"Racial Profiling" in Arizona: Sensational Press vs. Legal Reality


By Sun S. Choy
Not surprisingly, Arizona Senate Bill 1070 has stirred up a lot of controversy and sensational press regarding “racial profiling,” not only in Arizona, but across America. With calls for economic boycotts and legal challenges on one end of the political spectrum and the need for “law and order” and proactive enforcement of “immigration laws” on the other end, it remains extremely difficult to establish a viable claim for “racial profiling.” This is the legal reality.

Historically, the term “racial profiling” is rooted in the concerted effort of law enforcement agencies, on a national, state and local level, to stem the tide of drug trafficking through the use of the nation’s Interstate system. These agencies used drug courier profiles as a legitimate law enforcement tactic. In some cases, law enforcement officers abused this profiling tactic by targeting African American and Hispanic drivers and by using technical violations of traffic law as a pretext for investigating whether drivers and occupants were trafficking drugs. In response, many states and local jurisdictions passed laws to prohibit racial profiling while requiring law enforcement agencies to keep certain statistical data in an effort to prevent future abuses.
Instead of drug trafficking, Arizona’s law targets illegal immigration. Ultimately, the courts will have to decide if Arizona’s immigration law violates federal law on its face and if the enforcement of it actually results in “illegal” racial profiling on a case-by-case basis. In the meantime, plaintiffs still face an uphill battle in establishing federal liability for “racial profiling.” Under the Fourth Amendment’s prohibition against unreasonable searches and seizures, the Supreme Court of the United States has consistently applied an objective standard. See Whren v. United States, 517 U.S. 806 (1996). Consequently, the officer’s subjective intent or “ulterior motive” is irrelevant. As long as the officer had an objective basis to stop, arrest or search a suspect, no Fourth Amendment violation occurred.
In contrast, an Equal Protection claim under the Fourteenth Amendment does delve into the subjective intent of the officer in determining if the officer engaged in selective enforcement based on an individual’s race. However, this is an exceedingly difficult standard to meet for most plaintiffs, because liability turns on the plaintiff’s ability to present direct evidence of the officer’s discriminatory motive or intent. Rare is the case that an officer actually announces his discriminatory intent. If a plaintiff’s evidence consists of no more than being a member of a protected class, that the officer is Caucasian, and that there is a disagreement about the reasonableness of the search or seizure for purposes of Fourth Amendment liability, summary judgment is usually proper.
Claims of “racial profiling” continue to demand attention from all corners of society, and rightfully so. However, the press rarely reports that most plaintiffs lose in the litigation arena due to the demanding Fourth and Fourteenth Amendment legal standards. Given the inherent difficulty in presenting direct evidence that an officer’s conduct was solely motivated by race, the liability analysis in a racial profiling claim generally ends with the existence of reasonable suspicion or probable cause to justify the particular seizure or search.
For more information regarding this article, please contact Mr. Choy at 770.818.1412 or by email at [email protected].