Ohio's Statewide Effort To End Profiling
From the July 2001 Police Chief Magazine
By Earl M. Sweeney, Chair, IACP Highway Safety Committee, and Director, New Hampshire Police Standards and Training Council, Concord, New Hampshire
Racial profiling continues to be traffic enforcement's number one hot-button issue. It threatens to retard progress in police-community relations and to inhibit police departments from taking a proactive posture in traffic enforcement. This, in turn, may lead to more deaths and injuries on our nation's highways.
It was the author's pleasure to assist the Law Enforcement Foundation of Ohio in a recent statewide effort to develop and implement policy and training initiatives to end profiling, both as a fact and as a perception.
Ohio's lieutenant governor, Maureen O'Connor, who is also the state's public safety director, made funding available to the foundation for a comprehensive multiyear program to address the profiling issue. The foundation served as the catalyst to bring a diverse group of law enforcement professionals together in a common cause. Colonel Kenneth Morckel, superintendent of the Ohio State Highway Patrol, participated in the steering committee. He volunteered many of the patrol's resources, including its media production facility and training academy.
The Buckeye State Sheriffs' Association, the Ohio Association of Chiefs of Police, the Fraternal Order of Police, and the Ohio chapter of the National Organization of Black Law Enforcement Executives (NOBLE), all represented on the steering committee, devoted the time and talents of their members. As the project progressed, various minority groups from the community were invited to hear presentations of parts of the curriculum and to provide input.
The goals of the project were to (1) develop a sample policy that defined illegal profiling and outlined procedures for constitutional traffic stops (see sample policy), (2) develop a core in-service training program that included written tests, and (3) train a cadre of instructors to present in-service classes at locations throughout the state. The sample policy and training program were designed for use by Ohio law enforcement agencies of all sizes. The sample policy is complete, and trained instructors will present the first of the training programs this summer.
Developing the Sample Policy
In developing the policy, the first issue was how to define the term profiling. Rather than confine the definition to race or ethnicity, or to say that all forms of profiling—such as the serial killer profiles developed by the FBI—are wrong, the steering committee addressed the issue from a purely constitutional perspective. For purposes of the sample policy and the training program, the committee defined illegal profiling as the "unequal treatment of any person including stopping, questioning, searching, detention, or arrest on the basis of their racial or ethnic characteristics, gender, or sexual orientation."
The committee then constructed a sample policy based on this definition. The policy prohibits illegal profiling. It also requires departments to train their officers in this subject and provide supervisory oversight, a workable citizen complaint process, and constructive discipline, and to recognize a responsibility to provide relevant data and information to the public. No effort was made to write a one-size-fits-all policy. Rather, the policy was written broadly enough to encompass data collection on traffic stops in departments where that would be an issue, and to tap other information sources such as citizen complaints and supervisory scrutiny as management tools in other departments. For example, the Ohio State Highway Patrol now collects traffic-stop data and makes it available to the public on the department's Web site (see www.state.oh.us/ohiostatepatrol/.
Developing the Training Program
For the training program, the committee developed several learning objectives, in five broad categories:
- Value of traffic stops to highway safety and crime prevention
- Legal and constitutional issues
- Interactions between officers and motorists
- Officer safety
- Detecting evidence of other criminal activity, during traffic stops
These categories were arranged in four separate training modules; each module takes two days to present. The program was also designed so that it could be presented in shorter, roll-call segments. Instructors were encouraged to customize the curriculum to cover local issues and to suit the instructor's personality and the students' learning styles.
Module 1, "Crashes and Crime—The Correlation," compares the cost of traffic crashes with the cost of crime, the spin-off benefits of traffic enforcement, and examples of good criminal arrests that have followed from traffic stops.
Module 2, "Constitutional Issues in Traffic Stops," deals with federal and state appellate court decisions under the Fourth and Fourteenth Amendments to the U.S. Constitution regarding the reasonable expectation of privacy—the so-called right to be left alone—and the right to equal protection. It focuses on examples of reasonable suspicion for stops and probable cause for arrests. It reinforces the concept that stops not based on one of these two justifications are per se unconstitutional.
Module 3, "Officer-Violator Relationships," covers the psychological impact of traffic stops on the violator and the officer, officer survival issues, what minority group members expect from the police at a traffic stop, and verbal approaches designed to minimize conflict.
Module 4, "Looking Beyond the Traffic Ticket," explores the constitutional basis for consent searches, cross-cultural communications issues, high-context versus low-context cultures, language barriers, listening and questioning skills, clues to deceptive behavior, collection and preservation of evidence, and how to maintain rapport in situations where a search is conducted and no criminal evidence is found.
An Eye-opening Experience
At the outset of a four-day train-the-trainer course, a questionnaire was administered to the prospective trainers. The questionnaire was designed to determine their attitudes toward illegal profiling. Students filled out the questionnaires anonymously, but were asked to disclose their gender, race, and ethnicity. The questions were as follows:
- To what extent do you believe motorists in the United States as a whole are stopped and questioned by the police solely because of race?
- To what extent do you believe motorists in Ohio are stopped and questioned by the police solely because of race?
- To what extent do you believe motorists are stopped by your department and questioned solely because of race?
- Do you think racial profiling is simply something the media dreamed up and would not otherwise be a concern?
- Do you believe police officers should be required to record the race or ethnic origin of motorists that they stop?
Due to the small number of students in the class, firm statistical conclusions could not be drawn from the responses, but the answers in general were interesting. The majority of students agreed that in the United States motorists are stopped and questioned by the police solely because of race either occasionally or frequently. Respondents felt that this did not happen as often in Ohio as in other parts of the country. In fact, they reported that it seldom or never happens in their own departments.
All agreed or agreed strongly that racial profiling is a real concern and not just an invention of the news media. Slightly less than half of the officers believed that police officers should be required to record the race or ethnic origin of the motorists they stop. Those who did not agree cited paperwork burdens and possible disengagement from traffic enforcement as their reasons. It was interesting that the African American officers and the white officers were significantly less inclined to favor recording racial and ethnic data on traffic stops than the Hispanic and Asian American officers.
Near the end of the course, when the participants had gotten to know one another, minority advocates addressed the class during a panel discussion on the subject of the cultural concerns that are raised when minorities interact with the police. Thereafter, the course facilitated a private discussion among the officers. The students rated this as the most meaningful part of the entire program. White, Hispanic, African American, and Asian American officers in the class discussed various aspects of their cultures and personal experiences related to stopping citizens and being stopped themselves by the police. Students participated in a mock civil trial, in which one of the students was accused of racially profiling the instructor—a white person driving through a minority neighborhood. In a particularly poignant and unrehearsed moment, a veteran African American officer told of racial epithets and jibes that he had received during his career, and how he had responded to them.
The trainers were asked to fill out evaluations on the last day of the course. When tallied, these evaluations showed that 36.3 percent of the students felt they had gained considerable new knowledge of how to get the community to collaborate in traffic enforcement efforts, while 59.7 percent said they had gained some new knowledge. Only 4 percent said they learned nothing new. Even though the class was composed of mostly experienced trainers, 27 percent said they gained many instructional skills by attending, and 46 percent said they had gained a few new instructional skills. Only 27 percent said they gained no new instructional skills. Many in the latter group said the program had reinforced their existing skills. Asked to suggest ways to improve the program, students recommended allowing more discussion and participation early on, "hitting the topic head-on," providing more information on cultural differences, and facilitating more discussion between white officers and minority officers in the class.
When students were asked how their attitude toward the topic had changed as a result of the class, replies included the following:
- I'm as much or more eager to serve my community—this truly has the potential to revolutionize law enforcement.
- I now have a platform to deliver the message to my fellow officers.
- We need to address the problem from an officer's date of hiring to their date of retirement and not just go for a "quick fix."
- I now realize how important this issue is to minorities.
- We can make great strides as a profession if we do this thing right and treat others as we want to be treated.
- I learned a lot from the viewpoints of Hispanic, Asian, and African American officers during the discussions.
Policy development, implementation, and training can have a great impact on officers' attitudes and increase citizens' faith in, and respect for, the police. Officers can learn a great deal when interacting with one another, especially if the officers come from diverse backgrounds. Before the topic is tackled, trainers must develop a comfortable, nonthreatening classroom atmosphere. When sample policies and training curricula are developed, all levels of law enforcement should participate. In addition, the minority community should be consulted. Sample policies and training programs must be developed in such a way that there will be basic uniformity as well as an opportunity to customize these policies and programs to the needs of individual departments and trainers, so long as the basic objectives are met.
The Ohio experience shows once more the positive outcomes that can result from recognizing a problem and confronting it in a way that gets buy-in from the entire law enforcement community and the citizens it serves.
Ohio Law Enforcement Model Guideline
Professional Traffic Stops
General Order No. 001-00
Note: The contents of this model directive should be carefully analyzed with respect to each law enforcement agency's individual characteristics, resources, legal and political environment, and needs, and tailored as necessary to fit the specific agency. It is not intended and should not be used to set a higher standard than that which is required under applicable state and federal law. It is intended solely for the internal use of a law enforcement agency in establishing policies for the internal governance of the agency and its officers.
The purpose of this written directive is to provide guidelines for officers in the enforcement of the traffic laws and ordinances; to ensure that traffic enforcement is carried out in a proactive manner within the dictates of the U.S. and Ohio constitutions and laws so that all citizens are dealt with fairly; and to protect our officers from unwarranted accusations of misconduct when they act within the dictates of the law.
A. Traffic crashes are a leading cause of death, injury and property damage to innocent persons. Citizens consistently name traffic violations as a major community policing concern in neighborhoods. Active, visible traffic law enforcement sends a strong deterrent message that reduces the incidence of aggressive driving and road rage and keeps the streets free from crime. Wanted criminals, drug couriers and persons who have just committed or are about to commit crimes are often apprehended as the result of being stopped for a traffic violation. Police officers should be alert and observant at all times during patrols, to identify and act upon unusual occurrences and violations of the law.
B. A fundamental right guaranteed by both the U.S. and Ohio constitutions is the "equal protection" clause. The U.S. Constitution and in particular the Bill of Rights places an emphasis on the protection of citizens' fundamental rights. Everyone, citizen and alien alike, is entitled to walk, drive, and move about in public free from police interference so long as they obey the law. Likewise, innocent citizens are entitled to be free from crime and to move about freely without fear of those who do not obey the law.
C. Those who commit infractions must receive equal and fair treatment, regardless of their race, color, ethnicity, sex, sexual orientation, physical handicap, religion, or other belief system.
A. All uniformed officers are expected to enforce the traffic laws, and stop and detain motorists or pedestrians whenever there is reasonable suspicion that they have committed, are committing, or are about to commit an infraction of the law.
B. Officers must conduct themselves in a dignified and respectful manner at all times when dealing with the public. The Law Enforcement Code of Ethics articulates the professional and personal behavior that is expected of all law enforcement officers.
C. Racial and ethnic profiling are totally unacceptable patrol tactics and will not be condoned. The department will utilize various management tools to ensure that racial/ethnic characteristics are not being used in traffic enforcement.
D. Officers are prohibited from stopping, detaining, searching or arresting anyone on the basis of illegal profiling. Officers shall make traffic stops and conduct field interviews only on the basis of reasonable suspicion, and shall make arrests only on the basis of probable cause.
E. This policy shall not preclude officers from stopping a person to offer assistance, such as upon observing a substance leaking from the vehicle, a flat tire, or someone who appears to be ill, lost, or confused. This policy does not prohibit stopping someone suspected of a crime based on a description that includes one or more of those identified attributes, or considering a person's apparent age when investigating curfew or liquor law violations.
A. Illegal profiling: Unequal treatment of any person including stopping, questioning, detention, or arrest on the basis of their racial or ethnic characteristics, religion, gender, or sexual orientation.
B. Articulable suspicion: Also known as reasonable suspicion. More than a mere hunch. Based on a set of articulable facts and circumstances that would warrant a person of average caution in believing that an offense has been committed, is being committed, or is about to be committed by a specific person. It can be based on an officer's observations, training and experience, or information received from credible outside sources or third parties. Police-initiated action must be based on an individual's illegal behavior, or a situation where an individual matches the description of a specific suspect.
A. Training. Officers will receive initial and ongoing training in conducting professional traffic stops. Training programs will emphasize the need to respect the right of all persons to be treated equally and to be free from unreasonable searches and seizures. In developing these training programs, the department shall consider the following aspects of professional traffic stops:
- Officer safety
- Cultural awareness/language barriers
- Search and seizure laws, and other related constitutional issues
- Interpersonal communications skills
B. Supervision. Traffic enforcement activities shall receive consistent, ongoing supervisory attention to ensure that officers are placing sufficient emphasis on the need for proactive traffic enforcement, are aware of its benefits, and conduct traffic stops in a courteous and constitutional manner. Supervisors shall familiarize themselves with this policy and shall take appropriate steps whenever it appears that it is being violated. They shall be particularly alert to any indication of discriminatory treatment of any segment of the public by individual officers or squads.
C. Initiating the stop.
- There is no such thing as a "low risk" stop. Too many officers have been hurt as the result of a sudden, unprovoked attack to regard any stop as "routine." Officer safety must be the paramount consideration in all stops, but must not subsume common courtesy and helpfulness. The risks involved in stops include not only hazards from the persons being stopped, but also from other traffic, and from other persons at or near the location of the stop.
- Prior to stopping a motorist or pedestrian, the officer shall notify the communications center in accordance with applicable communications protocols, and shall observe applicable safety precautions in selecting the site for the stop, signaling the individual to stop, positioning the police vehicle and approaching the motorist or pedestrian. Upon concluding the stop, an appropriate notation should be made of the stop and the enforcement action taken.
D. Video camera. If the police car is equipped with a video camera, this equipment shall be operated in accordance with applicable procedures, including:
- The circumstances and method by which the camera is to be activated and de-activated
- Time periods for the retention of tapes
- Procedures for supervisory review of tapes
E. Officer-violator relations.
- The stopping of a motorist or a pedestrian constitutes a seizure under applicable constitutional law. It is an opportunity for the department to make a favorable or an unfavorable impression on a citizen, depending on how the officer handles the situation.
- Officers should strive to maintain a proper balance between sufficient command presence to maintain control of the stop, and an attitude of friendliness. The key is projecting a courteous, non-confrontational attitude, being assertive without being overly aggressive; suspicious without telegraphing an overly suspicious attitude.
- Officers should have the following objectives in mind for every traffic stop:
a. Prevention of traffic crashes and hazardous conditions.
b. Taking immediate action to interrupt an ongoing violation of the law. This is achieved by pulling the vehicle over.
c. Having a symbolic effort on other traffic. The sight of a police car with a violator pulled over reminds the public that the police are on the job.
d. Detecting any evidence of a more serious violation. Proper observation skills and conversational tactics will enable this.
e. Having a positive effect on the motorist's future driving behavior. This is less likely to have this positive effect if the officer's behavior alienates the motorist.
- 4. Over time, officers develop their own individual approaches to the operators of vehicles that best fit their own personalities, and officers are not precluded from using their own formula if it works well. Otherwise, the following method of approach, used consistently, will minimize officer/violator conflict, and enable court testimony to be given with confidence.
a. Greeting: "Good morning, sir," "Good evening, ma'am," etc.
b. Introduction: "I am with the Buckeye Police Department." If appropriate, give your name and rank.
c. Legal justification: Give the reason why the person is being stopped or detained. Describe the actions of the vehicle rather than personalizing the action to the driver. This will reduce tension. "I stopped you because I observed your vehicle go through the stop sign at the last intersection without coming to a complete stop." Never "lecture" the driver on his or her conduct, or say anything demeaning.
d. Feedback: Invite the driver to offer a reasonable excuse. "Was there some reason, ma'am, why you didn't stop?" Rather than leading to arguments, this approach allows the violator an "escape valve" and may reduce tension.
e. Documents: Politely ask for identification and any required documents. "May I see your license, proof of insurance, and registration, please?" When accepting the papers, have the driver reach outside the car, do not reach inside the vehicle. Take the papers with the non-gun hand, and say, "Thank you."
(1) Obtain another document of identification if the driver has no license. If any suspicion of further infractions of the law develop based on observations with any of the five senses, inquire further.
(2) Do not lecture, "talk down to", or deliberately embarrass the person you have stopped.
(3) When obtaining the person's home telephone number and employer's name, explain that you are legally required to obtain this information.
f. Enforcement decision: Once satisfied that there are no further violations, request that the persons remain in the vehicle, and return to the cruiser. "Please remain in the vehicle, for your safety and mine. I will be back shortly."
(1) Take an appropriate, documented enforcement action for every stop, generally a citation, warning, or arrest.
(2) Avoid "attitude tickets", where a motorist who would otherwise be given a warning is cited or arrested simply because the officer considered them to be disrespectful.
(3) Multiple citations should never be based on the motorist's race, ethnicity or other personal characteristics.
g. Closing the contact: If there is no reason to hold the motorist further, return cautiously to the vehicle.
(1) Return the driver's documents, along with a copy of any written warning or citation, and any public information pamphlets provided by the department.
(2) Advise the driver of the action taken and what if anything he or she needs to do as a result, such as signing the citation, appearing in court, etc. Do not attempt to predict the actions of the court.
(3) Once cited or warned, and no further reasonable suspicion exists, the individual should be free to leave.
(4) Use an appropriate closing. For example, if the person was cooperative, thank him or her for their cooperation. If the person is still angry, simply say, "Please drive safely" or some other appropriate safety message.
(5) If the driver is upset, give him or her time to calm down before they resume driving.
(6) Make sure the driver is able to safely re-enter the traffic stream, then clear the stop with the communications center. Make sure there is a record made of the enforcement action taken. .
(7) If a search was conducted and no illegal items or evidence was found, apologize sincerely for the inconvenience and be sure the vehicle is returned as closely as possible to the condition in which it was found.
(8) The deliberate recording of any misleading information relating to a traffic stop or field interview is prohibited and shall be a cause of disciplinary action, up to and including dismissal.
F. Complaints of misconduct at stops.
- Any person may file a complaint with the department if they feel they have been stopped or searched based on illegal profiling, or subjected to improper treatment. No person shall be discouraged, intimidated, or coerced from filing such a complaint, or discriminated against because they have filed such a complaint.
- 2. Any officer, including the officer who initiated the stop, who is told by a citizen that they wish to file a complaint, shall record the person's name, address, and telephone number, and report the incident to a supervisor as soon as possible, and in all cases, prior to the end of the duty shift.
- All citizen complaints shall be reviewed, acknowledged in writing by the Chief's office, and the complainant and the officer informed of the results of the department's review within a reasonable period of time. The report and the reviewer's conclusion shall be filed with the Chief, and shall, whenever appropriate, contain findings and suggestions for disciplinary action, re-training, or changes in policy, training, or tactics.
- The department utilizes proactive methods appropriate to its resources and community characteristics to ensure that traffic stops are being conducted in a safe, legal, and courteous manner. Examples of methods that may be employed include but are not limited to:
a. field supervision
c. report review
d. regular analysis of police activity that can result in civil rights abuses
e. the citizen complaint process
f. requirements for officers to intervene and report illegal actions by others
g. opinion surveys of random samples of persons who have been stopped
h. collection, analysis and use of data on officers and units to detect possible illegal profiling (such data may pertain to offender's race or ethnicity, the reasons or and disposition of traffic stops, and the number and results of discretionary vehicle searches)
i. performance evaluations, internal investigations, and positive and negative discipline
j. periodic reports to the community or elected officials
5. The Chief Executive Officer of the department is responsible for responding to questions from the public, the media, and officials concerning their policy, any allegations of illegal profiling in traffic stops, and the disposition of citizen complaints.
This model guideline was developed by the Law Enforcement Foundation, in collaboration with the Ohio Association of Chiefs of Police, the Buckeye State Sheriffs' Association, the Ohio State Highway Patrol, the Fraternal Order of Police of Ohio, the Cincinnati Chapter of the National Organization of Black Law Enforcement Executives, and representatives of various community groups. Funding for the project was provided by a grant from the Ohio Office of Criminal Justice Services, and contributions from the Ohio State Highway Patrol, and the Ohio Association of Chiefs of Police.