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By Root 282 0

or custom can be identified authorizing the illegal practice.89 Most cities, of course, do not have policies specifically authorizing illegal conduct (particularly race discrimination), and “custom” is notoriously difficult to prove. Accordingly, suing a city police department for damages is generally not an option. Yet even if all of those hurdles can somehow be overcome, there is still the matter of proving a claim of race discrimination. As we have seen, to establish an equal-protection violation, one must prove intentional discrimination—conscious racial bias. Law enforcement officials rarely admit to having acted for racial reasons, leaving most victims of discriminatory law enforcement without anyone to sue and without a claim that can be proven in a court of law. But even if a plaintiff managed to overcome all of the procedural hurdles and prove that a police officer deliberately exercised his or her discretion on the basis of race, that still might not be enough.

Race as a Factor

The dirty little secret of policing is that the Supreme Court has actually granted the police license to discriminate. This fact is not advertised by police departments, because law enforcement officials know that the public would not respond well to this fact in the era of colorblindness. It is the sort of thing that is better left unsaid. Civil rights lawyers—including those litigating racial profiling cases—have been complicit in this silence, fearing that any acknowledgment that race-based policing is authorized by law would legitimate in the public mind the very practice they are hoping to eradicate.

The truth, however, is this: At other stages of the criminal justice process, the Court has indicated that overt racial bias necessarily triggers strict scrutiny—a concession that has not been costly, as very few law enforcement officials today are foolish enough to admit bias openly. But the Supreme Court has indicated that in policing, race can be used as a factor in discretionary decision making. In United States v. Brignoni-Ponce, the Court concluded it was permissible under the equal protection clause of the Fourteenth Amendment for the police to use race as a factor in making decisions about which motorists to stop and search. In that case, the Court concluded that the police could take a person’s Mexican appearance into account when developing reasonable suspicion that a vehicle may contain undocumented immigrants. The Court said that “the likelihood that any person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.”90 Some commentators have argued that Brignoni-Ponce may be limited to the immigration context; the Court might not apply the same principle to drug-law enforcement. It is not obvious what the rational basis would be for limiting overt race discrimination by police to immigration. The likelihood that a person of Mexican ancestry is an “alien” could not be significantly higher than the likelihood that any random black person is a drug criminal.

The Court’s quiet blessing of race-based traffic stops has led to something of an Orwellian public discourse regarding racial profiling. Police departments and highway patrol agencies frequently declare, “We do not engage in racial profiling,” even though their officers routinely use race as a factor when making decisions regarding whom to stop and search. The justification for the implicit doublespeak—“we do not racial-profile; we just stop people based on race”—can be explained in part by the Supreme Court’s jurisprudence. Because the Supreme Court has authorized the police to use race as a factor when making decisions regarding whom to stop and search, police departments believe that racial profiling exists only when race is the sole factor. Thus, if race is one factor but not the only factor, then it doesn’t really count as a factor at all.

The absurdity of this logic is evidenced by the fact that police almost never stop anyone solely because of race. A young black male wearing baggy pants, standing in front of his high