[Senate Hearing 112-944]
[From the U.S. Government Publishing Office]













                                                        S. Hrg. 112-944

                   ENDING RACIAL PROFILING IN AMERICA

=======================================================================

                                HEARING

                               before the

                   SUBCOMMITTEE ON THE CONSTITUTION,
                     CIVIL RIGHTS AND HUMAN RIGHTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               ----------                              

                             APRIL 17, 2012

                               ----------                              

                          Serial No. J-112-70

                               ----------                              

         Printed for the use of the Committee on the Judiciary



[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]









                                                        S. Hrg. 112-944

                   ENDING RACIAL PROFILING IN AMERICA

=======================================================================

                                HEARING

                               before the

                   SUBCOMMITTEE ON THE CONSTITUTION,
                     CIVIL RIGHTS AND HUMAN RIGHTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 17, 2012

                               __________

                          Serial No. J-112-70

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
   [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]      
         
         
         
         
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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 CHUCK GRASSLEY, Iowa, Ranking 
DIANNE FEINSTEIN, California             Member
CHUCK SCHUMER, New York              ORRIN G. HATCH, Utah
DICK DURBIN, Illinois                JON KYL, Arizona
SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota                JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut      TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director
                                 ------                                

    Subcommittee on the Constitution, Civil Rights and Human Rights

                    DICK DURBIN, Illinois, Chairman
PATRICK J. LEAHY, Vermont            LINDSEY GRAHAM, South Carolina, 
SHELDON WHITEHOUSE, Rhode Island         Ranking Member
AL FRANKEN, Minnesota                JON KYL, Arizona
CHRISTOPHER A. COONS, Delaware       JOHN CORNYN, Texas
RICHARD BLUMENTHAL, Connecticut      MICHAEL S. LEE, Utah
                                     TOM COBURN, Oklahoma
                 Joseph Zogby, Democratic Chief Counsel
                  Walt Kuhn, Republican Chief Counsel
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                            C O N T E N T S

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                       APRIL 17, 2012, 10:00 A.M.

                     STATEMENTS OF COMMITTEE MEMBER

                                                                   Page

Durbin, Hon. Dick, a U.S. Senator from the State of Illinois.....     1
    prepared statement...........................................   129

                               WITNESSES

Witness List.....................................................    43
Cardin, Hon. Benjamin L., a U.S. Senator from the State of 
  Maryland.......................................................     4
    prepared statement...........................................    45
Chu, Hon. Judy, a Representative in Congress from the State of 
  California.....................................................     9
    prepared statement...........................................    49
Clegg, Roger, President and General Counsel, Center for Equal 
  Opportunity, Falls Church, Virginia............................    20
    prepared statement...........................................    51
Conyers, Jr., Hon. John, a Representative in Congress from the 
  State of Michigan..............................................     5
Davis, Ronald L., Chief of Police, City of East Palo Alto, 
  California.....................................................    12
    prepared statement...........................................    59
Ellison, Hon. Keith, a Representative in Congress from the State 
  of Minnesota...................................................     8
    prepared statement...........................................    66
Gale, Frank, National Second Vice President, Grand Lodge, 
  Fraternal Order of Police, Denver, Colorado....................    17
    prepared statement...........................................    67
Gutierrez, Hon. Luis V., a Representative in Congress from the 
  State of Illinois..............................................     6
    prepared statement...........................................    76
Harris, David A., Professor of Law and Associate Dean for 
  Research, University of Pittsburgh School of Law, Pittsburgh, 
  Pennsylvania...................................................    21
    prepared statement...........................................    81
Romero, Anthony, Executive Director, American Civil Liberties 
  Union, New York, New York......................................    15
    prepared statement...........................................   100
Wilson, Hon. Frederica, a Representative in Congress from the 
  State of
  Florida........................................................    10
    prepared statement...........................................   127

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

African American Ministers in Action (AAMIA), A Project of People 
  For the American Way, Minister Leslie Watson Malachi, Director, 
  statement......................................................   131
African American Ministers in Action et al., April 17, 2012, 
  letter.........................................................   507
Alliance for a Just Society, LeeAnn Hall, Executive Director, 
  statement......................................................   141
American-Arab Anti-Discrimination Committee (ADC), Washington, 
  DC, statement..................................................   166
American Civil Liberties Union (ACLU) of Illinois, Harvey 
  Grossman, Legal Director, statement............................   145
American Friends Service Committee (AFSC), Philadelphia, 
  Pennsylvania, statement........................................   150
American Immigration Lawyers Association (AILA), Washington, DC, 
  statement......................................................   162
Americans for Immigrant Justice, Cheryl Little, Executive 
  Director, statement............................................   168
Amnesty International USA, Suzanne Nossel, Executive Director, 
  statement......................................................   172
Anti-Defamation League (ADL), Deborah M. Lauter, Director, Civil 
  Rights, Michael Lieberman, Washington Counsel, and Stacy 
  Burdett, Washington Director, statement........................   183
Arab American Institute, The, Danielle Malaty, Manager, 
  Government Relations in Domestic Policy, statement.............   187
Asian American Center for Advancing Justice, April 17, 2012, 
  statement......................................................   192
Bill of Rights Defense Committee (BORDC), Shahid Buttar, 
  Executive Director, statement..................................   195
Black Alliance for Just Immigration (BAJI), Gerald Lenoir, 
  Executive Director, statement..................................   198
Brennan Center for Justice at New York University School of Law, 
  Faiza Patel and Elizabeth Goitein, Co-Directors, Liberty and 
  National Security Program, statement...........................   201
``Call the NYPD,'' photo campaign on social media, statement.....   213
Center for Constitutional Rights (CCR), Vincent Warren, Executive 
  Director, statement............................................   216
Center for Latino Progress--CPRF, Yanil Teron, Executive 
  Director, statement............................................   225
Citizens United for Rehabilitation of Errants (CURE)--Virginia, 
  Carla Peterson, Executive Director, statement..................   607
City of Riverside Police Department, Riverside, California, 
  Sergio G. Diaz, Chief of Police, statement.....................   228
City of Seattle Immigrant and Refugee Commission, Seattle, 
  Washington, Jesus Y. Rodriguez and Devon Abdallah, Co-Chairs, 
  statement......................................................   231
Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA), 
  Los Angeles, California, Angelica Salas, Executive Director, 
  statement......................................................   235
Comunidad Liberacion/Liberation Community, Rev. Anne Dunlap, 
  Pastor, statement..............................................   239
Council on American-Islamic Relations (CAIR), Robert S. McCaw, 
  statement......................................................   253
Council on American-Islamic Relations (CAIR-Chicago), Chicago, 
  Illinois, statement............................................   242
Defending Dissent Foundation (DDF), Woody Kaplan, President, 
  statement......................................................   257
Delta Sigma Theta Sorority, Incorporated, Cynthia Butler 
  McIntyre, President, statement.................................   264
Desis Rising Up and Moving (DRUM), Fahd Ahmed, Legal and Policy 
  Director, statement............................................   267
Drug Policy Alliance, Jasmine L. Tyler, Deputy Director, National 
  Affairs, statement.............................................   272
Episcopal Church, The, Bishop Stacy F. Sauls, Chief Operating 
  Officer, statement.............................................   282
Hip Hop Caucus, April 17, 2012, statement........................   289
Homies Unidos, Alexander Sanchez, Executive Director, statement..   293
Houston United/Houston Unido, Jannell Robles, Crimmigration 
  Committee Chair, statement.....................................   297
Human Rights Watch, Antonio M. Ginatta, U.S. Program Advocacy 
  Director, statement............................................   302
Illinois Association of Chiefs of Police (ILACP), R.T. Finney, 
  President and Retired Chief, Champaign Police Department, 
  Champaign, Illinois, statement.................................   306
Illinois Coalition for Immigrant and Refugee Rights (ICIRR), Fred 
  Tsao, Policy Director, statement...............................   310
Immigration Equality, Rachel B. Tiven, Executive Director, 
  statement......................................................   312
Indo-American Center (IAC), Jay Luthra, Executive Director, 
  statement......................................................   315
Interfaith Alliance, Rev. Dr. C. Welton Gaddy, President, 
  statement......................................................   318
Inter-Faith Committee on Latin America (IFCLA)--St. Louis, 
  Missouri, Marilyn Lorenz-Weinkauff, Program Coordinator, 
  statement......................................................   519
International Center for Advocates Against Discrimination 
  (ICAAD), Hansdeep Singh and Jaspreet Singh, Co-Founders and 
  Legal Program Directors, statement.............................   320
Japanese American Citizens League (JACL), Floyd Mori, National 
  Executive Director, statement..................................   327
Kalamazoo Department of Public Safety, Kalamazoo, Michigan, Chief 
  Jeff Hadley, statement.........................................   332
Lawyers' Committee for Civil Rights Under Law, Washington, DC, 
  statement......................................................   333
Leadership Conference on Civil and Human Rights, The, et al., 
  Washington, DC, April 16, 2012, letter.........................   342
Leadership Conference on Civil and Human Rights, The, Wade 
  Henderson, President and Chief Executive Officer, statement....   554
Maine People's Alliance (MPA), Charlene Childs, Assistant to the 
  Executive Director, statement..................................   347
Meiklejohn Civil Liberties Institute, Ann Fagan Ginger, Executive 
  Director Emeritus, statement...................................   352
Metro Atlanta Task Force for the Homeless, Anita L. Beaty, 
  Executive Director, statement..................................   356
Migrant Justice, Burlington, Vermont, April 17, 2012, statement 
  to Senator Durbin..............................................   359
Migrant Justice, Burlington, Vermont, April 17, 2012, statement 
  to Senator Leahy...............................................   363
Missouri Immigrant and Refugee Advocates, Vanessa Crawford, 
  Executive Director, statement..................................   367
Montana Organizing Project, Molly Moody, and Indian People's 
  Action, Michaelynn Hawk, statement.............................   371
Montgomery County Civil Rights Coalition (MCCRC), Sue Udry, Co-
  Founder, statement.............................................   375
Muslim Advocates and 27 American Muslim, Arab, Middle Eastern, 
  and South Asian Organizations, April 17, 2012, statement.......   379
Muslim Legal Fund of America, Coleen Rowley, Vice President, 
  Board of Directors, statement..................................   390
Muslim Public Affairs Council (MPAC), Salam Al-Marayati, 
  President, statement...........................................   407
National Action Network (NAN), Reverend Al Sharpton, President 
  and Founder, Reverend Dr. W. Franklyn Richardson, Chairman, and 
  Tamika Mallory, National Executive Director, statement.........   417
National Asian Pacific American Bar Association (NAPABA), Tina 
  Matsuoka, Executive Director, statement........................   420
National Association for the Advancement of Colored People 
  (NAACP), Benard H. Simelton, President, Alabama State 
  Conference of the NAACP, statement.............................   135
National Association for the Advancement of Colored People 
  (NAACP), Hilary O. Shelton, Director, Washington Bureau, and 
  Senior Vice President for Advocacy and Policy, statement.......   412
National Association of Social Workers (NASW), Melvin H. Wilson, 
  Manager, Department of Social Justice and Human Rights, 
  statement......................................................   424
National Black Caucus of State Legislators (NBCSL), LaKimba B. 
  DeSadier, Executive Director, statement........................   426
National Coalition for Immigrant Women's Rights (NCIWR), April 
  17, 2012, statement............................................   437
National Congress of American Indians (NCAI), Washington, DC, 
  statement......................................................   443
National Council of La Raza (NCLR), Laura Vazquez, Immigration 
  Legislative Analyst, statement.................................   446
National Gay and Lesbian Task Force Action Fund, Rea Carey, 
  Executive Director, statement..................................   457
National Hispanic Media Coalition (NHMC), Alex Nogales, President 
  and Chief Executive Officer, statement.........................   461
National Immigrant Justice Center (NIJC), Mary Meg McCarthy, 
  Executive Director, statement..................................   285
National Immigration Forum, Ali Noorani, Executive Director, 
  statement......................................................   464
National Immigration Law Center (NILC), April 17, 2012, statement   467
National Korean American Service and Education Consortium 
  (NAKASEC), Morna Ha, Executive Director, statement.............   474
National Network for Arab American Communities (NNAAC), Nadia 
  Tonova, Director, statement....................................   478
NETWORK, A National Catholic Social Justice Lobby, Sr. Mary Ellen 
  Lacy D.C., statement...........................................   482
New England Muslim Bar Association (NEMBA), Shannon Erwin, 
  President, statement...........................................   485
North American South Asian Bar Association (NASABA), Jolsna John, 
  President, statement...........................................   490
Oregon Action, Ron Williams, Executive Director, statement.......   494
Our Lady of Victory Missionary Sisters, Sister Beatrice Haines, 
  OLVM, President, statement.....................................   497
Pax Christi USA, April 13, 2012, statement.......................   500
Providence Youth Student Movement (PrYSM), Chanravy Proeung, 
  Executive Director, statement..................................   501
Rights Working Group (RWG), Margaret Huang, Executive Director, 
  statement......................................................   509
San Francisco District Attorney's Office, San Francisco, 
  California, George Gascon, District Attorney, statement........   522
Sikh American Legal Defense and Education Fund (SALDEF), Jasjit 
  Singh, Associate Executive Director, statement.................   524
Sikh Coalition, New York, New York, statement....................   528
Sisters of the Most Precious Blood of O'Fallon, Missouri, The 
  Leadership Team, statement.....................................   531
Sojourners, Lisa Sharon Harper, Director of Mobilizing, statement   533
South Asian Americans Leading Together (SAALT), Deepa Iyer, 
  Executive Director, statement..................................   538
South Asian Bar Association of New York (SABANY), Neha Dewan, 
  President, statement...........................................   546
South Asian Bar Association of Northern California, Minal J. 
  Belani, Esq., Civil Rights Co-Chair, statement.................   544
Southern Poverty Law Center (SPLC), Mary Bauer, Legal Director, 
  statement......................................................   549
Virginia Organizing, Joe Szakos, Executive Director, statement...   608
Washington Community Action Network (Washington CAN), Jill Reese 
  and Rachel Berkson, Co-Executive Directors, statement..........   611
Washington Defender Association (WDA), Travis Stearns, Deputy 
  Director, statement............................................   615
Women's Voices Raised for Social Justice, Alice Serrano, 
  statement......................................................   620
 
                   ENDING RACIAL PROFILING IN AMERICA

                              ----------                              


                        TUESDAY, APRIL 17, 2012

                      United States Senate,
Subcommittee on the Constitution, Civil Rights and 
                                      Human Rights,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10 a.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Dick Durbin, 
Chairman of the Subcommittee, presiding.
    Present: Senators Durbin, Franken, Coons, Blumenthal, and 
Graham.

             OPENING STATEMENT OF HON. DICK DURBIN,
           A U.S. SENATOR FROM THE STATE OF ILLINOIS

    Chairman Durbin. Good morning. This hearing of the 
Subcommittee on the Constitution, Civil Rights and Human Rights 
will come to order.
    Our hearing today will focus on a civil rights issue that 
goes to the heart of America's promise of equal justice under 
law: protecting all Americans from the scourge of racial 
profiling.
    Racial profiling is not new. At the dawn of our Republic, 
roving bands of white men known as ``slave patrols'' subjected 
African American freedmen and slaves to searches, detentions, 
and brutal violence. During the Great Depression, many American 
citizens of Hispanic descent were forcibly deported to Mexico 
under the so-called Mexican repatriation. And during World War 
II, tens of thousands of innocent Japanese Americans were 
rounded up and held, confined in internment camps.
    Twelve years ago--12 years ago--in March 2000, this 
Subcommittee held the Senate's first ever hearing on racial 
profiling. It was convened by then-Senator John Ashcroft, who 
would later be appointed Attorney General by President George 
W. Bush.
    In February 2001, in his first Joint Address to Congress, 
President Bush said that racial profiling is ``wrong and we 
will end it in America.'' We take the title of today's hearing 
from the promise President Bush made that night 11 years ago.
    In June 2001, our former colleague Senator Russ Feingold of 
Wisconsin, my predecessor as Chairman of this Subcommittee, 
held the Senate's second, and most recent, hearing on racial 
profiling. I was there. There was bipartisan agreement about 
the need to end racial profiling.
    Then came 9/11. In the national trauma that followed, civil 
liberties came face to face with national security. Arab 
Americans, American Muslims, and South Asian Americans faced 
national origin and religious profiling. To take one example, 
the Special Registration program targeted Arab and Muslim 
visitors, requiring them to promptly register with the INS or 
face deportation. At the time I called for the program to be 
terminated. There were serious doubts if it would help us in 
any way to combat terrorism.
    Terrorism experts have since concluded that Special 
Registration wasted homeland security resources and, in fact, 
alienated patriotic Arab Americans and American Muslims. More 
than 80,000 people registered under that program; more than 
13,000 were placed in deportation proceedings. Even today, many 
innocent Arabs and Muslims face deportation because of Special 
Registration. So how many terrorists were identified by the 
Special Registration program? None.
    Next Wednesday, the Supreme Court will hear a challenge to 
Arizona's controversial immigration law. The law is one example 
of a spate of Federal, State, and local measures in recent 
years that, under the guise of combating illegal immigration, 
have subjected Hispanic Americans to an increase in racial 
profiling.
    Arizona's law requires police officers to check the 
immigration status of any individual if they have ``reasonable 
suspicion'' that the person is an undocumented immigrant. Well, 
what is the basis for reasonable suspicion? Arizona's guidance 
on the law tells police officers to consider factors such as 
how someone is dressed and their ability to communicate in 
English. Two former Arizona Attorneys General, joined by 42 
other former State Attorneys General, filed an amicus brief in 
the Arizona case in which they said, ``application of the law 
requires racial profiling.''
    And, of course, African Americans continue to face racial 
profiling on the streets and sidewalks of America. The tragic, 
tragic killing of Trayvon Martin is now in the hands of the 
criminal justice system, but I note that, according to an 
affidavit filed by investigators last week, the accused 
defendant ``profiled'' Trayvon Martin and ``assumed Martin was 
a criminal.'' The senseless death of this innocent young man 
has been a wake-up call to America.
    And so 11 years after the last Senate hearing on racial 
profiling, we return to the basic question: What can be done to 
end racial profiling in America?
    We can start by reforming the Justice Department's racial 
profiling guidance issued in 2003 by Attorney General John 
Ashcroft. The guidance prohibits the use of profiling by 
Federal law enforcement in ``traditional law enforcement 
activities,'' and that is a step forward.
    However, this ban does not apply to profiling based on 
religion and national origin, and it does not apply to national 
security and border security investigations. In essence, these 
exceptions are a license to profile American Muslims and 
Hispanic Americans. As the nonpartisan Congressional Research 
Service concluded, the guidance's ``numerous exceptions'' may 
``invite broad circumvention'' for ``individuals of . . . 
Middle Eastern origin'' and ``profiling of Latinos . . . would 
apparently be permitted.''
    Today Congressman John Conyers and I are sending a letter, 
signed by 13 Senators and 53 Members of the House, asking 
Attorney General Holder to close the loopholes in the Justice 
Department's racial profiling guidance.
    Congress should also pass the End Racial Profiling Act, and 
I welcome the attendance of my colleague and a former Member of 
this Committee, Senator Cardin of Maryland, who has taken up 
this cause from our colleague Senator Feingold, and he is here 
today to testify.
    Let us be clear, and I want to say this and stress it: The 
overwhelming majority of law enforcement officers perform their 
jobs admirably, honestly, and courageously. They put their 
lives on the line to protect us every single day. But the 
inappropriate actions of the few who engage in racial profiling 
create mistrust and suspicion that hurt all police officers. We 
will hear testimony to what has been done in a positive way to 
deal with this issue by a superintendent of police. That is why 
so many law enforcement leaders strongly oppose racial 
profiling.
    Racial profiling undermines the rule of law and strikes at 
the core of our Nation's commitment to equal protection for 
all. As you will hear from the experts on our panel today, the 
evidence clearly demonstrates that racial profiling simply does 
not work.
    I hope today's hearing can be a step toward ending racial 
profiling in America at long last.
    Senator Graham is running a little late. Senator Leahy is 
out of the Senate this morning but was kind enough to allow me 
to convene this hearing, and I am sure he will add a statement 
to the record.
    [The prepared statement of Chairman Dick Durbin appears as 
a submission for the record.]
    Chairman Durbin. I am going to open the floor to Senator 
Graham when he does arrive, but for the time being, because we 
have many colleagues here who have busy schedules of their own, 
I want to turn to the first panel of witnesses.
    At the outset, I do want to note that I invited the 
Department of Justice to participate in today's hearing, but 
they declined.
    We are honored to be joined today by our colleagues from 
the Senate and the House. In keeping with the practice of this 
Committee, first we will hear from Members of the Senate, then 
Members of the House, a practice which I loathed in the House, 
but now that we are running this show, I am afraid you are just 
going to have to live with it, my House colleagues.
    Each witness will have 3 minutes for an opening statement. 
Your complete written statement will be included in the record.
    The first witness is Senator Cardin--he is a former Member 
of this Committee--Senate sponsor of S. 1670, the End Racial 
Profiling Act, which I am proud to cosponsor. This is Senator 
Cardin's second appearance before this Subcommittee. He 
testified before us last year at the first ever hearing of this 
Committee on the civil rights of American Muslims.
    Senator Cardin, we are pleased that you could join us today 
and please proceed.

             STATEMENT OF HON. BENJAMIN L. CARDIN,
           A U.S. SENATOR FROM THE STATE OF MARYLAND

    Senator Cardin. Well, Senator Durbin, first let me thank 
you for your leadership on this Subcommittee. The fact that we 
have this Subcommittee is a testament to your leadership in 
making clear that civil and human rights are going to be a 
priority of the U.S. Senate. So I thank you for your leadership 
and thank you very much for calling this hearing.
    It is a pleasure to be here with all my colleagues, but I 
particularly wanted to acknowledge Congressman Conyers and his 
extraordinary life of leadership on behalf of civil rights and 
these issues. Congressman Conyers was a real mentor to me when 
I was in the House, and he still is, and we thank you very much 
for your leadership on this issue.
    Senator Durbin, you pointed out that the Nation was 
shocked--if I could ask unanimous consent to put my entire 
statement in the record along with the list of the many 
organizations that are supporting the legislation that I filed, 
S. 1670.
    As you pointed out, Senator Durbin, the Nation was shocked 
by the tragedy that took place in Sanford, Florida, the tragic 
death of 17-year-old Trayvon Martin, a very avoidable death. 
And the question I think most people are asking--and we want 
justice in this case, and we are pursuing that, and we have a 
Department of Justice investigation, and we all very much want 
to see that investigation carried out, not only to make sure 
that justice is carried forward as far as those responsible for 
his death, but also as to how the investigation itself was 
handled.
    But I think the question that needs to be answered is 
whether race played a role in Trayvon Martin being singled out 
by Mr. Zimmerman, and that, of course, would be racial 
profiling, an area that we all believe needs to be--we need to 
get rid of that as far as the legitimacy of using racial 
profiling in law enforcement.
    In October of last year, I filed the End Racial Profiling 
Act, and as you pointed out, carrying on from Senator 
Feingold's efforts on behalf of this legislation. I thank you 
very much for your leadership as a cosponsor. We have 12 
Members of the Senate who have cosponsored this legislation, 
including the Majority Leader, Senator Harry Reid, is a 
cosponsor.
    Racial profiling is un-American. It is against the values 
of our Nation. It is contrary to the 14th Amendment to the 
Constitution's ``equal protection of the laws.'' It is 
counterproductive in keeping us safe. It is wasting the 
valuable resources that we have, and it has no place in modern 
law enforcement. We need a national law, and that is why I 
encourage the Committee to report S. 1670 to the floor.
    It prohibits the use of racial profiling, that is, using 
race, ethnicity, national origin, or religion in selecting 
which individual is to be subject to a spontaneous 
investigation, activity such as a traffic stop, such as 
interviews, such as frisks, et cetera. It applies to all levels 
of government. It requires mandatory training, data collection 
by local and State law enforcement, and a way of maintaining 
adequate policies and procedures designated to end racial 
profiling. The States are mandated to do that or risk the loss 
of Federal funds. The Department of Justice is granted the 
authority to make grants to State and local governments to 
advance the best practices. As I pointed out, it has the 
support of numerous groups, and you will be hearing from some 
of them today.
    Let me just conclude--because my statement will give all 
the details of the legislation--by quoting our former colleague 
Senator Kennedy when he said, ``Civil rights is the great 
unfinished business of America.'' I think it is time that we 
move forward in guaranteeing to every citizen of this country 
equal justice under law, and S. 1670 will move us forward in 
that direction.
    [The prepared statement of Senator Cardin appears as a 
submission for the record.]
    Chairman Durbin. Thanks, Senator Cardin.
    I might also add that we are at capacity in this room, and 
anyone unable to make it inside the room, we will have an 
overflow room in Dirksen G50, which is two floors below us 
here.
    Senator Graham suggests that we proceed with the witnesses. 
Next up is Congressman John Conyers, the House sponsor of the 
End Racial Profiling Act and Ranking Member of the House 
Judiciary Committee. Serving in the House of Representatives 
since 1965, John Conyers is the second longest serving Member, 
I think second to another Member from Michigan, if I am not 
mistaken. Congressman Conyers testified at both the previous 
Senate hearings on racial profiling in 2000 and 2001.
    Congressman Conyers, we are honored to have you here as a 
witness, and the floor is yours.

   STATEMENT OF HON. JOHN CONYERS, JR., A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MICHIGAN

    Representative Conyers. Thank you, Mr. Chairman, and to 
your colleague, who is another former House Member, if I 
remember correctly, and Senator Ben Cardin as well. All of you 
are working in the backdrop of a huge discussion that has been 
going on for quite some time.
    When I came to the Congress and asked to go on the 
Judiciary Committee in the House and that was granted, Emanuel 
Celler was then the Chairman, who did such landmark work in the 
Civil Rights Act of 1964. And then we followed up with the 
Voter Rights Act of 1965. And from that time on, a group of 
scholars, activist organizations, civil rights people, and 
Americans of good will have all begun examining what brings us 
here today and accountable for the incredible long line that is 
waiting to get into this and the holding room today.
    I come here proud of the fact that there is support growing 
in this area. Only yesterday we had a memorial service for John 
Payton, known by most of us here for the great work that he has 
done and contributed in civil rights, not just in the courts 
and in the law but in what I think is the purpose of our 
hearing here today, namely, to have honest discussions about 
this subject so that we can move to a conclusion of this part 
of our history. And so I am just so proud of all of you for 
coming here and continuing this discussion because it is going 
to turn on more than just the legislators or the Department of 
Justice, and I am with you in improving some of their 
recommendations, and I commend Eric Holder for the enormous job 
that he has been doing in that capacity.
    But this is a subject that is a part of American history. 
The one thing that I wanted to contribute here is what racial 
profiling is not. Racial profiling does not mean we cannot 
refer to the race of a person if it is subject-specific or 
incident-specific. We are not trying to take the description of 
race out of law enforcement and its administration. What we are 
saying is that racial profiling must not be subject-specific or 
incident-specific. That is what we are trying to do here today.
    It is a practice that is hard to root out. I join in 
praising the overwhelming majority of law enforcement men and 
women who want to improve this circumstance, but, you know, one 
of the greatest race riots in Detroit that occurred was because 
of a police incident was started. We have in Detroit right now 
a coalition against police brutality. Ron Scott, an activist 
and a law student, is working on that, has been working there 
for years.
    And so we encourage not only this legislative discussion 
about an important subject, but we--and we praise our civil 
rights organizations that have been so good at this--the NAACP, 
the Legal Defense Fund of NAACP, the American Civil Liberties 
Union, and scores of coalitions of community and State 
organizations that have all been working on this, just as we 
have and are.
    So I believe that there is going to be a time very soon 
when we will pass the legislation that you have worked on in 
the House and the Senate and that we will enjoy that day 
forward when we will celebrate this movement forward to take 
the discussion of race out of our national conversation, not 
because we are sick and tired of it, but because it is not 
needed any further.
    I thank you very much for this invitation.
    Chairman Durbin. Congressman Conyers, it is an honor to 
have you in the Senate Judiciary Committee hearing. I thank you 
very much.
    Our next witness is my friend and Illinois colleague 
Congressman Luis Gutierrez, who represents the 4th 
Congressional District and has done so since 1993. He chairs 
the Congressional Hispanic Caucus' Immigration Task Force, and 
he is a long-time champion for immigration reform. There are 
many outstanding Hispanic political leaders in America, but 
none more forceful and more articulate and more of a leader 
than my colleague Congressman Gutierrez.
    Thank you for joining us.

   STATEMENT OF HON. LUIS V. GUTIERREZ, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF ILLINOIS

    Representative Gutierrez. Thank you so much, Chairman 
Durbin and Ranking Member Graham, for inviting me to testify 
here today. One of the proudest things I am being from the 
State of Illinois is the senior Senator from my State. I am so 
happy and delighted to be here with you, Senator Durbin.
    I have traveled from coast to coast to visit dozens of 
cities and communities and to listen to immigrants' stories. 
Some of my colleagues have visited their cities that are here 
with me today. And immigrants everywhere tell me that they are 
regarded with suspicion. They tell me they are frequently 
treated differently because of the way they look, sound, or 
spell their last name.
    In Alabama, I met 20-year-old Martha, a young woman raised 
in the U.S. One late afternoon, while driving, she was pulled 
over. She was arrested for driving without a license and jailed 
so her status could be checked. Because her U.S. citizen 
husband was not present, their Alabama-born 2-year-old son was 
taken from the back seat of her car and turned over to the 
State welfare agency.
    In South Carolina, I met Gabino, who has been in the U.S. 
for nearly 13 years. He is married, the father of two South 
Carolina-born kids; he works hard and owns his own home. 
Gambino was stopped because he was pulling into his mobile home 
community, one of three other Hispanic residents stopped that 
evening. Gambino was arrested for driving without a license, 
and he was then placed in deportation proceedings.
    We can all guess why the police chose to stop Gabino and 
Martha. Profiling Hispanics and immigrants is the most 
efficient way to get someone deported. But you cannot tell if 
someone is undocumented by the way they look or dress or where 
they live.
    In Chicago, a Puerto Rican constituent of mine was detained 
for 5 days under suspicion of being undocumented. Indeed, 
sadly, Senators, there are hundreds if not thousands of cases 
of unlawfully detained U.S. citizens and legal residents in the 
United States each year in violation of their constitutional 
rights. Some of them have even been deported and then been 
brought back to the United States of America. That is not an 
old story. That is a story of today.
    The Federal Government took a step in the right direction 
when it legally challenged the ``Show me your papers'' laws in 
Alabama, South Carolina, and Arizona because the State laws are 
unconstitutional and interfere with the Federal Government's 
authority to set and enforce immigration policy. But it makes 
no sense to file suit against unconstitutional laws on the one 
hand and on the other hand allow those same laws to funnel 
people into our detention centers and deportation pipeline.
    Gabino has been denied relief from deportation because he 
has been stopped too many times, according to the Federal 
Government, for driving without a license. The Government is 
complicit in such serial profiling because while the States 
cannot deport Gabino and break up his family of American 
citizens, the Federal Government is doing just that. And 
programs like 287(g) and Secure Communities end up ensnaring 
tens of thousands of Gabinos every year. Because of the racial 
profiling, the programs incentivize.
    If we are serious about truly ending racial profiling, we 
need to back up our lawsuits with actions that protect families 
and citizens and children and uphold our Constitution.
    I guess the gist of it is I am happy when the Federal 
Government says this is racial profiling, we are going to fight 
it, and they go into the Federal court in Arizona, in South 
Carolina, and in Alabama. But until we tell the local officials 
if you continue your serial profiling, we are not going to 
deport those people, they are going to continue to do it. It 
just incentivizes. So I hope we can have a conversation about 
that also.
    Thank you so much for having me here this morning.
    [The prepared statement of Representative Luis V. Gutierrez 
appears as a submission for the record.]
    Chairman Durbin. Thank you, Congressman Gutierrez.
    Congressman Keith Ellison of Minnesota is serving his third 
term representing the 5th Congressional District in that State. 
He co-chairs the Congressional Progressive Caucus. Congressman 
Ellison enjoys a moment in history here as the first Muslim 
elected to the U.S. Congress. Previously he served two terms in 
the Minnesota House of Representatives.
    Congressman Ellison, welcome. The floor is yours.

       STATEMENT OF HON. KEITH ELLISON, A REPRESENTATIVE
            IN CONGRESS FROM THE STATE OF MINNESOTA

    Representative Ellison. Thank you, Senator Durbin. Also, 
thank you, Senator Graham. Thank you for holding this important 
hearing. Also, thank you for urging Attorney General Holder to 
revise the Justice Department's racial profiling guidance. It 
is very important. As you know, that guidance has a loophole 
allowing law enforcement to profile American citizens based on 
religion and national origin.
    While any profiling of Americans based on race, ethnicity, 
religion, or national origin is disturbing, I think it is 
important also to note that it is poor law enforcement. Law 
enforcement is a finite resource. Using law enforcement 
resources for profiling as opposed to relying on articulable 
facts based on behavior suggesting a crime is a waste of that 
law enforcement resource. It leaves us less safe and more at 
risk when we do not target based on conduct and behavior 
suggestive of a crime but based on other considerations 
informed by prejudice.
    My comments today will focus on the religious profiling of 
American Muslims. Up to 6 million Americans know what it is 
like to be looked upon with suspicion in post-9/11 America, 
perhaps even before. Although Muslim Americans work hard and 
play by the rules and an infinitesimally small number do not, 
many even live the American dream and send their kids to 
college and earn a living just like everyone else. Yet many 
know all too well what it means to be pulled off of an 
airplane, pulled out of line, denied service, called names, or 
even physically attacked.
    Like other Americans, Muslim Americans want law enforcement 
to uphold public safety and not be viewed as a threat, but as 
an ally. When the FBI, for example, shows up at the homes and 
offices of American Muslims who have not done anything wrong, 
it makes them feel targeted and under suspicion, and it 
diminishes the important connection between law enforcement and 
citizen that is necessary to protect all of us.
    When Muslim Americans get pulled out of line at an airport 
and are questioned for hours, asked questions--and these are 
questions actually asked: ``Where do you go to the mosque?'' 
``Why did you give them a $200 donation?'' ``Do you fast?'' 
``Do you pray?'' ``How often?'' When questions like this are 
asked which have nothing to do with conduct or behavior 
suggestive of a crime, it erodes the important connection 
between law enforcement and citizen. No Americans should be 
forced to answer questions about how they worship.
    I was particularly disturbed when I heard stories coming 
out of the controversy in New York about kids being spied on in 
colleges at Muslim Student Associations. I was very proud when 
my son was elected president of the Muslim Student Association 
at his college, but I wonder: Was my 18-year-old son subject to 
surveillance like the kids were at Yale, Columbia, and Penn? He 
is a good kid, has never done anything wrong, and I worry to 
think that he might be in somebody's files simply because he 
wanted to be active on campus.
    I am a great respecter of law enforcement, and I recognize 
and appreciate the tough job they have to keep us safe. But I 
think it is very important to focus on the proper use of law 
enforcement resources and not to give an opening for someone's 
stereotype or prejudice.
    As one Bush administration official once said, ``religious 
or ethnic or racial stereotyping is simply not good policing,'' 
and it threatens the values Americans hold dear. To fix this 
problem once and for all, I urge the Attorney General to close 
the loophole in the Justice Department's racial profiling 
guidance, and I urge my colleagues in Congress to pass the End 
Racial Profiling Act.
    Thank you.
    [The prepared statement of Representative Keith Ellison 
appears as a submission for the record.]
    Chairman Durbin. Thanks, Congressman Ellison. I could have 
added in my opening statement comments made by President George 
W. Bush after 9/11, which I thought were solid statements of 
constitutional principle, particularly when it came to those 
adherents of the Muslim faith, that our war is not against this 
Islamic religion but against those who would corrupt it, 
distort it, and misuse it in the name of terrorism. And I thank 
you for your testimony.
    Representative Ellison. Thank you, sir.
    Chairman Durbin. Congresswoman Judy Chu represents the 32nd 
District in California since 2009. She was the first Chinese 
American woman ever elected to Congress. She chairs the 
Congressional Asian Pacific American Caucus. Formerly she 
served in the California State Assembly.
    We are honored that you are here today. Please proceed.

          STATEMENT OF HON. JUDY CHU, A REPRESENTATIVE
            IN CONGRESS FROM THE STATE OF CALIFORNIA

    Representative Chu. Thank you, Senator.
    As Chair of the Congressional Asian Pacific American 
Caucus, I am grateful for the opportunity to speak here today 
about ending racial profiling in America. Asian Americans and 
Pacific Islanders, like other minority communities, have felt 
the significant effects of racial profiling throughout American 
history, from the Chinese Exclusion Act to the Japanese 
American interment and the post-9/11 racial profiling of Arabs, 
Sikhs, Muslims, and South Asian Americans. We know what it is 
like to be targeted by our own Government. It results in 
harassment, bullying, and sometimes even violence.
    In the House Judiciary Committee, we really listened to the 
anguished testimony of Sikh Americans constantly humiliated as 
they were pulled out of lines at airports because of their 
turbans and made to wait in glass cages like animals on 
display. They were pulled into rooms to be interrogated for 
hours, and even infants were searched. This has forced Sikh 
Americans and Muslim Americans to fly less frequently or remove 
religious attire just to accommodate these unfairly targeted 
practices.
    And just last year, I was shocked to learn about the 
activities of the New York Police Department and the CIA who 
were secretly spying on Muslim Americans. Despite the lack of 
any real evidence of wrongdoing, officers were monitoring 
Muslim American communities and eavesdropping on families, 
recording everything from where they prayed to the restaurants 
they ate in. The NYPD entered several States in the Northeast 
to monitor Muslim student organizations at college campuses. 
These students had done nothing suspicious. The only thing they 
were guilt of was practicing Islam.
    This type of behavior by law enforcement is a regression to 
some of the darkest periods of our history where we mistrusted 
our own citizens and spied on their daily lives, and it has no 
place in our modern society.
    When law enforcement uses racial profiling against a group, 
it replaces trust with fear and hurts communication. The 
community and law enforcement instead need to be partners to 
prevent crimes and assure the safety of all Americans.
    When the civil liberties of any group are violated, we all 
suffer. In fact, over 60 years ago, during World War II, 
120,000 Japanese Americans lost everything that they had and 
were relocated to isolated internment camps throughout the 
country because of hysteria and scapegoating. In the end, not a 
single case of espionage was ever proven, but there were not 
enough voices to speak up against this injustice.
    Today there must be those voices that will speak up. We 
must stand up for the rights of all Americans. That is why I 
urge all Members of Congress to support the End Racial 
Profiling Act. We must protect the ideals of justice and equal 
protection under the law so that our country is one where no 
one is made to feel unsafe, unequal, or un-American because of 
their faith or ethnicity.
    Thank you.
    [The prepared statement of Representative Judy Chu appears 
as a submission for the record.]
    Chairman Durbin. Thank you, Congresswoman.
    The next witness is Congresswoman Frederica Wilson. She 
represents the 17th Congressional District, which, as I 
understand, includes Sanford, Florida. Previously she served in 
the Florida House of Representatives from 1999 to 2002 and in 
the Florida Senate from 2003 to 2010.
    Congresswoman Wilson, thank you for joining us today, and 
proceed.

    STATEMENT OF HON. FREDERICA WILSON, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF FLORIDA

    Representative Wilson. Thank you. I represent Miami, where 
Trayvon is from. He was murdered in Sanford. Thank you.
    Thank you, Chairman Durbin, Ranking Member Graham, Senator 
Blumenthal, and other Members of the Subcommittee. I thank you 
for inviting me to testify today on the issue of racial 
profiling.
    Last week, after 45 days, an arrest was finally made in the 
shooting death of my constituent, Trayvon Martin. Trayvon was a 
17-year-old boy walking home from a store. He was unarmed and 
simply walking with Skittles and iced tea. He went skiing in 
the winter and horseback riding in the summer. His brother and 
best friend is a senior at Florida International University of 
Miami. A middle-class family, but that did not matter. He was 
still profiled, followed, chased, and murdered. This case has 
captured international attention and will go down in history as 
a textbook example of racial profiling.
    His murder affected me personally, and it broke my heart 
again. I have buried so many young black boys. It is extremely 
traumatizing for me. When my own son, who is now a school 
principal, learned how to drive, I bought him a cell phone 
because I knew he would be profiled, and he was. He is still 
fearful of law enforcement and what they might do when he is 
driving. I have three grandsons, a 1-, a 3-, and a 5-year-old. 
I hope we can solve this issue before they receive a driver's 
license. I pray for them even now.
    There is a real tension between black boys and the police, 
not perceived but real. If you walk into any inner-city school 
and ask the students, ``Have you ever been racially profiled?'' 
everyone will raise their hands--boys and girls. They have been 
followed as they shop in stores. They have been stopped by the 
police for no apparent reason. And they know at a young age 
that they will be profiled.
    I am a staunch child advocate. I do not care what color the 
child is. I was a school principal, a school board member, a 
State legislator, and now in Congress. I desperately care about 
the welfare of all children. They are my passion. But I have 
learned from my experiences that black boys in particular are 
at risk. Years of economic and legal disenfranchisement, the 
legacy of slavery and Jim Crow have led to serious social, 
economic, and criminal justice disparities and fueled prejudice 
against black boys and men. Trayvon Martin was a victim of this 
legacy--this legacy that has led to fear, this legacy that has 
led to the isolation of black males. This legacy has led to 
racial profiling.
    Trayvon was murdered by someone who thought he looked 
suspicious. I established the Council on the Social Status of 
Black Men and Boys in the State of Florida when I was in the 
State Senate. I believe we need a council or commission like 
this on the national and Federal level. Everyone should 
understand that our entire society is impacted. A Federal 
Commission on the Social Status of Black Men and Boys should be 
established specifically to focus on alleviating and correcting 
the underlying causes of higher rates of school expulsions and 
suspensions, homicides, increases, poverty, violence, drug 
abuse, as well as income, health, and educational disparities 
among black males.
    I have spent 20 years building a mentoring and dropout 
prevention program for at-risk boys in Miami-Dade County public 
schools. It is called the Five Thousand Role Models of 
Excellence Project. Boys are taught not only how to be 
productive members of society by emulating mentors who are role 
models in the community; they are also taught how to respond to 
racial profiling. It is a sad reality that we have to teach 
boys these things just to survive in their own communities, but 
we do.
    We need to have a national conversation about racial 
profiling now, not later. The time is now to stand up and 
address these issues and fight injustice that exists throughout 
our Nation. Enough is enough.
    Thank you, Mr. Chairman.
    [The prepared statement of Representative Frederica Wilson 
appears as a submission for the record.]
    Chairman Durbin. Thank you, Congresswoman.
    Unless my colleagues have questions of this panel, I will 
allow them to return to their Senate and House duties, and 
thank you very, very much for being here today.
    Chairman Durbin. Now we will turn to our second panel of 
witnesses, and each of them will please take their place at the 
witness table.
    Before you take your seats, I will wait until everyone is 
in place and ask you to please stand and be sworn. Do you 
affirm the testimony you are about to give before the Committee 
will be the truth, the whole truth, and nothing but the truth, 
so help you God?
    Chief Davis. I do.
    Mr. Romero. I do.
    Mr. Gale. I do.
    Mr. Clegg. I do.
    Professor Harris. I do.
    Chairman Durbin. Thank you very much, and let the record 
reflect that the witnesses all answered in the affirmative.
    The first witness is Ronald Davis, chief of police for the 
city of East Palo Alto, California, since 2005; before that, 19 
years with the Oakland Police Department, where he rose to the 
rank of captain. Chief Davis served on the Federal monitoring 
teams overseeing police reform consent decrees between the U.S. 
Department of Justice, Washington, DC, and Detroit. Among other 
publications, he has co-authored the Justice Department 
monograph, ``How to Correctly Collect and Analyze Racial 
Profiling Data: Your Reputation Depends on It.'' He has a 
bachelor's of science degree from Southern Illinois University 
in Carbondale. He testified at both the previous Senate 
hearings on racial profiling, and sorry it has been so long 
since we have resumed this conversation, but it is an honor to 
have you return a few years later to bring up to date.
    At this point, Chief Davis, the floor is yours for 5 
minutes.

         STATEMENT OF RONALD L. DAVIS, CHIEF OF POLICE,
               CITY OF EAST PALO ALTO, CALIFORNIA

    Chief Davis. Thank you, Mr. Chairman.
    Good morning, Mr. Chairman and distinguished Subcommittee 
Members. I am Ronald Davis. I am currently the chief of police 
for the city of East Palo Alto, California. I am humbled to 
provide testimony at today's hearing. As was mentioned, I did 
have the honor of testifying at the last Senate hearings on 
racial profiling in 2001.
    When asked to come before this Committee today, the first 
thought that came to my mind was actually a question: What has 
changed since my testimony in 2001 when President Bush then 
stated, ``Racial profiling is wrong and we will end it in 
America''?
    My testimony today is based on three diverse perspectives: 
first, as a racial profiling and police reform expert; second, 
as a police executive with over 27 years' experience working in 
two of the greatest and most diverse communities in the 
Nation--Oakland and East Palo Alto; and, third, as a black man 
and a father of a teenage boy of color.
    First, from my perspective as an expert, I think it is fair 
to say that law enforcement has made progress, albeit limited, 
in addressing the issue of racial profiling and bias-based 
policing. Over the past 10 years, the Department of Justice 
Civil Rights Division, through its ``pattern and practice'' 
investigations, has worked with law enforcement agencies 
nationwide to provide guidance on racial profiling policies and 
promote industry best practices. Most recently, the COPS 
Office, in partnership with the National Network for Safe 
Communities, is working on issues of racial reconciliation in 
communities to further strengthen these relationships and 
reduce crime and violence in those communities. Today there are 
very few police agencies in the United States that do not have 
some type of policy prohibiting racial profiling and bias-based 
policing.
    This progress, however, is seriously undermined by two 
focal points. First, there exists no national, standardized 
definition for racial profiling that prohibits the use of race, 
national origin, and religion, except when describing a person. 
Consequently, many State and local policies define racial 
profiling as using race as the ``sole'' basis for a stop or any 
police action.
    Unfortunately, this policy is misleading in that it 
suggests using race as a factor for anything other than a 
description is justified, which it is not. Simply put, Mr. 
Chairman, race is a descriptor not a predictor.
    To use race when describing someone who just committed a 
crime is appropriate. However, when we deem a person to be 
suspicious or attach criminality to a person because of the 
color of their skin, the neighborhood they are walking in, or 
the clothing they are wearing, we are attempting to predict 
criminality. The problem with such predictions is that we are 
seldom right in our results and always wrong in our approach.
    The same holds true within the immigration context as well. 
Because a person ``looks'' Latino or Mexican does not mean that 
that person is undocumented, and it should not mean that they 
are stopped or asked for their ``papers.'' Yet, according to 
recent laws in Alabama and Arizona, the police are not just 
encouraged to make these types of discriminatory stops; they 
are actually expected to do so.
    Most police chiefs will agree that engaging in these 
activities actually makes our communities less safe. This is 
one reason why I joined the Major Cities Police Chiefs 
Association and 17 current and former chief law enforcement 
executives in filing a brief challenging the Arizona law.
    We need to pass the End Racial Profiling Act of 2011. This 
legislation puts forth a standard definition for racial 
profiling. It requires evidence-based training to curtail the 
practice and provides support in developing scientific-based 
data collection and analysis practices. We also need the U.S. 
Department of Justice to revise its Guidance Regarding the Use 
of Race by Federal Law Enforcement Agencies. This will close, 
as mentioned in previous testimonies, loopholes that could 
permit unlawful and ineffective profiling. It makes no sense to 
exclude religion and national origin from the prohibition on 
profiling or to treat terrorism or immigration enforcement 
differently from other law enforcement efforts.
    I also fear that without this legislation, we will continue 
business as usual and only respond to issues when they surface 
through high-profile tragedies such as the Oscar Grant case in 
Oakland and the Trayvon Martin case in Florida.
    The second factor that undermines our progress is the dire 
need for us to reform the entire criminal justice system. The 
last top-to-bottom review of our system was conducted in 1967 
through the President's Commission on Law Enforcement and 
Administration of Justice.
    We must now examine the entire system through a new prism 
that protects against inequities such as racial profiling, 
disparate incarceration rates, and disparate sentencing laws. I 
strongly encourage the passage of the National Criminal Justice 
Commission Act of 2011.
    Mr. Chairman, from my perspective as a police executive 
with over 27 years of experience, I know firsthand just how 
ineffective racial profiling is. As an example, in East Palo 
Alto, my community, we are more than 95 percent people of 
color--60 percent Latino, approximately 30 percent African 
American, and a rapidly growing Asian and Pacific Islander 
community. In 2005, the city experienced, unfortunately, the 
second highest murder per capita rate in California and the 
fifth highest in the United States.
    In January 2006, with just 6 months serving as chief of 
police, East Palo Alto police officer Richard May was shot and 
killed in the line of duty by a parolee just 3 months out of 
prison. With this crime rate and this violence against a police 
officer, my community had two distinct choices: we could either 
declare war on parolees, we could engage in enforcement 
activities that would further the disparate incarceration rate 
of young men of color, or we could do something different. We 
chose to use problem-solving, we chose to strengthen our 
relationships, we chose not to engage in racial profiling. We 
started a parole reentry program, the first in California, in 
which we actually were contracted by the Department of 
Corrections to provide reentry services. Police officers now 
are part of treatment, and we provide cognitive life skills, we 
provide drug awareness and treatment programs, and together we 
were able to reduce the recidivism rate from over 60 percent to 
under 20 percent. After 5 years, the murder rate in 2011 was 47 
percent lower than it was in 2005. Our incarceration rates have 
dropped, and I am very confident in saying that we have better 
police and community relations.
    I think for me and my community, we recognize that racial 
profiling, the focus on people of color, especially young men, 
is more likely to occur when law enforcement uses race to start 
guessing. I am here to really reinforce that is a very 
ineffective policing practice. It is sloppy. It is counting on 
guess work. I think the notion that we as a community or we as 
a Nation must use racial profiling to make ourselves secure or 
to sacrifice civil liberties is not only false, it reeks of 
hypocrisy.
    If we were truly worried about national security in the 
sense of compromising civil liberties, then it would make sense 
that we would also ask--or those who are engaging in racial 
profiling would also ask for the prohibition of firearms. We 
have lost over 100,000 Americans to gun violence since 9/11. 
That is more than we have lost in terrorism and the wars in 
Afghanistan and Iraq combined. Yet there is not this equal call 
for gun laws. And I am not suggesting that there should be. I 
am just offering the idea of compromising civil rights for 
national security does not work.
    What is equally troubling with the idea of using race, 
national origin, or religion in the national security context 
is that it suggests the most powerful Nation in the world, a 
Nation that is equipped with law enforcement and national 
security experts that are second to none, must rely on bias and 
guess work to make ourselves secure versus human intelligence, 
technology, experience, and the cooperation of the American 
people. I want to strongly emphasize this point, Senator: There 
is no reason to profile on the basis of race, religion, 
national origin, or ethnicity.
    Last, and importantly, my last perspective is as a black 
man in America. I am still subject to increased scrutiny from 
the community, from my own profession, and from my country 
because of the color of my skin.
    As I mentioned earlier, I am a father of three, but I have 
a 14-year-old boy named Glenn, and even though I am a police 
chief with over 27 years' experience, I know that when I teach 
my son Glenn how to drive, I must also teach him what to do 
when stopped by the police--a mandatory course, by the way, for 
young men of color in this country.
    As I end my testimony today, I want to thank you, Mr. 
Chairman, and the rest of the Senators, for your leadership. 
And as much as I am honored to be here today, and as much as I 
was honored to be here 10 years ago or 12 years ago, I truly 
hope that there is no need for me to come back in another 10 
years.
    Thank you.
    [The prepared statement of Chief Ronald L. Davis appears as 
a submission for the record.]
    Chairman Durbin. Thank you, Chief Davis.
    Since September 7, 2001, Anthony Romero has been executive 
director of the American Civil Liberties Union, the Nation's 
oldest and largest civil liberties organization, with more than 
500,000 members. He is the first Latino and openly gay man to 
serve in that position. He co-authored, ``In Defense of Our 
America: The Fight for Civil Liberties in the Age of Terror.'' 
He graduated from Stanford University Law School and Princeton 
University's Woodrow Wilson School of Policy and International 
Affairs.
    Mr. Romero, please proceed.

STATEMENT OF ANTHONY ROMERO, EXECUTIVE DIRECTOR, AMERICAN CIVIL 
              LIBERTIES UNION, NEW YORK, NEW YORK

    Mr. Romero. Good morning, Senator Durbin and Ranking Member 
Graham. Thank you for having me this morning. Senator Franken, 
Senator Blumenthal. I am delighted to testify before you today.
    I am the national director of the American Civil Liberties 
Union. We are a nonpartisan organization with over half a 
million members, hundreds of thousands of additional activists 
and supporters, and 53 State offices nationwide dedicated to 
the principles of equality and justice set forth in the U.S. 
Constitution and in our laws protecting individual rights.
    For decades, the ACLU has been at the forefront of the 
fight against all forms of racial profiling. Racial profiling 
is policing based on crass stereotypes instead of facts, 
evidence, and good police work. Racial profiling fuels fear and 
mistrust between law enforcement and the very communities that 
they are supposed to protect. Racial profiling is not only 
ineffective, it is also unconstitutional and violates basic 
norms of human rights both at home and abroad.
    My written testimony lays out how race, religion, and 
national origin are used as proxies for suspicion in three key 
areas of national security, of routine law enforcement, and 
immigration.
    In the context of national security, recently released FBI 
documents demonstrate how the FBI targets innocent Americans 
based on race, ethnicity, religion, national origin, and First 
Amendment-protected political activities. Such 
counterproductive FBI practices waste law enforcement 
resources, damage essential relationships with those 
communities, and encourage racial profiling at the State and 
local level.
    In my native New York, the New York Police Department has 
targeted Muslim New Yorkers for intrusive surveillance without 
any suspicion of criminal activity. According to a series of 
Associated Press articles, the New York Police Department 
dispatched undercover police officers into Muslim communities 
to monitor daily life in bookstores, cafes, night clubs, and 
even infiltrated Muslim student organizations in colleges and 
universities, such as Columbia and Yale universities. When we 
tolerate this type of racial profiling in the guise of 
promoting national security, we jeopardize public safety and 
undermine the basic ideals set forth in our Constitution.
    In the context of routine law enforcement, policing based 
on stereotypes remains an entrenched practice in routine law 
enforcement across the country. The tragic story of Trayvon 
Martin has garnered national attention and raised important 
questions about the role of race in the criminal justice 
system. And while we yet do not know how this heart-breaking 
story will end, we do know that stereotypes played a role in 
this tragedy, and yet they have no place in law enforcement.
    Racial profiling undermines the trust and mutual respect 
between police and the communities they are there to protect, 
which is critical to keeping communities safe. Additionally, 
profiling deepens racial divisions in America and conveys a 
larger message that some citizens do not deserve equal 
protection under the law.
    In the context of immigration, racial profiling is 
exploding. State intrusion into Federal immigration authority 
has created a legal regimen in which people are stopped based 
on their race and ethnicity for inquiry into their immigration 
status. The Department of Justice needs to continue to expand 
its response to these State laws using robust civil rights 
protections. Additionally, Congress must defund the Department 
of Homeland Security 287(g) and Secure Communities programs 
which promote racial profiling by turning State and local law 
enforcement officials into immigration agents. When police 
officers not trained in immigration law are asked to enforce 
the Nation's immigration laws, they routinely resort to racial 
stereotypes about who looks or sounds foreign. But you cannot 
tell by looking or listening to someone about whether or not 
they are in the U.S. lawfully.
    In order to achieve comprehensive reform, Congress needs to 
provide law enforcement with the tools needed to engage in 
effective policing. We need to pass the End Racial Profiling 
Act, which would prohibit racial profiling once and for all. 
And we should urge the administration to strengthen the 
Department of Justice guidance using the use of race by Federal 
law enforcement agencies to address profiling by religion and 
national origin and to close loopholes for the border and 
national security.
    In America in 2012 and beyond, policing based on 
stereotypes must not be a part of our national landscape. Law 
enforcement officers must base their decisions on facts and 
evidence; otherwise, Americans' rights and liberties are 
unnecessarily discarded and individuals are left to deal with 
the lifelong circumstances of such intrusion.
    On behalf of the ACLU, I wish to thank each of you for your 
leadership on this critical issue. I also would like to thank 
you, Chairman Durbin, in particular for your willingness to 
partner with our Illinois office to address the issue of 
profiling. I look forward to working with you in the years 
ahead.
    [The prepared statement of Anthony Romero appears as a 
submission for the record.]
    Chairman Durbin. Thanks, Mr. Romero.
    Frank Gale is the national second vice president and 
Colorado State president of the Fraternal Order of Police. He 
served for 23 years in the Denver County Sheriff's Department 
where he had responsibility for the courts and jails. Captain 
Gale is currently the commander of the Training Academy and the 
Community Relations Unit and the public information officer. He 
has received numerous awards and decorations from the Fraternal 
Order of Police and the Denver Sheriff's Department.
    Captain Gale, it is an honor to have you here today, and 
please proceed.

         STATEMENT OF FRANK GALE, NATIONAL SECOND VICE
  PRESIDENT, GRAND LODGE, FRATERNAL ORDER OF POLICE, DENVER, 
                            COLORADO

    Mr. Gale. Thank you. Good morning, Mr. Chairman and 
distinguished Members of the Senate Subcommittee on the 
Constitution, Civil Rights and Human Rights. My name is Frank 
Gale. I am a 23-year veteran of the Denver County Sheriff's 
Department and currently hold the rank of captain. I am the 
national second vice president of the Fraternal Order of 
Police, which is the largest law enforcement labor organization 
in the country, representing more than 330,000 rank-and-file 
law enforcement officers in every region of the country.
    I am here this morning to discuss our strong opposition to 
S. 1670, the End Racial Profiling Act. I want to begin by 
saying that it is clear that racism is morally and ethically 
wrong, and in law enforcement is not only wrong but serves no 
valid purpose. It is wrong to think a person a criminal because 
of the color of their skin, but it is equally wrong to think 
that a person is a racist because they wear a uniform and a 
badge. This bill provides a solution to a problem that does not 
exist unless one believes that the problem to be solved is that 
our Nation's law enforcement officers are patently racist and 
that their universal training is based in practicing racism. 
This notion makes no sense, especially to anyone who truly 
understands the challenges we face protecting the communities 
we serve.
    Criminals comes in all shapes, colors, and sizes, and to be 
effective as a law enforcement officer, it is necessary to be 
colorblind as you make determinations about criminal conduct or 
suspicious activity. There is the mistaken perception on the 
part of some that the ugliness of racism is part of the culture 
of law enforcement. I am here today not only to challenge this 
perception, but to refute it entirely. We can and must restore 
the bonds of trust between law enforcement and the minority 
community. To do so would require substantial effort to find 
real solutions. Restoring this trust is critically important 
because minority citizens often suffer more as victims of 
crime, especially violent crime.
    I do not believe that S. 1670 will help to repair the bonds 
of trust and mutual respect between law enforcement and 
minority communities. In fact, I believe it will make it more 
difficult because it lends the appearance that all cops are 
racist and that we are engaged in a tactic which has no other 
purpose than to violate the rights of citizens. That notion or 
belief is inhibitive of building trust and respect and can 
result in a base belief by the community that law enforcement 
officers should not be trusted or respected.
    This bill proposes to prohibit racial profiling, which it 
defines very broadly and is not a legitimate police practice 
employed by any law enforcement agency in the United States 
that I know of. In Whren v. United States, the Supreme Court 
made it very clear that the Constitution prohibits selective 
enforcement of the law based on considerations such as race. 
Further, as one court of appeals has explained, citizens are 
entitled to equal protection of the laws at all times. If law 
enforcement adopts a policy, employs a practice, or in a given 
situation takes steps to initiate an investigation of a citizen 
based solely upon the citizen's race without more, then a 
violation of the Equal Protection Clause has occurred.
    The United States Constitution itself prohibits racial 
profiling, and yet here we have a bill that proposes to 
prohibit it. The very premise of the bill seems at odds with 
common sense in current law. The bill does not prohibit racial 
profiling, as the definition of racial profiling in the bill is 
far too broad. And, thus, it ends up prohibiting officers from 
the exercise of legitimate routine investigatory action aimed 
at determining involvement in a crime or criminal activity. The 
bill purports to allow exceptions to these prohibitions when 
there is a race description provided by a trustworthy 
eyewitness or other evidence of a specific suspect's race or 
ethnicity, but in real life this is not practical.
    In the practice of routine investigatory action, law 
enforcement officers receive and develop information through a 
wide range of activities and methods that are designed to 
identify suspects, prevent crime, or lead to an arrest. This 
bill would ban many of these types of method; therefore, a 
whole range of legitimate law enforcement methods would be 
prohibited beyond the already unconstitutional, purely race-
based activities.
    The legislation also threatens to penalize local and State 
law enforcement agencies by withholding Federal law enforcement 
funding unless these agencies comply with the requirements of 
the bill to provide all officers training on racial profiling 
issues, collect racial and other sociological data in 
accordance with Federal regulation, and establish an 
administrative complaint procedure or independent audit program 
to ensure an appropriate response to allegations of racial 
profiling.
    The FOP has testified before you about the dire and 
dangerous consequences of budget cutbacks for law enforcement 
in the past. How can we fight the battle if we also propose to 
deny these funds to agencies that need them because they cannot 
afford new training or new personnel to document allegations of 
racial profiling issues? How can we achieve a colorblind 
society if the policies of the Federal law require the detailed 
recording of race when it comes to something as common as a 
traffic stop? And what if the officer is unable to determine 
the driver's race? Will police officers now be required to ask 
for ``driver's license, registration, and proof of ethnicity, 
please''?
    At a time when many citizens and lawmakers are concerned 
with protecting their personal information, be it concerns 
about the REAL ID Act, voter identification laws, or cyber 
crime, it seems at variance with common sense and sound public 
policy to ask yet another representative of the Government--in 
this case, a law enforcement officer--to collect racial or 
other personal data and turn that data over to the Federal 
Government for analysis. Why would something as simple and 
routine as a traffic stop require such an extraordinary 
imposition on a driver?
    I submit to this Subcommittee that we do have a problem in 
our Nation today: the lack of trust and respect for our police 
officers. Police officers have a problem in that they have lost 
the trust and respect and cooperation of the minority 
community. This is tragic because, as we have already 
discussed, it is minorities in our country that are most hurt 
by crime and violence. This bill, however, is not the solution. 
It will make matters worse, not better.
    For these reasons, the Fraternal Order of Police strongly 
opposes the bill, and I urge this Subcommittee to reject it.
    Mr. Chairman, I want to thank you for the opportunity to 
appear before the Subcommittee.
    [The prepared statement of Frank Gale appears as a 
submission for the record.]
    Chairman Durbin. Thank you very much, Office Gale, for 
being here.
    Roger Clegg is the next witness, president and general 
counsel of the Center for Equal Opportunity. He has held a 
number of senior positions in the Justice Department during the 
Reagan and George H.W. Bush administrations, including Deputy 
Assistant Attorney General in the Civil Rights Division and 
Deputy Assistant Attorney General in the Environment and 
Natural Resources Division, Acting Assistant Attorney General 
in the Office of Legal Policy. He is a graduate of Yale 
University Law School.
    Thank you for being here, Mr. Clegg, and please proceed. If 
you would turn your microphone on, it is in that box in front 
of you there.

STATEMENT OF ROGER CLEGG, PRESIDENT AND GENERAL COUNSEL, CENTER 
         FOR EQUAL OPPORTUNITY, FALLS CHURCH, VIRGINIA

    Mr. Clegg. Thank you very much, Senator Durbin, for 
inviting me here today. I am delighted to be here. Let me just 
summarize briefly my written statement.
    The first point I make is that care has to be taken in 
defining the term ``racial profiling.'' And, in particular, I 
think that it is important to bear in mind that racial 
profiling is disparate treatment on the basis of race. Good 
police activities that happen to have a disparate impact on the 
basis of race are not racial profiling.
    The second point I make is that the amount of racial 
profiling that occurs is frequently exaggerated and that care 
needs to be taken in analyzing the data in this area.
    All that said, racial profiling, as I define it, is a bad 
policy, and I oppose it for the reasons that many of my co-
panelists here are giving.
    There is one possible exception that I would make, and that 
is in the antiterrorism context. In brief, I think that it is 
quite plausible to me that in the war on terror, where we are 
fighting an enemy that has a particular geopolitical and 
perverted religious agenda, it may make sense in some 
circumstances to look at organizations that have particular 
religious and geopolitical ties. I am not happy about doing 
that. I think it should be done as little as possible. But the 
stakes are so high that I am not willing to rule it out 
altogether.
    The last point I would make is that there are problems with 
trying to legislate in this area in general, and I think that 
the End Racial Profiling Act in particular is very problematic. 
I do not think that this is an easy area for Congress to 
legislate a one-size-fits-all policy that is going to apply to 
all law enforcement agencies at all levels of Government at all 
times in all kinds of investigations. And I think it is also a 
bad idea to encourage heavy judicial involvement in this area. 
And these are things that the End Racial Profiling Act does.
    Let me also say that I think that Chief Gale does a very 
good job of identifying some additional costs in the End Racial 
Profiling Act: The fact that it is insulting, that data 
collection is time-consuming, and that inevitably we are going 
to either have to guess inaccurately about people's racial and 
ethnic background or else train the police on how to identify 
people racially, which is a pretty creepy enterprise.
    With respect to my other panelists' testimony, I will just 
say briefly that in the terrorism and border security context, 
as I read some of this testimony, they would equate racial 
profiling with taking a particular look at visitors from 
particular countries, at considering immigration and 
citizenship status, and at considering language. I do not 
consider any of those things to be racial profiling.
    Let me make one last point. I think that this is an 
important point to make whenever we are talking about racial 
disparities. As I said, Mr. Chairman, I am opposed to 
profiling, particularly to profiling in the traditional law 
enforcement context where frequently it is African Americans 
who are the victims of that profiling. I am against that.
    Nonetheless, I think we have to recognize that it is going 
to be tempting for the police and individuals to profile so 
long as a disproportionate amount of street crime is committed 
by African Americans. And there will be a disproportionate 
amount of street crime committed by African Americans for so 
long as more than seven out of ten African Americans are being 
born out of wedlock. I know that this is not a popular thing to 
say, but I think whenever we are discussing racial disparities 
in the United States, that is the elephant in the room, and it 
has to be addressed.
    So, ultimately, people like me and everyone else, I think, 
in this audience who do not like racial profiling are going to 
have to face up to this problem. Thank you.
    Chairman Durbin. I would ask those in attendance here to 
please maintain order.
    Mr. Clegg. Thank you, Mr. Chairman, and I think I am at the 
end of my 5 minutes, anyway.
    [The prepared statement of Roger Clegg appears as a 
submission for the record.]
    Chairman Durbin. Thank you, Mr. Clegg.
    David Harris is a distinguished faculty scholar and 
associate dean for research at the University of Pittsburgh Law 
School. He is one of the Nation's leading scholars on racial 
profiling and author of the book in 2000, ``Profiles in 
Injustice: Why Racial Profiling Cannot Work,'' and in 2005, 
``Good Cops: The Case for Preventive Policing.'' Like 
Congressman Conyers and Chief Davis, Professor Harris appeared 
at both of the previous Senate hearings on racial profiling, so 
welcome back.

 STATEMENT OF DAVID A. HARRIS, PROFESSOR OF LAW AND ASSOCIATE 
                DEAN FOR RESEARCH, UNIVERSITY OF
       PITTSBURGH SCHOOL OF LAW, PITTSBURGH, PENNSYLVANIA

    Professor Harris. Thank you very much, Senator Durbin, 
Members of the Subcommittee. I am grateful for the chance to 
talk to you today.
    Senator Durbin's statement opened by recalling for us 
President Bush's promise that racial profiling ``is wrong and 
we will end it in America.'' Sad to say that that promise 
remains as yet unfulfilled. Instead, we have a continuation of 
profiling as it existed then with a new overlapping second wave 
of profiling in the wake of September 11th, as other witnesses 
have described, directed mostly at Arab Americans and Muslims. 
And now we have a third overlapping wave of profiling, this one 
against undocumented immigrants. But the context and the 
mission of whatever these law enforcement actions are does not 
change the fundamentals. The fundamentals are these: Racial 
profiling does not work to create greater safety or security. 
Instead, racial profiling, ethnic profiling, and religious 
profiling all make our police and security personnel less 
effective and less accurate in doing their very difficult jobs.
    I would define racial profiling as the use of racial, 
ethnic, religious, national origin, or other physical 
characteristics of appearance as one factor, not the sole 
factor but one factor, among others, used to decide who to 
stop, question, frisk, search, or take other routine law 
enforcement actions. This is very close, if you look at it, to 
the definition in the profiling guidance of the Justice 
Department, and I would note that it does not include actions 
based upon description--description of a known suspect, a 
person who has been seen by a witness. That is not profiling. 
That is good police work.
    All of profiling falls on the same set of data--data from 
across the country, different law enforcement agencies, 
different missions--and it is all about hit rates. When we talk 
about effectiveness, what we are asking is: What is the rate at 
which police officers and security officers succeed or hit when 
they use race, ethnic appearance, religious appearance, as 
opposed to when they do not? And the evidence, the data on this 
question is unequivocal. It comes from all over the country.
    When police use race or ethnic appearance or religious 
appearance this way, they do not become more accurate. In fact, 
they do not even just stay as accurate. They become less 
accurate than police officers and security agents who do not 
use these practices. In other words, racial profiling gets us 
fewer bad guys.
    Why is this? Because a lot of people find this 
counterintuitive. There are two big reasons.
    Number one, profiling is the opposite of what we need to do 
in order to address as yet unknown crimes by as yet unknown 
suspects. That is addressed most effectively through 
observation, careful observation of behavior. And when you 
introduce race even as just one factor into the mix, what 
happens is the observation of behavior becomes less accurate, 
measurably so, and police officers' efforts are damaged and 
wasted.
    Second is that using profiling affects our ability to 
gather crucial intelligence and information from communities on 
the ground, and this is true whatever the context is in which 
profiling is used. Particularly in the national security 
context, this is absolutely critical.
    If we are in danger, if there is a threat from 
international terrorists, and if, as some say, those 
international terrorists may be hiding in communities of Arab 
Americans and Muslims, the people we need right now as our 
partners, like we have never needed other partners, are people 
in those Arab American and Muslim communities. And I want to 
say that those communities have been strong, effective, 
continuously helpful partners to law enforcement in case after 
case across the country. These communities have helped. But if 
we put the target of profiling on these whole communities, we 
will damage our ability to collect intelligence from them 
because fear will replace trust.
    In response to some of the comments made by my fellow 
panelists, a bill like S. 1670, which deserves support, is not 
insulting to law enforcement. It is all about accountability, 
and everybody who is in law enforcement or any other pursuit 
needs accountability, just like I do as a professor, just like 
everybody else does. Racial identification is not an issue. You 
will not have police officers asking people what their race or 
ethnic group is. In fact, that is not what we would want at all 
because it is all about the perception of the officer. That is 
all that would have to be recorded.
    And black street crime, respectfully I have to disagree, is 
not the issue. The issue is how we deploy our law enforcement 
officers in ways that are effective, fair, and carry out the 
most important ideals of our society. So for those reasons, I 
would support any efforts to pass S. 1670, the End Racial 
Profiling Act, and to revise the Department of Justice's 
profiling guidance.
    I thank you very much for the opportunity to talk to you, 
and I look forward to the Committee's questions. Thank you.
    [The prepared statement of Prof. David A. Harris appears as 
a submission for the record.]
    Chairman Durbin. Thank you very much, Professor Harris.
    Chief Davis, you have spent your lifetime in law 
enforcement, and you have heard the testimony of Officer Gale 
that suggested in very strong and pointed language that raising 
this question of racial profiling really, he says, unless you 
believe police are racist, he suggests this is unnecessary.
    So what is your answer to that? As I said at the outset, 
you trust, we trust, these men in uniform--women as well--who 
risk their lives every day for us. And the question he has 
raised is if we cannot trust their judgment and assume that 
they are going to violate the Constitution and the law, then we 
are suspicious of them when we should be more trusting.
    Chief Davis. Thank you, Mr. Chairman, for the question. I 
completely disagree with my colleague. The idea that a police 
officer or a police department should not be held accountable 
is counter to the idea of democracy. If any group should be 
held accountable, it must be the police. We have awesome powers 
and responsibility, the power to take a life and the power to 
take freedom. The idea that we could not collect data to ensure 
that that power is used judiciously and prudently would be 
counter to sound managerial principles.
    We collect data every day. We collect data on crime. We 
collect data for budget purposes. We collect data for our very 
justification and existence. We use it to tell you that you 
need to increase budgets to the State. We use crime to justify 
why we deploy resources. The idea of using data means that you 
are using intelligence, and intelligence-led policing prevents 
the need to do guess work or bias-based policing.
    And so while I do appreciate the notion that we should 
respect law enforcement, as a law enforcement officer I think 
there is no more noble profession. But the idea that I am 
exempt from the Constitution or exempt from accountability is 
counter to why I got into the job. And I do not think it is 
insulting. I think what is insulting is to allow police 
officers to come under the perception, under the threats of 
accusations of racial profiling and not be in a position to 
counter it, not be in a position to make sure that your own 
policies and practices do not make them unintentionally engage 
in this practice. Laws are designed to set standards, to hold 
us accountable, and to really send a clear message. And I think 
that is what we're doing.
    Chairman Durbin. Before I turn to Officer Gale, I would 
like to also note that this celebrated case, notorious case 
involving Trayvon Martin involved a person being accused who 
was not a law enforcement official per se. He was an individual 
citizen as part of a Neighborhood Watch. Forty-nine States now, 
my own State being the only exception, have a concealed-carry 
law which allows individuals under some circumstances to 
legally carry a firearm. In this case, I do not know if Mr. 
Zimmerman complied with Florida law. That will come out, I am 
sure, in terms of what it took to have a concealed weapon.
    But it certainly raises a question that was not before us 
as much 10 years ago. We are not just talking about 
professionalizing law enforcement and holding them accountable. 
We are talking about a new group of Americans who are being 
empowered to carry deadly weapons and to make decisions on the 
spot about the protection of their homes and communities, which 
I think makes this a far more complex challenge than it was 10 
years ago.
    I would like your response.
    Chief Davis. Yes, sir, I agree. The issue for California, 
we have the issue of open-carry, the carrying of loaded 
firearms, with very minimal requirements. So I think the idea 
that people should be held accountable, including our 
community, is very real.
    The issue of racial profiling, why it is also important, 
why we need the data, is in many cases--and maybe the Trayvon 
Martin case may bring this out later--gets into also what role 
law enforcement plays with its own community's bias. And so 
when people call the police and say, ``There is a suspicious 
person walking in my neighborhood,'' what makes that person 
suspicious? And the police must ask those questions. And the 
idea that we simply respond and stop without inquiring why the 
person is suspicious--is it their behavior? Is it the fact that 
they were basically engaged in criminal activity? Or is it 
because they are wearing a hoodie and because they are black? 
And at some point, the law enforcement must stand firm.
    Now, this is where we need the justification with the law 
to stand firm and even tell community members, ``No, I am not 
going to stop this person because he or she has done nothing.''
    So we do have to look at the idea that law enforcement not 
enforces the law, they also set in many ways the moral 
authority of its community on how to interact with each other.
    Chairman Durbin. Officer Gale, your statement was very 
strong, but the conclusion of it raised a question. And I do 
not have it in front of me, but as I recall--and tell me if I 
am stating this correctly--you said that many members of the 
law enforcement community were not trusted in the minority 
communities. Can you explain that?
    Mr. Gale. Well, I think it is----
    Chairman Durbin. You need to turn the microphone on, 
please.
    Mr. Gale. I apologize. I think it is pretty clear from what 
we have seen in media reports, especially recently. But, you 
know, over the course of several years, there is work to be 
done by law enforcement in the minority community to rebuild 
trust. And I say that openly. I think the FOP acknowledges that 
and, in fact, we are engaged in activities in which we are 
attempting to help law enforcement officers and agencies do 
just that through community work. So I think that is an 
important piece.
    I think the professor talked about the fact that a lot of 
times in minority communities you have people in those 
communities that are a valuable resource to law enforcement. I 
agree with that, and the aspect of law enforcement and the 
professional law enforcement, it is necessary to have people in 
communities where crime is occurring assist you with the 
enforcement activities. And so I think the problem has become 
that we seem to want to blame the enforcers for everything that 
goes wrong. And the problem with that is that the enforcers 
show up on the scene to deal with a situation with the 
information that they have available to them at the time. And 
our job, when we show up, is to stabilize the situation.
    Chairman Durbin. But you do not quarrel with--I hope you do 
not quarrel with Chief Davis' premise that the law enforcement 
community has extraordinary power in the moment--the power to 
arrest, the power to detain, the power to embarrass. And 
holding them accountable to use that power in a responsible, 
legal, constitutional way, you do not quarrel with that 
premise, do you?
    Mr. Gale. I do not think the FOP quarrels with the fact 
that law enforcement officers have that power, nor do we 
quarrel with the fact that law enforcement officers should be 
held accountable. In fact, we are accountable. I think my 
testimony illustrated situations where the court had ruled that 
officers had to be accountable in issues of race, and we accept 
that and embrace it because we believe it is proper, we believe 
it is appropriate.
    Chairman Durbin. Mr. Clegg, you said a number of things 
which caught my attention, and you said that you thought the 
war on terror justified some measure of profiling.
    Mr. Clegg. Well----
    Chairman Durbin. Let me come to a question, and then you 
can certainly explain your position. And I wrote notes as 
quickly as I could. ``We need to look at organizations with 
geopolitical and political ties,'' I think is something that 
you said in the course of that.
    You have heard testimony here from Congressman Ellison and 
others about what is happening to Muslim Americans across the 
board, and many of them are not affiliated with any specific 
organization. They are affiliated with a faith, and it appears 
that that has become a premise for surveillance and 
investigation.
    I worry, as an amateur student of history, how you could 
distinguish what you just from what happened to Japanese 
Americans in World War II, where 120,000 were rounded up with 
no suspicion of any danger to the United States and their 
property taken from them, detained and confined because they 
happened to be part of an ethnic group which had just attacked 
the United States--the Japanese, I should say, attacked the 
United States and, therefore, they were branded as possibly 
being a danger in the Second World War because of some 
connection they might have with a geopolitical or political 
group.
    How would you make that distinction? Or do you happen to 
think Japanese internment camps were justifiable?
    Mr. Clegg. No, I do not, and when I say that in some 
limited circumstances some consideration of individuals' or 
organizations' geography and religion can be justified in the 
war on terror, I am not saying that that means that any 
consideration under any circumstances of ethnic profiling and 
religious profiling is okay. All I am saying is that I am 
unwilling to say that it can never be used. And I give examples 
in my testimony.
    For instance, suppose that on 9/11 the FBI had gotten 
reliable information that an individual on one of the grounded 
airplanes, one of the grounded jetliners, had a backup plan and 
that he was going to fly a private plane filled with explosives 
into a skyscraper. Would----
    Chairman Durbin. But there is a clear distinction. There is 
a clear distinction, and let us make it for the record: a 
predictor and a descriptor.
    Mr. Clegg. No, no, no----
    Chairman Durbin. When you talk about the class of people 
guilty for 9/11 and say, ``Why wouldn't we go after that class 
of people in training to fly,'' and so forth and so on, that is 
a descriptor that law enforcement can use. But when you 
conclude that because they were all Muslim we should take a 
look at all Muslims in America----
    Mr. Clegg. I did not say that.
    Chairman Durbin [continuing]. You have crossed the line.
    Mr. Clegg. Well, I did not say that. And I think that the 
line that you are drawing between predictor and descriptor is 
inevitably a gray one, and this is one reason why I think that 
legislation in this area is a bad idea.
    Isn't it predictive when the FBI in my hypothetical says, 
you know, the individual who is going to fly this plane into a 
skyscraper is not somebody identified--it has not already been 
done. We are trying to predict who it is going to be, and we 
are going to look at the passenger lists on the grounded 
airplanes, and we have only limited resources and limited 
time--we are working against the clock here--and we are going 
to start by looking at individuals with Arabic names.
    Now, that is racial profiling, according to your bill, but 
I think it would be eminently reasonable.
    Chairman Durbin. I certainly disagree, and that is why I 
am----
    Mr. Clegg. You do not think that that would be reasonable?
    Chairman Durbin. No, I do not. I really think that when you 
start going that far afield, why do you stop with Arabic names? 
Why wouldn't you include all of Muslim religion then? I mean, 
that just strikes me as the very core of the reason we are 
gathering today, that if we are going to say to people across 
America, ``You have certain rights and freedoms because you 
live in America and we have certain values,'' it does create 
perhaps more of a challenge to law enforcement. A police state 
may be much more efficient in many respects. But it is not 
America.
    Mr. Clegg. Well, listen, in my testimony, I and my whole 
organization's whole focus is on the principle of ``E pluribus 
unum.'' I take that very seriously, Mr. Chairman. But what I am 
saying is that there are going to be some circumstances where I 
think it would be very unwise for Congress to say that law 
enforcement agencies cannot give some limited consideration to 
an individual's or an organization's geopolitical and religious 
background.
    Chairman Durbin. I would like to defer now to Senator 
Graham, who has patiently waited for his opportunity.
    Senator Graham. Thank you all. Well, I guess what we are 
trying to highlight is how complicated this issue is.
    Mr. Gale, do you think you have ever been racially 
profiled?
    Mr. Gale. Probably.
    Senator Graham. I cannot say I understand, because I do 
not. I have never been in that situation. But the fact that you 
are a law enforcement officer and you probably some time in 
your life have been viewed with suspicion by police makes your 
testimony pretty persuasive to me in the sense that you are now 
sitting in the role of a law enforcement official trying to 
protect a community. And the Zimmerman case is a private 
individual, not a law enforcement organization. And I just 
really--I think I understand the problem. I just do not know 
where the line between good law enforcement and racial 
profiling ends and begins, because let me tell you one thing 
about Congress. We will be the first one to jump on you when 
you are wrong. When you get a phone call that somebody looks 
suspicious in a neighborhood and you ask a bunch of questions, 
well, that does not seem to justify us going in, and that 
persons winds up killing somebody or robbing or raping 
somebody, we will be the first ones to blame you. So you are in 
an untenable situation.
    And when it comes to the war on terror, Mr. Clegg, I could 
not agree with you more. The reality of the fact is that I wish 
we had done more with Major Hasan and not less. There are some 
websites out there that I am glad we are monitoring. There are 
some groups within America that are saying some pretty radical 
things, and I hope we follow the leaders of these groups to 
find out what they are up to, because homegrown terrorism is on 
the rise. How do you fight it without fighting a religion? How 
do you fight homegrown terrorism without fighting people who 
are very loyal to America who belong to a particular faith? I 
do not know, but I know this: that if the law enforcement 
community in this country fails to find out about the Major 
Hasans, we are the first one to be on your case. Why didn't you 
follow this website? He said these things in these meetings, 
and why didn't the supervisor tell the wing commander you have 
got somebody who is really out of sorts here? And as a Air 
Force officer, when do you go to your wing commander and say 
this person said something that makes me feel uncomfortable and 
you do so at your own peril?
    So I just do not know what the answer is. I know what the 
problem is. And I think in the last decade we have made some 
progress, Chief Davis, and maybe having legislation that makes 
us focus on this problem more might make some sense, quite 
frankly. Maybe we would look at redefining it, but just 
collecting information to show exactly what happens day in and 
day out in America so we can act logically on it.
    I know you want to say something, Mr. Clegg, but when it 
comes to fighting the war on terror, the fact of the matter is 
that Great Britain and France are going through this very 
similar situation right now where they have groups within the 
country that are espousing some pretty radical ideas, and they 
just expelled someone, I think, from Great Britain just today 
or yesterday, an imam who was saying some pretty radical 
things.
    So I do not know when national security starts and 
individual liberties begin. What is your thought?
    Mr. Clegg. Well, I want to endorse what some of my co-
panelists have said, that it is very important in the war on 
terror that we have the cooperation of the overwhelming 
majority of individual Americans, Arab Americans and Muslim 
Americans, who----
    Senator Graham. Don't you think one of the great strengths 
of our country is that even though homegrown terrorism is on 
the rise, generally speaking American Muslims have assimilated 
in our society and our culture; thousands serve in the 
military; and that we are actually the example to the world of 
how you assimilate?
    Mr. Clegg. That is right, and I think that stereotyping is 
very dangerous in this area. You know, most Arab Americans are 
not Muslims, for instance. I believe they are Christian. You 
cannot just look at somebody's name and conclude things about 
them. And as my co-panelists said, it is very important to have 
the cooperation and the trust of Arab American communities. So 
I do not want to give the impression that I think that it 
should be open season on anyone on account of their ethnicity 
or their religion. I am simply saying----
    Senator Graham. Do you agree that----
    Mr. Clegg [continuing]. That there are going to be 
circumstances where----
    Senator Graham. Well, what we should be looking for is 
actions by individuals within groups, statements made that send 
signals that this is not where, you know, practicing religion 
should be taking one, it is the activity on the Internet.
    Mr. Clegg. Well, as Professor Harris has said, it is----
    Senator Graham. That is what you were talking about. That 
is what I want us to----
    Mr. Clegg [continuing]. We are looking at----
    Senator Graham [continuing]. And how we do that I think is 
very complicated because when you monitor these websites, maybe 
you capture some innocent conversation. So having judicial 
oversight I think is important. But I guess that is what I am 
looking for, is sort of objective indicators of, you know, this 
is getting out of bounds here.
    Professor Harris. Senator Graham, you are absolutely right. 
It is about behavior. That is the key to everything. And making 
statements, whether out loud or on the Internet, that is 
action, that is behavior.
    Senator Graham. And here is the problem we have. If you are 
an Air Force member and you have an American Muslim in the 
group and they say something that alarms you, you have to 
think, ``Well, if I say something, am I going to get myself in 
trouble?''
    Mr. Romero. But, Senator, if I may interject--and it is 
nice to see you again, Senator. Thank you for yielding to me. I 
think part of the challenge we have in a country that is 
dedicated to free speech is how you draw that line well in a 
way that does not quell speech we want to protect. I know that 
perhaps my organization and you have different points of view 
on abortion, for instance, and yet I think you and I would 
completely coincide--from the moments I have shared with you, I 
know you and I would completely coincide that anyone who dares 
to blow up an abortion clinic is a criminal.
    Senator Graham. That is not speech.
    Mr. Romero. And yet then would you feel comfortable 
surveilling the antiabortion websites for individuals who 
perhaps would be willing to blow up an abortion clinic just 
because they may share the points of view of the radicals who 
would blow up a clinic? I know you would not feel comfortable, 
if I could put words in your mouth.
    Senator Graham. I know exactly what you are saying.
    Mr. Romero. And so the context is not that different in the 
context of speech that perhaps we find odious, perhaps we find 
difficult, but that is what America is about. Democracy is a 
great many things, but it should never be quiet. But we all 
agree that it is not the America we know and love, sir.
    Senator Graham. I guess here is maybe where legislation can 
help, and my time is up. You know, having thoughts the 
Government or expressing yourself in an aggressive way, you can 
be radically pro-choice, radically against abortion; you can 
feel the way you would like to feel; you can speak your mind. 
But there comes a point in time when the rest of us have to 
defend ourselves and our way of life. And what I hope we will 
do in this discussion is not ignore the threats that do exist. 
There is a lurking, looming threat against this country and 
against our way of life, and I hope we will not get so 
sensitive to this dilemma that we will basically unilaterally 
disarm ourselves.
    And when it comes to basically, you know, the immigration 
issue, if there was ever a reason to fix our immigration 
system, this hearing highlights it. You have got millions of 
people here who are undocumented, illegal, and I would just be 
greatly offended if I were a corporal coming back from 
Afghanistan who happened to have a Hispanic last name and got 
stopped because somebody thinks I am here illegally. I could be 
greatly offended, but the fact of the matter is that, you know, 
there is a downside of illegal immigration in terms of crime, 
and the way to solve that problem, it is clear to me, is 
comprehensive immigration reform.
    Thank you all. This has been a very good hearing, and we 
will see if we can work with Senator Cardin to find something 
maybe more bipartisan.
    Chief Davis. Mr. Chairman, could I just answer one question 
the Senator asked? You asked Captain Gale had he ever been 
profiled, and I will take a shot at that. Unequivocally yes. 
But I think it was telling not only have I been profiled, but 
as a law enforcement officer, I have profiled. And I think that 
is the part that we bring to the table, that in many cases it 
may be implicit bias, it may be no malice intended; but at the 
end of the day, the result is that you have a disparate effect 
on people of color that you need most to help address some of 
the issues that are at the table.
    So I think for us not to acknowledge that it exists, to 
acknowledge that implicit bias is a human behavior that no one 
is exempt from, for us to require that we are trained in it, 
that we hold ourselves accountable so that we do not have these 
disparate outcomes is really what we are talking about. And it 
is easy to focus on the small percentage. I agree with the 
opening statement. Only a small percentage of our profession I 
believe are racists. But if the issue was as simple as racism, 
it would be an easy problem to fix. This is a much bigger 
issue, and I think we have to tackle it at that level.
    Senator Graham. Well said.
    Chairman Durbin. Thank you, Senator Graham. And I am going 
to take an extraordinary risk here and put this Committee in 
the hands of Senator Franken.
    [Laughter.]
    Chairman Durbin. In all seriousness, we are in a roll call 
vote, and Senator Graham and I have to vote. Senator Franken, I 
am going to recognize you, and I will let you monitor your own 
time used and watch Senator Blumenthal proceed, and then I will 
return. Thank you.
    Senator Franken [presiding]. You may regret this.
    [Laughter.]
    Senator Franken. I have the gavel now. In that case, I will 
turn it over to Senator Blumenthal.
    Senator Blumenthal. If I may, I have a question, Chief, to 
followup on the remark that you made at the close of Senator 
Graham's questions. Under what circumstances have you profiled? 
And if you could talk a little bit more about what limiting 
principles you think should apply to profiling when it is used 
legitimately, if it can be used legitimately, in your view.
    Chief Davis. Yes, the example that stands out for me when I 
was a police officer in Oakland, and you would have an area 
that we would identify as high crime, and this area was 
actually--it was very accessible to the freeway, so we had 
customers from out of town coming in to buy narcotics, and 
quite often they were actually white, and so the presumption on 
my part and many others is that any white person in that 
neighborhood would then be buying narcotics.
    The problem with that assessment, one, it attaches 
criminality to the entire neighborhood so that the only way 
that neighborhood could be judged is based on the actions of a 
few, which means you are criminalizing everyone that lives 
there; and, two, that also suggests that the only reason why a 
white person would visit someone black is to buy drugs.
    So besides being ineffective, besides being insulting to 
the neighborhood, it was not very--it just did not work. So as 
we got better and moved on, we learned how to watch behaviors. 
So now someone leaning in a car, someone basically exchanging 
money, somebody yelling signals that a drug buy was about to 
take place or that the police officers are coming works a lot 
better, doing proper investigations.
    The circumstances in which I think profiling could work 
would be probably under the category of criminal profiling when 
you are looking at behavioral aspects of what a person is 
doing. In other words, people when they are selling drugs, they 
engage in certain behaviors, whether it is how they drive, 
whether it is furtive movements in a car, something that would 
be specific to their actions. I cannot think of any context in 
which race is appropriate other than when you are describing 
someone who has committed a crime. And, in fact, Senator, I 
would say that what race ends up doing is being a huge 
distractor. So now we have seen this time and time again. We 
did Operation Pipeline in California where we targeted so-
called drug carriers, and we basically did not get what we were 
looking for because we were so buy looking for black or brown 
people driving on a freeway. And we were proven wrong time and 
time again, and then we lose the support of our community.
    Senator Blumenthal. And added to that problem is the 
difficulty often of using eyewitness testimony where somebody 
supposedly identifying a potential defendant in a lineup can be 
just plain wrong because of race being a factor. Would you 
agree to that?
    Chief Davis. Yes, and, in fact, there is much work in 
science now into looking at some of the dangers of basing 
convictions and even arrests merely on lineups because they can 
be inaccurate. And if I may, I guess one of the questions that 
came up earlier was also about officers guessing on race. And 
if I can say, it is really interesting because we are supposed 
to assess race. And so the idea--I do not think we are 
suggesting that race has no place. So if something comes out on 
a radio that you are looking for a black male, six-foot tall, 
225 pounds, and very handsome that did a robbery, then it would 
make sense why you would stop me. I can understand that.
    [Laughter.]
    Senator Franken. Objection.
    [Laughter.]
    Chief Davis. But the officer has to make an assessment at 
the time, so there is a time and place to, just not when you 
are trying to predict criminal behavior.
    Senator Blumenthal. Mr. Gale, if I may ask you to comment 
on the general principle that race or other similar 
characteristics alone, if used for identifying or profiling 
individuals, can be either distracting or undermining to 
credibility, and really should be used in combination--if 
anything, in combination with other, if at all, 
characteristics, mainly conduct, behavior, and so forth, what 
would you think about that?
    Mr. Gale. Conduct is what drives it all. You know, I am the 
commander of the training academy in my department, and we are 
training officers all the time. One of the things we talk about 
is, you know, the stop-and-frisk Terry stop type of situations. 
It is all driven by conduct. If you are going to properly teach 
that, you teach that it is driven by the conduct of the person 
and you are determining that their conduct indicates that they 
are involved in criminal activity. Race has no place in that. I 
think the distraction is that now you would have criminals who 
are involved in criminal activity who will now use, you know, 
the racial profiling as a distraction as they complain of being 
arrested or stopped because of their criminal conduct. And I 
think there is a presumption by some, and wrongly so, I 
believe, that, you know, no criminals ever complain against 
police officers and that no criminals ever, you know, do not 
just acknowledge that they do crime. My experience in 23 years 
is that it is very rare to roll up on someone engaged in 
criminal conduct and have them say, ``Ah, you got me, copper. I 
am guilty.'' They do not do that. They look for any way they 
can to try to get out of that process.
    Conduct is what drives all of it. The distraction is now 
that if you pass a bill like this, you are going to now say 
here is something you can use in addition. I think the courts 
already addressed it. The courts have already told law 
enforcement agencies very clearly, ``You cannot use race as the 
basis for how you do this.'' So conduct is it.
    The bulk of my testimony is really that I think we are 
trying to fix something that does not need to be fixed because 
you are trying to fix it with a law as opposed to just saying, 
hey, there is a problem, and the problem is bad police work.
    Senator Blumenthal. And I am sympathetic as one who has 
been involved in law enforcement for actually more than 23 
years, combining both Federal and State, as U.S. Attorney and 
then as Attorney General of my State in Connecticut, and I 
would be very loath to create what you have charitably called 
``distractions,'' ``defenses,'' ``impediments'' to effective 
law enforcement. But I think that one of the roles of 
legislation is also to provide guidance, raise awareness, and 
perhaps provide direction to police or their departments who 
may not be as aware as you are or even other witnesses here. 
Mr. Romero.
    Mr. Romero. Yes, thank you, Senator Blumenthal. Officer 
Gale, I guess I must take some time to visit your fair city of 
Denver because it does not look like any of the major cities 
that I visited in my 11 years' tenure as director of the ACLU. 
And with all due respect, you will forgive me for having to 
point out that your very optimistic assertion that all is well 
is just not borne out by the data that we already have. Let me 
give you data that I know quite well in New York City, the 
country's large police department.
    From 2002 to 2011, there were more than 4.3 million street 
stops--4.3 million. Eighty-eight percent of those--that is 
nearly 3.8 million--were of innocent New Yorkers. That means 
they were neither arrested for a summons or--neither issued a 
summons or arrested.
    Now, let us break it down by race because, obviously, it is 
a much better place, if you are Puerto Rican like me and maybe 
live in Denver, but in New York it is not a very good place for 
people who are African American or Latino. In 2011, a record 
685,000 New Yorkers were stopped by the New York City Police 
Department. Eighty-eight percent were totally innocent of any 
crime; 53 percent of those were black, 34 percent were Latino, 
9 percent white. And a remarkable number of guns was found on 
0.2 percent of all stops.
    Now, with all due respect, Officer Gale, I must demur when 
you say that this is all conduct-driven, because clearly these 
facts beg otherwise. The fact is that there is a problem, and I 
would assert that the reason why--and I think one point where 
we agree is that the Fraternal Order of Police nationwide 
lacked the trust from communities of color. I think you have 
said as much, that you have a PR problem, if you will, with 
communities of color. And I would assert that the reason why 
you might have that difficulty with the communities of color 
you are there to serve is because they know these facts. They 
may not know them the way I know them, but they experience it. 
And that is precisely why the End Racial Profiling Act is 
essential. The data we have already tells us there is a 
problem. Let us collect more data, and let us put in place some 
remedies.
    Your point about the Supreme Court and the Equal Protection 
Clause giving sufficient comfort to those who have been wronged 
by the police, that is just simply not true. The Supreme Court 
case, lamentably, in the case of Whren, which I can cite for 
you, basically allows police officers to make pretextual stops 
based on race, ethnicity, and national origin. It is the law of 
the land, according to our Supreme Court. At times our Supreme 
Court gets it wrong, which is why we exhort this Congress and 
this Senate to step in and to enact a law when we know that 
there is a problem that has yet not come to the attention of 
our Supreme Court.
    So with all, I thank you for----
    Senator Blumenthal. Thank you. My time is up, but I want to 
thank all of the witnesses. This has been a very, very 
important and useful hearing, and we have some areas of 
disagreement which I think we need to explore further. But I 
want to thank particularly Mr. Gale and Chief Davis for your 
excellent work over the years in law enforcement, and I thank 
the Chairman and substituting Chairman for their tolerance and 
patience.
    Senator Franken. I think you actually call me ``Chairman.''
    [Laughter.]
    Senator Franken. That is the protocol.
    Senator Blumenthal. You know, I think I need the advice--I 
have a right to remain silent.
    [Laughter.]
    Senator Franken. Unfortunately, I do have an appointment, 
so I am going to ask my questions, and then you will get the 
gavel. Then you will be the Chairman and get every due respect 
being called ``Chairman.'' Thank you, Senator Blumenthal.
    Everyone here has talked about the importance of 
cooperation between law enforcement officers and the 
communities they serve, and it seems that everyone agrees that 
racial profiling can undermine trust in the authorities and can 
cause resentments among the targeted groups. Minnesota is home 
to a large population of Somali Americans. In my experience, no 
community was more upset than the Somali community when we 
learned that a few Somali Americans had gone back to Somalia 
and become involved with Al-Shabaab.
    When I talked to both FBI Director Mueller and, maybe more 
importantly, when I went back to the Twin Cities and talked to 
the special agent in charge there, both said that the Somali 
community had been cooperative in FBI investigations, and I 
think it was because of actually very good police work and very 
good work by the FBI in making sure that they earned the trust 
of the Somali community there.
    My questions are to Chief Davis and to Officer Gale. Both 
of you have served as law enforcement officers. How do you earn 
the trust of the diverse communities that you serve, some of 
whom may be initially skeptical of the police?
    Chief Davis. Thank you, Senator. One stop at a time, 1 day 
at a time, one interaction at a time. I think when people--I 
think we have to, one, acknowledge the history that police have 
played, the role of law enforcement with regards to race in 
this country. I think we still have generations of people that 
remember desegregation. We have generations of people that are 
still here that remember when the police were the enforcement 
tool and the rule of law with regards to Jim Crow laws and 
Black Codes. And so we have to acknowledge that we may start 
off with this lack of trust and confidence. So it is one 
interaction at a time.
    I think the first thing law enforcement can do is 
acknowledgment, to take our heads out of the sand and 
acknowledge that we have this horrific history. We should 
acknowledge that we, whether intentionally or not, still are 
engaging in practices that have a very disparate result with 
regards to people of color, whether intended or not.
    We should put our defensiveness down and realize we are 
here to serve, not to be served. And we have to realize that we 
are only going to be successful if the community engages with 
us. And the more we engage in that, the safer we make them. And 
the safer we make our communities, the more they will then 
partner with us.
    With the evidence showing time and time again in each major 
city and community the stronger the relationship between the 
police and minority communities, the greater the crime 
reduction is going to be. So we do it one interaction at a 
time, and we do it by holding officers accountable, but we also 
do it by acknowledging that which is in front of us. I think 
there is no greater insult as a minority than for someone to 
look me in my eyes and insult my intelligence by telling me 
that there is not profiling, when everything about me knows 
that it is. And I think that is what happens with our 
communities, and we need to stop doing that.
    Senator Franken. Officer Gale.
    Mr. Gale. I think I agree with the chief that you have to 
do it one person at a time, but I think you have to be more 
global. You have to look at the community you serve and the 
different populations in that community, and you have to make a 
concerted effort to be in those communities and having dialogue 
with those people, and you have to listen. And it does not 
matter that you might not agree with the things that they say.
    Years ago, I was in the military, and I went to a 
leadership school, and they had a manual that said, ``Any 
problem, whether real or perceived, is still a problem.'' And I 
agree with that, and I have held to that. It does not matter if 
it is not the actual problem. If it is perceived to be a 
problem by someone or by a group of someones, then we have to 
listen, we have to validate it, and we have to dialogue through 
it. And I think we have to take agencies and train agencies to 
understand who these populations are that they are serving and 
what the concerns of those agencies are.
    I agree also with Chief Davis that, you know, we have to 
acknowledge the history of law enforcement has not always been 
one of stellar conduct, and I think that that is being done in 
a lot of organizations. I think in the Fraternal Order of 
Police we talk about it very honestly and very candidly with 
our membership and say this is the way you need to go to 
improve your relations with the communities that you serve.
    And so it is important to do those things, to hear what 
they have to say, but it is also important to explain to them 
what the challenges are, what we have to do if we are going to 
protect people, you know, what we are faced with as the 
challenges when we are protecting communities. And it is 
important for us to illustrate that to individuals in the 
community because, you know, no one is perfect, but if we 
understand each other better and we dialogue more, I think when 
there are these honest misunderstandings, we can move past 
them.
    Senator Franken. Thank you.
    Mr. Romero, in your written testimony on behalf of the 
ACLU, you wrote about recently uncovered FBI training materials 
that rely on bigoted stereotypes of Muslims. I think we can all 
agree that those materials are not acceptable. FBI Director 
Mueller acknowledged that those materials damaged the FBI's 
relationship with Muslim communities, and I commend Chairman 
Durbin for his recent letter to the FBI on this subject, and I 
am working on a letter to express my concerns as well.
    Mr. Romero, what actions should the FBI take to show that 
it is serious about reforming its training programs?
    Mr. Romero. Thank you for the question, Senator Franken, 
and, yes, what I would first point out is, of course, those 
memos and files and training manuals surprised us. When we use 
the Freedom of Information Act, we go asking for documents that 
we do not know exist. And so we use the Freedom of Information 
Act as democracy's X-ray, how to get documents that we need, 
questions, hunches based on conduct of what we have seen 
already, when the FBI has been tracking young Muslim men 
between the ages of 18 and 33 asking them to come in for 
voluntary fingerprinting and photographing, mapping out 
mosques, we had a hunch that they had to have some training 
materials that were going to be troubling and problematic. And, 
lamentably, our hunches were borne out.
    I think, frankly, one thing that the FBI needs to do that I 
would encourage--and Director Mueller is a man with whom we 
have great disagreements. We have sued him dozens of times.
    [Laughter.]
    Mr. Romero. But, for the record, he is a man of enormous 
credibility. He is probably the man in the Justice Department 
both under the Bush and the Obama teams in whom I have the 
greatest personal regard and respect sine qua non. And with all 
that, I would encourage you to encourage him to take a much 
more active position on these threat assessments, which I fear 
are only the tip of the iceberg. The Attorney General 
guidelines allow now them to begin investigations on anyone 
they choose so long as they can claim they are doing it to gain 
information on criminal activities, national security, or 
foreign intelligence. And the amount of reporting on those 
threat assessments is rather limited, as we all know. Asking 
those tough questions, how many of these threat assessments 
have been opened, how many of them are going, they allow them 
to collect unlimited physical surveillance, we encourage the 
Attorney General to retire the use of these threat assessments. 
But at least at the very first step, you can ask the FBI to do 
more vigorous reporting to you, even if it is in camera.
    Retraining is essential because, remember, all the folks 
who got that lovely little chart showing how the Arab mind is a 
cluster mind, and I am quoting verbatim, ``is a clustered 
thinker, while the Western mind tends to be a linear thinker,'' 
they were trained on this. So until we retrain them and tell 
them that that is not the case, was never the case, they are 
going to continue to do those activities.
    And so I think retraining is essential, and probing into 
the assessments and how those assessments have been used, 
particularly in the Muslim context, I think would be a place of 
important focus.
    Senator Franken. Thank you, Mr. Romero. And thank you, Mr. 
Chairman. I noticed you are back, so I will--you already took 
the gavel, didn't you?
    [Laughter.]
    Senator Franken. Thank you all.
    Chairman Durbin [presiding]. Senator Coons.
    Senator Coons. Thank you, Chairman Durbin. Thank you for 
calling this hearing and for your long and passionate and 
vigilant advocacy for civil rights and for your real leadership 
in this area, for this legislation and for this hearing.
    In my own role prior to becoming a Senator as a county 
executive, I worked hard in supervision of about a 380-sworn-
officer department to ensure that we had effective and strong 
outreach, not just to traditionally subject to harassment or 
questioning, communities like the African American or Latino 
communities, but also post-9/11 making sure there was better 
training and outreach and relationships with our Muslim 
community, given some incidents that occurred with our LGBT 
community, and just making sure that we stayed as a policing 
organization engaged and accountable.
    I just wanted to start, Officer Gale and Chief Davis, but 
thanking you for your leadership in the policing community and 
for your service to the public. I would appreciate your 
starting by just helping me understand what is the impact on a 
police force that practices racial profiling, where it is 
either part of policy or training, part of history, or part of 
current practice. What is the impact on professionalism, 
promotion advancement, and cooperation with communities? That 
has been touched on, but as you have noticed, because of votes 
a number of us have had to step in and out, and I would be 
interested in your response to that.
    Chief Davis. Thank you, Senator. I think it is multiple 
parts, if I may. Inside the organization, which we did not talk 
about, an agency that does engage in systemic racial profiling 
usually has very low morale because now you have officers 
inside the organization that are opposed to it, those that are 
engaging in it, and it causes a conflict within itself.
    Within a community I would also probably argue that the 
community is suffering because now you have a practice in which 
they are losing touch with their community, which makes them 
very ineffective, and, quite frankly, in today's society it 
makes them much more expensive because now you have the cost of 
crime going up, you have the cost of litigation because people 
are now seeking some type of redress through the court system, 
and you have low morale issues, which means you have increases 
in sick leave and workers' comp claims. So it is a very 
expensive venture when you engage in systemic racial profiling. 
And, most importantly, you have a community that is denied some 
of their basic rights. So as you know as a county executive, 
you cannot serve the community effectively if they do not trust 
you.
    So there is some historic trust. There is always going to 
be some challenges and strains. But to the extent that there is 
a legitimate outreach, to the extent which we are trying to--
and I agree with Captain Gale--listen and respond and respect, 
I think we have a better chance of being successful.
    So the issue of racial profiling, although we are talking 
about race, from a chief's perspective, from an executive's 
perspective, is poor managerial practice. It results in loss of 
revenues, support, causes internal strife. It just is not an 
effective strategy.
    Senator Coons. Thank you.
    Captain Gale, would you agree? Is this bad policing? Does 
it have consequences internally?
    Mr. Gale. Absolutely. I mean, the consequences of bad 
management in any agency result in these perceptions in the 
community that the police are not responsive and that they are 
victimizing citizens and that they are somehow or another a 
rogue force. That is where it all derives from. It all derives 
from the management philosophy of the organization. And the 
chief is right. It does result in low morale.
    But it also results in low morale not just because you are 
going to have people in the agency that would disagree with the 
practice or the fact that there is no appropriate 
accountability for officers who are clearly operating outside 
the code of professional conduct. It has low morale when the 
community that we serve then becomes, you know, complaining 
about us being unprofessional or about the reputation of the 
agency being, you know, that of a victimizer as opposed to a 
protector. And the chief is absolutely right. It starts with 
the management. It starts with the very top person and the top-
level people allowing these things to occur in individuals that 
they won't hold accountable.
    As a captain in my agency, I believe it is my charge to 
hold people accountable when they conduct themselves 
unprofessionally, and I do so. You know, I think some people 
have said here that, well, you know, there seems to be some 
kind of great thing going on in Denver or what have you. I am 
just going to tell you--and I love my city, and it is a great 
city, and please feel free to visit anytime.
    [Laughter.]
    Mr. Gale. But I am just going to tell you, we hold people 
accountable in my agency. We hold them accountable, and that is 
expected. You know, we do not have to have specific rules that 
say you cannot do this, because we all know what bad behavior 
is when we see it. And if you challenge people and you hold 
them accountable, then there will not be a problem. But the end 
result is that officers will just shut down and not conduct any 
type of police work, and then the city does not get protected.
    Chief Davis. Senator, if I may add one point, there is a 
phrase we have, especially for chiefs, and it talks about a 
moment of pause. And what happens is when an agency does not 
have the type of trust and confidence that we are alluding to, 
that we are discussing, in many cases you have racial powder 
kegs that are sitting there. And if you look at our history, 
there has usually been some type of incident. And it gets 
confusing because quite often the incident may not be--it may 
be a legal incident. It may be something that really by itself 
would not make sense to call such a response. But it reflects 
years of abuse and neglect; it reflects the kind of--I think 
one of the Congresspersons said earlier, ``Enough is enough.'' 
And so when agencies are blind to this or systematically 
engaging in it, they are sitting on these powder kegs that an 
incident like a Trayvon Martin or an Oscar Grant in Oakland can 
ignite. And then that is when we see large demonstrations and 
you start having race riots, because it is not the incident by 
itself as much as it the buildup to that incident, the lack of 
acknowledgment of where we were before.
    Senator Coons. And, Chief, if I have heard all the members 
of the panel right who have said that racial profiling is bad 
policy, it is not just those powder keg moments; it is also the 
simmering distrust, the disconnect from the community you seek 
to protect and to serve that can also have a negative impact on 
your effectiveness, on your ability to effectively police. That 
is something we have heard across the whole panel.
    I wanted to move, if I could, Professor Harris, to a 
question about standards. If you look at the reasonable 
suspicion standard that controls the ability of law enforcement 
to stop and question an individual as opposed to probable 
cause, which covers the rest, profiling appears to me just at 
first blush to be a much larger problem potentially in the area 
of reasonable suspicion. How have you seen that play out? What 
do you think is important in fighting that standard? And then I 
am going to want to move to this bill and why it might be 
necessary. Professor?
    Professor Harris. Thank you for the question, Senator. You 
are absolutely right. You put your finger on something very 
important. The reasonable suspicion standard arises in Terry v. 
Ohio, the case that allows police officers to use stop-and-
frisk when there is reasonable fact-based suspicion. The 
problem is and where this can intertwine with profiling is that 
reasonable suspicion is a very low legal standard. It is lower 
than probable cause. When I am in class, I like to say probable 
cause is somewhere near my waist, reasonable suspicion is below 
my knees.
    And you have a standard where you can use very little 
evidence to take significant police action, and where we see 
this showing up in the context of profiling, to give you one 
example, is in the stop-and-frisk activity in New York City 
over many years, and it is a good example because there is a 
very significant amount of data on this. We often find that 
even though the standard is reasonable suspicion, there is 
hardly anything recorded and sometimes nothing at all recorded 
reflecting reasonable suspicion or the idea is simply thought 
of as boilerplate. So with that low a standard, profiling and 
other ineffective approaches to law enforcement run rampant, 
and we have the kind of statistics that Mr. Romero cited just a 
minute ago.
    Senator Coons. Thank you.
    Mr. Romero, if I might, if racial profiling can be a 
violation of civil rights, as I believe it is under a whole 
line of cases--Martinez, Forte, Brignoni-Ponce, Montero, 
Camargo--these are not cases I am familiar with personally, but 
that is the line of analysis, I think, by the Supreme Court 
that has laid this out. Why do we not see more enforcement 
actions for racial profiling by the Department of Justice? And 
if you would just followup on Professor Harris' comment, how do 
we, in the gap between the formal policies, create police 
entities that, as Captain Gale describes it, are accountable, 
are professional, and where at all levels are engaged in moving 
us forward toward a more just and effective policing community?
    Mr. Romero. Thank you for the question, Senator Coons. When 
you look at the testimony we submitted, you will see that we 
detail a number of the seminal racial profiling cases, in fact, 
some of them brought by David Harris. What might be instructive 
for why this piece of legislation is essential is to track when 
the incident occurred and when the case was decided, because 
you will note that in many instances--and the one I am looking 
at now--you are looking at a span of several years of time 
between when you will get pulled over by a police officer on a 
highway in the case of Robert Wilkins and ultimately when that 
case was decided by a court. And for many minority group 
members, especially those in our communities and families who 
lack resources to hire private attorneys, it is not simple or 
economic to retain private counsel, even when you have been 
wronged. We turn away many, many cases and individuals who 
write to us every day simply because we lack the resources to 
take on every single case. We take on cases where we think we 
have an ability to have a high impact and change systemically 
at the highest levels.
    The number of heart-breaking letters I send back saying, 
``I understand you were profiled by the police, but we have 
them under a consent decree and so we will throw your fact 
scenario into the consent decree,'' does not really give the 
individual who has often been aggrieved, even if they are 
willing to step forward, much comfort.
    I think that is really what is at stake here. I think the 
burden on hundreds of thousands of New Yorkers, let us say the 
400,000-plus that I cited that have been wrongfully stopped by 
the police, the idea that you would ask 400,000 New Yorkers who 
were innocent and yet stopped by the police to file all 
individual lawsuits, I cannot believe that any Member of this 
chamber would believe that would be an efficient use of our 
resources. This is one of the times when by the Senate taking 
action and putting in place a legal regime and being able to 
stop the type of rush to the courthouse steps you do both the 
economy and our civil liberties a service.
    Chief Davis. Senator, if I may, the one area going to the 
question you had about the lawsuits or why people cannot file 
the complaint is in many cases I think the bigger challenge is 
that it may actually follow a legal stop. This is why the 
legislation is critical, why data collection is critical. I 
think when you think of profiling, people sometimes, 
unfortunately, think that the stop itself may not have legal 
cause. So we have a phrase in policing, ``Give me a car, 2 
minutes, and a vehicle code, and I will find a reason to stop 
you.'' And so the stop may be justified--cracked windshield, 
bald tires--you know, you will see those low discretionary 
stops being used quite often to get to, as the Whren decision 
talked about, a pretext for other things.
    So where it makes it hard on an individual basis is a 
person is complaining about being stopped, but, in fact, they 
did have a cracked tail light, and it makes it hard for that 
individual case, which then what you do is track holistically 
to see that that is the 10,000th cracked windshield and 90 
percent of them may be all of one group of color.
    Senator Coons. I see that I am well past my time, and I 
appreciate the concerns that have been raised by this 
conversation in this hearing today about the definition of 
racial profiling, about the importance of being narrowly 
targeted in a legislative response, but I am grateful, Chairman 
Durbin, for your crafting a bill that insists on training, on 
data collection, and on a narrowly crafted response to a 
significant problem. Thank you very much.
    Chairman Durbin. Thanks, Senator Coons. And following up on 
your question, I think one of the obstacles--and Mr. Romero 
probably can back this up--is that when you are dealing with 
the question of whether or not race or ethnicity or profiling 
was the sole cause for the stop, you run into a real obstacle. 
Our staff did a little research on this, and it turns out this 
is not the first time that Congress has talked about this. 
Arguing that discrimination should only be prohibited if it is 
based solely on race and ethnicity has an unfortunate 
congressional lineage. Segregation has attempted to gut the 
Civil Rights Act of 1964 by offering an amendment that would 
have limited the Act's reach to discrimination based solely on 
race.
    Senator Clifford Case of New Jersey argued in opposition. 
He said, ``This amendment would place upon persons attempting 
to prove a violation of this section, no matter how clear the 
violation was, an obstacle so great as to make the title 
completely worthless.''
    And Senator Warren Magnuson of Washington said limiting the 
Civil Rights Act to discrimination based solely on race would 
``negate the entire purpose of what we are trying to do.''
    So the courts have set a standard which makes it extremely 
difficult, and, Chief Davis, your examples--and it might be a 
cracked tail light was the reason they are being pulled over. 
What we found in Illinois, incidentally, to go to my own State, 
consent searches by the Illinois State Police between 2004 and 
2010, Hispanic motorists in my State were 2 to 4 times more 
likely to be searched, African American motorists 2 to 3 times 
more likely to be subject to consent searches than white 
motorists. However, white motorists were 89 percent more likely 
than Hispanic motorists and 26 percent more like than African 
American motorists to have contraband in their vehicles. So it 
made no sense from a law enforcement viewpoint to do this, and 
yet it is done.
    I thank you for this hearing, and I am sorry it took 10 
years to get back together, and I am sorry that we need to get 
back together. But to put it in historic perspective, if you go 
back to our Nation's very beginning, our Founding Fathers 
started wrestling with issues of race and gender and religion, 
and this year's Presidential campaign wrestles with issues of 
race and gender and religion. It is an ongoing debate in this 
Nation. There have been moments of great leadership, and there 
have been moments of ignominious conduct.
    As far as accountability is concerned, yes, this would hold 
law enforcement accountable. But I hope we hold every person in 
our Government accountable, including Members of Congress. And 
let me concede I came to this job saying--remembering what Bill 
Clinton once said when he was being interviewed before he 
became President: ``Is there any issue you will not compromise 
on?'' He said, ``I will never compromise on race.'' He said 
that as a man who grew up in Arkansas and saw segregation. I 
thought, ``That is a good standard, Durbin. You saw it, too, in 
your hometown. Hold to that standard.''
    And I look back and remember in my time in the House of 
Representatives voting for a measure that turned out to have a 
dramatically negative racial impact: the establishment of the 
crack cocaine standard in sentencing of 100:1. Years later, I 
was given an opportunity on this Committee to try to make that 
right and bring it back to 1:1. I could not get the job done. 
Because of the nature of compromise, it has been reduced to 
18:1--still a terrible disparity, but a dramatic improvement.
    What happened as a result of that bad vote by black and 
white Congressmen? We lost trust in the African American 
community. Many people serving on juries said, ``I am not going 
to do this. I am just not going to send that woman, that 
person, away for 10 or 20 years because of a crack cocaine 
violation.'' We lost their trust, Office Gale, and I could see 
it when the judges came and talked to us about it. We have 
moved back to try to establish some trust in that community by 
doing the right thing, but we need to be held accountable, this 
Senator and all of us. Whether we are in elected or appointed 
office in our Government, we serve. We serve the public. And 
that accountability has to be part of that service.
    This is not going to resolve the issue. I think it is, as I 
mentioned earlier, more complicated today because of concealed-
carry and some of the standards being established in States, 
more complicated today, as Mr. Clegg has said, because the war 
on terror raises legitimate concerns about the safety of our 
Nation and how far will we go to respect our national security 
without violating our basic values under the Constitution.
    I thank you all for your testimony. It has been a very 
positive part of this conversation, which we need to engage in 
even further. There is a lot of interest in today's hearings: 
225 organizations submitted testimony. Thank goodness they did 
not come here to speak, but we are glad to have their 
testimony, and we will put it in the record, without objection. 
It will include the Episcopal Church, the Illinois Association 
Chiefs of Police, the Illinois Coalition for Immigrant and 
Refugee Rights, the Japanese American Citizens League, the 
Leadership Conference for Civil and Human Rights, Muslim 
Advocates, NAACP, National Council of La Raza, National 
Integration Forum, the Rights Working Group, the Sikh 
Coalition, the South Asian Americans Leading Together, and the 
Southern Poverty Law Center. These statements will be made of 
the record, which will be kept open for a week for additional 
statements.
    [The information appears as a submission for the record.]
    Chairman Durbin. It is possible someone will send you a 
written question. It does not happen very often, but if they 
do, I hope you will respond in a timely way.
    Without further comment, I thank all of my witnesses for 
their patience and for attending this hearing, and I look 
forward to working with all of you.
    [Whereupon, at 12:20 p.m., the Subcommittee was adjourned.]
    [Additional material submitted for the record follows.]

                            A P P E N D I X

              Additional Material Submitted for the Record


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