Maryland Department of State Police v Maryland State Conference of NAACP Branches Brief Amicus Curiae

    IN THE
COURT OF APPEALS OF MARYLAND

September Term 2010 
No. 41

MARYLAND DEPARTMENT OF STATE POLICE,

Petitioner-Appellant,

v.

MARYLAND STATE CONFERENCE OF NAACP BRANCHES,

Respondent-Appellee.

ON APPEAL FROM THE COURT OF SPECIAL APPEALS 
(The Honorable James P. Salmon, Judge)

Pursuant to a Writ of Certiorari to the Court of Special Appeals

BRIEF OF AMICUS CURIAE
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

IN SUPPORT OF RESPONDENT-APPELLEE

John Payton, Director-Counsel
Debo P. Adegbile, Associate Director-Counsel
Christina A. Swams
Johanna B. Steinberg
Jin Hee Lee
Vincent M. Southerland 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, New York 10013 
(212) 965-2200

Joshua I. Civin *
NAACP Legal Defense and 
Educational Fund, Inc. 

1444 I Street N.W. 
Washington, D.C. 20005 
(202)682-1300

* Admitted in Maryland

September 30, 2010 Attorneys for Amicus Curiae



Page

TABLE OF AUTHORITIES..............................................................................................ii

INTEREST OF AMICUS CURIAE.....................................................................................1

INTRODUCTION..............................................................................................................2

STATEMENT OF THE CASE, QUESTIONS PRESENTED AND
STATEMENT OF FACTS.................................................................................................3

ARGUMENT...................................................................................................................... 4

I. Racial Profiling is Illegal, Ineffective and Persistent.................................4

II. Racial Profiling Complaints Must Be Properly Investigated and
Resolved In Order to Stop the Practice...................................................... 11

III. The MSP’s Rejection of Every Single Racial Profiling Complaint,
Despite Continuing Evidence of Racial Profiling, Justifies
Disclosure of the Complaint Investigation Files to the NAACP...............14

CONCLUSION................................................................................................................. 19

TABLE OF CONTENTS

i



Page(s)

Cases

Aikman v. County o f Westchester, 491 F. Supp. 2d 374 (S.D.N.Y. 2007)............... 14 n.18

Alexander v. Louisiana, 405 U.S. 625 (1972).................................................................... 18

Attorney General v. Waldron, 289 Md. 683 (1981)....................................................... 5 n.3

Avery v. Georgia, 345 U.S. 559 (1953)............................................................................. 17

Batson v. Kentucky, 476 U.S. 79 (1986)........................................................................ 3, 17

Beck v. City o f Pittsburgh, 89 F.3d 966 (3d Cir. 1996).............................................12 n.16

Bielevicz v. Dubinon, 915 F.2d 845 (3d Cir. 1990)........................................................... 13

Bordenkircher v. Hayes, 434 U.S. 357 (1978)................................................................... 16

Brandon v. Holt, 469 U.S. 464 (1985)................................................................................13

Clark v. Pena, No. U99-CV-277. 2000 WL 35427177 (W.D. Mich. April 28,
2000)............................................................................................................................. 13

Cox v. District o f Columbia, 821 F. Supp. 1 (D.D.C. 1993)..............................................13

Cyprus v. Diskin, 936 F. Supp. 259 (E.D. Pa. 1996).................................................14 n. 1 8

Delaware v. Prouse, 440 U.S. 648 (1979)................................................................. 14 n. 18

Furman v. Georgia, 408 U.S. 238 (1972)............................................................................2

Illinois v. Wardlow, 528 U.S. 119 (2000)............................................................................4

Johnson v. California, 545 U.S. 162 (2005)........................................................................ 1

Kirsch v. Prince George's County, 331 Md. 89 (1993).................................................5 n.3

Martinez v. Village o f Mount Prospect, 92 F. Supp. 2d 780 (N.D. 111. 2000)....10, 10 n. 14

McCleskey v. Kemp, 481 U.S. 279 (1987)........................................................................... 2

Miller-El v. Dretke, 545 U.S. 231 (2005)............................................................................ 1

Miner v. Novotny, 304 Md. 164 (1985)..................................................................... 13 n. 17

TABLE O F AUTHORITIES

ii



10 n. 14
New Jersey v. Lee, 886 A.2d 1066 (N.J. Super. 2005), 

rev’d, 920 A.2d 80 (N.J. 2007).............................

Norris v. Alabama, 294 U.S. 587 (1935)........................................................................... 18

Ortega Melendres v. Arpaio, 598 F. Supp. 2d 1025 (D. Ariz. 2009)........................14 n. 18

Rodriguez v. Cal. Highway Patrol, 89 F. Supp. 2d 1131 (N.D. Cal. 2000)..............14 n. 18

State v. Ballard, 752 A.2d 735 (N.J. Super. Ct. 2000)...................................................... 18

United States v. Armstrong, 517 U.S. 456 (1996)..................................................... 2, 3, 16

United States v. Bass, 266 F.3d 532 (6th Cir. 2001)............................................................ 2

United States v. Caruthers, 458 F.3d 459 (6th Cir. 2006).........................................10 n. 14

United States v. Jones, 159 F.3d 969 (6th Cir. 1998)........................................................ 16

United States v. Martinez-Fuerte, 428 U.S. 543 (1976)............................................14 n.18

United States v. Montero-Camargo, 208 F.3d 1122 (9th Cir. 2000).................... 9, 10 n. 14

United States v. Tuitt, 68 F. Supp. 2d 4 (D. Mass. 1999).................................................. 17

Verzi v. Baltimore County, 333 Md. 411 (1994)............................................................ 5 n.3

White v. State, 125 Md. App. 684 (1999).................................................................... 9 n.12

Whren v. U.S., 517 U.S. 806 (1996).....................................................................................5

Williams v. State, No. B-3340-9907-CR
(Dist. Ct. Swisher County, Tex. June 16, 2003)............................................................ 1

Worcester Telegram & Gazette Corp. v. Chief o f Police o f Worcester,
787 N.E.2d 602 (Mass. App. Ct. 2003)...'.................. .'........................................ 11 n.15

Other Authorities

147 Cong. Rec. H431 (2001)..........................................................................................6 n.4

Brief o f Appellee/Cross-Appellant Maryland State Conference ofNAACP
Branches, No. 1476 (Ct. Spec. App. Mar. 2, 2009)................................................4, 15

Consent Decree, Wilkins v. Maryland State Police, Civil Action No. CCB-93-468 
and Maryland State Conference ofNAACP Branches v. Maryland State 
Police, Civil Action No. CCB-98-1098 (D. Md. Apr. 22, 2003)....................... 3, 4, 15

iii



Alex Geisinger, Rethinking Profiling: A Cognitive Model o f Bias and Its Legal
Implications, 86 Or. L. Rev. 657(2007)................................................................9 n.12

Audry C. Tiernan, All Bundled Up, Newsday, Feb. 12. 2001, at A02.......................... 6 n.6

David A. Harris, “Driving While Black” and All Other Traffic Offenses: The 
Supreme Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 
544 (1997).....................................................................................................................10

David A. Harris, How Account ability-Based Policing Can Reinforce -  or Replace
-  the Fourth Amendment Exclusionary Rule, 7 Ohio St. J. Crim. T. 149 (2009)...... 11

David A. Harris, The Stories, The Statistics, and the Law: Why “Driving While
Black ” Matters, 84 Minn. T. Rev. 265 (1999)............................................................ 11

I. Bennet Capers, Crime, Legitimacy, And Testifying, 83 Ind. L.J. 835 (2008)................. 4

Jeffrey Fagan & Tom Tyler, Legitimacy and Cooperation: Why Do People Help 
the Police Fight Crime in Their Communities?, 6 Ohio St. J. Crim. L. 23 1 
(2008) .......................................................................................................................12

Judge Mark W. Bennet, Unraveling the Gordian Knot o f Implicit Bias in Jury 
Selection: The Problems o f Judge-Dominated Voir Dire, the Failed Promise 
o f Batson, and Proposed Solutions, 4 Harv. T. & Pol’y Rev. 149 (2010)........... 9 n.12

Kami Chavi Simmons, New Governance and the “New Paradigm ” o f Police 
Accountability: A Democratic Approach to Police Reform, 59 Cath. U. T.
Rev. 373 (2010)........................................................................................................5, 13

Kris Antonelli, Police chief vows to halt race profiling: Livesay holds community
meeting to open “dialogue," Balt. Sun, Oct, 27, 1999, at IB .................................7 n.8

Krissah Thompson, Obama Addresses Race and Louis Gates Incident, Wash. Post,
July 23,2009, at A4..................................................................................................7 n.9

M. Dion Thompson, Testimony on racial profiling is heard Glendening support
means likely passage o f bill curbing its use, Balt. Sun, Feb. 14, 2001, at 2 B .......6 n.7

Merrick Bobb, Civilian Oversight o f the Police in the United States, 22 St. Louis
U. Pub. L. Rev. 151 (2003).... .....................!................................................................ 6

Paul Finkelman, The Crime o f Color, 67 Tul. L. Rev. 2063 (1993)............................9 n.13

Sean P. Trende, Why Modest Proposals Offer the Best Solution for Combating
Racial Profiling, 50 Duke L. J. 331(2000).................................................................... 8

IV



U.S. Department of Justice, Office of Justice Programs, Contacts between Police
and the Public: Findings from the 1999 National Survey (February 2001) ....7 n. 10, 8

U.S. Department of Justice, Office of Justice Programs, Contacts between Police
and the Public: Findings from the 2002 National Survey (April 2005)......... 7 n. 10, 8

U.S. Department of Justice, Office of Justice Programs, Contacts between Police
and the Public, 2005 (April 2007).........................................................................7 n.10

U.S. Department of Justice, Racial Profiling Fact Sheet (June 17, 2003),
http://www.justice.gov/opa/pr/2003/June/racial_profiling_facUsheet.pdf............ 6 n.5

U.S. General Accounting Office, U.S. Customs Service: Observations on Selected 
Operations and Program Issues, Testimony Before the Subcommittee on 
Government Management, Information and Technology, House Committee on
Government Reform (April 20, 2000)...........................................................................8

William M. Carter, A Thirteenth Amendment Framework for Combating Racial
Profiling, 39 Harv. C.R.-C.L. L. Rev. 17 (2004)..................................................9 n.13

World News Daily Blog, Eric Holder Says He Has Been Racially Profiled (July 
29, 2009), http://blogs.abcnews.com/theworldnewser/2009/07/eric-holder- 
says-he-has-been-racially-profiled.html................................................................8 n.l 1

Press Release, Office of the Governor of Texas, Governor Perry Grants Pardons 
to J j  Tulia Defendants (Aug. 22, 2003), available at
http://governor.state.tx.us/news/press-release/4995................................................1 n.2

http://www.justice.gov/opa/pr/2003/June/racial_profiling_facUsheet.pdf
http://blogs.abcnews.com/theworldnewser/2009/07/eric-holder-says-he-has-been-racially-profiled.html
http://blogs.abcnews.com/theworldnewser/2009/07/eric-holder-says-he-has-been-racially-profiled.html
http://governor.state.tx.us/news/press-release/4995


INTEREST OF AMICUS CURIAE

The NAACP Legal Defense and Educational Fund, Inc. (“LDF”) is 

recognized as the nation’s finest civil rights law firm. Founded as an arm of the 

NAACP in 1939 by Charles Hamilton Houston and Thurgood Marshall to redress 

injustice caused by racial discrimination and to assist African Americans in 

securing their constitutional and statutory rights, LDF has operated independently 

from the NAACP since 1957.' Through litigation, advocacy, public education, 

and outreach, LDF works to secure equal justice under law for all Americans, and 

to break down the barriers that prevent minority groups from realizing their basic 

civil and human rights.

LDF has a longstanding concern with racial discrimination in the criminal 

justice system in general, and with the racially-biased exercise of discretion in 

particular. Thus, LDF has served as counsel of record or as amicus curiae in 

federal and state court litigation challenging such issues as racially-biased 

policing, see Williams v. State, No. B-3340-9907-CR (Dist. Ct. Swisher County, 

Tex. June 16, 2003) (granting bail and immediate release from incarceration in 

case involving the arrests of 35 defendants in Tulia, Texas)1 2; the discriminatory 

exercise of peremptory challenges, see Miller-El v. Dretke, 545 U.S. 231 (2005) 

and Johnson v. California, 545 U.S. 162 (2005); the influence of race on

1 LDF and the NAACP have wholly separate Etoards of Directors, Executive Directors, budgets, funding 
streams, and staffs. Despite sharing the NAACP moniker, the two organizations are separate and unrelated 
legal entities.

2 The defendants in Tulia, Texas were ultimately pardoned by Governor Rick Perry on August 22, 2003. 
See Press Release, Office of the Governor of Texas, Governor Perry Grants Pardons to 35 Tulia 
Defendants (Aug. 22, 2003), available at http://governor.state.tx.us/news/press-release/4995.

http://governor.state.tx.us/news/press-release/4995


prosecutorial discretion, see United States v. Armstrong, 517 U.S. 456 (1996) and 

United States v. Bass, 266 F.3d 532 (6th Cir. 2001); and the role of race in capital 

sentencing, see McCleskey v. Kemp, 481 U.S. 279 (1987) and Furman v. Georgia, 

408 U.S. 238 (1972). Given its expertise, LDF believes its perspective would be 

helpful to this Court in resolving the issues presented in this case.

INTRODUCTION

Before this Court is the Maryland State Police’s (“MSP”) appeal of the 

decisions of the Maryland Circuit Court and Maryland Court of Special Appeals 

requiring it to disclose its racial profiling complaint investigation reports to the 

Maryland State Conference of NAACP Branches (“NAACP”). These decisions 

should be affirmed.

The criminal laws exist to proscribe certain conduct and behavior, but do 

not categorically attribute criminality to an individual based upon race or ethnicity. 

Thus, racial profiling is an illegal and ineffective widespread policing practice that 

should not be used -  or condoned -  by any law enforcement agency. False 

stereotypes and prejudices are the underlying source of both the deliberate and 

unconscious acts that contribute to racial profiling. These stereotypes and 

prejudices -  whether consciously acknowledged or not -  are, in turn, reinforced 

when people of color are targeted for higher levels of police scrutiny. For a police 

department to eliminate the practice of racial profiling and affirm its commitment 

to equal justice and due process, it must therefore fairly and thoroughly investigate 

and respond to racial profiling complaints. The failure to take such corrective

2



action promotes the biased exercise of discretion and undermines the community 

trust that is essential for effective policing.

For the reasons stated in the Court of Special Appeals’ opinion and 

Respondent’s brief, the NAACP’s request for the MSP racial profiling complaint 

investigation reports should be granted. As explained herein, the NAACP’s 

request is additionally supported by evidence that MSP officers continue to engage 

in racial profiling with the tacit, institutional approval of the MSP. Consistent 

with Batson v. Kentucky, 476 U.S. 79 (1986), and Armstrong, 517 U.S. 456, the 

NAACP has established an inference of discrimination sufficient to require 

disclosure of the MSP's racial profiling complaint investigation reports.

STATEMENT OF THE CASE, QUESTIONS PRESENTED 
AND STATEMENT OF FACTS

Amicus curiae joins in and adopts the statement of the case, questions 

presented, and the statement of facts set forth in Respondent’s Brief but here 

summarizes particularly pertinent information regarding the practice of racial 

profiling in Maryland.

In 2003, the NAACP and the MSP entered into a Consent Decree, adopted 

by the United States District Court for the District of Maryland, to resolve 

litigation aimed at eradicating the practice of racial profiling by MSP troopers. 

See Consent Decree, Wilkins v. Maryland State Police, Civil Action No. CCB-93- 

468 and Maryland State Conference o f NAACP Branches v. Maryland State 

Police, Civil Action No. CCB-98-1098 (D. Md. Apr. 22, 2003) (hereinafter

3



“Consent Decree”). Although the Consent Decree required to MSP to undertake 

affirmative efforts to eliminate racial profiling, data released by the MSP revealed 

that between 2003 and 2006 “the vastly disproportionate percentages of minorities 

stopped and searched by MSP troopers either had remained the same, or had 

grown larger, since the period before the entry of the Consent Decree.” Brief o f 

Appellee/Cross-Appellant Maryland State Conference ofNAACP Branches (Court 

of Special Appeals) at 4 (citing Apx. at 3-7) (hereinafter “NAACP CSA Brief’). 

Furthermore, during this same time period, the MSP received approximately 100 

complaints of racial profiling but sustained none of them. Id. (citing E. 32; 

Apx. 9, 31-32, 89). The instant litigation arises from the MSP’s persistent refusal 

to disclose its racial profiling investigation reports in the face of orders to do so by 

the Circuit Court for Baltimore County and the Court of Special Appeals of 

Maryland.

a r g u m e n t ;

I. Racial Profiling is Illegal, Ineffective and Persistent.

Law enforcement cannot use race or ethnicity as the sole basis for stopping, 

seizing, searching, or arresting a member of the public. This racially biased 

exercise of police discretion is unconstitutional, ineffective and inconsistent with 

core democratic values. Nonetheless, its use continues. See Illinois v. Wardlow, 

528 U.S. 119, 134 nn. 9-10 (2000) (Stevens, J., concurring) (discussing racial bias 

in policing); I. Bennet Capers, Crime, Legitimacy, And Testifying, 83 Ind. L.J.

4



835, 849-52 (2008) (describing statistical evidence of continuing, widespread 

race-based policing).

The Equal Protection Clause of the United States Constitution prohibits the 

police from exercising their discretion solely because of race. See Whren v. U.S., 

517 U.S. 806, 813 (1996) (“[T]he Constitution prohibits selective enforcement of 

the law based on considerations such as race.”)- Such arbitrary state conduct not 

only violates the rights of unfairly targeted racial and ethnic minorities, including 

African Americans and Latinos, but also undermines the trust between 

communities and law enforcement that is essential to effective policing and the 

legitimacy of the state. Racial disparities in police-citizen interactions “create a 

perception within minority communities that police are not trustworthy and, in 

some instances, should be feared.” Kami Chavi Simmons, New Governance and 

the “New Paradigm ” o f Police Accountability: A Democratic Approach to Police 

Reform, 59 Cath. U. L. Rev. 373, 388 (2010) (footnote and citations omitted). 

Simultaneously, this erosion of public confidence in police integrity compromises 

the effectiveness of law enforcement. Without community support, the police 

cannot properly investigate cases, identify witnesses or secure the evidence 

necessary to solve crimes and maintain neighborhood safety. See, e.g., Merrick 3

3 The prohibition on racial profiling should apply with equal force under Maryland constitutional law. This 
Court has long recognized that “[a]lthough the Maryland Constitution does not contain an express 
guarantee of equal protection of the laws, it is well established that Article 24 [of the Maryland Declaration 
of Rights] embodies the same equal protection concepts found in the Fourteenth Amendment to the U.S. 
Constitution.” Verzi v. Baltimore County, 333 Md. 411,417 (1994) (citing Kirsch v. Prince George's 
County, 331 Md. 89, 96 (1993)) (additional citations omitted); see also Attorney General v. Waldron, 289 
Md. 683, 715 (1981) (noting that “a discriminatory classification may be an unconstitutional breach of the 
equal protection doctrine under the authority of Article 24 alone”).

5



Bobb, Civilian Oversight o f the Police in the United States, 22 St. Louis U. Pub. 

L. Rev. 151, 166 (2003) (police monitor of L.A. County Sheriffs Department 

opining that “[civilian oversight not only corrects deficient systems, but also 

bolsters public confidence in the police, and thereby makes policing better and 

more effective”).

Given the significant legal and practical problems associated with its use, 

racial profiling has been condemned as improper and unjust by myriad national, 

state and local leaders:

• Fortner United States President, George W. Bush. “[OJur citizens have 
cause to doubt our Nation’s justice when the law points a finger of 
suspicion at groups, instead of individuals. . . .  It is wrong.”4 5

• Fortner United Slates Attorney General, John Ashcroft: “Using race . . . 
as a proxy for potential criminal behavior is unconstitutional, and it 
undermines law enforcement by undermining the confidence that people 
can have in law enforcement.”

• Secretary of State, Hillary Clinton: “I believe racial profiling is wrong, 
and 1 believe it should be outlawed. No person in . . . America should be 
singled out for anything solely on the basis of skin color.”6

• Former Lieutenant Governor of Maryland, Kathleen Kennedy Townsend'.
‘“ Racial profiling is wrong. It is inconsistent with our democratic 
values . . . .’ 'Racial profiling is simply bad policing.”’7 *

4 See 147 Cong. Rec. H431 (2001).

5 See U.S. Department of Justice, Racial Profiting Fad Sheet (June 17, 2003), http://www.justice.gov/ 
opa/pr/2003/June/racial profiling fact_sheet.pdf

6 Audry C. Tiernan, Alt Bundled Up, Newsday, Feb. 12. 2001, at A02.

7 M. Dion Thompson, Testimony on racial profiling is heard Glendening support means likely passage o f
hill curbing its use, Balt. Sun, Feb. 14, 2001, at 2B.

6

http://www.justice.gov/


• Former Howard County, Maryland, Police Chief, Wayne Livesay:
“‘Racial profiling is wrong. . . .  I have told that to every officer in the 
department. It is as wrong as wrong can be. . . .’ ‘If we don’t have the 
public trust, we are no good to anybody. . . .’ ‘It is no good to have an ‘us 
against them’ mentality.’”8

Nonetheless, racial profiling practices continue to pervade law enforcement 

agencies. As President Barack Obama recently observed, ‘“ there’s a long history 

in this country of African Americans and Latinos being stopped by law 

enforcement disproportionately. That’s just a fact.’”9 Research conducted by the 

United States Department of Justice (DOJ) in 1999, 2002 and 2005 supports this 

conclusion. Specifically, the DOJ made the following findings:

• Blacks were more likely than whites to be stopped by the police;

• Blacks and Hispanics stopped by the police were more likely than whites to 
be arrested;

• Blacks and Hispanics stopped by the police were more likely than whites to 
be handcuffed;

• Blacks and Hispanics stopped by the police were more likely than whites to 
be subjected to a search of their vehicle or person;

• Blacks and Hispanics stopped by the police were more likely than whites to 
be subjected to a search without consent; and

• Blacks and Hispanics stopped by the police were more likely than whites to 
be subjected to police use of force.10

Kris Antonelli. Police chief vows to halt race profiling: Livesay holds community meeting to open
"dialogue," Balt. Sun, Oct, 27. 1999, at 1 B.

’ Krissah Thompson, Obama Addresses Race and Louis Gates Incident, Wash. Post, July 23, 2009, at A4.

10 See U.S. Department of Justice, Office of Justice Programs, Contacts between Police and the Public: 
Findings from the 1999 National Survey (February 2001) (hereinafter "1999 DOJ Study”); U.S. 
Department of Justice, Office of Justice Programs, Contacts between Police and the Public: Findings from  
the 2002 National Survey (April 2005) (hereinafter “2002 DOJ Study”); U.S. Department of Justice, Office

7



Anecdotal evidence further corroborates the DOJ’s findings. Numerous 

prominent and law-abiding African Americans have reported being victims of 

racial profiling, including: United States Attorney General Eric Holder," “Marcus 

Allen, LeVar Burton, Johnnie Cochran, Christopher Darden, Miles Davis, Michael 

Eric Dyson, A1 Joyner (twice within twenty minutes), Wynton Marsalis, Edwin 

Moses, [and] Will Smith . . . Sean P. Trende, Why Modest Proposals Offer the 

Best Solution for Combating Racial Profiling, 50 Duke L. J. 331, 340 (2000). 

Similarly, “in a recent survey of the Congressional Black Caucus, 18 of the 39 

members claimed ‘they or someone in their immediate family had been stopped 

for no reason other than the color of their skin.’” Id.

Notably, law enforcement officers and agencies continue to rely on racial 

profiling despite the fact that the DOJ and other government agencies have shown 

it to be an ineffective law enforcement device. DOJ research revealed that 

searches of white drivers or their vehicles were more likely to yield evidence of 

criminality than searches of black drivers or their vehicles. See 2002 DOJ Study 

at 14; 1999 DOJ Study at 22; see also U.S. General Accounting Office, U.S. 

Customs Service: Observations on Selected Operations and Program Issues, 

Testimony Before the Subcommittee on Government Management, Information 

and Technology, House Committee on Government Reform, at 10 (April 20, 11

of Justice Programs, Contacts between Police and the Public. 2005 (April 2007) (hereinafter “2005 DOJ 
Study”).

11 World News Daily Blog, Eric Holder Says He Has Been Racially Profiled, (July 29, 2009), 
http://blogs.abcnews.com/theworldnewser/2009/07/eric-holder-says-he-has-been-racially-profiled.html.

8

http://blogs.abcnews.com/theworldnewser/2009/07/eric-holder-says-he-has-been-racially-profiled.html


2000) (Black, female U.S. citizens were “9 times more likely than White[, female] 

U.S. citizens to be x-rayed after being frisked or patted down in fiscal year 1998. 

But, on the basis of the x-ray results, Black[, female] U.S. citizens were less than 

half as likely to be found carrying contraband . . . .”).

The persistence of racial profiling in the face of such overwhelming legal, 

practical and social criticism is attributable, in part, to the often unconscious 

nature of racial prejudice,12 the perceived link between race and criminality13 and 

the fact that racially biased policing reinforces unwarranted racial stereotypes. “A 

significant body of research shows that race is routinely and improperly used as a 

proxy for criminality, and is often the defining factor in [a] police officer’s 

decision[ ] to arrest, stop or frisk potential suspects.” United States v. Montero-

12 Unconscious, or implicit, racial biases operate automatically and “outside of conscious awareness” while 
serving as a “pervasive and powerful” influence on the way individuals interact with the world around 
them. Judge Mark W. Bennet, Unraveling the Gordian Knot o f Implicit Bias in Jury Selection: The 
Problems o f Judge-Dominated Voir Dire, the Failed Promise o f Batson, and Proposed Solutions, 4 Harv. 
L. & Pol’y Rev. 149, 152 (2010). These biases promote racial profiling because they unconsciously apply 
a group stereotype to an individual, thus allowing officers to “treat! 1 an individual not as a unique person 
with his or her own traits but as an exemplar of a category.” Alex Geisinger, Rethinking Profiling: A 
Cognitive Model o f Bias and Its Legal Implications, 86 Or. L. Rev. 657, 671-72 (2007). By unconsciously 
associating a particular racial category with a certain type of criminal behavior, officers “overestimat[e] . . . 
the likelihood that any specific individual” within the category is engaging in criminal conduct. Id. at 672; 
see also White v. State, 125 Md. App. 684, 708 n.6 (1999) (describing unconscious racism).

l3The use of race as a proxy for criminality was borne out of slavery and was maintained as a means of 
social control for both enslaved Africans and free blacks. See William M. Carter, A Thirteenth Amendment 
Framework for Combating Racial Profiling, 39 Harv. C.R.-C.L. L. Rev. 17, 57 (2004). Early criminal law 
largely presumed that race was a “prima facie indication of criminality.” Paul Finkelman, The Crime o f 
Color, 67 Tul. L. Rev. 2063, 2093 (1993) (discussing criminality of race in the colonial period). In fact, 
“colonial laws provided special penalties for blacks, special crimes for blacks or criminalized activities 
merely because a black was involved,” thus causing blackness to become “associated with inherently 
criminal behavior in almost every area of the law.” Id.; see also Carter, supra at 57-60 (describing the 
historical connection between race and criminality created by de facto and de jure subjugation of African 
Americans).

9



Camargo, 208 F.3d 1 122, 1135 n.24 (9th Cir. 2000).14 The error of using race to 

forecast criminality is compounded by the fact that “[o]fficers that engage in 

profiling will necessarily come into contact with law-breaking members of 

minority communities far more frequently than with law-breaking whites and thus 

will view the actions of minority civilians with a presumption of guilt.” Martinez, 

92 F. Supp. 2d at 783. Disparities in arrest patterns that are a product of racial 

profiling, therefore, ironically support continued reliance on erroneous stereotypes 

that connect race to criminality and, consequently, reinforces both the stereotype 

and the biased police practices stemming from it. Race thereby becomes a false 

but predictive measure of criminal behavior. David A. Flarris, “Driving While 

Black" and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic 

Stops, 87 J. Crim. L. & Criminology 544, 572 (1997).

Under these circumstances, the continued use of racial profiling has bred 

distrust of law enforcement beyond the borders of the communities of color that 

are most directly affected by these unfair practices. While ”[p]olling data have 

long shown that blacks believe that the justice system is biased against them,” 

there is now evidence indicating that:

14 Courts across the country have criticized officers enforcing the law in a racially biased manner by 
associating race with criminality. See Montero-Camargo, 208 F.3d at 1135, 1138 (describing police stops 
of citizens based on race or ethnicity as sending a message that such citizens are “assumed to be potential 
criminals first and individuals second” and warning that the “high crime area” description used to justify 
citizen encounters “can easily serve as a proxy for race or ethnicity”); United States v. Caruthers, 458 F.3d 
459, 467 (6th Cir. 2006) (noting that “labeling an area ‘high-crime’ raises special concerns of racial, ethnic 
and socioeconomic profiling.”); Martinez v. Village o f Mount Prospect, 92 F. Supp. 2d 780, 783 (N.D. III. 
2000) (noting that “courts often discount police use of race as a proxy for criminality”); New Jersey v. Lee, 
886 A.2d 1066, 1075 (N.J. Super. 2005) (Fuentes, J., dissenting) (“At the heart of racial profiling is the 
assumption that a person’s race is a per se indication of criminality.”), rev’d, 920 A.2d 80 (N.J. 2007).

10



[T]his cynicism is no longer limited to blacks; it is now beginning to 
creep into the general population’s perception of the system. Recent 
data show that a majority of whites believe that police racism toward 
blacks is common. The damage done to the legitimacy of the system 
has spread across racial groups, and is no longer confined to those 
who are most immediately affected.

David A. Harris, The Stories, The Statistics, and the Law: Why “Driving While 

Black” Matters, 84 Minn. L. Rev. 265, 299 (1999).

II. Racial Profiling Complaints Must be Properly Investigated and 
Resolved In Order to Stop the Practice.

The proper investigation and resolution of racial profiling complaints is an

essential component of any police department effort to identify and eliminate

racially discriminatory policing practices. A thorough examination and competent

disposition of racial profiling complaints promotes accountability among officers,

lends legitimacy to the work of police departments and fosters trust between law

enforcement officials and the communities they serve.1:1

A comprehensive investigation of racial profiling complaints places police

officers on notice of the types of behavior that are deemed unacceptable, unlawful,

and racially discriminatory by the police department. Thus, “[t|he collection,

analysis, and use of data on search and seizure activity” only has value when “the

results of the process . . . matter to the individuals under supervision.” David A. 15

15 See Worcester Telegram <K- Gazette Corp. v. Chief o f Police o f Worcester, 787 N.E.2d 602, 607 (Mass. 
App. Ct. 2003) (“An internal affairs investigation is a formalized citizen complaint procedure” that 
specifically addresses “complaints of police corruption . . . .  misconduct . . . , and other criminal acts that 
would undermine the relationship of trust and confidence between the police and the citizenry that is 
essential to law enforcement. . . .  A citizenry's full and fair assessment of a police department’s internal 
investigation of its officer's actions promotes the core value of trust between citizens and police essential to 
law enforcement and the protection of constitutional rights.”).



Harris, How Accountability-Based Policing Can Reinforce -  or Replace -  the 

Fourth Amendment Exclusionary Rule, 7 Ohio St. J. Crim. L. 149, 172 (2009).16 

Public confidence in the investigation process also legitimizes the behavior of the 

police departments and individual officers and cultivates trusting, productive, and 

collaborative relationships between the police and the communities they serve. 

See Jeffrey Fagan & Tom Tyler, Legitimacy and Cooperation: Why Do People 

Help the Police Fight Crime in Their Communities?, 6 Ohio St. J. Crim. L. 231, 

263 (2008). Indeed, the MSP expressly acknowledged the importance of trust in 

effective policing in the 2003 Consent Decree between the NAACP and the MSP, 

which states that “[tjrust is vital to the success of policing in a democratic society.

. . .” Consent Decree at 3. Full disclosure to the NAACP of MSP’s investigation 

into racial profiling complaints will help restore trust and resolve questions and 

concerns about seemingly racially biased practices. See id. (acknowledging that 

the “ police cannot function effectively in communities where an atmosphere of 

mistrust is prevalent” and “incidents and perceptions of racially biased policing 

lead to mistrust of police”).

By failing to properly investigate and remediate racial profiling complaints, 

on the other hand, police departments encourage their officers to continue their 

racial profiling practices, which, in turn, undermines the community’s trust in the

16 The adequacy and substance of the complaint review and investigation process is of utmost importance to 
ensure officer accountability and vindication of citizens’ constitutional rights. See Beck v. City o f 
Pittsburgh, 89 F.3d 966, 974 (3d Cir. 1996) (Section 1983 action discussing adequacy of complaint process 
and noting that “we cannot look to the mere existence of superlicial grievance procedures as a guarantee 
that citizens' constitutional liberties are secure. Protection of citizens’ rights and liberties depends upon the 
substance of the . . . investigatory procedures.”).

12



integrity of the department and its officers. Put another way, “continued official 

tolerance of repeated misconduct facilitates similar unlawful actions in the future.” 

Bielevicz v. Dubinon, 915 F.2d 845, 851 (3d Cir. 1990) (discussing Brandon v. 

Holt, 469 U.S. 464 (1985)); see also Cox v. District o f Columbia, 821 F. Supp. 1, 

15-20 (D.D.C. 1993) (finding the systemic backlog of processing complaints of 

police misconduct to be responsible for allowing officers to act with impunity and 

cause constitutional harm to citizens); Clark v. Pena, No. F99-CV-277, 2000 WL 

35427177, at *8 (W.D. Mich. April 28, 2000) (noting increase of malfeasance will 

result from police department’s failure to investigate malfeasance effectively 

“since perpetrators will feel that their actions will go unpunished. This is no less 

true when the alleged perpetrator is a police officer. . . . When citizen complaints 

are discouraged, ignored and discarded, it is an obvious and predictable 

consequence that in a department [ ], some officers will realize they can commit 

misconduct with impunity”); Simmons, supra at 388-89 (discussing a 1991 study 

of the Los Angeles Police Department that found unlawful police conduct to be 

condoned “through a pattern of lax supervision and inadequate investigation of 

complaints. Instead of being fired, demoted, or otherwise disciplined for poor 

behavior, many of the officers who were the subject of complaints had been 

promoted or received positive performance evaluations”) (footnotes and internal 

quotation marks omitted)).17

17 This court has previously recognized the importance of the citizen complaint process as a means to 
remedying misconduct. See Miner v. Novotny, 304 Md. 164, 176 (1985) (defamation action discussing 
value of complaint process and noting that “[o]ur society vests its law-enforcement officers with

13



Thus, disclosure of the MSP’s racial profiling complaint investigation 

records will demonstrate whether the MSP is effectively remedying discriminatory 

behavior within the department or is, instead, encouraging misconduct through a 

perfunctory and ineffective complaint review process. Such disclosure will also 

garner the trust of the community, which -  as recognized by the MSP -  is essential 

to fulfilling its duties to the public.

III. The MSP’s Rejection of Every Single Racial Profiling Complaint, 
Despite Continuing Evidence of Racial Profiling, .Justifies Disclosure of 
the Complaint Investigation Files to the NAACP.

The NAACP’s request for disclosure of the MSP’s racial profiling 

complaint investigation files is analogous to a defendant’s request for discovery in 

a selective prosecution case or request for a race-neutral reason for a peremptory 

challenge during jury selection. In such instances, the disclosure of otherwise 

privileged information is justified by the need to ameliorate the potential taint of 

unlawful racial discrimination from the exercise of official discretion. A 

contrary rule would insulate a pattern of misconduct that offends the basic tenets 18

formidable power, the abuse of which is often extremely detrimental to the public interest. Citizen 
complaints of such abuses, and the administrative disciplinary procedure which has been developed to 
investigate these complaints, serve a public function of vital importance by providing a mechanism through 
which abuses may be reported to the proper authorities, and the abusers held accountable.”)
18 One notable difference, however, is that prosecutors are often granted far greater deference than police 
officers in their exercise of discretion. Rodriguez v. Cal Highway Patrol, 89 F. Supp. 2d 1131, 1480 (N.D. 
Cal. 2000) (“Law enforcement officers . . . never have been afforded the same presumption of regularity 
extended to prosecutors. Courts have recognized the possibility that officers in the field occasionally may 
abuse their discretion and selectively target specific groups and individuals on the basis of race or other 
illegitimate factors.” (citing United States v. Martinez-Fuerte, 428 U.S. 543, 559 (1976); Delaware v. 
Prouse, 440 U.S. 648, 661 (1979)); see also Ortega Melendres v. Arpaio, 598 F. Supp. 2d 1025, 1036 n.4 
(D. Ariz. 2009); Aikman v. County o f Westchester, 491 F. Supp. 2d 374, 383 n.4 (S.D.N.Y. 2007); Cyprus 
v. Diskin, 936 F. Supp. 259, 263 n.5 (E.D. Pa. 1996). Thus, the demand for further investigation in 
selective prosecution and jury discrimination claims, which have a higher threshold showing, buttresses the 
NAACP’s request for information about alleged racial bias in police -  rather than prosecutorial -  conduct.

14



of our Constitution.

The MSP has prohibited racial profiling via General Order 01-9503 

(1/1/95) and Special Order 01-9716 (6/30/97). See Wilkins v. Maryland State 

Police, Civil Action No. CCB-93-468; Consent Decree at 4. Furthermore, when it 

entered into the 2003 consent decree with the NAACP, the MSP expressly 

acknowledged the following fundamental principles:

• “Trust is vital to the success of policing in a democratic society and that 
community outreach is an essential part of trust-building;”

• “Both incidents and perceptions of racially biased policing lead to mistrust 
of police;” and

• “The police cannot function effectively in communities where an 
atmosphere of mistrust is prevalent.”

Consent Decree at 3. In accordance with these principles, the MSP agreed to

“implement policies and procedures designed to eliminate the unconstitutional

practice of racial profiling by MSP troopers.” NAACP CSA Brief at 4. Despite

this clear condemnation of racial profiling and the recognized need for community

trust, racial disparities in motorist stops and searches continued:

|The] statistics compiled by the MSP between the entry of the 
Consent Decree in 2003 and the end of 2006 showed that the vastly 
disproportionate percentages of minorities stopped and searched by 
MSP troopers either had remained the same, or had grown larger, 
since the period before the entry of the Consent Decree.

NAACP CSA Brief at 4. Furthermore, the MSP received approximately 100

civilian complaints about racial profiling during the life of the consent decree and,

incredibly, deemed all of these complaints unfounded. Id. Because this evidence

15



suggests that MSP officers continue to engage in racial profiling and that such 

behavior was condoned by the MSP as an institution, review of the MSP racial 

profiling complaint investigation files is warranted.

The United States Supreme Court has required prosecutors to explain an 

exercise of discretion that appears to have been influenced by improper racial bias. 

Thus, in Armstrong, the Supreme Court held that a criminal defendant can obtain 

discovery on a claim of selective prosecution based on race -  e.g., an explanation 

of how and why the prosecution decided to exercise its discretion to prosecute -  if 

the defendant is able to proffer “some evidence tending to show the existence o f . .

. discriminatory effect and discriminatory intent.” 517 U.S. at 468 (emphasis 

added) (citations and internal quotation marks omitted). The Court recognized 

that, as a general matter, where a prosecutor has ‘“ probable cause to believe that 

the accused committed an offense defined by statute, the decision whether or not 

to prosecute, and what charge to file or bring before a grand jury, generally rests 

entirely in his discretion.’” Id. at 464 (quoting Bordenkircher v. Hayes, 434 U.S. 

357, 364 (1978)). Prosecutors forfeit that privilege, however, if the defendant can 

“produce some evidence that similarly situated defendants of other races could 

have been prosecuted, but were not.” Id. at 469 (citations omitted).19 See also 

United States v. Jones, 159 F.3d 969, 978 (6th Cir. 1998) (“despite the fact that

19 This is distinguished from the significantly higher burden of proof required for a defendant to actually 
prove selective prosecution. To prevail on such a claim, a defendant must present “clear evidence” that the 
“prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose. . . .  
To establish a discriminatory effect in a race case, the claimant must show that similarly situated 
individuals of a different race were not prosecuted.” td. at 465 (citations and internal quotation marks 
omitted).

16



Jones was unable to establish a prima facie case of discriminatory effect on the 

merits of his selective prosecution claim,” he nevertheless “set forth some 

evidence tending to show the existence of discriminatory effect that warrant[ed] 

discovery on [that] claim”) (emphasis added) (internal quotation marks omitted); 

United States v. Tuitt, 68 F. Supp. 2d 4, 7-10 (D. Mass. 1999) (granting discovery 

based solely on statistical evidence showing extreme disparities in federal cocaine 

prosecutions when compared to analogous state prosecutions and noting that a 

“discriminatory effect which is severe enough can provide sufficient evidence of 

discriminatory purpose,” and “[i]f the Supreme Court meant to hold defendants to 

actual knowledge of a discriminatory choice on the prosecutor . . . , the discovery 

standard would be impossible to meet”) (citations omitted).

Similarly, in Batson, the Supreme Court concluded that a prosecutor must 

disclose her reasons for exercising a peremptory challenge when the defendant 

presents evidence establishing an inference of discrimination. 476 U.S. at 94. In 

reaching this decision, the Court was required “to accommodate the prosecutor’s 

historical privilege of peremptory challenge free of judicial control, and the 

constitutional prohibition on exclusion of persons from jury service on account of 

race.” Id. at 91, 96 (citing Avery v. Georgia, 345 U.S. 559, 562 (1953)). 

Ultimately, the Court made clear that an inference of racial discrimination 

established “the need [for] the trial court [to] undertake a factual inquiry that takes 

into account all possible explanatory factors” to determine whether racial 

discrimination did, in fact, exist. Id. at 95 (citation and internal quotation marks

17



omitted). It also noted that the prosecutor cannot “rebut the defendant’s case 

merely by denying that he had a discriminatory motive or ‘[affirming] [his] good 

faith in making individual selections’.... If these general assertions were accepted 

... the Equal Protection Clause ‘would be but a vain and illusory requirement.’” 

Id. at 98 (quoting Alexander v. Louisiana, 405 U.S. 625, 632 (1972); Norris v. 

Alabama, 294 U.S. 587, 598 (1935)).

The persistence of racial profiling in Maryland, coupled with the MSP’s 

institutional rejection of every citizen complaint of racially biased policing, raises 

more than an inference of racial bias. Thus, much like the prosecutors in 

Armstrong and Batson, the MSP must account for this taint of racial bias. 

Disclosure of the MSP’s investigative records of racial profiling complaints is 

required. See State v. Ballard, 752 A.2d 735 (N.J. Super. Ct. 2000) (granting 

discovery of racial profiling investigations, which must first be subject to in 

camera review, due to statistical evidence of racially disproportionate motorist 

stops and previous state court decision finding state policy of targeting blacks on 

New Jersey turnpike to warrant suppression of evidence).

18



CONCLUSION

Racial profiling is an illegal and ineffective police practice that criminalizes 

individuals based on skin color and ethnicity. For the reasons set forth in the 

Court of Special Appeals’ opinion and Respondent’s brief, this Court should direct 

the Maryland Slate Police to comply with the NAACP’s Public Information Act 

request for disclosure of all racial profiling complaint investigation reports. This 

mandate is further justified by the fact that the NAACP has presented evidence 

sufficient to establish an inference of discrimination and require disclosure of the 

reasons underlying the exercise of state discretion pursuant to the principles 

underlying Batson and Armstrong. The release of the Maryland State Police racial 

profiling complaint investigation reports is required.

John Payton, Director-Counsel 
Debo P. Adegbile, Associate Director 
Christina A. Swarns 
Johanna B. Steinberg 
Jin Hee Lee
Vincent M. Southerland 
NAACP Legal Defense and 
Educational Fund, Inc.

99 Hudson Street, Suite 1600 
New York, New York 10013 
(212)965-2200

Attorneys 1

Joshua I. Civin *
Counsel NAACP Legal Defense and 

Educational Fund, Inc. 
1444 I Street N.W. 
Washington, D.C. 20005 
(202) 682-1300 
* Admitted in Maryland

or Amicus Curiae

September 30, 2010
T his brief was prepared in 13-point l imes New Roman.

19



CERTIFICATE OF SERVICE

I hereby certify that on this 30th day of September, 2010, I mailed two 

copies of the foregoing Brief o f Amicus Curiae NAACP Legal Defense & 

Educational Fund, Inc. in Support o f Respondent-Appellee via UPS next day 

delivery service to the following persons:

Steven M. Sullivan
David R. Moore
Assistant Attorneys General
Office of the Attorney General of
Maryland
200 Saint Paul Place 
Baltimore, Maryland 21202

Brian L. Schwalb 
Daniel P. Moylan 
Seth A. Rosenthal 
1 lector G. Bladuell 
Venable LLP 
575 7th Street, NW 
Washington, DC 20004

(410)576-6324