Recommendation 3.7: Eliminate discriminatory and bias-based stops, searches, and arrests.

As discussed above, the equal protection clause of the Fourteenth Amendment prohibits officers from enforcing the law in a manner that discriminates against people on the basis of protected categories, such as race and gender. Courts have interpreted this clause in a manner that often gives officers discretion to take personal characteristics into account. Nonetheless, the public expectation remains the same: Personal identifying characteristics are relevant only to the extent that they align with descriptions of suspects.

As such, departments must clearly forbid unlawful vehicle and pedestrian stops, searches, and arrests and they should adopt policies and practices that minimize the costs and effects of lawfulstops, searches, and arrests. To reduce bias-based and unnecessary stops, searches, and arrests, some communities have enacted laws and policies that go beyond federal requirements. For example, some cities and states prohibit using traffic law violations as a pretext for stopping vehicles to look for evidence of other crimes, in part because of the disproportionate impact these practices have on people of color.[i](For more detail, see Recommendation 3.4.)

States are also increasingly enacting laws prohibiting racial and ethnic profiling and requiring the collection, publication, and analysis of traffic stop and demographic data. (For more detail, see Chapter 2.) Departments should consider best practices for addressing bias in police enforcement activities emerging out of states,[ii]such as:

• Requiring annual racial and bias-based policing training (Kansas).
• Establishing community advisory boards that reflect the racial and ethnic community to assist in policy development (Kansas).
• Requiring data collection for vehicle stops and reporting to the state attorney general (Missouri).
• Requiring counseling for officers who engage in race-based stops (Missouri).
• Prohibiting investigatory police activities based on characteristics including language, gender, gender identity, sexual orientation, political affiliation, religion, physical or mental disability or serious medical condition (New Mexico).

Importantly, these practices do not prohibit interactions between police officers and communities that are voluntary efforts to build positive relationships with communities. (For more detail, see Chapter 1.)

Departments should take particular care to protect communities of color from discriminatory stops, searches, and arrests. Because communities of color experience higher rates of these activities, departments need policies that provide clear guidance about when race or ethnicity may play a role in an encounter. (For more detail, see Chapter 2.) As the Baltimore Police Department notes, only when a “personal characteristic is physically observable, and part of a reliable and trustworthy description of a specific suspect in an ongoing investigation, where that description also includes other appropriate non-demographic identifying factors[,]” may an officer consider that characteristic.[iii]

Departments should also prohibit biased police enforcement based on personal characteristics including race, ethnicity, national origin, religion, gender, gender identity, sexual orientation, age, disability, familial status, immigration status, veteran status, health status, housing status, economic status, occupation, or proficiency with the English language. Here, too, policies should provide clear guidance as to when it is permissible to consider such characteristics. The Seattle Police Department’s Bias-Free Policing policy restricts the use of “personal characteristics” and permits the use of characteristics such as mental health disabilities or housing status only when referring people to appropriate social services.[iv]

Departments should also prohibit officers from stopping people based on their sexual orientation or gender identity. Departments should adopt specific policies for interactions with LGBTQ people to ensure they are treated in a respectful and professional manner and, when possible, to ensure that searches honor preferences regarding the gender of the officer conducting the search. Many departments are developing policies governing interactions with members of the LGBTQ community that address personal privacy during searches, safe transport and custody, and personal dignity, such as using people’s preferred pronouns.[v]The Salt Lake City Police Department’s policy includes many of these guidelines:[vi]

 

The Salt Lake City Police Department’s Guidelines for Interactions with Transgender Individuals

 

During interactions with transgender individuals, members will:

(a)  Respectfully treat individuals in a manner appropriate to their gender, or gender identity/expression.

(b)  Use pronouns requested by the individual (i.e., “she, her, hers” for those identifying as female, and “he, him, his” for those identifying as male). If one is uncertain about which gender the individual wishes to be addressed, one may respectfully ask the individual.

(c)  If requested, refer to the individual by their preferred name rather than what is indicated on their government-issued identification.

Members will not:

(a)  Stop, detain, or frisk an individual for the sole reason of determining gender or gender identity/expression.

(b)  Require proof of gender or challenge a person’s gender identity or expression unless legally necessary.

(c)  Use language that a reasonable person would find demeaning or derogatory with regard to an individual’s actual or perceived gender, gender identity/expression, or sexual orientation.

(d)  Disclose an individual’s gender identity or sexual orientation to other arrestees, members of the public, or other government personnel, absent a proper law enforcement purpose.

(e)  Make assumptions about an individual’s sexual orientation based upon their gender or gender identity/expression. ¼

Source: Salt Lake City Police Dep’t, Salt Lake City Police Department Policy Manual, Policy 344: Transgender Individuals 279-80 (rev. Mar. 8, 2018), http://www.slcdocs.com/police/ppm.pdf.

Importantly, communities can pass laws and ordinances that require police to implement fair and impartial policing. Vermont, for example, requires all law enforcement agencies to implement a fair and impartial policing policy that complies with standards set by the state council that is responsible for training and certifying all Vermont officers.[vii]

[i]           SeeCindy Chang & Ben Poston, Garcetti Orders LAPD to Scale Back Vehicle Stops Amid Concerns Over Black Drivers Being Targeted, L.A. Times, Feb. 6, 2019, https://www.latimes.com/local/lanow/la-me-ln-garcetti-lapd-metro-20190206-story.html.

[ii]          Kan. Stat. Ann. § 22-4609 (2017), http://www.kslegislature.org/li_2018/b2017_18/statute/022_000_0000_chapter/022_046_0000_article/022_046_0009_section/022_046_0009_k/; Mo. Rev. Stat. § 590.650 (2018), http://revisor.mo.gov/main/OneSection.aspx?section=590.650&bid=30357&hl=; N.M. Stat. §§ 29-21-1 to 29-21-4 (2009), https://law.justia.com/codes/new-mexico/2009/chapter-29/article-21/.

[iii]          SeeBaltimore Police Dep’t, Draft Policy 317: Fair and Impartial Policing 5 (Aug. 24, 2018), https://www.baltimorepolice.org/317-draft-fair-and-impartial-policing.

[iv]          Seattle Police Dep’t, Seattle Police Department Manual, 5.140 – Bias-Free Policing (Jul. 15, 2018), https://www.seattle.gov/police-manual/title-5—employee-conduct/5140—bias-free-policing(eff. July, 15 2019).

[v]           E.g., Anne Arundel County Police Department, Interactions with Transgender Individuals (eff. Dec. 27, 2017), https://www.powerdms.com/public/aac/documents/1278177; Seattle Policy Dep’t, Policy 16.200: Interaction With Transgender Individuals (Oct. 29, 2018), https://www.seattle.gov/police-manual/title-16—patrol-operations/16200—interaction-with-transgender-individuals.

[vi]         Salt Lake City Police Dep’t, Salt Lake City Police Department Policy Manual, Policy 344: Transgender Individuals 273-4 (rev. Mar. 8, 2018), http://www.slcdocs.com/police/ppm.pdf.

[vii]         Vt. Stat. tit. 20 § 2366; SeeVermont Criminal Justice Training Council, Fair and Impartial Policing Policy (Dec. 7, 2017), https://vcjtc.vermont.gov/sites/vcjtc/files/files/Fair%20and%20Impartial%20Policing%20Policy%2012-7-2017.pdf.