The Supreme Court: How to Encourage Police Profiling

By David K. Shipler

It’s too bad that Supreme Court justices can’t ride along incognito with police officers and see firsthand the frequent profiling that occurs. Then we might not get the sort of airy, wishful opinion that the Court delivered as it upheld the “show-me-your-papers” part of Arizona’s immigration law.

The majority warned that the provision would be constitutionally vulnerable if it were later shown to involve racial and ethnic profiling. But how else are officers to enforce it? They are mandated to check the immigration status of anyone they stop or arrest whom they have “reasonable suspicion” to think is in the country illegally. “Reasonable suspicion” is a squishy legal concept, a bit more than a hunch but a lot less than the “probable cause” required for an arrest. What constitutes “reasonable suspicion” near the Mexican border if not a swarthy complexion and a Spanish accent? The Arizona police aren’t going to be on the lookout for suspected Swedes.


So the wait-and-see ruling written by Justice Anthony Kennedy seems fanciful, relying on sheer hope that the Court’s firm admonition will guide police in tempering their behavior. This seems unrealistic. Police units are like athletic teams, committing a foul here and there they hope the ref won’t see. And this same Court has increased the obstacles for citizens to convince judges that their suits against government agents should go forward, so proving way after the fact that police have misbehaved will be exceedingly difficult.

My experience suggests that Justice Kennedy and his colleagues would be surprised by what happens in the streets, if they could only observe it for themselves. Several years ago, I spent a good many late nights with two units of the Washington, D.C. police: an undercover narcotics unit and a gun recovery unit. They knew I was writing a book (The Rights of the People), but they accepted me and seemed to get used to having me around. They may have been more careful in my presence than usual, but I doubt that they revised their tactics extensively. I had the strong impression that they were going about their normal business pretty much as they normally did without a writer watching.

What I saw was profiling, not by race (the units operated in all-black neighborhoods) but by class, age, sex, dress, manner, vehicle attributes, and other characteristics that, in the cops’ eyes, made one black person more likely than another to be carrying a gun or drugs. While the narcotics squad usually did undercover buys based on tips from informants—making the purchases with bills that had been Xeroxed to record the serial numbers—the gun squad operated ad hoc, patrolling streets in uniform to see how young black men would react when officers approached.

A bunch of guys standing around might look at one guy—probably the guy with a gun. One or another might walk rapidly away, touch his waist repeatedly where he had a gun, the cops were taught, or turn the gun side away from the officers, perhaps by leaning against a car.

Mostly, though, the men standing around on street corners, seeing the cops arrive, just lifted their T-shirts without being asked to show that they had no guns. Being frisked in their own neighborhoods without suspicion was routine. Most people acquiesced to pat-downs without complaint, and to searches of their cars when the cops asked permission.

But the supposed telltale signs of gun possession rarely bore fruit. The too-fancy vehicle, the broken down vehicle, the dreadlocks, the nervousness, the arrogant swagger, and all the other ingredients of a potential suspect produced an epidemic of frisks and searches that turned up nothing. In one typical shift, I counted 29 people frisked and 22 vehicles searched. All but one were innocent; one gun was found.

The price of wrongly searching, detaining, or—in the case of Arizona’s law—questioning the right of someone to be in the U.S. is paid in a coin that is hard to quantify. It detracts from the culture of liberty, which is diminished every time an American citizen is suspected of not belonging in his own country, suspected because of the way he looks or the way she speaks. Minority status is already marginalizing; to add the hard hand of law enforcement to the social forces that drive people to the edges of their society amplifies the sense of alienation.

The Supreme Court threw out three onerous provisions of the Arizona law: making illegal presence in the country a state crime, criminalizing work if you’re an undocumented alien, and arresting anyone who has committed a crime for which the immigration consequence is deportation. Those rulings are all to the good.

But by leaving the remaining provision in place, the Court will surely encourage profiling. Police will (as they do now) stop drivers who “look” as if they do not belong. Since we all violate the law when we drive a little over the speed limit or roll slowly through a stop sign without coming to a complete halt, practically anyone behind the wheel can be legitimately pulled over. The police get to choose which ones.

Then what? As anyone who’s gotten a traffic ticket knows, a cop can take his sweet time writing it out. If you look Mexican and don’t have some document to prove, say, your U.S. citizenship, the cop will ask someone at headquarters to ask federal immigration authorities to see if you’re here legally. But immigration authorities have no database of U.S. citizens, so those born here won’t be confirmed as such—just as the authorities have no list of illegal aliens who haven’t been caught before. So those two categories of people—U.S.- born citizens and illegals—will presumably produce the same result: no record at all, and then possibly a police assumption that you’re illegal.

The Arizona law says that the immigration status is to be checked before release. The Supreme Court interprets this to mean that checking immigration status must be done within the usual time of the detention for that particular offense. But that is wishful thinking, for the statute does not preclude delaying release pending the check. Police will take you into custody—as they can do for many traffic violations—and you will sit in jail until the bureaucracy somehow verifies your status—all because you look Hispanic.

Then, let’s say you’re here illegally but are in the category that President Obama just exempted from deportation: under 30, came here as a child, finished high school or served in the military. Is the database rich enough in detail to inform Arizona police of that fact, so they’ll let you go? The answer is no. There will be tortuous confusion about whether the person is subject to deportation, there will be delays in getting word back from Immigration and Customs Enforcement, and there will be many mistakes made, as there have been in other cases where inaccurate databases have provoked wrongful arrests. The Supreme Court has already heard and ruled on such cases; don’t the justices remember?

This may sound like speculation or wild prediction, but it does not take much imagination to see it as inevitable. Anticipating such problems, the Department of Homeland Security decided, the day of the Court’s decision, to suspend all of Arizona’s police agencies’ participation in the infamous 287(g) program, under which local police are trained and authorized to enforce federal immigration laws. Two cheers for D.H.S. If only the justices could experience reality in the streets.