Thursday, March 19, 2009

SB179 Kansas Racial Profiling Act challenged with onerous amendment

Longtime readers of the blog know that back in 2005, the Wichita Branch worked alongside Citizens for Equal Law Enforcement and Senator Donald Betts to draft, support, and lobby for then SB77 which was signed into law as the Kansas Racial Profiling Act. This act prohibited racial profiling in the State of Kansas, which was a significant first step, however the version of the bill that finally passed was deeply flawed. The primary flaw in the bill was the definition of Racial Profiling which stated that 'Race could not be used as the sole factor in determining who would be subjected to routine investigatory activites'. That in legal parlance is what's known as an exclusionary clause. It would basically exclude questionable behavior from the scrutiny of the law if the respondent (Officer) simply cited any other reason for the stop. Therefore, in order to show a prima facie case of Racial Profiling, the respondent would practically have to come out and say, "I stopped you because you were black".

One of the apparent strengths of the original bill was that it called for the formation of a State-Wide Racial Profiling Task Force that would work with Law Enforcement on implementation strategies and would also offer Legislative suggestions on how the bill could be strengthened.

This session, the task force proposed a ballon amendment that would rewrite the definition of Racial Profiling. The newly proposed definition reads:

‘‘Racial Profiling’’ means the practice of a law enforcement officer or agency selecting or subjecting an individual to routine investigatory activities, or in deciding upon the scope and substance of law enforcement activity, in whole or in part, based upon the individual’s race, ethnicity or gender except when the officer has reason to believe:
(A) The person has committed a violation of traffic laws or ordinances;
(B) the person stopped is committing, has committed or is about to commit a crime as provided in K.S.A. 22-2402, and amendments thereto;
(C) probable cause exists to arrest the person as provided in K.S.A. 22-2401, and amendments thereto; or
(D) the law enforcement officer or agency is seeking to apprehend a suspect whose race, ethnicity, or gender is part of the description of a suspect.

‘‘Racial profiling’’ does not include a contact by a law enforcement officer of a person when the contact is only for the purpose of asking the person if they have information regarding the investigation of a complaint, crime or suspicious activity, checking a person’s welfare or as part of community outreach or community policing.

It then goes on to clearly state:

(b) No law enforcement officer shall use violations of the traffic laws as a pretext for racial profiling.

These amendments are wonderful and they clearly define Racial Profiling in a manner consistant with the practice we seek to eliminate. HOWEVER - this ballon amendment is something of a trojan-horse. For it also contains some of the most onerous language I've seen in our State legislation. Language that would seek to eliminate Racial Profiling by eliminating Racial Profiling complaints. Section 5, K.S.A. 22-4611, subsection (f), would be amended to read:
(f) Upon the disposition of a complaint as provided for in subsection (a), the respondent (which is the officer accused of Racial Profiling) may appeal a finding of probable cause by the Kansas human rights commission to the district court and shall have a civil cause of action against the complainant (which is the citizen who felt they were profiled) and shall be entitled to recover damages if it is determined by the court that the complainant knowingly made a false complaint.

The Kansas State NAACP Political Affairs Committee, the Wichita Branch NAACP, the Kansas Human Rights Commission, and Citizens for Equal Law Enforcement have all come out strongly against the inclusion of this provision in an otherwise sound amendment. This language would allow Police Officers to appeal an independent agency's findings of probable cause for racial profiling and then sue the citizens for having complained about their treatment. And while some may point out that the proposed amendment only allows for civil action in instances where the citizen made a "false complaint", know that there is no legal standard or definition of what makes a complaint a "false complaint" under the proposed provision. Could a complaint be deemed a "false complaint" if it were not sustained in a civil court? And which citizen would take the risk of pursuing a case through the courts, knowing that even if an independent agency found that there was probable cause to believe that they had been racially profiled, the officer could still appeal and sue THEM for having complained.

We have communicated our concerns to Senators Steve Brumgardt and Oletha Faust-Goudeau and offered suggestions for possible amendments. Both Senators have stated that they will offer floor amendments to strip this provision.

The bill is being debated on the floor of the Kansas Senate TODAY. And it is our hope that the interests of the citizens and community will be secured. On behalf of the Kansas State NAACP Political Affairs Committee and the Wichita Branch NAACP, We offer our thanks and appreciation to both Senator Brumgardt and Faust-Goudeau in advance of their efforts...

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