appears to be in illegal status institute questioning about immigration. And I said what do you mean

‘‘appears,’’ and some of the troopers said they look like Mexicans,

others said——

Mr. SHAYS. So the bottom line point is that whether they evolved

into this practice they really weren’t as aware as you would think

they would be that maybe they were over the line.

Mr. FINNEGAN. That’s right, they thought they were doing the

right thing.

Mr. SHAYS. So it tells me there’s a value in just having this because I would think—which gets me to you, Colonel. I would think

that supervisors would periodically look at these and maybe at random, and I would think you would be able to improve the practices

of your officers in the process of also protecting them and the citizens.

Mr. DUNBAR. Well, first of all, we do have a policy that supervisors have to review tapes. Actually we review tapes on three different levels. We have a supervisor reviewing the tape, we have an

inspection staff that comes in and reviews the tapes, and we have

an office within the Attorney General’s Office called the Office of

State Police Affairs that comes in and reviews the tapes. Unfortunately, I think what Mr. Finnegan says is correct, that what ends

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up happening is that for whatever reasons practices begin and

they’re unacceptable practices.

I’ve seen tapes somewhat similar to this where the individual believes that they’re doing the job. In fact, we teach what’s called

noble cause corruption, and what noble cause corruption means is

that the ends—the means justifies the ends, and that’s something

that we are trying to get away from. People will ask and I’ve

seen—well, in New Jersey we’ve had a series of Supreme Court decisions that limit checks as far as, you know, lost driver’s license

and so on, but this, Mr. Finnegan’s tape, is an issue that we are

looking at in New Jersey. That I have seen, and it is a—I think

you made an interesting observation when you asked a question of,

you know, you would think, well, you know, the reality of it is if

a person doesn’t believe or know what he or she is doing wrong is

wrong, that’s what—you end up with problems, I think, as was

shown on that tape.

Mr. SHAYS. Let me ask one last question and then I don’t know

if Mr. Barr, if you have some questions you’d like to ask. Mr. Wilkins, in the work that you have done, and maybe others could answer as well, is it conceivable that even an African American might

get caught up in racial profiling against another African American?

Is that something that can happen as well? I mean, would that

ever be in your experience, Senator West or Mr. Wilkins, or is it

almost always 99 percent of the time a Caucasian would do that.

Mr. DUNBAR. There’s actually a Justice Department study that

was done by the Bureau of Statistics that actually points that out.

There’s really no difference between African Americans and non-African Americans in relationships with the public. So from my point

of view, I think it’s very possible.

Mr. WILKINS. Yeah, I think that it’s definitely conceivable and it

definitely happens that African American and other police officers

of color can engage in these practices because I think that the practices themselves just mirror invalid and erroneous and illegal

stereotypes and part of just American culture, and so you can’t expect police officers or troopers to really be immune from it no matter what the color of their skin is. I do think in some occasions that

some of the whistleblowers and the police officers and the troopers

that have come forth to try to help address problems have been African American and other minority ethnic and racial groups, and

so I think that there is sometimes more of a sensitivity by some

of those troopers, but they can definitely get caught up in the same

problem.

Mr. SHAYS. I can’t imagine almost anything scarier than to think

that you can be in a society where you have laws and you realize

how protected you feel from them, but not feel they wouldn’t be administered fairly and equitably and it has to be, you used the word

‘‘powerless’’ and that’s—but you have to feel even worse than powerless, you have to feel extraordinarily vulnerable and it must be

very scary and it must, I can even think, it’s a hard word to describe. I think it would be scary as hell, frankly.

But we, for some reason I guess, divided each panel into half an

hour slots and I have ended up taking 10 minutes. I don’t know

if we each should go for 10 minutes and if you would like to jump

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in or how you’d like me to proceed. Why don’t you go for 10 minutes?

Mrs. MALONEY OF NEW YORK. Thank you very much and, first

of all, I want to comment that my colleague Elijah Cummings

worked very, very hard to have this hearing, and I appreciate the

chairman for holding it and we’re trying to locate him. He has a

conflict with another meeting that he has to be part of, but he

wants to get back to questions, and thank you and particularly,

Senators West and Duncan, thank you for your testimony and your

hard work to enact this law. I hope I have time to hear from you

about your reactions to the Conyers law that is similar to yours,

and I particularly want to hear how the exemption provisions work

in your legislation.

But first I’d like to really talk to Mr. Wilkins and thank him for

coming forward with his personal experience and for your hard

work really to reach a settlement that helps people, and part of

your settlement was that the police are required to collect data on

traffic stops, correct, and why do you think that data collection is

such an important tool for combating racial profiling?

Mr. WILKINS. Well, I think that it’s proven to be very important

in the State of Maryland because we had a situation where our

lawsuit got a lot of publicity. I mean it’s not often that you have

a Harvard law graduate attorney who cites the Supreme Court

precedent to the trooper and still gets stopped and then you get a

smoking gun with a written racial profile and all of that turns into

a lawsuit. So there was a lot of pressure on them and there was

a lot of people watching how they were going to react to this issue

and these allegations, and we reached a settlement and they adopted a new policy and they trained every trooper as to that new policy and they started gathering data, and they knew it was going

to a Federal judge and to the ACLU and to me and they knew that

none of us was going away, and yet with all of that, all of that attention and pressure and everything else, we got this data that to

this day can’t be explained on any other basis except that there

must be some discrimination going on in the Maryland State Police

because these disparities just can’t be explained any other way.

And so if you have policies in place and people being watched and

it’s still taking place, you know that this is a pretty pervasive and

a cultural and a problem that’s going to take a lot of management

and attention, and you can’t expect that just putting some video

cameras in cars or just adopting new policies is going to eradicate

it.

It’s a problem that unfortunately is as endemic to policing as racial discrimination is endemic to the culture of this country, something that’s going to take generations and lots of hard work and

special sensitivity to deal with.

And so that’s why I think that the data collection is important,

because you would think that with all of that there wouldn’t be any

problems in Maryland still today and yet there are, just like you

would think that with the video cameras in the cars you wouldn’t

see troopers doing some of the things that we see them doing. And

so I think that you really need all of these tools in your arsenal

to try to fight this problem.

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Mrs. MALONEY OF NEW YORK. What you’re basically saying is

that you have to change attitudes?

Mr. WILKINS. Exactly.

Mrs. MALONEY OF NEW YORK. And it’s a longer, harder road. I

am particularly sensitive not only to racial profiling against minorities but also against women. Violence against women was not

treated seriously by many law enforcement officers and most notably the attacks in Central Park, where many women reported that

they approached police officers and they wouldn’t help them when

they had been mauled and attacked.

And so maybe we need more attention not only in audio-visual

technology and collecting data, but really in educating attitudes in

our society and, Colonel Dunbar, you testified that in some cases

audio-visual technology can be used to exonerate police officers that

have been wrongly accused of racial profiling. Protecting innocent

police officers from false accusation is very important, but do you

agree that racial profiling does exist?

Mr. DUNBAR. Yes.

Mrs. MALONEY OF NEW YORK. And wouldn’t you agree that in

order to deal with the problem of profiling we need to understand

the scope and severity of the problem and that requiring data collection is a way to do that?

Mr. DUNBAR. I think actually everything that Mr. Wilkins said

is right on the money, that it is a very complex issue and what people are looking for is a quick fix. Mr. Wilkins talked about generations. I mean, unfortunately, I think, and I think you used the

term ‘‘attitudes,’’ it is about changing attitudes. It is about changing policing and the thing that we’ve adopted in the State police

is that we will do our job constitutionally and with compassion, and

I go out and I sell that every single day. It is data collection, it is

the video cameras, it is training and it is supervision on a daily

basis.

Mrs. MALONEY OF NEW YORK. Do you believe you need both data

collection and the videos or could you have one or the other?

Mr. DUNBAR. No, I think it’s beyond that. I think you need data

collection, I think you need the video, and I think you need constant training and supervision. People are looking for a quick fix.

There is no quick fix to this.

Mrs. MALONEY OF NEW YORK. I agree, I agree. I know I, along

with many women, we went to the police department after these

assaults in Central Park, and I believe that New York’s police officers are the bravest in the world. They’re not afraid of anything.

That’s why they’re police officers. They’re there to protect people,

but for some reason some of them didn’t think that hitting or beating or stripping a woman was a crime, and one officer made a comment to me that we can’t change attitudes and, you know, admitting that attitudes are a problem.

What is happening in the police field on attitudes, Mr. Wilkins,

Mr. Dunbar, Mr. Finnegan, anyone who would like to comment? I

agree with you, Mr. Wilkins and Colonel Dunbar, that it’s a deep

problem that goes farther than videos and data collection. It goes

to attitudes of how you treat another person.

Mr. DUNBAR. One of the things I think I need to say, I think

there are a lot of police officers, probably the vast majority, that

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do their job and they do the job professionally. There are those individuals that don’t. We are a reflection of society. We have taken

on the position that we have gone back, and just as Mr. Wilkins

talked about in Maryland, we’ve gone back, and we have like almost a eight or nine-phase program where we’ve gone back and

trained all 3,000 troopers and made a commitment to train all the

new troopers coming in. We are truly interested in changing our

organization but the thing—— Mrs. MALONEY OF NEW YORK. Are you trying to change attitudes?

Mr. DUNBAR. Oh, absolutely.

Mrs. MALONEY OF NEW YORK. Because training is training. You

do this, that, and the other, but are you also looking at attitudes.

How is policing affecting attitudes?

Mr. DUNBAR. That is—it’s one of those situations where you find

someone who does something wrong, one of the things I have

stressed since I’ve been on the job in Internal Affairs, and the basis

there is if you’re doing something wrong you’re going to get punished, and my contention is that if people know they’re going to be

punished for doing something wrong—— Mrs. MALONEY OF NEW YORK. Some people may not think they’re

doing wrong.

Mr. DUNBAR. Well, whether you think or you don’t think it

doesn’t make any difference because if you are doing it wrong, as

I think was the case in Mr. Finnegan’s situation, you’re going to

be found wrong by somebody, and that is part of changing the attitude, getting them to understand that what they were doing is not

acceptable.

Mrs. MALONEY OF NEW YORK. I will say that I have been stopped

twice in my life, just I don’t know why, and I guess just routinely

to check if you have a license or a registration or your inspection

card, and I gave it to them and I said thank you very much and

I went on. So it’s routine to stop people just to check if they have

a license, I guess.

Mr. DUNBAR. Well, that’s one of the things you can do, but the

issue as you said, the issues of changing attitudes is no small, no

small feat. In fact, I said in my opening statement that my philosophy is that if I can’t change behavior I want to at least modify it.

And you talked about violence toward women. If you take a look

especially in New Jersey at what’s happened with domestic violence laws, there’s been a radical change from the seventies to

where we are now, where it used to be no one ever got arrested.

Now if there’s a domestic incident in New Jersey, you’re going to

be arrested and there’s a change of policy and a change of attitude.

Mrs. MALONEY OF NEW YORK. I agree, it used to be you beat up

a stranger on the street you get arrested and you beat up your wife

and they say it’s a domestic problem, and I applaud New Jersey

and New York that have made tremendous strides in domestic violence and other areas, not enough, but tremendous strides.

How has the early warning program worked in addressing the

attitudes of the troops? You’ve started this early warning program.

Could you talk about that a little?

Mr. DUNBAR. We have and we haven’t. The early warning program is actually in the trial stage. It actually goes on-line the end

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of November. I think that is a key element that when you talk

about changing the attitudes, you can see things where you get

complaints about individuals. Even if you don’t substantiate, if you

get the similar complaint you need to look harder, and I think

that’s what the data collection issue goes to, that if you see a pattern where a person is just stopping certain people, stopping one

sex as opposed to the other sex, you need to be able to look at that,

and my only fear with data collection is that—as again as I said

in my opening statement, is that there is a tendency to make data

appear to serve whatever purpose and it really needs to be much

more thought out that this is the number, this is the end. It truly

is more complex and I mean, quite frankly, as I said before, I think

Mr. Wilkins had it right when he said that it is at least a threepronged data collection: Videos, attitudinal change, training and so

on.

Mrs. MALONEY OF NEW YORK. Well, my time is up. I want to

thank all of you, and really request that you look at Ranking Member Cummings’ legislation on racial profiling and give us any comments you may have. And I just want to close not only by thanking

all of you for being really leaders in this field and trying to address

it and make it better for all Americans, and I thank especially my

colleague, Elijah Cummings, who has been working on this since

we came back into session, working to get this hearing and working to move forward legislation. I want to comment on his extraordinary leadership.

And thank you, Chris, for having the hearing, very, very much.

Mr. SHAYS. Thank you. Mr. Burton, I know, has worked with Mr.

Cummings, and we do want to thank Mr. Cummings for having

this hearing. And, Mr. Barr, you have the floor.

Mr. BARR. Thank you very much, Mr. Chairman.

Colonel Dunbar, what is the cost that you-all have occurred to

install a camera in each cruiser?

Mr. DUNBAR. The immediate cost is approximately—this was just

for the State police. The immediate cost was between $6 and $7

million.

Mr. BARR. No. For each camera.

Mr. DUNBAR. For each——

Mr. BARR. What does it cost for each——

Mr. DUNBAR. $3,000 per camera.

Mr. BARR. $3,000. Is there any significant upkeep cost to it?

Mr. DUNBAR. Yes. We have to—not only the additional tapes that

we buy, but then the storage of the tapes, we’re committed to keeping them—I think it’s for 60 months, if I’m not mistaken. We have

a repair contract that costs us several hundred thousand dollars.

We also have now had to create a unit to collect the tapes, store

the tapes, make the tapes available for discovery. It is no cheap

deal.

The State of New Jersey, initially I had spoken to the former

Governor, and a bill was passed for $10 million for local municipalities. But this is an area—and I will tell you, Mr. Barr, in talking to the other superintendents, this is an area that all of us

would be very, very desirous of having some help from the Federal

Government in the purchase of this equipment.

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Mr. BARR. Would you—and I know there are a lot of different

needs that you all have, and we’re all trying to do our best to help

meet those needs within the balance of both our budgetary and jurisdictional concerns. Would you place this fairly high up on the

priority list in terms of assistance that might be provided by the

Congress?

Mr. DUNBAR. Yes. Yes, I would. And I’ll tell you why. I don’t

think you had a chance to see the video but—— Mr. BARR. I did.

Mr. DUNBAR. OK. What’s transpired is that we’re receiving numerous false complaints, and they do a couple of things. They tie

up my Internal Affairs investigators so we can’t concentrate on the

complaints that are there and that are valid. That’s a downside. I

think that this issue of racial profiling—in fact I call it biasedbased policing as opposed to racial profiling, because it really goes

beyond racial profiling. It’s a national issue and it’s something

that’s eroding confidence in the police, and we have to have that

confidence back. And I just think that the video camera right

now—while I don’t believe in quick fixes, I think video cameras is

in fact somewhat of a quick fix because it allows people like myself

to really see what was going on. And I for one am not hesitant in

disciplining my personnel if they’re doing something wrong. I also

want to stand by them if they’re doing the right thing.

And, you know, in my agency, there was resistance when we first

fielded them. Now there are troopers who will not go out on patrol

without them. And one of the things that we have done in our organization is that I have made it a paramount issue that manipulating that camera or playing with that camera will get you in serious

trouble. But I think this is a major issue for—it’s such—such a

major issue that I went to our Governor, our former Governor, and

asked her to give 24 of our vehicles to two of our cities that did

not have them and couldn’t afford them, just so they could see how

good a tool they are.

Mr. BARR. What has been the reaction from outside groups, some

of the groups that the Senators in Texas have worked with? ACLU,

the NAACP, other citizens groups, have they been supportive?

Mr. DUNBAR. We have not heard on the legal aspect of this, and

there are some States that prevent you from doing recordings and

so on. But by and large, I think that the ACLU and the NAACP

are more concerned about the issues of profiling, and anything that

can be done is looked upon favorably, and probably Mr. Wilkins

would be in a better position to answer than I.

Mr. WILKINS. Well, in Maryland we—‘‘we’’ meaning working with

the ACLU and the NAACP—have asked as a remedy for a court

order for videotapes to be placed in cars. And that’s something

where we agree with the Maryland State Police, not on the court

order, but they want the videotapes as well. It’s just a matter of

cost for them. So it’s something that we all agree would be beneficial. We are all on the same page there.

Mr. BARR. In terms of protecting the privacy of the individuals,

do you have a mechanism in place? Obviously every person that’s

stopped isn’t cited, every person isn’t arrested; yet there is a record

of them having been stopped. What mechanism do you have in

place to protect the privacy of the individuals?

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Mr. DUNBAR. Well, you want to have a record, I think, of the

stop, and you want to have the most complete record of the stop.

We don’t release the tapes. There is some issue that, you know, for

example, I think Pennsylvania is one of those States where you’re

not allowed to record an individual without their consent. We don’t

have that problem in New Jersey. As long as the trooper’s there,

there is no expectation of privacy.

We have also explored the possibility of actually putting up signs

on the interstates that—similar to radar being used—cars use videotapes. And the reason we want to do that is we want people to

know that they are in fact being videotaped. I just think that we

live in a very aggressive—one of the things that review—and I review a lot of tapes, and one of the things that I’ve seen is that we

live in a very aggressive society. We have road rage. We have a

bunch of individuals that are very, very impatient. And I think

that the public, knowing that their actions are going to be recorded,

will possibly dissipate bad behavior on both parts. But as far as

privacy issues, we’ve not really run into any of them.

Mr. BARR. If I could, Mr. Chairman, ask the two Senators from

Texas that same question in terms of protecting the privacy of individuals who might, or whose car might appear on those tapes. Obviously if they’re used in a court proceeding, the information has

to be disclosed; but for other purposes, is there a mechanism in

place in Texas to protect the privacy of these tapes and the information on them?

Mr. WEST. The issue of privacy never came up during our deliberation, Mr. Barr. I believe that from a constitutional standpoint,

at least from my study of the criminal law, that when you’re driving a vehicle, it’s a privilege, No. 1; and, No. 2, when you’re driving

on the highways and byways of a State of this country, that you

give up a certain amount of privacy as it relates to your operation

of that motor vehicle—— Mr. BARR. I’m really talking about dissemination of the tapes.

For example, I don’t know what the statistics would be, but as I

mentioned before, every car that’s stopped does not result in an arrest or citation. I presume most of them do because the reason

they’re being stopped is because there’s probable cause that the officer presumably can establish. But if you have an individual, and

for purposes of court proceedings that tape is never introduced in

evidence, it’s not used in a court proceeding, can the public have

access to those, or somebody that just might have some interest in

saying, hey, I’d like to see who was stopped out there and try to

make an issue out of it?

Mr. WEST. In our bill we did a couple of things. No. 1, as it relates to the tape itself, it’s on file for 90 days. I believe that it is

in fact subject to public disclosure, whether it’s the person that’s

driving the car, or—not as a result of the police officer stopping the

car—as a result of constitutional law where you have to give up a

certain amount of freedom in order to exercise that particular privilege, that it would in fact be subject to an open records request.

Mr. DUNBAR. Mr. Barr——

Mr. BARR. That’s interesting. Yes, sir.

Mr. DUNBAR. In New Jersey, for example, the tape we showed

here today, even though this case has gone to court and there was

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a guilty plea, we still had to get a legal opinion. We took out the

license plate and we took out all references to the individual. We

will not give out these tapes to anyone unless there’s a court proceeding and we’re directed to give them up. It is just our policy

that they’re like our records. We won’t make them available to anyone unless there’s a specific legal request. We consider that—we

consider that the same as one of our reports. They’re just not given

out.

Mr. BARR. Thank you.

Mr. DUNCAN. I would like to comment. I think that it makes

sense to have some sort of a privacy policy in there, because obviously if you create a governmental record that would be subject to

open records. At least in Texas I think it might be. And, you know,

I think that you can—we probably should have looked at that, or

should look at that at some point in time, because I think it is an

important issue when you’re preserving these records. Although

they may be important records later down the road to where you

have to have some access to them or the public needs some access.

I don’t know how to balance that, but I do think that you raise an

important issue.

Mr. DUNBAR. Mr. Barr, one other issue that I don’t know whether Texas has thought about this yet, and that’s the fact that I think

our time period that we keep them is 60 months, and I know it

may be 30, but it’s based on what our civil—if you file a civil suit,

plus 6 months, because what’s going to happen is if you have those

records, and a year later Mr. Wilkins decides to sue, and you’ve destroyed the records, that’s going to be very problematic.

So from the very beginning we tied it to 6 months—6 months— 30 months I think from the time of the incident, and it goes 6

months beyond. So if you filed at the 24th month, we would still

have 6 months that we would retain that. We want to have the

ability to produce that because, if we don’t produce it, there’s going

to be a question of what happened to it. So your 90-day—unless

your civil claim is 90 days, it’s going to be problematic for you.

Mr. BARR. Thank you. Thank you, Mr. Chairman.

Mr. SHAYS [presiding]. I thank the gentleman. And now Mr.

Cummings, the gentleman who’s responsible for all of you being

here.

Mr. CUMMINGS. Thank you very much. And to the gentlemen, I

want to thank you for your testimony. I want to apologize. We have

a catastrophe in Baltimore, in my district, literally about 8 blocks

from my house. So I’ve been kind of running in and out trying to

deal with that, with the train derailment. So I apologize. The timing is just not good. I just wanted—to you, Mr. Royce, and to you,

Mr. Robert.

You know, one of the things that I’m noticing, and a little bit earlier Mr. Waxman talked about—I think it was Mr. Waxman— talked about this study that was done and how Whites perceive the

problem and how Blacks perceive the problem. I mean when I go

into my district and I talk to women—and particularly, believe it

or not, women seem to be as much or more sensitive to this problem than a lot of men. And the reason why they’re so concerned

about it is because it’s their sons, a lot of women concerned about

their sons and their husbands being profiled. So how did you raise

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it to a level where people didn’t play games with the legislation,

but actually said, wait a minute, we do have a problem? And just

because people realize they have a problem doesn’t mean they’re

going to deal with it, as you know, from any kind of—being in the

State legislature. So how did you get it to that point where people

felt, you know, yeah, we do have a problem and need to do something about this?

Mr. WEST. Mr. Cummings, as I stated earlier, this legislative session—and I think Senator Duncan would agree with me—was pretty strange in Texas. We dealt with a lot of civil and individual

rights issues. There was actually bipartisan support for it and

passed. In terms of the issue of racial profiling, it was brought up

last legislative session, but no significant action was taken.

What we did this time around was to bring in the NAACP, who

initially raised the issue with me, and the American Civil Liberties

Union and La Raza and MALDAF, those types of organizations,

with law enforcement. And the first question I asked them, I said,

is there anyone in this room that does not believe that racial

profiling is an issue in the State of Texas? I said, if so, raise your

hand. No one raised their hand. I said, well, we don’t have to dwell

on whether it’s a problem. Let’s now dwell on a solution to the

problem.

And so that’s the way we started the process of coming up with

something that we believe can help address the issue.

Mr. DUNCAN. I will comment that Senator West can be very persuasive, too, and he did challenge me to go with him—— Mr. CUMMINGS. I’m sorry. I meant to say—I’ve got to put glasses

on for one thing. I’m sorry, Senator West. I said Senator Royce. I

apologize.

Mr. DUNCAN. I was going to say that Senator West had challenged me on several occasions. He and I worked on several issues

together over the years, and he said, I want you to grow a beard— I can’t grow a beard, for one—but grow a beard and we’ll go dress

in jeans and go walk out on the streets of Dallas and see how we’re

treated, and I want you to see firsthand.

We didn’t do that, because I got to thinking about that might not

be a good idea, but I think he did personalize the issue with me,

and I think we have to do it as policymakers, try to walk a mile

in those shoes. And I think that’s the role that Senator West

played in this issue.

Mr. CUMMINGS. The reason I asked you all this question is because you are from Texas, a southern State, and be able to—and

I served in the Maryland Legislature for 15 years and it just seems

like, you know, there are a lot of issues that we grapple with, but

we never could get them to a point where we had effective legislation. We have it now, but—and I don’t know if it’s as detailed as

this legislation that you all have. So you’re to be congratulated.

Mr. Wilkins, I’m pretty familiar with your case, being from

Maryland. The—you think the cameras would have made a big difference in your situation?

Mr. WILKINS. I think that they would have made a difference

in—because the trooper—the report that he wrote up after he

found out that we were going to file a lawsuit, he was very careful

to make it appear that, one, we were more suspicious than we were

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by saying that instead of coming from a funeral in Chicago and returning to the D.C. area, that we were traveling from Pittsburgh

to Baltimore, but yet we had a Virginia rental car—which was not

true—and he didn’t say anything about the funeral.

He also, all of a sudden, I guess, was very concerned about our

rights, because he wrote in his report that he told us that we had

a right not to sign the consent form. Yet he was the same trooper

who said if we didn’t sign the form, then we must have something

to hide. And he said that we agreed to wait for the dog, which was

going to raise an issue in court as to whether we were really detained because, if we had agreed and in effect consented to wait for

the dog, then he could argue and the State could argue that there

wasn’t a detention.

And so there were all of those issues that we were very concerned that we were going to have to fight about. But I can promise

you, if there had been a videotape, there wouldn’t have been a fight

at all. Fortunately, we were able to settle the case on favorable

terms but, you know, a videotape would have helped.

Mr. CUMMINGS. To all of you—and you all may have answered

this question already—but, you know, we’re always trying to figure

out what it is that we can do to be helpful to States and what

makes sense. Sometimes I think the Federal Government does a

little bit too much intruding, but I’m just wondering what, if you

all could—I mean if there’s things we could do to help you do your

job, what would it be to get this done; I mean to further what

you’re trying to accomplish?

Mr. WEST. Thank you for asking the question. I think it’s very

critical, and Mr. Barr asked the question about the cost of video

cameras, and Colonel Dunbar indicated what the cost is for the

great State that he represents. Needless to say, Texas has over 20

million people. I firmly believe that Congress should take the lead,

working closely with the State and also with local units of government, be they parishes, counties, or cities, in funding a process

where we put in place video cameras; video and audio in all police

vehicles—that are used for traffic purposes in this country.

I think that it has several positives, many of which have been

noted here today. No. 1, it protects the citizen, it protects the police

officer, it provides evidence of any criminal wrongdoing that subsequently can be utilized in a court of law if necessary. But in most

instances, if you have a smoking gun videotape, then what you’re

going to have is less need for police officers to take time off of the

street and spend time down at the courthouse, as well as prosecutorial costs related to it; which we can’t measure now because we

hadn’t tried this before.

I think that it is very important that Congress uses its vast resources and influence through purse strings to put in place the requirement that we have educational programs geared toward what

racial profiling is, that we look at adopting the Department, the

Justice Department definition—which Texas has done—in reference to racial profiling throughout this State; and that we have

funds—obviously you send funds to the State—that you require

States to have training programs that include racial profiling; and,

in addition, through your funding mechanism, require States to reVerDate 11-MAY-2000 09:43 May 30, 2002 Jkt 000000 PO 00000 Frm 00111 Fmt 6633 Sfmt 6633 C:\DOCS\77191.TXT HGOVREF1 PsN: HGOVREF1
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quire units of government to adopt policies concerning racial

profiling.

Mr. CUMMINGS. Anybody else?

Mr. DUNBAR. I just want to echo what he just said. I think that,

as was testified this morning, last year they gave $12 million to

video cameras from the COPS program. This year I think the budget was $3 million. This is a time for increases, not decreases.

The other thing that I just want to briefly mention is there’s a

variety of both State and I think Federal proposed bills on racial

profiling. And one of the things that—as the head of a State police

organization, one of the things that I found very problematic is

proving intent. And the issue of intent is going to be one—if these

bills are passed, I think it’s going to be very difficult to prove.

But yet, again, what Mr. Wilkins said with video cameras. For

example, if you have documentation that does not coincide with

what you have in your video camera—and in New Jersey what we

have been doing is we have been going after the administrative violations or false reports and so on, and that is a way I think that

you can document misdeeds.

And if racial profiling bills get passed, I think the next struggle

you’re going to see is, you know, how do you prove intent? And

that’s a question that I’m asked every single day by the media, you

know; what about this case, what about that case? And that is

going to be a challenge, and I think that it really needs to be

looked at.

What is it that we’re going to look for? What is going—what is

it—you know, how do you get in the mind of an individual? We discussed earlier about attitudes. How do you get to what that person

is thinking?

And this morning you started off in your statement talking about

the issues that we’re discussing, going back hundreds of years, and

I think what you said this morning is right on the mark. And to

me the issue of racial profiling becomes an issue of race in America

and our struggle to appropriately deal with it, and I think law enforcement is making an honest effort.

We need help financially, and you know, dare I say, we need

some time to try to change things, because I think things are

changing.

Mr. CUMMINGS. You know, I see my time is up. It’s so interesting

when we talk about the perceptions of how some White people look

at racial profiling and maybe African Americans or Hispanics may

look at it. But, you know, as an African American man, I can tell

you that you begin to live your life with an extra bit of caution. I

mean if you talk to most Black men, they will tell you that they

make sure that their lights are fixed on their cars, they make sure

that no tags are hanging down, they make sure that everything is

in place, because we don’t want to be stopped and because we’re

afraid of what’s going to happen. And as I practiced law for 15

years, I saw so many instances of where a little incident like a stop

resulted in three or four or five charges: assault against the police

officer, disorderly conduct, resisting arrest. That’s the trilogy normally.

Mr. WEST. That’s right.

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Mr. CUMMINGS. And so somebody has a record and they have a

record until they die, usually. So I just want to thank you all.

You’ve been here a long time. Ms. Norton, I didn’t know whether— but I just want to thank you all. Because being Black in America

and being male is not easy, and I don’t mind saying it to anybody.

Even as a Congressman, it’s not easy. And we’re seeing our jails

being filled with African American men and women now at a phenomenal rate, disproportionate rate. And I just think that the

things that you all—Senator West and Senator Duncan and, you,

Colonel Dunbar and, you, Mr. Wilkins, and, you, Mr. Finnegan, all

of you, you’re doing something to touch the future. And the things

you’re trying to do is prevent some things from happening in the

future.

And I think that if all of us just looked at—every time I go to

an elementary school—and I’ll be finished with this, Mr. Barr.

Every time I go to an elementary school, I look at those little kids

in my district, and then I ride about five or six blocks away and

I see new jails being built, and I know that those jails are being

built for them, and it breaks your heart, and so—but hopefully, the

kinds of things we’re talking about today will allow those people to

do the things that was intended for them by God, so that they can

grow up and sit at a table, like you, and be productive.

And I just wanted to put your testimony in some kind of a context, and what you’re doing in context, and to thank you for them.

I really do thank you.

Mr. BARR. I thank the gentleman from Maryland. Mr. Finnegan,

if you would, please describe for us or summarize for us the laws

that were available that you were able to use successfully in your

case to obtain relief for your clients in Ohio.

Mr. FINNEGAN. The law—there were no specific laws. The basic

was a straight 1983 action for a constitutional violation under the

fourth amendment for improper search and seizure; and under the

equal protection clause, questioning people based solely on their

appearance and race. We also used Title 6 because, of course, the

Highway Patrol gets—it was about $3 million a year from the Federal Government to do this racial profiling. And Title 6 survived

summary judgment. It’s not up in front of the Sixth Circuit right

now on appeal, like the constitutional issues are, but the judge did

find that Federal money was being used to do this.

Recently Title 6 took a hit with the U.S. Supreme Court ruling

that there’s no private cause of action under Title 6, which very

well may throw out a large part of our case. And one thing I’d like

to urge, I guess—I don’t know if this committee has jurisdiction—

that Congress take a close look at Title 6 because I think Congress

intended that when Mr. Wilkins had his rights violated by the

State police, that he would have a private cause of action to go in

against the State police; and that when my clients and the Farm

Workers Union were violated by Ohio, that they would have a

right. That just went away, I think, under the Supreme Court decision of Sandoval v. Alabama, and we would sure like to see Congress go back in there and say, we mean for individuals whose

rights are violated to have the right to go to court. Not just the

U.S. Department of Justice, because I think, as we’ve all seen

today in the first round of testimony, the Department of Justice

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has a lot on their plate. And for them to prosecute on behalf of Mr.

Wilkins and to prosecute in Ohio on behalf of the Farm Worker

Union takes us out of the equation. And there’s a lot we can get

done as long as Congress give us a private cause of action.

But those were the two laws that we used primarily, and they’re

all alive in front of the Sixth Circuit right now.

Mr. BARR. Thank you. Colonel Dunbar and Senators West and

Duncan, what’s been you-all’s experience with regard to the reaction of your State prosecutors? Have they been supportive in the

use of cameras in cases?

Mr. WEST. Do you want to go first?

Mr. DUNBAR. I live in Bergen County and I prosecuted Erol Lexis

so much that he’s taking his forfeiture funds and trying to buy

cameras for all the local police departments.

I think everybody likes to have best evidence, and if you can

come into court and you can show what you’re doing, I think it

makes the landscape much clearer. We’ve gone through so much

turmoil in the last 3 years because of the issue of racial profiling.

I think that any workable solution is something that people are

willing to try.

We have 21 counties. I don’t know of any county prosecutor that

has raised any objection to the use of video cameras. I think that

there are going to be legal challenges because some of the things

we’re running into is when we have malfunctions in the equipment,

valid malfunctions, when the microphone inadvertently gets shut

off, and that is also going to be a challenge for us, is trying to determine whether it’s a real malfunction or not a malfunction. But

the concept has been, I think, universally accepted not only by the

county prosecutors. In fact I don’t think I’ve heard anything negative after the first year when the police officers resisted, and since

then—this still sells. I mean nothing’s ever 100 percent, but there

are still some people that are going to resist it, but I think everybody pretty much has learned to live with it.

Mr. BARR. And has that been a similar experience for you-all in

Texas?

Mr. WEST. Yes. And I think, Mr. Barr, you have to look at most

of the COPS money that’s been coming to the States has been used

to purchase cameras for the DWI squads, and needless to say, it’s

been very effective in recording drunk drivers on the road. So prosecutors are just kind of chomping at the bit, so to speak, to be able

to get this type of tool for prosecutorial purposes.

Mr. BARR. Colonel Dunbar, are you aware of any incidents in

which State troopers in New Jersey were accused of racial profiling

or other inappropriate behavior and those charges were substantiated by the audio-visual evidence?

Mr. DUNBAR. No. However, through our own review of tapes, internal review, we have developed, I’m trying to think—a number

of—a handful of tapes that reflect problematic behavior. But as far

as just responding to complaints, no. In fact, most of it’s going the

opposite way.

Mr. Barr, one of the things we have found—and this isn’t necessarily racial profiling—one of the things we have found is just

rudeness on the part of the police officer, and I think that also

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feeds into the issue of—it’s how you’re treated, and that also—we

found that, and we have taken disciplinary action cases like that.

Mr. BARR. Thank you. Have there been any problems with the— are you-all’s officers unionized or from any of the police—— Mr. DUNBAR. Can you do something about unions?

Mr. BARR. Police unions, the—— Mr. DUNBAR. Yeah.

Mr. BARR. Have they had any problems with the use of the cameras?

Mr. DUNBAR. In speaking to counsel for the committee, the president of our State Troopers Fraternal Association was willing to

come and testify today on behalf of the cameras. And again they

see the same thing that—the issue has been raised. We now need

to have a third person present to speak for the trooper or the complainant. And again, in the last 2 years it’s been a turnaround on

the unions where they are now very support—they’ve seen over the

last 2 years that this tool—they labeled it Big Brother when it first

came out, and what you have to understand in New Jersey it was— we got it. It wasn’t because we were like real forward looking. It

was kind of forced on us. We had some problems. And troopers

thought it was being forced on them. Now I don’t think that’s the

case, and we have three unions in the State police and all three

of them support them.

Mr. BARR. Thank you. The gentlelady from the District of Columbia is recognized for 10 minutes.

Ms. NORTON. Thank you, Mr. Chairman. Let me, Mr. Finnegan,

let me say to all four of you that I apologize I wasn’t here to hear

all of your testimony, and I’m briefed on it by my staff. It does

seem to me it was all very valuable testimony.

Mr. Finnegan, I appreciate what you had to say about the

Sandoval case. That was an English-only case, English-only for

driver’s license case. And the Supreme Court said that the essential distinguishing point, I think, to your case is that they said that

the English-only driver license did not involve deliberate discrimination. It does seem—and, of course, Title 6 does cover deliberate

discrimination. It does seem that racial profiling is inherently deliberate discrimination. You have to have a thought in your head

that I want that man because that man is Hispanic, or that woman

is Black. So I hope you’re home free. I’m not certain. We’ll see.

Mr. Wilkins, I must express my gratitude to you again that you

have made yourself available for what is perhaps the most instructive case ever to have been filed about racial profiling. I’m not sure

what we would have done without not only your case but your ability in official and unofficial hearings—because you have come to

the Congress on numerous occasions to educate us—but your ability to lay out the facts and what law applied. And it has been very

valuable to have had a talented young lawyer to testify.

It cannot have been very valuable to have been that talented

young lawyer, however. And I do want to say that in thinking

through my own bill, which of course is based essentially on the

spending authority, to say if you spend our money you can’t use it

in a discriminatory way—and other approaches, because there’s another very important bill that’s been filed, the Conyers bill. I believe both approaches are very important.

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I believe that it is very important that someone like Mr. Wilkins

always be able to pursue his rights and that there be a statutory

basis to do that. But the fact is that Mr. Wilkins is a Harvard-educated lawyer. And when you consider how pervasive racial profiling

is, it does seem to me that we’re barking up a very slow-moving

vehicle if we believe that case-by-case is going to do it.

Indeed, Maryland can’t boast now, even given the Wilkins case,

that it’s a model jurisdiction, even though his case alone—because

he was so principled—succeeded in getting structural change in

that State. So I am interested in a proactive approach.

See, there are two approaches here. One is preventative. There’s

always two approaches in law enforcement. One is preventative

and one is remedial. Now, Mr. Wilkins was forced into a remedial

context, the lawsuit approach. And we’ll try to get a bill here that

would give the next Mr. Wilkins all the tools he needs to pursue

his rights. Lawsuit approach, adversarial case-by-case, essentially

the officer is put on trial, and the city, the State, or the county is

put on trial. And, you know, if you’ve got the upfront money and

the lawyer is willing to do it on a contingent fee basis and the

whole works, you may prevail. It is very important.

I am the former chair of the Equal Employment Opportunity

Commission, so I very much favor precisely that approach. Indeed

I wish Title 6 would have been used the way Title 7 had been used.

We would be nowhere in this country if private attorneys hadn’t

brought case after case under Title 7 of the 1964 Civil Rights Act

to help rid the country of racial discrimination. So obviously, I

think that these are two valued approaches but that, particularly

given the fact that racial profiling may well be more likely to occur

in poor African American neighborhoods, that it would be a shame

if we were only left with a case-by-case adversarial approach.

I’d like to ask you all a set of a questions, beginning with Mr.

Dunbar. Mr. Dunbar, I was very concerned because perhaps the

highest profile State of them all has been New Jersey, that yesterday in the New Jersey Star Ledger was a report that 90 percent

of the people—I’m not sure if this has been brought out, I haven’t

been here, but that 90 percent of the people who consented to

searches and stops in New Jersey are members of handpicked——

Mr. DUNBAR. Members of—— Ms. NORTON [continuing]. And racial minority groups.

Mr. DUNBAR. I didn’t know if it was 90 percent. I think it was

around 80 percent.

Ms. NORTON. Well, I’m quoting from the New Jersey Star Ledger,

and it’s yesterday—it’s a site that we got out of—from yesterday.

I’d just like to ask you if that surprises you and whether you think

it makes a comment on the effectiveness of whatever it is you are

doing now.

Mr. DUNBAR. Does it surprise me? No. I’ve said all along—while

you were out, we were talking about changing attitudes. Changing

attitudes is something that does not happen overnight. I think

that—and this is one of the things that—one of the things that article does not talk about. It does not talk about the reduction in the

number of consent searches that take place, for example, this year.

Ms. NORTON. Why has there been a reduction?

Mr. DUNBAR. Why has there been a reduction?

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Ms. NORTON. Yeah.

Mr. DUNBAR. Because we’ve gone back and we’ve changed attitudes. You know, we ask questions. If, you know, you make a stop

and the person produces license, registration, and insurance card,

why are you asking questions beyond that? But the numbers have

come down, and I think the numbers will continue to come down.

In New Jersey, I think 4 months after I took my job, the issue

was, you know, was everything resolved? And I don’t think it’s

going to happen in a matter of a months and it may not happen

in a matter of years.

Ms. NORTON. Could I ask all four of you a question? I need to

be informed about the possible effectiveness, or not, of the approach

I’m pursuing, and I’d like from the—in the context where all of you

operate, I’d like your response to the following question: Do you

think it would help law enforcement in this field, help those who

are trying to do the right thing, the way Mr. Dunbar is, help get

compliance the way Mr. Wilkins has had to do through a lawsuit,

if in fact the head of the State police or the police chief in a given

area were to have in his arsenal a bill which would essentially

deny his jurisdiction of coveted highway money if in fact the jurisdiction did not have enforceable legislation and did not pursue it

such that the practice began to diminish?

Would it make a difference? Or perhaps is the threat of a lawsuit

what will make the greatest difference because people just don’t

want to be sued?

Now, either way, you pay money perhaps. You pay money on the

lawsuit and perhaps it has a deterrent effect. You might have to

pay money and lose money if you don’t have an enforceable policy

to bring down racial profiling. Do you think it would have an effect

on the practice and on how law enforcement went at eliminating

the practice to have this preventative approach in the arsenal of

strategies to use against the practice? In any order you’d like to

speak.

Mr. FINNEGAN. Well, I’d like to start out that the traffic—the series of traffic stops that set off our lawsuit in Ohio occurred in

early and middle 1995, and we’ve been litigating ever since and

we’ve been winning ever since. But the State of Ohio hasn’t change

one bit in its practices about questioning people because of the

color of their skin. So a lawsuit—and in fact I think some of the

State—some State officials have actually scored points in the more

conservative parts of the State by standing up for tough law enforcement. Even if a few thousand minorities get questioned and

held up, you know, it’s good to be tough on crime right now.

I think the taxpayers of Ohio would really be upset if we lost any

highway money because that’s a constant grumble, that the highways need to be improved. That would get people’s attention a lot

faster than this kind of obscure lawsuit that’s been cooking away

in Toledo for 5 years.

So I think every weapon—we’ve been at it for 5 years and there’s

no end in sight for our lawsuit. And I know from talking to Mr.

Wilkins, he’s back to round two in his case. The lawsuits are important, and Title 6 is important, but Title 6 is important specifically because Federal funding is threatened. And in our lawsuit the

traffic and drug interdiction team was almost all Federal money.

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The Drug Enforcement Agency that started the Highway Patrol on

questioning on immigration was almost all Federal money, and almost all the immigration detentions had been Federal money. So

until the Federal Government gets on the ball, I think things aren’t

going to change in Ohio.

Mr. WILKINS. I’d like to echo that and also note that the new

lawsuit that we filed in Maryland, because there were continuing

problems on I–95, there is a Title 6 claim which is now at risk with

Sandoval because the disparate impact portion of that claim is likely to be dismissed because of that decision and therefore we’ll be

forced to try to prove discriminatory intent, which is more difficult.

And I would say as well that, you know, we’ve been litigating this

and it’s been 9 years since my stop, and I was young and single

and in shape now, and now I’m old and out of shape and have two

kids and married, and so this has been going on for a long time.

And we only got $50,000 in damages for the four of us, along with

about another $46,000 in attorneys’ fees for all of the work that we

did up until the time that we settled the case. And so money was

never going to be something that was going to be a deterrent and

to the State of Maryland, at least the money that they were risking

in our lawsuit. And I think that what you’re doing is very important.

Mr. WEST. I concur. We need to make sure that we tie these Federal dollars in terms of the dollars that the States are getting to

some sort of policy that, needless to say, you want to see implemented. I know that in Texas we’ve taken some steps toward dealing with issues of racial profiling. I believe that it’s something we

need to do across this country.

Mr. DUNCAN. I’ll take a little different approach. I will note

that—I’m always concerned when we create new remedies through

the civil court system. I think, as Mr. Finnegan said, there are

laws in place. I think they’re filing suits and they’re winning. I

would hate to see us change those laws. I think those laws work

and they’re carefully balanced, and I don’t know that’s necessarily

the way to approach it.

The other end of it is—and, you know, I guess—I serve on the

finance committee, and Senator West has as well in the Texas Senate, and, you know, I’d rather have incentives that are proactive.

Texas, which is considered to be the bastian of conservatism in the

South, has enacted a very aggressive bill. We did it on our own.

We didn’t do it because of any threat from Congress to cutoff our

highway funds. We did it on our own, and I think that we would

like to do more with regard to video cameras.

We need help with training. I think some of the things that Colonel Dunbar has raised, and I think Mr. Finnegan as well as Mr.

Wilkins, I think all of these issues that they have raised have really gone to the core of training and attitude changes that need to

occur from the top down.

The bill that Senator West passed, Senate bill 1074, has significant training requirements, and it also does something very important. It requires each local law enforcement agency in Texas to

have a policy on racial profiling to address it at that grassroots

level. I had preferred to see the States work as laboratories with

assistance from the Federal Government in the form of incentives

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because there are a lot of issues like racial profiling and other

issues that I think are important that we address, and I think

Texas is a good example of how it can be done without the threat

of pulling highway funds which are, you know, very important to

all of our States. Thank you.

Mr. SHAYS [presiding]. Would the gentlelady yield just a second

to point out to Mr. Duncan that you Texans are amazing. Did you

say to me you’re the bastian of conservatism of the South? There

are about eight other States that would probably want to contest

that.

Mr. DUNCAN. Well, we might want to team up with them and

have a co-title here.

Mr. SHAYS. I just couldn’t resist. You guys are awesome. Excuse

me for interrupting.

Ms. NORTON. Well, I thank the gentleman for his intervention.

Let me add that I want to congratulate the State of Texas for its

forward leadership, and I suppose that I live in a country which

does not make my civil rights dependent upon what State I happen

to be in. At the time that the 1964 Civil Rights Act was passed,

New York already had a very strong civil rights law, but if I traveled to Texas I would have encountered overt intentional racial discrimination.

So, to give you another example, I come out of the civil rights

movement, where if I got on a train from New York to Washington,

I sat anywhere I wanted to. I’m a fourth-generation Washingtonian. If I went to see my grandfather in North Carolina, I had

to change my seat. I thought we were long past—we bow to States’ rights in this place, but I thought we were long past the point

where we would make anybody’s human rights contingent upon the

State that person happened to be in.

The whole notion that I could have my rights in Texas, and get

to Louisiana and lose them, ought now be a thing of the past. And

I think none of us would—you have to forgive me, but that’s such

a throwback. I accept it with respect to almost everything else. Let

the States be the States. Let them blossom. Please don’t let racism

and discrimination blossom State by State.

Mr. Dunbar.

Mr. DUNBAR. You know, in New Jersey, much of what’s been

done was done as a result of the Attorney General’s review of the

State police, but it was also in concert with the discussion with the

Department of Justice in which we entered into a consent decree

back in 1999 which gave us specific things that we have to change.

What my concern is, is that—and this goes back to the discussion

of data collection and so on—is that, you know, what happens? For

example, if we have 100 searches and 4 are problematic, that’s 4

percent; if we have 10 searches and 4 are problematic, that’s 40

percent. Those are the type of issues that I have concerns with,

that when you—you know, when you’re talking about, you know,

enacting a bill, what’s going to be in that bill, you talked about— and I certainly agree with you, and in fact I wouldn’t have taken

this job if I didn’t agree with you—that change has to take place,

but at the same time you asked me before about what has changed.

I think there’s a number of things that have changed. Percentages have not changed. The numbers have changed. You know, I

116

often say when I talk to my troopers, I say that if we had one racial profiling case, how can I go out and say we don’t have a problem? I mean that’s the bottom line. And that’s the exact terminology that I use every single time. If it happens one time, it’s too

much.

But at the same time, you know, as a law enforcement officer—

and I really can’t overemphasize. I think that other law enforcement leaders, most of the ones that I discuss with, the two issues

they come up with are racial profiling and unions and difficulties

with both of them.

I would like to be able to sit here and have you say that, you

know, everything we’re doing is great. If you look at—you know, if

you took that article and you made reference to that, in that same

article there were comments made by the Department of Justice,

independent monitored, which has reviewed every single thing that

we do from top to bottom, and they’ve indicated we’ve made significant strides and changes. But what we focus on is not what’s been

done or being done, it’s what’s not done.

And I really can’t dispute that the issues are there, but there is

a genuine effort, I think, on the part of the local legislation in New

Jersey and on the part of the Governors and certainly the Attorney

General to bring about change.

Do I think that money would get attention? Yeah, probably it

would. But I would just ask if we’re going to do something, let’s

look at, you know, what is it that we’re going to do and what is

the impact? Are we going to just use an arbitrary number? You

know, how do you say, for example, in racial profiling that if you’ve

got a department that has two cases, that’s OK?

Ms. NORTON. Well, my bill would not use any numbers. It simply

would require enforcement and require you to have an enforceable

law and say what the law is. So I agree that the circumstances differ.

Let me finally say that one of the things, it seems to me, to consider in adopting a proactive approach is that it is probably always

better to prevent discrimination than to remediate it. There’s a lot

of hard feelings and a lot of bitterness. Bitterness on the person

who believes he experienced it; great bitterness on the part of the

person who stands accused. Because even those who engage in it

today don’t like to be fingered for doing it.

I also believe that many of the police involved are not to blame.

I believe that there is a kind of imperative that police consciously

and unconsciously feel, and that whether it is Mr. Dunbar or the

chain of command below him—and I know how difficult it is to

make police focus on something like this when there’s so many law

enforcement matters to focus on. But the fact is that one way to

get management to take its responsibility seriously, not focusing on

cop by cop, who often is not the problem, but on the folks who have

the most to lose, the Governor who would lose State funding, who

the Governor appointments who could be held accountable, one

might get a rise out of States which have had trouble. I don’t know

if you would except by the precedent. The precedent is that we

have had enormous success by tying transportation funds to stated

policy objectives that we care about.

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A second reason why I press this approach is what you’ve heard

from our two litigators. In this Congress litigiousness is the enemy.

There are Members who would prefer to jump out of one of the

windows of the Rayburn Building than to be involved in a lawsuit;

who believe that lawsuits are absolutely a waste of money, if not

inherently evil; crowd the courts; people running after one another,

blaming one another; why don’t they work things out?

It seems to me if you start from the beginning with a strong

proactive remedy, you eliminate the cop problem, you eliminate the

money problem, you eliminate the hard feelings problem, and you

eliminate one of the great problems of this society, and that is that

African Americans still feel very put upon in this society.

There is a huge racial divide in this society, 35 years after I was

a kid in the civil rights movement. If you ask the average African

American, do you feel there is discrimination in this country, he’ll

say ‘‘you bet ’ya.’’ and that’s notwithstanding the enormous strides

we’ve made.

Why is he still saying that? As long as you can be stopped on

the street based on the color of your skin, nothing the society does

will matter to average Black man. There is nothing that is a

great—that is—gives you a greater sense of indignity than having

a policeman stop you and having to say, what did I do? For a lot

of reasons, not the least of which we need to begin to heal the racial divide in this town.

I certainly hope that the testimony of all five of you will in fact

help us to begin to march down that road toward the finish. I

thank you very much, Mr. Chairman.

Mr. SHAYS. I thank the gentlelady. She obviously speaks with

much experience. We thank all the panel. And I’m not asking to

extend this panel, because I know you’ve gone longer than you expected, but is there any one last short comment that any one of you

want to make or feel you need to make?

Mr. DUNBAR. Send money.

Mr. SHAYS. That is short. Gentlemen, you’re an excellent panel.

I congratulate the staffs for putting this panel together, and I

apologize to the next staff for keeping them waiting so long.

Mr. DUNBAR. Thank you.

Mr. BURTON [presiding]. We’ll now welcome our third panel to

the witness table: Rachel King, Raymond Kelly, Lieutenant Brian

Boykin, and Chris Maloney, would you please come forward,

please.

[Witnesses sworn.]

Mr. BURTON. Be seated. Ms. King, do you have an opening statement you’d like to make?

STATEMENTS OF RACHEL KING, LEGISLATIVE DIRECTOR,

AMERICAN CIVIL LIBERTIES UNION; RAYMOND KELLY,

FORMER COMMISSIONER, U.S. CUSTOMS SERVICE; BRIAN

BOYKIN, FELLOW, NATIONAL ORGANIZATION OF BLACK LAW

ENFORCEMENT EXECUTIVES; AND CHRIS MALONEY, PRESIDENT, TRITECH SYSTEMS, INC.

Ms. KING. Yes, sir.

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I thank you very much for inviting me to testify today. I have

prepared a written statement which I submitted already, so I’ll be

very brief and just basically make two points.

While we believe that the use of video cameras and audio-visual

technology is very important and a very useful law enforcement

tool, it cannot in and of itself be used to address the problem of

racial profiling. It needs to be used in conjunction with other programs, specifically data collection programs.

And the second point I’d like to make is that the Federal Government needs to intervene to help the States in addressing this problem.

I’d like to just tell you a story that illustrates how video cameras

are not the absolute solution to the problem of racial profiling. The

ACLU represented a client named Sergeant Joe Rossario, who’s a

Black man who was traveling across the country with his 12-yearold son.

When he entered the State of Oklahoma, within a half hour of

entering the State he was stopped two different times, the second

time by two troopers who were driving patrol vehicles. Each vehicle

had a video camera. In spite of the presence of these video cameras, this is what happened to Mr. Rosaria. He was detained for

over 2 hours. His car was searched without his consent. His son

was kept separate from him and terrorized by the police dog. They

were kept in patrol vehicles with the heat blasting even though it

was 90 degrees outside. Their possessions were strewn along the

side of the road and gone over by a drug-sniffing dog, and their car

was dismantled, looking for drugs.

Obviously having video cameras in those patrol vehicles did not

keep two people, innocent people, from having their constitutional

rights violated. One of the video cameras, according to one of the

troopers, was malfunctioning, and the other one was functioning,

but they could not find the tape. So there was virtually almost no

recording of the incident.

You will see that with video cameras there are limitations in

that there can be malfunctions, tapes can be lost, and cameras can

be tampered with; but an even more important limitation of the

camera is they can give you a snapshot in time about one stop and

search, but they cannot give you an overall picture of what’s happening in the community around the issue of racial profiling, and

that’s why you need to have data collection as well.

Video cameras are a good supplement to data collection because

they can be used, for example, to audit any data collection programs to make sure there’s accuracy in the data collection efforts,

and they can also be used for training for police officers and conducting proper traffic stops.

I know of no State that is using video cameras at the present

time as exclusively in addressing a racial profiling. If you look at

my written statement, I’ve attached on the back of it a map of the

United States that shows the various jurisdictions which are using

data collection programs. There are a number of States that are

using both data collection and video cameras. Those include New

Jersey, Missouri and North Carolina. Texas, as we heard, passed

legislation that would require both video cameras and data collection, and Indiana and Minnesota are also both considering legislaVerDate 11-MAY-2000 09:43 May 30, 2002 Jkt 000000 PO 00000 Frm 00122 Fmt 6633 Sfmt 6633 C:\DOCS\77191.TXT HGOVREF1 PsN: HGOVREF1
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tion that would require both video cameras and data collection.

While we support all these State efforts, we still believe that Federal support and intervention is necessary, and that’s why we support H.R. 2074, which is a comprehensive bill to ban racial

profiling.

We’d like to specifically thank members of this committee who

are sponsors of that bill, notably Congresswomen Morella and Norton, and Congressmen Shays, Cummings, Davis, Clay and Owens.

We’d like to thank them very much for their support of this important legislation.

This bill does several important things that are needed to address the problem of racial profiling. First of all, it defines racial

profiling. We have to have a Federal definition of racial profiling.

We can’t have racial profiling be one thing in Arkansas and something else in Oklahoma. People who are traveling across the country need to know what the law is. It bans racial profiling and

makes it clear that it is illegal. Until very recently the Federal

Government has actually trained law enforcement officers in the

use of racial profiling as a legitimate law enforcement technique,

and the government needs to make it clear that it’s no longer a legitimate technique.

The bill also provides a carrot-and-stick approach to requiring

States and localities to adopt programs to address racial profiling

by both withholding Federal funds if States are not in compliance,

but also giving important grant money that’s necessary that the

States need to establish data collection programs and other types

of best practices programs, including video cameras in the cars.

And last it requires the Attorney General to report to Congress on

the state of racial profiling in the country.

I’d just like to finish with one remark about the privacy concerns.

The ACLU, as you know, is very concerned about individual privacy rights, but in this case we think in general the benefits of

video cameras outweigh the individual privacy concerns; however,

we do not believe that these video tapes should be publicly released

except, of course, in criminal and civil litigation. There may be

times that a very compelling public interest outweighs the privacy

of the individual, for example in the Rodney King beating, but in

no way should they be released without first going forward and

having that determination made by a court.

I’d be happy to answer any questions later. Thank you.

Mr. BURTON. Thank you, Ms. King.

[The prepared statement of Ms. King follows:]

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Mr. BURTON. Mr. Kelly, do you have a statement, sir? And thank

you for being on our third panel. I know that there was some question about whether or not you would prefer to be on the first panel,

but I guess everything worked out.

Mr. KELLY. Yes, thank you. Thank you for the invitation to be

here today, Mr. Chairman. Although I know the title of today’s

hearing is the Benefits of Audio-Visual Technology in Addressing

Racial Profiling, with your permission I’d like to outline what one

Federal agency, the U.S. Customs Service, has done to address the

allegations of racial profiling. It also involves the use of some technology.

In my experience, there’s no greater threat to the credibility of

law enforcement than racial profiling. Anyone who ignores this

threat or delays in taking precautions against it risks not just the

reputation of the organization in question, but the very compact

and trust and fairness between government and the people upon

which the civil society rests.

I served as the Commissioner of U.S. Customs from August 1998

to January 2001, and before the beginning of my tenure, Customs

began to receive allegations from certain members of the traveling

public that in specific incidents agency personnel had selected commercial air passengers for physical searches based on race. These

allegations, of course, were very disturbing, to say the least. It was

certainly not the agency policy to use such tactics in their enforcement mission. In no way were we prepared to accept it as part of

our practice.

As you know, one of Customs chief responsibilities is to keep

dangerous contraband from crossing U.S. borders. The fact is the

great majority of travelers entering our country are law-abiding,

but there exists a small percentage who are not and who contribute

to the illegal menace by smuggling narcotics. It’s a difficult job of

the Customs Service to stop these individuals. The job is even more

difficult when it comes to stopping those who conceal drugs on or

in their bodies, particularly those arriving by commercial air.

To put this in the proper perspective, Customs searches an extremely small amount of the approximately 80 million commercial

air passengers entering the U.S. each year. To accomplish this difficult aspect of its mission, Customs has been granted very broad

search authority, the broadest of any law enforcement agency in

the land. Inspectors can stop, search and detain travelers based on

reasonable suspicion. That is based on specific factors that may

lead those officers to believe someone may be carrying drugs. Those

criteria are clearly outlined in the intensive training provided to

Customs personnel. Under no circumstances whatsoever do these

factors ever include a person’s race.

When complaints of racial profiling surface, we move quickly to

review all aspects of our personal search policy. Our preliminary

review showed no specific incidence of bias, but we did find lapses

in management and supervision that contributed to instances of

improper conduct, poor judgment and insensitivity to the rights of

travelers.

Not satisfied with an internal assessment alone, we immediately

appointed an independent outside commission of government and

community leaders to conduct a study of Customs’ personal

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searches beginning in April 1999. Commission members were given

unfettered access to Customs facilities and personnel across the

country.

In the meantime we began a number of immediate reforms. First

and foremost we increased the role of supervisors in the personal

search process. Where in the past any individual inspector could

decide whether or not to make a personal search, we ensured that

a supervisor approved that decision. Moreover any decision to move

someone to a facility for a medical examination had to be approved

by a port director, the highest-ranking Customs official onsite. We

bolstered training for our employees. We mandated new cultural

interaction and personal cert training for all of our officers. That’s

about 8,000 in all. The agency has a total of about 20,000 employees.

We also rewrote our personal search policies, eliminating any

phrase that could be remotely construed as bias, and compiled

them in a single handbook. We increased legal oversight of the

process. We made Customs lawyers available 24 hours a day by

phone to inspectors to advise on the legal grounds for searches. We

implemented a new policy that requires Customs officers to consult

with the local U.S. attorney’s office for any prolonged detention. In

the past Customs could hold someone indefinitely without permitting contact with friends or family. New notification rules allowed

anyone detained to inform someone of his or her delay within 2

hours.

Recordkeeping in general was poor. Data collection on personal

searches was weak and inconsistent. We instituted mandatory data

collection on the race, gender, age and citizenship of persons

searched as well as the reasons for the search. We formed a national passenger data analysis unit at headquarters to examine

that data. I received updates every morning on the searches we

conducted. We made major investments in new nonintrusive technology and x-ray equipment. These included the purchase of body

scan machines and mobile x-ray equipment that minimized the

need for physical contact and the time-consuming trips to the hospital. That technology was deployed at major international airports

across the country.

We undertook a major information campaign with the traveling

public. That campaign began with an outside consultant’s review of

our passenger processing areas. Based on a consultant’s findings,

we implemented a series of changes, including better signage, enhancing the role and visibility of the Customs passenger service

representatives, and designing new declaration forms to eliminate

confusion for travelers. We also put out new brochures that explained why Customs performs inspections and searches. These included a document entitled, ‘‘Why Did This Happen to Me,’’ which

explained the personal search process to those who are referred for

a secondary inspection. We also developed a passenger rights brochure that explains the rights of travelers and their obligations

under U.S. laws. We created a new customer satisfaction unit at

headquarters to handle complaints and other issues, and a national

comment card program to which travelers can submit their feedback to Customs.

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To sum up, improved supervision, better training, enhanced legal

oversight, better data collection, better technology, better communication with the traveling public, these were the pillars of our reforms. Now, while changes like these require time to take hold,

we’re very encouraged by the earlier results. Nationally Customs

was searching far fewer people than it ever did before while maintaining its overall level of seizures. In the year 2000, Customs cut

the number of personal searches significantly, from just over

23,000 searches to just over 9,000, yet the number of positive

searches yielding drugs remained relatively constant. Those numbers showed us that we could engage the narcotics traffickers vigorously without allowing the rights of the law-abiding public to become casualties in the counterdrug find.

In addition, our comment card program indicated that our

changes were being well received by the public. We mandated that

officers who give anyone who goes through a secondary inspection

a comment card. They were also made available to any traveler

passing through our processing areas. As of the close of 2000, we

received well over 15,000 cards. Eighty percent complimented Customs and the work of our inspectors. I understand that rate has

held steady through today.

In June 2000, the Personal Search Commission issued their report. They acknowledge, in their words, a series of bold reforms

Customs had taken. While the report did not find specific evidence

of bias, it did state that more precautions could be taken and offered 20 recommendations to further safeguard the rights of travelers. I assembled a special high-level internal committee of Customs

managers to assess, implement and monitor those findings.

Having been involved with this issue for a long time, I know one

thing for certain, this is not a problem from which we can simply

walk away and declare victory. Policies must be monitored constantly to ensure that changes become embedded in the culture of

the organization. Could we prove that racial bias never existed in

the Customs Service or guarantee that it never would again? It’s

a difficult question to answer. Obviously we couldn’t scrutinize people’s thought processes, but we knew that we could strengthen a

system of checks and balances that dramatically reduced the possibility of bias, and we could reinforce through constant training and

supervision that there is no place for such a tack, not in the Customs Service nor anywhere else in law enforcement.

Thank you, Mr. Chairman.

Mr. BURTON. Thank you, Mr. Kelly.

[The prepared statement of Mr. Kelly follows:]

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Mr. BURTON. Mr. Boykin.

Mr. BOYKIN. Good afternoon, Mr. Chairman and other members

of the committee. Thank you for allowing me the opportunity to address you. Before I proceed, I would like to take time out and express our sincere appreciation to Mr. Cummings and other Members of the Congressional Black Caucus for championing and helping us afford many of our initiatives that have come before Congress and other special bodies. Thank you for allowing me as a representative of the National Organization of Black Law Enforcement

Executives [NOBLE], to testify concerning the benefits of audio-visual technology in addressing racial profiling.

My name is Brian Boykin, and I have been in law enforcement

for nearly two decades. Before I proceed, I’d like to share a bit of

information about our upcoming 25th anniversary training conference. This historical event will be held July 28th through August

1st at the Marriott Wardman Park Hotel. During this week more

than 2,000 of our members with at least 300 Federal, State and

local executive-level managers will converge in D.C. to attend our

training conference. Additionally we will have an internal contingency of delegates from many other countries in attendance.

As most concerned Americans, one of our key topics of discussion

will be racial profiling. We will reconvene our racial profiling task

force to discuss these critical issues. We feel honored that we have

some of the most innovative and forward-thinking professionals

that will bring a wealth of information to the table to share with

all interested parties. Our national president, Ms. Iona Gillis, and

our executive director, Mr. Maurice Foster, asked me to extend

each of you an invitation to be our honored guest during this training conference.

As you may be aware, in May 2001, NOBLE released our comprehensive plan for combating racial profiling entitled, ‘‘NOBLE

Perspective: Racial Profiling, a Symptom of Bias-Based Policing.’’

This valuable information can be obtained and downloaded by visiting our Web site at noblenational.org I have a prepared statement

they would like to share with this committee.

NOBLE was founded in 1976 and consists of many of the most

influential chief law enforcement executives throughout the country. NOBLE has been actively involved and concerned over the decline and state of citizen-police relations. Furthermore, NOBLE is

unique in that our members, by virtue of their race and/or ethnicity, may be faced with some of the same negative concerns with

law enforcement that many minorities complain about frequently.

Issues concerning racial profiling, also referred to as DWB, driving while Black, or driving while brown, have significantly affected

our country. As stated in the law enforcement code of ethics, as a

law enforcement officer my fundamental duty is to serve the community; to safeguard lives and property; to protect the innocent

against deception, the weak against oppression or intimidation, and

the peaceful against violence or disorder; and to respect the constitutional rights of all to liberty, equality and justice. Unfortunately recently there has been several events involving rogue law

enforcement officers that have cast a negative light and caused the

public to doubt the true significance of the law enforcement code

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of ethics. However, we believe that most law enforcement officers

are proud to serve the community, and they do it with honor.

Moreover, we believe that audio-visual technology, also known as

in-car video systems, coupled with other management safeguards

will have a profound benefit in restoring trust between law enforcement and the community and helping refute claims of bias-based

policing.

In-car video systems have been in use in this country for more

than a decade. As many of you have probably witnessed on police

dramatization shows like COPS and the World Series police videos,

police are challenged with some extraordinary situations each and

every day. As a law enforcement manager and a practitioner, I can

assure you that the benefits both to the community and also to the

officers far outweigh the few concerns that you may hear from

some opposing groups.

In-car video systems enhance police accountability both to management and also to community. The video systems capture a true

and accurate picture of what happens on the scene. Additionally it

preserves evidence and allows the scenes to be recreated without

concern of memory deterioration from the police officer and the citizen. Additionally, the system affords citizens, attorneys and the

media to review the true actions and behavior of law enforcement.

This technology can confirm or dispel claims of officers violating

civil rights. Furthermore, the tapes can be presented as evidence

both in civil and criminal proceedings.

Last and most importantly to me as a law enforcement professional, an in-car video system is an extra added layer of safety for

police officers who protect our society each and every day. Studies

have repeatedly shown that cameras positively modify and influence people’s behavior. Whether it’s an irate or unruly citizen or an

officer that is violating a citizen’s rights, the system should aid in

capturing this inappropriate and/or illegal behavior.

In closing I would be happy to have an in-car video system to be

my front seat partner.

Again, Mr. Chairman, I appreciate the opportunity to speak to

you concerning this matter.

Mr. BURTON. Thank you, Lieutenant Boykin.

[The prepared statement of Mr. Boykin follows:]

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Mr. BURTON. Mr. Maloney.

Mr. MALONEY. Yes. Thank you, Mr. Chairman.

Mr. Chairman and members of the House Committee on Government Reform, on behalf of TriTech Software System, I would like

to thank you for this opportunity to testify at this important hearing. The purpose of my testimony before you today is not to explore

issues and allegations relating to racial profiling, but rather to address practical technical considerations relating to a nationwide effort to quantify and remedy racial profiling practices.

I personally believe that the use of existing technology such as

audio-visual applications can provide many of the capabilities we

are collectively seeking. However, audio and video technology can

only address some of the data collection requirements, and the utility of the information when collected lends itself only to a narrow

range of very local applications within the organization sponsoring

it. The current available systems to collect this audio-visual information are costly, and the storage and retrieval of this data is

time-consuming and requires dedicated personnel at additional expense.

TriTech has created a solution that is not only an effective and

powerful information technology tool, but is uniquely affordable in

the marketplace where cost is always a principal consideration.

This solution can be used on a stand-alone basis or as a complement to the collection of information with audio-visual applications.

I would like to begin with a brief overview of TriTech Software

Systems and its position within the public safety law enforcement

marketplace.

TriTech Software Systems, headquartered in San Diego, CA, has

developed integrated and support software solutions for public safety for nearly 20 years. Our computer-aided dispatch solution

VisiCAD is installed in more than 125 agencies and six countries.

In October 2000, TriTech deployed Voyager, a suite of portable

wireless applications targeted primarily at the needs of the law enforcement community. The Voyager suite of applications runs on

virtually any personal digital assistant, two-way pager or smart

phone capable of wireless communications. TriTech’s Voyager contact application facilitates collection of data relating to contact demographics and enables statistical reporting and analysis.

Technology solutions may address two perspectives related to racial profiling: First, to potentially discourage officers from engaging

in racial profiling practices, and, second, to provide objective evidence to either support or disprove allegations of racial profiling.

Audio-visual technology has been used effectively by many police

departments to disprove allegations of officer misconduct and to

provide an added measure of officer safety.

The primary advantages afforded by audio-visual technology are

its visibility to suspects and its acceptance by police officers as a

supportive defensive tool. However, as a racial profiling tool for

analysis, audio-visual technology is limited as a stand-alone solution for several reasons. First, an officer willfully engaging in racial

profiling activities could elect not to record the stop. Two, the reasons for escalating a search after an initial contact could be difficult to capture from a video camera. And three, the information

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captured using audio-visual tools cannot be used to populate a data

base against which statistical analysis can be applied.

Tools for data collection must be easy to use, allowing the officer

to more easily perform his daily duties while capturing this important data. Tools such as Voyager greatly facilitate both data entry

and data retrieval in or out of the patrol car by allowing officers

to query criminal data bases while simultaneously documenting the

stop.

In addition to ease of use, data collection tools must be affordable. Video systems installed in the patrol vehicles and the required costs of storage and retrieval are expensive. Of the more

than 18,000 law enforcement agencies in the United States, more

than 80 percent lack the financial resources to procure such equipment. By contrast, our solution operates on a variety of inexpensive

hand-held devices at a low monthly cost, as little as $100, and appeals to all agencies regardless of size.

In conclusion, Voyager contact is an affordable innovative data

collection tool that offers a stand-alone or complementary technical

solution to law enforcement. The benefits include a data collection

mechanism that is secure, portable and easy to use, and affordable

by even the smallest agency; applications that empower officers to

enhance officer safety through immediate access to criminal justice

information; and last, protection against civil litigation through its

extensive operational audit trail.

Thank you for the opportunity to testify on this important matter. TriTech Software Systems would be honored to work in concert

with the House committee to provide any requested information or

technical guidance in this matter. Thank you very much.

[The prepared statement of Mr. Maloney follows:]

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Mr. CANNON [presiding]. Thank you, Mr. Maloney, and I apologize for not having got here earlier, but I hope we have just a

pleasant exchange on some of these issues and build a record that

will be helpful, although it looks like we’re going to go.

Do you want to take like 2 or 3 minutes? I’ll take 2 or 3 minutes.

Why don’t I recognize Mr. Cummings for a couple of minutes, then

I’ll take a couple of minutes, then we will go vote and come back.

Why don’t we take 5 minutes and let me recognize you, Mr.

Cummings, for 5 minutes. Then we will go vote and come back.

Mr. CUMMINGS. Let me just ask you, Ms. King, when you listened to Mr. Kelly’s testimony, did that surprise you, to go from

23,000 to 9,000 searches was it, Mr. Kelly?

Mr. KELLY. Yes, sir.

Mr. CUMMINGS. And still be effective.

Ms. KING. No, sir, it did not. I was actually aware of those numbers. The ACLU has sued the Customs Service, and so we are following this issue closely. We have been very impressed with some

of the reforms Mr. Kelly has made and do believe they have made

a difference, although we would point out, as Mr. Kelly did himself,

that there is still some disparity in numbers coming back that

needs to be explained, and it sounds like they’re looking toward

trying to figure out how does that still exist.

The question about does it surprise me, it doesn’t because racial

profiling is pretty ineffective. So it doesn’t surprise me they can get

the same results without submitting innocent people to such

humiliating treatment.

Mr. CUMMINGS. Are there things—were you here earlier when

the gentleman from Texas, the two senators, testified? Were you

here?

Ms. KING. Uh-huh.

Mr. CUMMINGS. OK. The legislation they talked about, are you

familiar with it?

Ms. KING. Yes, I am.

Mr. CUMMINGS. Is that more or less model legislation, or is it

still a lot to be desired there?

Ms. KING. It’s pretty good, although we weren’t very pleased with

the opt-out provision, which is if you—they have two different data

collection requirements. You have to collect data on all traffic stops

and all pedestrian stops unless you have purchased and are using

video cameras or have tried to purchase video cameras and can

show that you couldn’t afford to, in which case then you can opt

out of collecting data on all stops and only have to on arrests and

citations. And we would prefer not to have the opt-out provision.

We think that more data and the video cameras would be better,

but it’s still a good, overall I’d say good piece of legislation.

Mr. CUMMINGS. Mr. Kelly, when you all went from the 23,000 to

the 9,000, I mean, you know, all of us travel and come through the

airports and travel overseas and whatever. And I am trying to figure out what is it that you did different? I mean, in other words,

you will still—you said initially that there was—you named several

things that you all were doing wrong. You kind of generalized, but

at the same time you said that you reduced the number, and I’m

trying to figure out what is it that you did, and how did you determine how to reduce the number? You follow me?

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Mr. KELLY. Yes, I do. I think you have to understand how Customs is constructed. It has 301 ports of entry into the United

States. And I think it’s fair to say—and people who have been in

Customs for a while would support me on this—that the process

just wasn’t watched adequately by management. It just wasn’t supervised. So it was going on pretty much at the initiation of an individual inspector. So the process itself wasn’t watched on the local

level as far as supervisors are concerned or managers, and it

wasn’t being watched on a national level.

I think when, in fact, the word got out that it was being looked

at and that you needed total and complete data collection, which

also wasn’t happening, those two factors were the most important

in making significant changes in how the Customs Service operated. Collecting that data, everyone who is searched has to be recorded, gender, location, reasons for that search, supervisor had to

authorize it, and then managers up the chain of command were

certainly accountable for looking at it, those two things alone were

the major reasons for a change, and I have been in policing a long

time. I was in New York City Police Department for 31 years.

Again, I think those two facts, the total data collection and management involvement, can go a long way to significantly reducing

the problems associated with stop and frisk.

Mr. CUMMINGS. I have some other questions, Mr. Chairman, but

I think we are approaching this vote.

Mr. CANNON. Thank you. I note it looks like we’re going to have

a 10 minutes of debate, then a motion to recommit and then final

passage. So I think we probably need to recess until after we finish

that, and I suspect that’s going to take 20 or 30 minutes, if that

will work for the panel. OK. Thank you.

So we’ll recess for 30 minutes, and until we finish this vote.

[Recess.]

Mr. CANNON. We thank the panel for its extraordinary patience.

Thank you for coming back. And I think we’ll just continue with

Mr. Cummings’ time.

Mr. CUMMINGS. Ms. King, on racial profiling, extensively is it

your sense that this problem is greater on the State level than on

the Federal level? In other words, is it more of a problem?

Ms. KING. It’s difficult to answer your question, sir, because we

have basically a lack of information. We have reliable data or at

least initial data out of New Jersey and Missouri and Maryland

and California and Rhode Island, and from the Customs Service,

but I’m not aware of any other Federal agencies that have compiled

and distributed data, although President Clinton did order it to be

collected back in June 1999. There hasn’t been any distribution of

the results of that. So it’s hard to say whether it’s more prevalent

in one or the other level.

Mr. CUMMINGS. Mr. Kelly, when your people had to collect data,

did that impede them in any kind of way? They had to collect data;

is that right?

Mr. KELLY. Yes. That’s correct.

Mr. CUMMINGS. Did that impede their efforts in any way?

Mr. KELLY. None whatsoever.

Mr. CUMMINGS. You know that’s the usual argument, right? You

know, many police departments say it interferes with what they

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have to do. And I would like for you to comment on that also, Lieutenant.

Mr. KELLY. It’s a necessary part of doing business. They have to

do it. In New York City, for years, there still is a form that’s used

and should have been used and just wasn’t used. It wasn’t because

it was taking up too much time. It simply was not given the appropriate attention by management for years. So I don’t see it as, in

my view anyway, interfering with normal law enforcement business.

Mr. CUMMINGS. Mr. Boykin.

Mr. BOYKIN. Yes, Mr. Cummings. As you indicated, many times

you’ll hear individuals in law enforcement comment that it increases the time spent on a traffic stop, and it inconveniences the

citizen. Additionally, in many instances, you might hear they might

actually have to ask the race of the individual. And I think much

of the problem in many localities is that the policies have, and in

some instances cannot be explained thoroughly enough to the officer. And many times they don’t have a good explanation for why

they’re doing what they’re doing. So I think there lies part of the

problem.

But in many of the agencies that we’ve had contact with, there’s

been little or no inconvenience to the citizen.

Kind of going back to the initial question that you asked Ms.

King related to it, that what we’re finding throughout the country

is that many agencies have not, No. 1, been collecting this data

long enough; and No. 2, once they get the data collected, they are

having a time and an analyzation of that data to produce a viable

product.

Mr. CUMMINGS. Mr. Maloney, you may have explained this, but

in a previous panel they were talking about—I forget who it was— was talking about how—and I think you talked about it briefly— how you can collect the data, but then you’ve got to be able to process it. And your technology—and I assume yours is not the only

company that has this kind of technology, I mean, this technology

is designed to be reviewed daily, or, I mean, how is that done, and

how do you minimize personnel hours to have—to review it?

Mr. MALONEY. That’s a very good question. I think the issue up

until this point has been most of the departments that are under

consent decrees to collect this data have done so on paper, and that

requires a lot of back-end processing. Somebody’s got to data-enter

the paper after the fact. And that is sort of an onerous job for the

officer to do, because there’s not really a benefit to the officer to

filling out a form.

So the good news about new hand-held wireless technology is

that the officer can fill out the form very easily, very quickly.

There’s edit checks inside the Personal Digital Assistant to make

sure he’s filling out the right information, and then once he hits

the send button, the information is transmitted back into a central

data base for immediate analysis and processing.

So, in essence, the computer is doing more of the checks and the

analysis work, and the officer has to do very little other than just

fill out some basic information.

In addition, on the back end, one of the nice things of this technology is that the officer is going to get information back once

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they’re entering the information. So when they put in a license

plate or a driver’s license of a suspect, they’re going to be looking

up criminal information at the State and the Federal level so they

can get that back and help them do their job better, because they

may be pulling over somebody who has a criminal history, maybe

it’s a stolen vehicle, and they’re not going to know that until they

do that look-up. So both of those in parallel with each other make

it a very positive experience for the officer, and they actually want

to do this.

Mr. CUMMINGS. Mr. Kelly, did you find that there was a lot of— in other words, there were people reluctant to do the things—you

know, the things that you put in operation? Were they reluctant— there was not a great deal of supervision before, and people usually

don’t like change, and I can imagine in a quasimilitary operation,

change becomes very uncomfortable. Did you find changing the

mindset to be difficult?

Mr. KELLY. Yes. There was some initial resistance. The union is

about 11,000 members of the Customs Service in the bargaining

unit. There were concerns and questions through the union. But I

think management went out and explained the reason for it. As the

Lieutenant said before, you have to give the rationale, the reasons,

to the employees as to why they’re doing it. I think part of it was

that they saw themselves becoming more professional, more like

full players in the law enforcement community, and I think this

was part and parcel to, you might say, their development. And it

was—I think you can see by the numbers that it’s been accepted,

and it was accepted relatively quickly. Yes, there was initial resistance, but I think they realized themselves that there wasn’t adequate supervision, that there wasn’t adequate control, so that there

wasn’t adequate data collection. Some places were collecting data,

other places were not, and we explained this to them.

At the same time, we made most of these changes just prior to

Senate Finance Committee hearings that were to take place, three

sessions on the Customs Service in the spring of 1999 to be modeled after, to a certain extent, the hearings that the Senate Finance

had on the IRS earlier.

So we tried to impress on them the necessity of making change;

this is the right thing to do; let’s all get on board. I think a lot of

the confluence of the events came together and was accepted relatively early on, with much to my pleasant surprise.

Mr. CUMMINGS. One last comment. You know, I think that if they

had to go through and be subjected, as a part of the exercise of sensitivity, being searched and, you know, body search and all that

kind of stuff, I think maybe they might look at it a little differently, because I think what happens is—Martin Luther King, Jr.

said, ‘‘you cannot lead where you do not go, and you cannot teach

what you don’t know.’’ And so often I think people need to be sensitized to that extent, because I don’t think they like to see that

happen to their wife or to themselves or relatives.

Thank you, Mr. Chairman.

Mr. CANNON. Thank you, Mr. Cummings.

I’d like to, first of all, salute you, Ms. King and Lieutenant

Boykin, for your organizations’ efforts in ending racial profiling.

And I want you to know that I join you in condemning this offenVerDate 11-MAY-2000 09:43 May 30, 2002 Jkt 000000 PO 00000 Frm 00160 Fmt 6633 Sfmt 6633 C:\DOCS\77191.TXT HGOVREF1 PsN: HGOVREF1
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sive practice and calling the State and local and other prosecutors

to seek to stop this illegal act.

I also want to see us have some reaction to those people who

falsely accuse law enforcement officers of racial profiling.

I might just point out here as a side-bar, Ms. King, are you familiar with the study last year or so of racial profiling in Salt Lake

City?

Ms. KING. A little bit, yes.

Mr. CANNON. My recollection is we came out of that pretty well

as a police force. And in part we have a number of Hispanics on

our police force. The chief of police is Hispanic. I think there was

a great deal of sensitivity to it, and I think people just thought it

was wrong. So I’m pleased that, by far, the largest city police force

in the State of Utah came away from that clean. And by the way,

that happened in the context of an increase of 128 percent in our

Hispanic population over a 10-year period. So I think there was a

difficult challenge there, and we met that pretty well in Salt Lake.

Would the two of you describe your organizations’ efforts to help

support the use of audio-visual technology as one of the possible

tools that can help eliminate racial profiling?

Ms. KING. Ah, yes, sure. As I guess I was talking before you

came in about our support of H.R. 2074, which we would very

much like you to consider becoming a sponsor of, And one aspect

of that bill is a grant program that provides moneys to jurisdictions

to do these kind of best practices programs, setting up data collection programs, oversight programs, accountability programs, training programs and video cameras if that’s what the jurisdiction feels

would be beneficial to them. So that’s one area right now that’s

pending where we’re actively promoting that legislation.

Mr. CANNON. Are you doing anything in the community beyond

the legislative action?

Ms. KING. We’re doing all kinds of stuff on this. I mean, we’re

bringing litigation, and we’re working both at the State and Federal level and on legislation and also on public education. This is

one of our top priorities.

Video cameras per se, as I said earlier, I don’t see that as the

sole solution to the problem of racial profiling, so we’re really focusing more on data collection. I think in an ideal world, we’d have

the technology like they have in Montgomery County, which is

video cameras in every car and also hand-held devices, like those

described earlier. And in an ideal world, everybody would have

both pieces of technology, but it’s not an ideal world.

Although we support video cameras, we wouldn’t want to see

funding go to video cameras if it meant taking it away from data

collection programs.

Mr. CANNON. The really cool thing is that the cost of these devices are coming down so dramatically. Maybe we’ll see more of it

over time.

Lieutenant Boykin.

Mr. BOYKIN. Yes, Mr. Cannon. As my colleague had indicated,

we’re strongly in support of in-car video systems as a method to

combat racial profiling. And like she indicated, we also recognize

that’s only one of many aspects that we need to look at. One that

we might want to start at is our hiring practices. If you traditionVerDate 11-MAY-2000 09:43 May 30, 2002 Jkt 000000 PO 00000 Frm 00161 Fmt 6633 Sfmt 6633 C:\DOCS\77191.TXT HGOVREF1 PsN: HGOVREF1
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ally and historically look at the types of people that law enforcement have hired, and even the way that we try to attract them,

if you would actually take a close look at the commercials and the

brochures that police departments are putting out, they’re high-action types of videos. They’re high-action types of brochures with police dogs and helicopters and SWAT teams and people with guns.

That’s the type of people you’re going to get. That’s the type of psychological profile of the individual you’re going to get if that’s what

you’re actually putting out as a persona for what you’re looking for.

I think we need to take a close look at that as an aspect. We certainly need to look at our training and education aspect. And like

Ms. King, we’re doing quite a bit in the community, because we believe that it’s a full-circle process. We’re actively out there.

And as I stated in my opening statements, that I think NOBLE

is in a very unique situation because many times our members and

executives are faced with some of the same challenges that are the

minorities. We live in many of these communities that are receiving this level and type of services. So we believe that we have an

obligation to these minority communities to make a marketable

change.

For that reason we have many community-based programs.

We’re trying to educate both young and old of their actual constitutional rights in the community. We went in partnership with Allstate Insurance Co. and created a brochure and videotape entitled,

‘‘The Law and You,’’ which actually speaks loud to actually what

individual rights are. The highlighted message is whether you’re

right or wrong. And we’ve seen incident after incident that the

street is not a good battleground for a citizen to try to take up their

cause. So that’s important to us.

Additionally, we went in partnership with the Community Policing Consortium, in which we go to police departments and provide

training in the community. We’re actually bringing community in

with the police department and talking about what’s important to

them, developing problem-solving modules.

So that’s just a little bit of what we believe is the solution to this.

Mr. CANNON. Thank you very much, Ms. King and Lieutenant

Boykin.

I understand that the ACLU and NOBLE have long supported

the use of audio-visual technology as a tool to substantiate charges

of police brutality. Are you aware of how effective this technology

has been in regard to preventing or documenting police brutality?

Ms. KING. I don’t know about any studies on it. The anecdote

that I gave in my testimony was of a racial profiling incident where

both patrol cars actually had videos on board. So I think that if police want to figure out a way to avoid having the cameras document what’s going on, they can do so. Of course, sometimes the

cameras help to the benefit of the officer as well who has been

wrongfully charged, but I don’t know of any studies that show effectiveness.

Mr. BOYKIN. I would just have to echo what Ms. King indicated.

Again, referring back to my opening statements of what I said, I

think it’s a pretty well and common known fact that people generally behave better in front of cameras, whether you’re a criminal

or a police officer. So that added benefit right there certainly, I beVerDate 11-MAY-2000 09:43 May 30, 2002 Jkt 000000 PO 00000 Frm 00162 Fmt 6633 Sfmt 6633 C:\DOCS\77191.TXT HGOVREF1 PsN: HGOVREF1
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lieve, would not only benefit the police department, but also the

community at large, and that’s very important. We have a vested

interest in our community to make sure that all communities are

receiving the proper and adequate quality level of police law enforcement services.

Mr. CANNON. Thank you, Ms. King.

Ms. King, today we’ve seen how audio-visual technology can both

substantiate charges of racial profiling and, likewise, perhaps to

disprove some claims.

In addition to what your organization has done as far as this

technology in Texas, where else has the ACLU supported State legislative efforts to support the use of this technology to combat racial profiling?

Ms. KING. Well, I’m aware of legislation pending currently in Indiana and Minnesota. I’m quite certain our affiliates would support

both of those bills, especially the Minnesota bill. It’s a very good

piece of legislation.

And other than that, in terms of legislation—I guess New Jersey

wasn’t legislation. It was under consent decree. And North Carolina was, I believe, legislation for their video cameras, and we did

support that bill.

Mr. CANNON. Thank you——

Ms. KING. And Missouri as well.

Mr. CANNON. Ms. King and Lieutenant Boykin, it’s our understanding that audio-visual tape evidence is admissible evidence in

court. Do you agree with that?

Ms. KING. Uh-huh.

Mr. BOYKIN. Most definitely. We believe that it certainly should

be admissible.

Mr. CANNON. Mr. Kelly, please, would you describe for the committee how the Customs Service uses audio-visual technology to

record activity, and specifically how such evidence is used when

Customs agents are accused of inappropriate actions?

Mr. KELLY. It’s not used in that regard. The only aspect of technology that’s used as far as personal search is concerned is a body

scan—the body-imaging machines that are now at airports at 10

major cities throughout the country. Basically what that does is an

x-ray light looks through the clothing of an individual, but not

through the body, and that is only done on a voluntary basis.

That’s when someone has been singled out for a pat-down. If that

individual does not want to be touched, they can volunteer to go

in front of this machine. It looks through, as I say, the clothing and

not the body.

If that person does not have contraband in their possession, that

picture is immediately destroyed. The supervisor has the responsibility to seeing to that happening. If, in fact, drugs are found, the

contraband is found, that picture is taken. So that is a visual aspect of the technology that’s in place now in the Customs Service.

There has been some talk about the possibility of audio-visual

components being used as far as personal search is concerned. I

think there are some privacy issues that might arise there. In fact,

if you use them, say, in a room where someone is asked to take off

a piece of their clothing, that’s an area of concern. It’s been disVerDate 11-MAY-2000 09:43 May 30, 2002 Jkt 000000 PO 00000 Frm 00163 Fmt 6633 Sfmt 6633 C:\DOCS\77191.TXT HGOVREF1 PsN: HGOVREF1
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cussed, but to the best of my knowledge, the agency hasn’t moved

forward in that regard.

Mr. CANNON. Mr. Cummings, do you have any other questions?

Mr. CUMMINGS. I don’t have anything else. I want to thank you

all for being with us, and your testimony has been extremely helpful.

Mr. CANNON. I would also like to repeat our thanks to you for

your patience under these long and trying circumstances, and

thank you for coming. And the committee will stand adjourned.

[Whereupon, at 4:35 p.m., the committee was adjourned.]

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