I guess we've all heard about "the Phoenix Memo." A "prescient" FBI agent in Phoenix, Ariz., "connected all the dots" according to news reports, when he noticed a high number of Arab men taking flight lessons in the US and wondered if some were terrorists.

He sent the memo to FBI HQ in Washington, where it was promptly forgotten, until long after 9/11.

He's lucky. If this agent worked for Texas DPS instead of the FBI, and he sent in such a memo on or after Sept. 1, I doubt that DPS would have ignored it. They'd probably have fired him. His memo is pure racial profiling, prohibited since Sept. 1 by Art. 2.131 TX CCP.

The legislature has passed lots of dumb bills in its history, but has there ever been a bill that was proven to be as foolish as this in so short a time?

OK, after having heard the dull thud of no response to your posting, I'll take the bait at the risk of being called politically correct....

My response goes something like this...

Lots of dots that haven't been connected here. Article 3.05 CCP defines racial profiling as "a law enforcement-initiated action based on an individual's race, ethnicity, or national origin rather than on the individual's behavior or on information identifying the individual as having engaged in criminal activity."

The sponsor of this stuff is on the record as stating that the intention of the bill was not to prohibit criminal profiling, even if elements may include national origin or race. So in this situation, it wouldn't seem illegal to me for an FBI agent who noticed this odd pattern of behavior -- men from known terrorist-harboring countries suddenly taking flying lessons, but not the least bit interested in learning how to take off or land -- to look into it further. Investigate these folks more closely. Check on these guys to see if they are linked in any fashion to each other or to terrorist organizations.


This in my mind is a far cry from stopping every middle-eastern looking guy on traffic because, heck, since he looks like he is middle-eastern he could be a terrorist.


I don't think that the law asks our law enforcement people to be ignorant. The law requires that they not use race as a lazy-cop shorthand and substitute for criminal investigation. Seems fair enough to me.

OK, now I'll duck and wait for incoming!!!

I believe that the threat of being accused of racial profiling has chilled the reliance of law enforcement upon any information that has a racial tone to it. This means that officers are prone to decline to follow up on otherwise rightfully suspicious information because they are afraid that more politically correct people will later second guess their motives. Some of those same people are now writing editorials questioning whether law enforcement was aggressive enough in pursuing those suspicions.

I agree with some of what both Rob and John have to say.

As a police officer that worked deep nights almost exclusively until recently, racial profiling is almost a non-issue. The vast majority of the time I did not have a clue what race or gender or ethnicity the driver was until I stood next to their car.

The problem with the comments made by the sponsor of the bill is that the rank and file officer seldom has the benefit of those comments / legislative history.

John is right that a lot of police officers have been chilled by the new legislation. But, thankfully, a lot have not. The new law only requires you to document. If you were not doing anything wrong in the first place, there is no reason to change what you do now as far as an investigation goes. The problem is that many of our guys are fearful of complaints and lawsuits. We used to tell people that threatened to sue us to just take a number and get in line!

If you are committed to doing what is right and not too lazy to document (articulate) your reasons for doing what is right, you seldom get too much grief. When an officer is wrongly disciplined in a situation like that, the same justice system is available to right that wrong, too!

Rob, I'm glad you're not afraid of being called "politically correct" or "incorrect" for that matter. When you stand for what's right, you risk being called all sorts of things........as most police officers and prosecutors know too well! If the risk of being called names causes one to do something other than that which is absolutely right, they're too leaky a vessel to put much stock in anyway!

I know I'm probably preaching to the choir on this one, and I didn't mean to write this much, but, dang it, right is still right and wrong is still wrong..... or maybe I'm just getting old!

By the way, thanks for this website/forum. It keeps my lawyer skills from getting too rusty!

The Phoenix Memo seems to have contemplated investigating all Arab men taking flying lessons in the U.S. According to Time Magazine, a Bush Admin. official whined that this would be "racial profiling," which is correct. It certainly meets the definition of Racial Profiling in Art. 3.05, because that statute requires that law enforcement "action," (like questioning people) be only initiated based on "the behavior or on information identifying the individual as having engaged in criminal activity." Here, the only reason for picking someone out for questioning or other investigation would be that a) he's an Arab, b) taking flying lessons.

The Phoenix Memo absolutely violates Texas law. If it doesn't, then Art. 3.05 is so narrow it is utterly useless. In either case, the only responsible thing for the legislature to do is repeal it, even if it is politically correct. Maybe I'm too cynical, but I suspect political correctness will win out over responsibility.

Wow, a real live boxing match with round by round scoring available. Great idea. The mere fact the statute can be interpreted differently on the same facts by two reasonable people says something about the wisdom of the current language if not the entire concept. One of the issues is whether any reliance on race taints the police conduct or if it is ok so long as there is at least one other factor (e.g., terrorists have unusual flying habits). One thing for sure, the intent of the sponsor plays very little role in the ultimate interpretation of the law; its the "plain meaning" of the language used that counts. "Rather than" is not the best way of expressing the idea that race can sometimes be a suspicious circumstance.

[This message was edited by Martin Peterson on 06-03-02 at .]

Know this: the bill would not have been filed or passed after September 11. That horrible day forced many people to look at law enforcement in a more realistic light. However, our memories are short.

Counterpunch:

Come on, now, Terry, you are deliberately mischaracterizing the quality of the information to justify your ultimate conclusion. The facts are NOT simply 1) Arab, 2) flying lessons. If that was all it was, then that shouldn't raise suspicion.

And here is where people fall in to the lazy race trap. if you just say, "Arab" therefore....you have made the mistake we have been acused of making. We have a number of guys from countries that are know to harbor terrorists. We have never before had a group of guys from these countries show up taking flying lessons all over the place. They don't want to learn how to take off or land, just fly straight. We know there have been a continued stream of threats from these middle-eastern countries...indeed, the Trade Center has been blown up once already.

So indeed, we have a lot more information that would justify some deeper investigation that may or may not in the future justify detention, search or seizure...


But to also agree with Mr. Hall, we as prosecutors remember when Batson first got implemented. It just plain sucks to have a procedure where the defense gets to accuse you of being a racist, and you have to justify yourself. I think it would really suck as a cop to have to do that, even if I was always careful to be very fair. I might even grow to resent it...

But let's be honest...any prosecutor reading this ever think another prosecutor might have in the past struck a potential juror because he was black and from a "bad" part of town, if for nothing more than that person simply would be more likely not to dislike police (because that person is more likley to have been jacked up by police on more than one occassion). You know, a 'statistically' safe strike.

And however bad it feels to be accused of being a racist and having to defend myself, this Batson thing reaffirms that as prosecutors and lawyers we have to treat every person as an individual...

so what do you think? Yeah, I know, sounds a little preachy there towards the end. But I'll hit the "post now" button anyhow....

The Phx. Memo's author was unaware that some Arab flight students were uninterested in learning to take off or land a plane. He did know that some (like 2) were possibly connected to shady Middle Eastern orgnizations, but the rest he had no info at all. Art. 3.05 requires knowledge of "the individual" having engaged in criminal activity, not a group. Thus his memo, pointing with suspecion at the large number of Arab flight students, violated 3.05. To comply with Art. 3.05 he would have had to take out any reference to the students' "race, ethnicity or national origin." The Phx. Memo would then have simply said, "there are a lot of people learning to fly." How useful is that?

The fact is, we have to live in the real world. And in the real world, racial, ethnic, and national groups tend to share certain characteristics and tend to stick together. If you are looking for an IRA bomber, a politically correct cop can assume that all 6 billion souls on this planet are equally likely to be suspects, but the effective cop is the one who narrows his search considerably by not wasting time on groups that are unlikely to harbor his suspect.

Its not just effective cops who do this. The whole world does this. Marketers spend millions of dollars doing surveys and focus groups trying to find out what different groups of people, based on race, ethnicity, and national origin, think of their products. If you go to a Men's Wearhouse in the Heights in Houston, you will find a far different mix of clothes from what you find at their SW Houston store. This is not an accident. Others do it too. The very politicians who huffed and puffed about how bad racial profiling is, made no bones about racially profiling voters when it came time to re-draw their district boundaries during the last legis.

So why should law enforcement, alone, be barred from seeing and commenting on the world as it really is? Isn't protecting innocent life far more important than selling clothes?

As for Batson: I find the decision dangerously foolish on two grounds. Firstly, it turns a blind eye to reality. In larger jurisdictions, you rarely know any of the veniremen. Voir dire is often cut very short by judges. The result is, you simply have no way to treat each veniremen as "an individual." You have to make guesses, and race and sex are extrmely important in predicting how a stranger will respond to your evidence (I think this is beyond argument, but if not, consider the contradictory verdicts in the OJ Simpson criminal and civil trials. Consider the 1st Mendendez brother's trial, in which both brothers' juries were deadlocks: all the men in both juries saying the defendant was guilty, and all the women voting not guilty.) Secondly, I am appalled at the further obscuring of the purpose of a trial. A trial's purpose is not to make participants feel important. Its only legitimate purpose is to protect the innocent, and punish the guilty. Period. Yet Batson is not grounded in protecting the defendant, or the public. Instead, it finds that veniremen have a right in the trial process. The more baggage criminal trials have to carry which is unconnected to its purpose, the more likely there will be miscarriages of justice.

Today's Austin American Statesman has an article reporting that a man is suing because he was taken off a plane and questioned. Not surprisingly, he is saying he was taken off solely because of his nationality, as determined by his last name. Go to:

http://www.chron.com/cs/CDA/story.hts/metropolitan/1439370

Terry, I disagree with your conclusion that the memo itself constitutes racial profiling.

While Art. 2.131 prohibits officers engaging in racial profiling, it does not define what constitutes racial profiling, Art. 3.05 does that, as you correctly point out. Art. 2.132 (b)(1) requires each law enforcement agency to adopt a detailed written policy on racial profiling and requires that the policy must clearly define acts constituting racial profiling. That may be where the disagreement is. I think that Art. 3.05 must be narrowly construed because law enforcement-iniated action must, I believe, be directly impacting an individual's freedom in order to be violative. Simply looking into someone's activities by asking questions about them to others and looking at other documentation doesn't restrict that person's freedoms. Is there a constitutionally protected "freedom from being asked about or investigated?"

My department has adopted a written policy, tracking the language of Art. 3.05, that defines radial profiling as "a law enforcement-initated action based on an individual's race, ethnicity, or national origin rather than on the individual's behavior or on information identifying the individual as having engaged in criminal activity. Racial profiling pertains to persons who are viewed as suspects or potential suspects of criminal behavior." The policy goes on the define acts constituting racial profiling as "acts initiating law enforcement action, such as a traffic stop, a detention, a search, issuance of a citation, or an arrest based solely upon an individual's race, ethnicity, or national origin or on the basis of racial or ethnic stereotypes, rather than upon the individual's behavior, information identifying the individual as having possibly engaged in criminal activity, or other lawful reasons for the law enforcement action." It doesn't prohibit investigating someone's activities by means other than those acts described.

The memo itself does none of the things that are prohibited (as far as I know, at least; I confess that I have not read the memo itself and have only the knowledge provided by the media and other urban legend perpetuating sources).

As I am sure you are aware, there are many things involved in an investigation that do not rise to the level of a traffic stop, detention, a search, issuance of a citation, or an arrest. Additionally, there would seem to be an abundance of information identifying the individuals mentioned in the memo that would seem to be important in assessing whether or not racial profiling occurred, or would occur, with further investigation, such as, (1) not just that they were from a certain country, but that their native country was known for supporting terrorist activity, (2) they were involved in flight training (regardless of take-off, landing, or just flying; which I believe may not have actually been part of the memo but part of the growing urban legend),(3) checking their compliance with applicable INS laws (which are really there for a purpose, not just for a souped-up "Mother, may I?" approach to entering our great country), and several others.

We should not place restrictions on good investigative police work that are not really there.

Racial profiling prohibits action based "solely" on those factors delineated above. It does not include asking officers to turn away from an identifying characteristic combined with other information. If a black victim tells me that they were robbed by a black suspect, that generally narrows the field of who I'm looking for, but it doesn't mean that I go arrest the first black suspect I find based solely upon his, or her, race.

I do not see that the memo would constitute racial profiling in any way and respectfully disagree with you.

[This message was edited by Joe C. Hall on 06-05-02 at .]

[This message was edited by Joe C. Hall on 06-05-02 at .]

As others were quick to point out, the real issue is not whether the writing of the memo itself would violate Texas law, but rather whether a Texas police officer might think he could get fired or reprimanded for having that train of thought and taking any particular action based thereon and how that chilling effect, if any, weighs in against the supposed problem the statute was designed to address.

Gosh, that is the real issue. I am the PO-lice and I ain't chilled. Maybe I shouldn't talk so much! But it was more fun to write all that legal stuff about laws.

Where's A.P. when I need him?

Joe:

Under your dept's racial profiling policy, only "actions" that directly affect the suspect are covered. Thus it is illegal to arrest, or detain a suspect if the sole reason is his race.

How is that any different from what the law was pre-Sept. 1? I thought it was always illegal for a cop to arrest someone simply because he's of a certain race, etc.

Are you saying that Art. 2.132(b)("Each law enforcement agency in this state shall adopt a detailed written policy on racial profiling . . .") allows a dept. to so narrow the focus of what is covered by 3.05 that it doesn't change the law at all?

If that is not the case, can you give us an example of what "action" is illegal for your officers to do now, that was legal before Sept. 1?

Sorry about the delay in responding, I was out of town for a funeral.

I do not think the law is different for law enforcement "actions" pre-Sept. 1 or post-Sept.1 and I really do not think writing a memo, based on intelligence gathering duties, constitutes racial profiling. No action is taken against the individual(s). Further investigation, based on behavior, not solely on race or ethnicity, would not seem to me to be illegal.

It was illegal to arrest someone simply because he's of a certain race, etc. prior to Sept. 1, just like it is now. That has been my approach (that it is illegal) for a long time prior to Sept. 1. My parents taught me that "it ain't right" a long time ago prior to becoming a police officer or a lawyer.

The heart and soul of the change brought about by the racial profiling law is the gathering of information and the reporting of that information.

When Art. 2.131 prohibits racial profiling, it is simply stating what most of us already knew. None of the new legislation prescribes a penalty for committing racial profiling. If the action rises to the level of a civil rights violation, it may be dealt with under PC 39.04 or under the Fed Civil Rights laws, or other applicable state laws dealing with acts of official oppression or misconduct. (note that 39.04 deals with persons "in custody" though, so some action must have already been initiated prior to the act constituting an offense in that setting)

Most departments' policies prohibit racial profiling and provide that officers engaging in such practices would be subjected to the disciplinary process.

The new law prohibits racial profiling but does not prescribe a penalty. This is similar to the situation found in Art. 2.14 where a peace officer may "summon a sufficient number of citizens of his county..." and "all persons summoned are bound to obey." Art. 2.15 then says that, if the person refuses "to obey" the peace officer shall report such refusal to the proper district or county attorney, "in order that he (person refusing to obey)may be prosecuted for the offense." What would you charge such a disobedient person with? What would the penalty be for committing such an offense?

Make no mistake about it, I believe that it is absolutely wrong to subject a person to arrest, detention, citations, whatever, solely because of that person's race, but I believed that prior to Sept. 1.

I just don't think the racial profiling law really changes anything except reporting and possibly disciplinary actions in the department. If a defendant raises the issue of racial profiling in a Motion to Suppress, would not the issues be the same as any other constitutional challenge? Can the officer articulate probable cause for the actions he took that have brought the defendant before the court?

I'd love to talk to you on the phone or you can e-mail me. I just hope I'm not misunderstanding where you are coming from or going to with the discussion. jhall@lancasterpolicedept.org

[This message was edited by Joe C. Hall on 06-10-02 at .]

The statistics that the racial profiling statutes require law enforcement to amass, are scientifically meaningless, because they fail to control for the number of people of a particular race that are committing crimes in a particular area. For example, in my neck of the woods, the vast majority of marijuana mules moving dope to Houston are Hispanics. So guess what? The vast majority of vehicle searches involve vehicles driven by Hispanics. But there is no way you can quantify the percent of mules on the road who are in fact Hispanic. Without that fact, you cannot tell if a department is searching vehicles driven by Hispanics simply because they are Hispanic or not. Even if you could control for that fact, you would also have to control for the relative skill and social conventions of the mules. For example, it could be that drug organizations along the border recruit Hispanic mules from cantinas along the border, to drive old cars to a certain store's parking lot in Houston. Such people may be more nervous, and have less well thought out cover stories when they are stopped than more professional white and black drug dealers who are moving their own product, in their own vehicles, which they have modified themselves to hide their dope.

All such statistics do is provide fire wood for racial demogoges who wish to promote themselves at the cost of the police. Why should the citizens of this state pay for the compiling of statistics that have no legit purpose?

As for whether the Phoenix Memo is illegal. Clearly it was legal for the FBI s/Agt. to write, because the federal government (with the exception of the very PC Transportation Dept) has not hamstrung itself like Texas has. But would it be illegal in Texas? Here's the DPS's racial profiling policy:

"Member of the Dept. shall not engage in racial profiling. Racial profiling is defined as 'a law enforcement initiated action based on an individual's race, ethnicity, or national origin rather than on the individual's behavior or on information identifying the individual as having engaged in criminal activity.' Racial profiling is illegal, inconsistent with the prinicples of American policing, and an indefensible public protection strategy." It goes on to warn that "racial profiling is a major infraction."

Maybe you're right, maybe the Phx. Memo is ok, but would you risk your career in the DPS by writing it with a policy like that?

So far, the best anyone can say about the racial profiling statutes is that they are really a legal nullity. Can anyone explain what GOOD they do?

There are two good things that come from the racial profiling law:

1) We set our standards high, consistent with the American principle of justice that lets 100 guilty persons go free to avoid convicting one innocent person. While this principle may be painful in practice, given the constant clamor of guilty persons that they are innocent, it is the bedrock justification for our long-lasting pride in our criminal justice system.

2) We get a lot of videocameras put into patrol cars, guaranteeing that many more guilty people will be caught and fewer innocent people will be arrested. Anyone who has seen me train knows how I do like the hidden (or even visible) recording device, taping the wonderfully guilty words of the suspect who claims, in the presence of the officer, his innocence, and then gloats, in the back of the patrol car, over his guilt.

Senator West, who sponsored the racial profiling bill, can certainly be criticized for the bill in some ways, but, frankly, I think his decision to tie racial profiling to statistics and videocameras was politicial genius. I don't like all of it, but I can admire it.

[This message was edited by John Bradley on 06-11-02 at .]

"For example, in my neck of the woods, the vast majority of marijuana mules moving dope to Houston are Hispanics." This is what you said in your June 10th post, Terry...

This is why we have the racial profiling laws today. You could very well be right, but you also admitted that we don't really know the total universe of marihuana mules, so maybe you are wrong.

And the danger is that some lazy/nonthinking cop thinks the same thing you do, and instead of using his head and thinking through a reasonable suspicion situation, he just uses, for lack of a better term, "racial shorthand," and uses the race of this person as, in his mind, the factor for the stop. What I am saying is the guy very well may not be a racist, but he just got lazy in his analysis of the situation.

So I think that in the long run, the law is reminding cops that they have to look at their facts, and not use racial shorthand based on unproven assumptions, in stopping folks.

And I think maybe John is right, we lose a few bad guys alon the way. but I also think that the public/legislature wants law enforcement to respect individual rights not to be stopped because a cop thinks that statistically you belong to a race that, more often than white people, haul marihuana around. It is this respect for the rights of every individual that indeed sets our system apart.

In 1972, at the Munich Olympics, athletes were kidnapped and massacred

by:

(a) Olga Korbut

(b) Sitting Bull

(c) Arnold Schwartzenegger

(d) Muslim males between the ages of 17 & 40

In 1979, the US embassy in Iran was taken over by:

(a) Lost Norwegians

(b) Elvis

(c) A tour bus full of 80-year-old women

(d) Muslim males between the ages of 17 & 40

During the 1980's, a number of Americans were kidnapped in Lebanon by:

(a) Bart Simpson

(b) The King of Sweden

(c) The Boy Scouts

(d) Muslim males between the ages of 17 & 40

In 1983, the US Marine barracks in Beirut were blown up by:

(a) A pizza delivery boy

(b) Pee Wee Herman

(c) Geraldo Rivera

(d) Muslim males between the ages of 17 & 40

In 1985, the cruise ship Achille Lauro was hijacked, and a 70 year old

American passenger was murdered and thrown overboard by:

(a) The Smurfs

(b) Pamela Lee Anderson

(c) The Little Mermaid

(d) Muslim males between the ages of 17 & 40

In 1985, TWA flight 847 was hijacked in Athens, and a US Navy diver was

murdered by:

(a) Captain Kidd

(b) Charles Lindbergh

(c) Mother Teresa

(d) Muslim males between the ages of 17 & 40

In 1988, Pan Am Flight 103 was bombed by:

(a) Scooby Doo

(b) The Tooth Fairy

(c) Butch Cassidy and The Sundance Kid

(d) Muslim males between the ages of 17 & 40

In 1993, the World Trade Center was bombed by:

(a) The Backstreet Boys

(b) Grandma Moses

(c) Dr. Pepper

(d) Muslim males between the ages of 17 & 40

In 1998, the US embassies in Kenya and Tanzania were bombed by:

(a) Mr. Rogers

(b) The Muppets

(c) The World Wrestling Federation

(d) Muslim males between the ages of 17 & 40

On 9/11/01, four airliners were hijacked and crashed into the World

Trade Center, the Pentagon and an open field in Shanksville, PA,

wherein thousands of people were killed, by:

(a) Wile E. Coyote

(b) The Supreme Court of Florida

(c) Mr. Bean

(d) Muslim males between the ages of 17 & 40

In 2002, the United States fought a war in Afghanistan against:

(a) Enron

(b) The Lutheran Church

(c) The NFL

(d) Muslim males between the ages of 17 & 40

In 2002, reporter Daniel Pearl was kidnaped and murdered by:

(a) Bonny and Clyde

(b) Captain Kangaroo

(c) Billy Graham

(d) Muslim males between the ages of 17 & 40