RPI and law enforcement
PARAGRAPH (g): ?Nothing in this section shall prevent law enforcement officers, which carrying out their law enforcement duties, from describing particular persons in otherwise lawful ways?.?
The law enforcement exemption allows officers in the course of their duties to ?describe particular persons in otherwise lawful ways.? This clause recognizes the delicate balance the law enforcement community must strike between community and officer safety, and immoral and counterproductive racial profiling. In cases dealing with racial profiling, judges are at the very least finding the practice highly suspect and often unlawful. As paragraph (c) makes clear, RPI would explicitly prohibit racial profiling for the first time in the state constitution. At the same time, preventing officers from using all lawful descriptive terms (as opposed to illegal profiling) would increase the risk to officers and the public.
? Otherwise lawful ways? refers to the Supreme Court guidelines identifying when law enforcement officers may consider race or ethnicity. The Supreme Court has ruled that the 4th Amendment prevents law enforcement personnel from relying solely on racial or ethnic appearance in deciding whether to stop a motorist or frisk a suspect. Rather, it requires them to be able to explain the particular factors that, in light of the total circumstances and their experience, led them to suspect that the person in question has committed, or is about to commit a crime.
PARAGRAPH (g), continued: ??Neither the governor, the legislature nor any statewide agency shall require law enforcement officers to maintain records that track individuals on the basis of said classifications, nor shall the governor, the legislature or any statewide agency withhold funding to law enforcement agencies on the basis of the failure to maintain such records.?
Recognizing that, like discrimination, racial profiling still exists in some circumstances, RPI supports current efforts to identify and root out this illegal practice. We are not convinced, however, that racial data collection is a panacea. Agencies such as the California Highway Patrol and police departments in Sacramento, San Francisco and San Jose have voluntarily adopted data collection programs, but the results (based on something as unscientific as ?race? or ?perceived race?) have triggered wide-ranging disagreement on whether a problem exists all, to what extent it exists and, if so, how to address it. With not less but more racial obsession, police departments and communities such as Cleveland and Seattle have been torn apart by the phenomenon of ?de-policing? as a reflexive reaction by officers to avoid being accused of racism. In short, data collection may have, at best, a placebo effect on our desire for the problem to be solved; at worst, it is forcing officers to withdraw from some of our most crime-ridden neighborhoods most in need of protective and preventative services. In the process, entire departments and professions are being attacked, yet the few rotten apples in the barrel are not being held individually accountable for wrongdoing. Because the value of data collection is dubious and the cost potentially enormous, RPI prohibits state-mandated data collection in the context of law enforcement but does not foreclose the possibility should local agencies want to bear the costs and risks of this experimental reaction.
PARAGRAPH (h): ?Otherwise lawful assignment of prisoners and undercover law enforcement officers shall be exempt from this section.?
Paragraph (h) is similar to paragraph (g), in that it allows law enforcement officers to consider race when assigning officers to undercover duty and in assigning prisoners. The prison riots of the last decade have often been fought along racial lines, with race-based gangs often requiring administrative segregation. To insure that law enforcement officers can prevent potential violence among prisoners, paragraph (h) allows them to consider race, provided they abide by existing legal constraints and court decisions in considering race. Similarly, paragraph (h) allows the law enforcement community to consider race when assigning officers to undercover duty, so long as they are following existing legal guidelines.