BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair S
1999-2000 Regular Session B
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SB 1389 (Murray) 9
As Amended March 2, 2000 VOTE ONLY
Hearing date: April 25, 2000
Penal Code and Vehicle Code (URGENCY)
VT:br
CALIFORNIA HIGHWAY PATROL ANNUAL REPORT:
ADDITIONAL INFORMATION PERTAINING TO TRAFFIC STOPS
OBTAINED FROM LOCAL LAW ENFORCEMENT AND THE CHP
HISTORY
Source: Author
Prior Legislation: SB 78 (1999) - Vetoed by the Governor
AB 1264 (1998) - Vetoed by the Governor
Support: American Federation of State County and Municipal
Employees; National Bar Association; California
Association of Black Lawyers; NAACP-CA State
Conference; Gray Panthers of Sacramento; Hispanic
American Police Command Officers' Association;
American Civil Liberties Union; MALDEF; Asian Law
Caucus; Lambda Letters Project; Greater
Sacramento Urban League; National Organization of
Black Law Enforcement Executives; ACLU-Northern
California Paul Robeson Chapter; Equal Rights
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Advocates; Alameda County Board of Supervisors;
California NOW; California Labor Federation,
AFL-CIO
Opposition:Los Angeles Police Protective League;
Association for Los Angeles Deputy Sheriffs;
California Peace Officers' Association;
California Police Chiefs' Association; California
State Sheriffs' Association; Sheriff, Contra
Costa County
KEY ISSUE
SHOULD THE LAW REQUIRE THE COMMISSIONER OF THE CALIFORNIA HIGHWAY
PATROL TO GATHER SPECIFIED DATA REGARDING TRAFFIC STOPS CONDUCTED BY
HIGHWAY PATROL OFFICERS AND LOCAL LAW ENFORCEMENT AGENCIES AND
REPORT THE FINDINGS TO THE GOVERNOR AND THE LEGISLATURE TO BE USED
ONLY FOR RESEARCH PURPOSES, AS SPECIFIED?
PURPOSE
The purpose of this bill is to accumulate substantive data
on law enforcement traffic stops for review by the Governor
and the Legislature to be used only for research and
statistical purposes, as specified.
Existing law requires the Department of Justice to collect
crime data and present it in an annual report to the
Governor containing the criminal statistics. These
statistics include the amount and types of offenses, the
personal and social characteristics of criminals and
administrative action taken. (Penal Code section 13010)
Existing law requires that, upon request of the Attorney
General, persons or agencies dealing with crimes or
criminals must install and maintain records needed for the
correct reporting of statistical data for the Attorney
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General to carry out the provisions of this title. (Penal
Code section 13020)
This bill requires the California Highway Patrol and city
and county peace officers to collect statistical
information on motorists pulled over for routine traffic
violations. The bill specifically requires officers to
report the following:
The number of motor vehicle drivers stopped for all
traffic law enforcement purposes.
Whether a citation or warning was issued in each
instance.
The race or ethnicity of the individual stopped, based on
visual observation.
Whether the stop was based on a violation of the Vehicle
Code, Penal Code, local ordinance, or the vehicle or
driver matched the description of a vehicle or suspect
involved in a crime.
Whether a search of the vehicle took place as a result of
the stop.
Whether any weapons, controlled substances, cash,
vehicles, or other property believed to be unlawful or
whose possession is unlawful were discovered or seized
during the course of the search.
Whether an arrest was made as the result of the stop.
This bill requires the specified local agencies to report
the statistical information to the Commissioner of the
California Highway Patrol, who will then provide the
findings of the statistical information in an annual report
to the Governor and the Legislature on or before July 1,
2001, July 1, 2002, July 1, 2003, July 1, 2004, and July 1,
2005 for the previous year.
This bill authorizes the Commissioner of the California
Highway Patrol to prescribe the manner in which the data
gathered by all participants must be reported to the
Commissioner.
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This bill requires the Commissioner to perform the duties
described above "within existing budgetary resources."
This bill limits the use of data gathered pursuant to this
bill for research or statistical purposes only, and the
data "shall not contain any information that may reveal the
identity of any individual who is stopped or any law
enforcement officer."
This bill specifies that these sections shall remain in
effect only until January 1, 2006.
COMMENTS
1. Background Information
According to author:
SB 1389 seeks to provide a statistical basis to
explain who is stopped and why. So far, the research
in this area is extremely limited. Although
African-Americans comprise 14% of the overall
population, some studies indicate that
African-Americans account for upward of 73% of all
routine traffic stops (Source: U.S. Justice Department
and U.S. House Judiciary Committee). More information
must be gathered to systematically track this trend in
an effort to explain this discrepancy.
There is an experience that many people of color are
all too familiar with-being stopped for an alleged
traffic violation that has no apparent reason-commonly
known as "driving while black." While law enforcement
has historically used routine traffic stops as a
pretext for stopping people who they suspect are
involved in criminal activity for investigation, the
reality of this practice has led to disproportionate
numbers of minority drivers being pulled over and
harassed, based solely on their race or ethnicity.
Many citizens, who have been stopped without
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provocation and were provided no explanation for the
stop, have filed complaints with local police
departments, as well as pursuing class action
lawsuits.
Whether race plays a role in a police officer's
decision to pull someone over remains a question due
to the lack of formal research on the topic. SB 1389
is necessary to compile the tangible information that
explains why this is happening and how it can be
solved so people can regain trust in law enforcement.
There is plenty of anecdotal evidence attached to the
claim that members of certain minority groups are
targeted by law enforcement officers on the basis of
the color of their skin. That anecdotal evidence also
supports the claim that once pulled over, those
minorities are subjected to unfair treatment in terms
of disproportionate numbers of arrests and car
searches.
2. Veto Messages Pertaining to SB 78 and AB 1264
In his September 28, 1999 veto message, the Governor
indicated the following:
". . . This legislation does not provide the answer.
SB 78 does not outlaw the practice of racial
profiling, and it is questionable whether the
information gathered - at a potential cost of tens of
millions of dollars - would provide any more
meaningful information than is currently available.
And, while evidence points to a few specific areas
where this problem has occurred, there is no evidence
that this practice is taking place statewide requiring
sweeping legislation that mandates state scrutiny of
every local law enforcement agency in California.
"I have great respect for the working men and women in
California law enforcement that risk their lives each
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day. I do not believe it is appropriate for state
government to place additional burdens on law
enforcement officers during a traffic stop. I do,
however, call upon locally elected mayors, city
council members, and board of supervisors to urge
their local law enforcement agencies to voluntarily
cooperate.
"To date, more than 35 local law enforcement
jurisdictions have announced voluntary efforts to
gather the type of information requested in this
legislation, including San Jose, Alameda County, San
Diego, and San Francisco.
"In addition, I am directing the California Highway
Patrol to establish a 3-year program to record and
analyze data on all traffic stops by CHP officers
beginning January 1, 2000. This data will be made
available to the Legislature and the public on an
annual basis beginning January, 2001 with a final
report to be submitted no later than January 31,
2003."
In 1998, Governor Pete Wilson vetoed AB 1264 with the
following:
"This bill offers no certain or useful conclusion,
assuredly nothing that would justify the major
commitment of time, money, and manpower that this bill
requires. The investment contemplated by AB 1264
could be more immediately and productively employed by
enhancing officer training, encouraging dialogue
between enforcement agencies and racially diverse
community groups, and taking forceful action against
those officers who abuse the privilege of serving all
of California's citizens."
NOTE: SB 78 as sent to the Governor and vetoed was in
substantially the same form as SB 1389 as introduced;
AB 1264 would have required a report prepared by the
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Attorney General.
3. Similar Legislation
On March 1, 2000, the House Judiciary Committee in
Washington, D.C., unanimously approved the "Traffic Stops
Statistics Act" that includes federal funding to support
state and local data collection. In addition, the bill
would require the Justice Department to conduct a study of
racial profiling by acquiring data from law enforcement
agencies regarding the characteristics of persons stopped
for alleged traffic violations. H.R. 1443 (Conyers, D-MI)
is pending approval by the House of Representatives.
Commenting on the practice of racial profiling, Conyers
stated that "Race-based traffic stops turn driving, one of
our most ordinary and fundamentally American activities,
into an experience fraught with danger and risk for people
of color. The offense of "D.W.B." or "driving while black
and brown" is well-known to African-Americans and Latinos
across the country. There are virtually no
African-American males-including Congressmen, actors,
athletes and office workers-who have not been stopped for a
pretextual traffic violation. Because traffic stops can
happen anywhere and anytime, millions of African-Americans
and Latinos alter their driving habits in ways that would
never occur to most white Americans."
Democratic Governor Mel Carnahan of Missouri endorsed a
permanent, comprehensive data collection bill. Democratic
Governor Jim Hunt of North Carolina and Republican Governor
John Rowland of Connecticut signed similar bills.
Republican Governor Christine Todd Whitman has made effort
to address the problem after the New Jersey Attorney
General confirmed long-standing complaints of widespread
profiling practices.
4. Related Legislation in the Current Session
SB 66 requires the Commission on Peace Officer Standards
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and Training (POST) to include instruction on racial and
cultural diversity in peace officer training, as specified.
The racial and cultural diversity training includes
identification of key indices and perspectives that make up
cultural differences among residents in a local community,
the negative impact of biases, prejudices, and stereotyping
on effective law enforcement, the history and role of the
civil rights movement and their role in law enforcement,
and perspectives of local constituency groups. Officers
would be required to take a refresher course every five
years. This bill is currently on the inactive file of the
Assembly Floor.
5. Current Data Collection by the California Highway
Patrol
The California Highway Patrol began a study of vehicle
stops in July of 1999. The study will culminate in April
of 2000, with a report to be produced in July of 2000. The
study differs in some respects from SB 1389. The report
does not indicate the reason for the vehicle stop, largely
because the majority of CHP stops are in response to a
Vehicle Code infraction. In addition, the CHP report will
include whether a search was conducted, but it will not
include the findings of that search. The report will be
conducted on an annual basis.
6. City of San Jose Report/San Diego Efforts
City of San Jose:
The City of San Jose voluntarily conducted their Vehicle
Stop Demographic Study in the latter half of 1999. They
produced a preliminary report in December of 1999, after
gathering research for a three-month period. Although
African-Americans and Latinos comprise 35% of the overall
population, they accounted for 50% of the traffic stops in
the area. In the report, the San Jose Police Department
concluded:
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"While there is an indication that members of some
minority groups are stopped at rates higher than their
population representation within the City of San Jose,
it doesn't appear that there is anything out of the
ordinary with this fact when compared with other law
enforcement related statistics."
"The Department will also continue to analyze the
results of this ongoing study, as well as compare its
findings with those of other California cities who
have followed San Jose's lead in voluntarily
conducting a study of the race/ethnicity of those
drivers stopped within their jurisdictions. The
statistics may also prove helpful to those community
groups and social service organizations who also are
committed to addressing some of the socioeconomic
factors that lead to crime and violence."
City of San Diego:
The City of San Diego will engage in similar data
collection to that of San Jose. San Diego police officers
will note the aforementioned information for several months
and then share the information with various community
groups.
7. Stops by Police Officers
The enforcement of traffic laws gives police officers a
great amount of discretion in deciding whether or not to
stop a motorist. The Ninth Circuit Court of Appeal
recognized this discretion after considering a 1993 case of
a Santa Monica police officer who was found to have
violated the rights of two innocent black tourists who were
stopped and arrested at gun point. The Court said that
these discretionary stops led to "an all too familiar set
of circumstances-an intrusive law enforcement stop and
seizure of innocent persons on the basis of suspicions
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rooted principally in the race of the suspects." (See:
Washington v. Lambert, 98 F.3d 1181 (1998).)
If a police officer has probable cause to believe that the
motorist has committed a traffic violation, he may forcibly
detain him in order to issue a citation or even arrest him.
(See: United States v. Robinson, 414 U.S. 218 (1973).)
If the police officer decides to place the motorist under
arrest, he then has the legal authority to conduct a
full-blown search incident to the arrest of the motorist
and the area around him. (See: Chimel v. California, 395
U.S. 752 (1969).)
Any evidence or contraband found on the motorist may be
used as the basis for probable cause to arrest him for
other crimes. (See: Whren v. United States, 116 S.Ct.
1769 (1996).)
Aside from the opportunity to ticket or arrest a motorist,
the pretextual traffic stop gives a police officer the
opportunity to request permission to search his car. The
police officer may legally request such permission to
search, whether or not he decides to issue a traffic
ticket. Although the officer must have reasonable
suspicion or probable cause to stop or arrest a motorist,
once the reason for the stop or arrest is completed, the
officer has the right to continue to speak with him. Even
if a police officer does not have probable cause or
reasonable suspicion to believe that a crime has been or is
about to be committed, he nonetheless has the right to
approach an individual and speak with him. (See: Florida
v. Bostick, 501 U.S. 429 (1991).)
Police officers need not always conceal the fact that race
has influenced their decision to detain a suspect because
some courts have ruled that race may be used as a detention
factor in certain circumstances. In United States v.
Weaver, 966 F.2d 391 (8th Cir.1992), the court found that
race coupled with other factors is a basis for reasonable,
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articulable suspicion justifying detention of young black
males in airports.
In Whren v. United States, 116 S.Ct. 1769 (1996), the
Supreme Court held that any traffic offense committed by a
driver is a legitimate legal basis for a stop. In other
words, any time a police officer sees a traffic offense,
the officer may stop the driver even if the officer has
absolutely no interest in traffic enforcement and, in fact,
is interested in the driver for other reasons which
themselves would not be legally adequate.
8. Legal Cases Relative to the Use of Traffic Stops
against Minorities
There are a number of lawsuits that claim race was used
improperly when deciding to stop a motorist, including:
Wilkins v. Maryland State Police
In Maryland, the state police settled a lawsuit claiming
they made stops on the basis of race. The settlement
included court-ordered monitoring requiring police to keep
records of all stops that resulted in searches and provide
the records to the courts. These records showed that over
75% of all drivers stopped and searched were
African-American in a location where only 17% of the
drivers were black.
Chavez v. Illinois State Police (27 F. Supp. 2d 1053)
In Illinois, the district attorney hired a private
investigator to drive across counties to test assertions
that police were disproportionately stopping Hispanics and
African-Americans. The state police stopped the
investigator after following him for 20 miles and over his
objections searched his car for drugs while he was detained
in a squad car. The investigator is now the lead plaintiff
in a class action lawsuit.
Indianapolis Chapter, NAACP v. City of Carmel and Philip
Hobson
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In Indiana, a man was stopped for a traffic violation while
driving through an upscale area of Indianapolis-an area
noted for stopping African-Americans driving through the
community. The man who was stopped was a sergeant with the
Indiana State Police and head of a defensive driving
school. The sergeant has filed a class action lawsuit
alleging biased use of traffic stops against minorities.
Volusia County, Florida
Sheriff's Deputies operated a drug interdiction effort
along a busy section of the major eastern highway,
Interstate 95. Some of the deputies' cars involved in the
stops were equipped with video cameras. 148 hours of
videotape which recorded over 1,000 stops showed that
approximately 70% of the drivers stopped were
African-American, on an area of highway where only 5% of
the drivers were black. African-Americans were more likely
than Caucasians to have their cars searched after being
stopped and to have cash seized. Stops of blacks typically
lasted twice as long as stops of whites.
9. Support and Opposition
Arguments in Support :
The ACLU letter in support includes:
No other area of policing involves greater use of
officer discretion than enforcement of traffic laws.
In this area, officers pursue only a small percentage
of the observed violations
These minor offenses must necessarily be enforced on a
selective basis. Unfortunately, the perception in
many communities of color is that police officers
exercise their discretion in determining whom to stop
for these minor violations in a racially biased
manner.
The ACLU of Northern California has received over 2000
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calls from people who believe they have been stopped
by the police on the basis of race, despite little
advertising. Following the veto of AB 1264 in the
prior session, we set up a hotline for people to call
to report race-based police stops. The callers are
from all walks of life, some rich, some poor, some
living in rural areas, others in the city. The one
thing they have in common is a firmly held perception
that they would not have been targeted by police had
they been white. Indeed, the calls convey a sense of
desperation; people of color wonder why they are
stopped while going to work, school, church or to
visit friends and are questioned, but receive no
citation. Callers report that they are often searched
and treated like criminals, sometimes in front of
their children, when the only crime they have
committed, for example, is failing to use their turn
signal at precisely the right time.
Law enforcement officials typically deny that they
enforce traffic laws in a racially discriminatory
manner. Those denials, while they may be well
intentioned, do not fully answer the question. The
perception remains in communities of color that
"DWB-Driving While Black or Brown" is an unofficial
crime. The perception may well reflect reality.
As the Court of Appeals for the Ninth Circuit observed
in a 1996 opinion involving Santa Monica police
officers, it is "an all too familiar set of
circumstances-an intrusive law enforcement stop and
seizure of innocent persons on the basis of suspicions
rooted principally in the race of the 'suspects'."
(Washington v. Lambert, 98 F.3d 1181, 1182.)
While some people believe that only guilty people are
subjected to these offensive police practices, that is
not the case. Esquire magazine reported that in 1997,
the California Highway Patrol canine units, as part of
their drug interdiction program Operation Pipeline,
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stopped nearly 34,000 people and only 2 percent of
them were carrying drugs. As one CHP sergeant put it,
"It's sheer numbers. Our guys make a lot of stops.
You've got to kiss a lot of frogs before you find a
prince."
When tens of thousands of innocent motorists are
stopped by police every year as part of the War on
Drugs, it is absolutely critical to ensure, at a
minimum, that those stops are occurring in a manner
that is free from racial bias. As a matter of common
sense, it is also reasonable to collect data regarding
those stops to evaluate whether they are
cost-effective, and justifiable given the tremendous
toll they take on innocent travelers.
The problem of racially biased police stops cannot be
addressed on a piecemeal basis. If residents of Los
Angeles, for example, perceive they are targeted by
the police on the basis of race, they are unlikely to
trust San Diego police, simply because they have
crossed into the city limits. Moreover, the agencies
and departments that are most reluctant to collect
data may well be the ones that engage in the most
racially biased practices.
Traffic stops is the only category of law enforcement
activity that is shielded from public scrutiny and data
collection. The time has come for that to change. SB
1389 is an important first step in healing the
relationship between law enforcement and communities of
color. The reporting of data regarding traffic stops
will allow us to move away from accusations and
denials, and toward the development of constructive
strategies for change and better police-community
relations.
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Arguments in Opposition :
According to the California Peace Officers' Association and
the California Police Chiefs' Association:
Currently, traffic stop surveys are being conducted by
the California Highway Patrol and by a number of local
agencies on a voluntary basis. The California Peace
Officers' Association and the California Police
Chiefs' Association believe that it is premature to
impose a state-mandated local program related to
traffic stop surveys until the results of the CHP and
the various voluntary efforts are known.
The Los Angeles Police Protective League and the
Association for Los Angeles Deputy Sheriffs write in
opposition that:
Like its predecessor, SB 78 of 1999, SB 1389 is based
on the presumption that law enforcement officers
routinely stop racial and ethnic minorities purposely
to discriminate against them. As its proof, it will
require a massive and costly survey by the . . . [CHP]
. . ., and local law enforcement agencies through an
annual report to compile racially based statistics on
all traffic stops by all local enforcement agencies in
California. It's a survey whose data will be questions
due to its weak statistical structure. Mountains of
paper work is foreseen for detail gathering on age,
race, and ethnicity of each individual stopped, plus
detailed reporting on whether a search was made, how
it was conducted, the rationale of the search, the
nature of any contraband, the type of crime/traffic
infraction etc. Citizens so questioned on
ethnic/racial background may themselves become victims
of discrimination.
SB 1389 is premature since the California Highway
Patrol is studying the same issues statewide. Several
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local agencies are also conducting their own surveys.
SB 1389 should be held until the CHP survey is
completed and the results analyzed.
10. Possible Amendments
The author may wish, at some point in the future, to
clarify the participating agencies at the city and county
level that will be included in the data collection process.
For example, should those local police agencies be limited
to city police and county sheriffs, thus specifically
excluding such offices as park police and school police?
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