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Hobbs Straus attorneys successfully defended a tribal college against civil-rights claims in Tenth Circuit Court of Appeals in 2008.

General Memorandum 12-023

General Memorandum 12-023
Racial Profiling Legislation Introduced in Congress

On December 8, 2011, Representative Conyers (D-MI) introduced the End Racial Profiling Act, HR 3618, with 37 co-sponsors. The bill would ban racial profiling by police when making pedestrian or traffic stops, conducting investigations, or other activities that use race as a basis for taking an action.

The bill would apply to all law enforcement agencies including tribal law enforcement. It would be enforceable by lawsuits for declaratory or injunctive relief but not money damages. Section 102 would authorize an individual or the U.S. Department of Justice to file a lawsuit for relief. Anticipating that a tribe could be sued for alleged racial profiling, Section 602 of the bill expressly states that it does not waive tribal sovereign immunity unless the tribe consents to the suit. Thus, the legislation would not allow an individual to sue a tribe as a result of alleged racial profiling by that tribe's police department without the tribe's consent. However, the U.S. Justice Department would be free to sue the tribe.

Section 2(7) defines racial profiling as:
"…the practice of a law enforcement agent or agency relying, to any degree, on race, ethnicity, national origin, or religion - (i) in selecting which individual to subject to routine or spontaneous investigatory activities; or (ii) in deciding upon the scope and substance of law enforcement activity following the initial investigatory activity… [except] when there is trustworthy information, relevant to the locality and timeframe, that links a person of a particular race, ethnicity, national origin, gender or religion to an identified criminal incident or scheme."

Section 2(8) explains that routine or spontaneous investigatory activities include interviews, traffic stops, pedestrian stops, frisks, consensual or nonconsensual searches, data collection and analysis, border entries, and immigration-related workplace investigations.

Section 301 would require tribal law enforcement agencies seeking Department of Justice funds under either the Edward Byrne Justice Assistance Grant Program or Cops on the Beat Program to enact polices that (1) prohibit racial profiling; (2) include training for law enforcement on racial profiling; (3) collect data on routine investigatory activities; and
(4) participate in an administrative complaint procedure or independent audit program.

A copy of HR 3618 is attached. Please let us know if we may provide additional information regarding this legislation.

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Inquiries may be directed to:
Charlie Hobbs (chobbs@hobbsstraus.com)
Chris Stearns (cstearns@hobbsstraus.com)

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