“I’m a scholar, not a criminal”–reads the UsChangeMovement

Many students and citizens are enraged by what has occurred at the USC campus on friday where 79 police officers responded to a racially diverse house party of USC students. What resulted was a handful of arrests as well as allegations of excessive force (some of which was prudently recorded by witnesses). What appears most shocking of the entire event, however, is that a predominantly white house party was going on just across the street–with little or no disturbance. Reports have suggested that the manner in which the two houses were treated was shameful.

This event has touched many people in an atmosphere that already has mixed emotions relating to concepts like “selective enforcement” and racially motivated discrimination within police practices (aka: “racial profiling”). But what are these in the real-world of justice? How does a racial profiling event translate to actual complaints that may lead to civil rights litigation?

The Fourteenth Amendment

When it comes to “racial profiling”, it all begins with the Fourteenth Amendment. Our courts interpret racial profiling as an intentional discrimination that falls under violations of Equal Protection principles.

For those of you scholarly types, here’s the formula:

(Difference in Treatment) + [Racial Animus] = Unconstitutional Conduct

To show that a person has a case for intentional discrimination, there must be at least some evidence that there were members of a racial minority who compared to similarly situated non-minorities–where treated differently. However, the courts want to see whether or not there was any other evidence that showed intentional discrimination as being the reason for that difference.

In other words, in Bingham v. City of Manhattan Beach (9th Cir. 2003) 341 F.3d 939, the 9th Circuit court in California strongly suggests that there must be some other evidence of intent to discriminate in addition to any evidence that the two groups were treated differently.

This is the standard that must be considered when evaluating unlawful racial discrimination under the constitution. So what do you do now if you can’t get any one of those 79 officers to say they actually intended to treat one group different than another group? What do you do if you can’t find any dirt or comment from the police department that would convince a jury the officers were racially motivated?

Can you Use Statistics to Show Intentional Discrimination?

The US Supreme Court established a Three-Part Test under equal protection principles in Batson v. Kentucky.

The group that challenges a racially discriminatory action by police can provide circumstantial proof via statistics. Through an effective public records campaign, arrest records, and other statistical maneuvers, the plaintiff can put the onus on the police in a lawsuit–forcing the department to explain their actions in a race-neutral manner (Ex: they had probable cause, there was escalating violence, concerns for officer safety, etc.). That means that the police have to give legitimate and non-racially related reasons for why they acted the way they did.

However, if the police make their case that there were legitimate reasons for why race was an issue, then they must provide a compelling governmental interest for their conduct. In other words, it better be good.

What’s Next for USC?

It will be interesting to see how the event plays out. There were many students present with a lot of cell phones and tons of motivation to see things right. Approximately 6 arrests were made that night, and I would be very interested to see what the charges and circumstances were. Stay tuned.

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About the Author: Bart Kaspero

Bart Kaspero is an experienced criminal defense and regulatory attorney who has focused on using technology and the law in bringing privacy to criminal records. His research has been published in several legal journals and his unique background has helped a broad spectrum of clients. He has provided legal training to lawyers across the US on how to navigate complex criminal record legislation and how to effectively provide privacy to those with past arrests, charges, and convictions. His innovative methods have earned him a top position of authority on the subject of criminal record privacy as well as trust within the criminal data supply chain.