December 15, 2011

Drug Cases | Racial Profiling

Drug Cases | Racial Profiling 
Racial Profiling in Drug Cases is nothing new. Drug Charges frequently arise when law enforcement makes a warrantless arrest of suspects or seizure of contraband without a search warrant. I just reviewed a decision where the court succinctly outlines the factors to review when there are allegations of racial profiling. In the case I just studied, black guys driving trucks were the target of apparently overzealous narcs. The cop in this case said all of his Federal cases involved black guys. Here are one court's exact words:

"The Tenth Circuit has stated that “[r]acially selective law enforcement violates this nation’s constitutional values at the most fundamental level; indeed, unequal application of criminal law to white and black persons was one of the central evils addressed by the framers of the Fourteenth Amendment.” Marshall v. Columbia Lea Reg’l Hosp., 345 F.3d 1157, 1168 (10th Cir. 2003). Undoubtedly, “[r]acial profiling issues concerning the intentional discriminatory application of the law are the province of the Equal Protection Clause.” United States v. Flores-Olmos, Slip Copy, 2011 WL 4059044 *2 (10th Cir. 2011) (unpublished); see also United States v. Alcaraz-Arellano, 441 F.3d 1252, 1263-64 (10th Cir. 2006); United States v. Benitez, 613 F. Supp. 2d 1099, 1101 (S.D. Iowa 2009)."

"To establish a racially selective law enforcement claim, a defendant must prove that (1) the law enforcement officer’s actions had a discriminatory effect, and, (2) the officer was motivated by a discriminatory purpose. Alcaraz-Arellano, 441 F.3d at 1264 (internal quotation and citation omitted); see also United States v. Armstrong, 517 U.S. 456, 465 (1996) (holding a defendant making a selective-prosecution claim must establish two elements: “the federal prosecutorial policy had a discriminatory effect and it was motivated by a discriminatory purpose.”)."

"If the claimant shows both discriminatory effect and purpose, the burden shifts to the Government to show the same enforcement decision would have been made even if the discriminatory purpose had not been considered. United States v. Bell, 86 F.3d 820, 823 (8th Cir. 1996). In order to show discriminatory effect, the defendant “must make a credible showing that a similarly-situated individual of another race could have been, but was not, stopped or arrested for the offense for which the defendant was stopped or arrested.” Alcaraz-Arellano, 441 F.3d at 1264 (quotation omitted). The defendant may satisfy the “credible showing” requirement by identifying a similarly-situated individual or through the use of statistical evidence. United States v. James, 257 F.3d 1173, 1179 (10th Cir. 2001). “[T]he proffered statistics must address the critical issue of whether that particular group was treated differently than a similarly-situated group.” James, 257 F.3d at 1179."

In an extremely rare ruling the court found: "If this burden can ever be met, however, it is met in this case. Having sworn a solemn oath to uphold the Constitution, the Court is unwilling to turn a blind eye to an obvious constitutional violation. When considered together, the record in this case and the record in the Blackwell case demonstrate, in damning fashion, that Officer Strain was motivated by discriminatory purpose."

There you go and here is the Racial Profiling Decision as  Free Download.

Source: US v Bernard, No. CR 09-2474 RB Pacer Case 2:09-cr-02474-RB Document 161 Filed 12/09/11 (US Dist Ct NM Filed 12/9/2011). 

Racial Profiling in Your Case? Call Casey 813-222-2220.

Drug Cases | Racial Profiling