Saturday, March 29, 2008

The Kansas Racial Profiling Bill (SB610) stalls in the Senate!!

SB610 on Racial Profiling has stalled in the Senate Fed and State Affairs Committee. We're hearing rumblings from the Capitol Building that Chairman Brungardt is not planning to allow the Fed & State committee to work the bill.

Ordinarily, we would be all over this, but in this instance we applaud Senator Brungardt's apparent decision to "hit the brakes". Holding this bill past the April 2nd deadline would allow all sides to return to the table and craft a true compromise bill in time for the next legislative session.

Senate Bill 610 was engendered by the Wichita community as an effort to strengthen the existing State statutes prohibiting Racial Profiling. Senator Donald Betts, who introduced the bill, worked with community groups (NAACP, Citizens for Equal Enforcement, Wichita Racial Profiling Advisory Board), Law Enforcement, and the State Racial Profiling Task Force to try and ensure that all of our 'shareholders' had some say in it's language. Unfortunately, SB610 in it's final draft became more of a 'composite' bill than a 'compromise' bill.

SB610 contains needed changes we strongly support, and onerous changes we vigorously oppose. Law Enforcement was equally even-handed in their praise and disdain for SB610, but they ultimately decided to support the bill with a list of recommended changes. The other community groups involved with advocating for changes, namely the Citizens for Equal Enforcement and the City of Wichita's Racial Profiling Advisory Board, reflected the same dichotomy of praise and disdain, but they too decided to support the bill, albeit with a completely different and in some cases, contrary list of recommended changes. The State of Kansas Racial Profiling Task Force, on which I sit, also offered qualified support, albeit with it's own independent list of recommendations. However, we as the Wichita Branch NAACP and the Kansas State NAACP Political Affairs committee opposed the bill and offered testimony against it's passage. We were joined in our opposition by the Kansas Human Rights Committee (KHRC); the independent agency currently charged with investigating instances of Racial Profiling in the State of Kansas.

We decided to oppose the bill rather than offering qualified support because we felt the bill contained two provisions that would essentially make the bill unenforceable thereby nullifying any of its other technical or linguistic improvements.

The first of those two provisions is the section of SB610 that limits damage awards. Under the language in SB610 (Section 5, sub paragraph F), damages are described as simply compensatory there by eliminating any material deterrent to the commission of this unlawful act. A prevailing plaintiff would only be entitled to the recovery of 'reasonable' court costs, thereby discouraging the pursuit of any civil claim. A citizen who felt they had been racially profiled would face the prospect of a lengthy and expensive court trial in which the offending officer and department would face only nominal financial liability, and their award, should they prevail, would be limited to a 'reasonable' interpretation of the costs they'd already incurred.

The second objectionable provision in this bill is found in the proposed changes to the process for investigating Racial Profiling claims. Under current statute, charges of Racial Profiling are investigated by the Kansas Human Rights Commission (KHRC). The KHRC doesn't have enforcement powers, but instead, may render findings of probable cause whose evidentiary value can assist with subsequent civil actions. Since SB77 which prohibited Racial Profiling went into effect in 2005, the KHRC has issued two findings of probable cause against officers here in the Wichita Police Department. While those civil actions are still ongoing, changes were proposed within SB610 which would take any future findings of the KHRC and forward them to CPOST (which is essentially another Law Enforcement agency). The findings of the KHRC would no longer be actionable; rather they would be subject to reinvestigation by Law Enforcement. CPOST would have to concur with the findings of the KHRC before they would recommend disciplinary action. We viewed this as an attempt to give Law Enforcement control over investigations and a potential Veto over the findings of an independent statutory agency.

The presence of these two onerous provisions combined with the numerous sets of conflicting recommendations from the various stakeholder agencies illustrates the need for further dialogue and compromise before any legislative action is taken. We support the apparent decision of Chairman Brungardt to hold the bill in committee and we look forward to coming back with a stronger bill next session.

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