Kansas SB93 on Racial Profiling and the anatomy of a "Loophole"

For more than 8 years, local activists and Legislators in Wichita worked to craft a bill that would prohibit the practice of Racial Profiling in the State of Kansas. In 2006, Senate Bill 77, as introduced by then State Senator Donald Betts was passed and signed into law. But in the deliberation process, as the bill was worked through the legislature, language was included in the definition of Racial Profiling that community activists found onerous and unacceptable. The bill included a "Loophole" - language specifically designed to make an otherwise sensible bill legally unenforceable. The definition of Racial Profiling per current state statute in Kansas reads:

(d) "Racial Profiling" means the practice of a law enforcement officer or agency relying, as the sole factor, on race, ethnicity, national origin, gender or religious dress in selecting which individuals to subject to routine investigatory activities, or in deciding upon the scope and substance of law enforcement activity following the initial routine investigatory activity. Racial profiling does not include reliance on such criteria in combination with other identifying factors when the law enforcement officer or agency is seeking to apprehend a specific suspect whose race, ethnicity, national origin, gender or religious dress is part of the description of the suspect.

Local activists and members of the coalition of groups and organizations who came together to work for the passage of Racial Profiling legislation have been uniformly opposed to that language since its passage; and we have worked in each successive session to have the "Sole Factor" language stricken. The inclusion of that phrase, "as the sole factor" makes the statute virtually unenforceable, because all any Officer has to do in order to contest a charge of profiling is to proffer any additional reason, thought, or consideration. In fact, the only way, under existing statute, that you could clearly define a case of Racial Profiling would be if an Officer stopped you and when asked the reason for the stop, he or she would have to reply 'I stopped you because you're black'. Because the utterance of any other reasons or statements would technically clear them of the charge.

After years of deliberation and argument, two bills were introduced this session each with a revised definition of Racial Profiling, each without the "sole factor language" included. The two bills were recently consolidated and now SB82 has been incorporated into and will move forward as SB93. In the reconciliation of the two bills a NEW legal loophole was inserted to replace the former "sole factor" loophole. The newly proposed definition of Racial Profiling reads:

(d)    "Racial or other biased-based policing" means the unreasonable use of race, ethnicity, national origin, socio-economic status, gender or religion by a law enforcement officer in deciding to initiate an enforcement action. It is not biased racial or other biased-based policing when race, ethnicity, national origin, socio-economic status, gender or religion is used in combination with other identifying factors as part of a specific individual description to initiate an enforcement action

I was actually in the Senate chamber when Senator David Haley, one of the parties who has worked on this legislation from the very beginning, asked the question: "How do you define 'Unreasonable'?... and does this imply that there are "Reasonable" applications of racial or biased based policing?"

The response? - "Well that's something the Courts will have to decide"

Ladies and Gentlemen, THAT is a legal loophole. That is how they are deployed. Legal loopholes are used to thwart efforts to bring about fairness under law and to protect wrongdoers through the introduction of vague and subjective language that allows departments and courts to excuse bad behavior as simply matters of 'interpretation'.

"No Mr. Washington, you hadn't done anything wrong or illegal, and no there was no legitimate reason to stop you and search your vehicle, and we are terribly sorry about the professional embarrassment we caused you by having you sit out on the curb as we let our canine units climb through your car, and we're also sorry that we made you late for work... But, it is a very nice car, and you're a relatively young man, so under the circumstances, I don't think that's unreasonable..."
...

To my colleagues and friends in the legislature, particularly those who regularly read our blog and or our newsletter... With all due respect, it is insulting that we have to continuously repeat this same futile exercise. It would be better to have NO BILL AT ALL then to continue to foist hollow and vacuous bills that are as meaningless as they are unenforceable.

At the beginning of this most recent effort, Law Enforcement agencies stipulated the existence of Racial Profiling in Kansas. Our most recent study also confirms it. No one is contesting the fact that it is a real and determinable phenomena and that it occurs here in our State. But THIS language is carefully crafted to ensure that NO ONE is ever held accountable for it, and that is simply unacceptable.

Next, the bill will head to the House. As soon as the committee is assigned, we will post information here on the blog so that you can contact the members of the Committee and ask them to pass a Honest bill; one without gimmicks or loopholes, and one that specifically strikes the subjective qualifying term "unreasonable" from its definition.

Scan the QR Code for a mobile copy of SB93 - the Kansas Racial Profiling Act