in fact, senator, i would say what race ends up doing is being a huge distractor. we've seen this time and time again. we did operation pipeline where we targeted drug carriers. we didn't get what we were looking for because we were so busy looking for black or brown people driving on a freeway. we were proven wrong time and time again and we lose the support of our community. >> and added to that problem is the difficulty often of using eyewitness testimony where somebody supposedly identifying a potential defendant in a lineup can be just plain wrong because of race being a factor. would you agree to that? >> yes. in fact, there's much work in science into looking at some of the dangers of basing convictions and arrests merely on lineups. because they can be inaccurate. if i may, one of the questions that came up earlier was about officers guessing on race.

if i can say, it's interesting because we're supposed to assess race. and so the idea -- i don't think we're suggesting that race has no place. so if you put something comes out on the radio that you're looking for a black male 6 foot tall, 225 pounds and handsome that did a robbery, then you would stop me. i understand that. >> objection. >> but the officer has to make an assessment at the time. there's a time and place, not when you're trying to predict criminal behavior. >> mr. gale, if i may ask you to comment on the general principle that race or other similar characteristics alone are used for identifying or profiling individuals can be distracting

or undermining credibility, and really should be used in combination, if anything, in combination with other, if at all, characteristics, mainly conduct, behavior and so forth, what would you think about that? s >> conduct is what drives it all. when you talk about -- and because, you know, i'm the commander of the training academy in my department and we're training officers all the time. one of the things we talk about is the stop and frisk, terry stop situations. it's driven by conduct. if you're going to properly teach that, you teach that it's driven by the conduct of the person and you're determining that their conduct indicates that they're involved in criminal activity. race has no place in that. i think the distractor now you would have criminals involved in criminal activity who will now use, you know, the racial profiling as a distractor as they complain for having been

arrested or stopped because of their criminal conduct. i think there is a presumption by some, and wrongly so, i believe, that no criminals ever complain against police officers. and no criminals ever don't just acknowledge that they do crime. my experience in 23 years is that it is very rare to roll up on someone engaged in criminal conduct and have them say, you got me, copper, i'm guilty. they don't do that. they look for anything they can to get out of that pros pes. the distractor now is if you pass a bill like this, you're going to say here is something you can use in addition. i think the courts have already told law enforcement agencies you cannot use race as the basis for how you do this. so conduct is it. the bulk of my testimony is really that i think we're trying to fix something that doesn't need to be fixed because you're trying to fix it with a law as opposed to just saying, hey,

there's a problem and the problem is bad police work. >> and i'm sympathetic as one who has been involved in law enforcement for actually more than 23 years combining both federal and state as u.s. attorney and then as attorney general of my state, connecticut. and i would be very low to create what you have called distractions, defenses, impediments to effective law enforcement, but i think that one of the roles of the legislation is also to provide guidance, raise awareness and perhaps provide direction to police or their departments who may not be as aware as you are or even other witnesses here. mr. romero. >> thank you, senator blumenthal. officer gale, i must take some

time to visit your fair city of denver because it doesn't look like any of the major cities i visited in 11 years as director of the aclu. with all due respect, you will forgive me for having to point that your assertion that all is well has not borne out by the statistics we have. let my give you data that we think very well in new york city, the country's largest police department. there were, from 2002 to 2011, there were more than 4.3 million street stuff. 4.3 million. 88% of those -- that's nearly 3.8 million -- were of innocent new yorkers. that means they were arrested or given a summons. let's break it down place by place.

new york is not a good place for people who are african-american or latino. in 2011, a record 285,000 people were stopped by the new york police department. 88% were totally innocent of any crime. 53% were black. 34% were latino. 9% white and a remarkable number of guns were found on 0.2% of all stops. now, with all due respect, officer gale, i must demur when you say this is all conduct driven. the facts beg otherwise. the fact is that there is a problem and i would assert that the reason why -- and i think one point where we agree, the fraternity order of police nationwide lack the trust from communities of color. i think you have said as much. you have a pr problem, if you

will, with communities of color. and i would assert that the reason why you mv that difficult with the communities of color you are there to serve is that they know these facts. that is precisely why the act is essential. the data we have is problem. let's collect the data and put in place some remedies. your point about the supreme court and the equal protection clause giving sufficient comfort to those who have been wronged by the police, that's simply not true. the supreme court case in the case of wren basically allows police officers to make a pretextual stop based on race, asia is inity and natural origin. that is the law of the land. at times the supreme court gets it wrong. that is why we exhort this congress and senate to step in when we know there is a problem that has not yet come to the attention of our supreme court.

with all that, i thank you. >> thank you. my time is up. i want to thank all of the witnesses. this has been a very, very important and useful hearing, and we have some areas of disagreement, which i think we ned to explore further. but i want to thank particularly mr. gale and chief davis for your excellent work over the years in law enforcement. and thank the chairman and substituting chairman for their tolerance and patience. >> i think you actually call me the chairman. it's protocol. >> you know, i think i need the advice -- i have a right to remain silent, don't i? >> yes, you do. >> unfortunately, i have an appointment, so i'm going to ask my questions and then you'll get the gavel and you'll be the chairman and get every due

respect being called the chairman. thank you, senator blumenthal. everyone here has talked about the importance of law enforcement officers and the communities they serve. it seems everyone agrees racial profile can undermine trust in the authorities and can cause resentment among the targeted groups. minnesota is home to a large population of sumali americans. no community was more upset when we learned that a few somali americans had gone back to somalia and become involved with al shabab. when i talked to both the fbi direct director muller and more importantly when i went back to the twin cities and talked to special agent in charge there,

both said that the somali community had been cooperative in fbi investigations. and i think it was because of actually very good police work and very good work by the fbi in making sure that they earned the trust of the somali community there. my questions are to chief davis and to officer gale. both of you have served as law enforcement officers. how do you earn the trust of the diverse communities that you serve? some of which -- some of whom may be initially skeptical of the police? >> thank you, senator, and one stop at a time. one day at a time. one interaction at a time. i think when people -- i think we have to, one, acknowledge the history police have played. the role of law enforcement with regard to race in this country. we still have generations of people that remember the segregation.

generations of people that are still here that remember when the police were the enforcement tool and rule of law with regard to jim crow and black code laws. we have to acknowledge we might start off with this lack of trust and confidence. it's one interaction at a time. the first thing law enforcement can do is acknowledgement. take our heads out of the sand and acknowledge that we have this horrific history. we should acknowledge that we, whether intentionally or not are still engaging in practices that have a very disparity result in regard to people of color, whether intended or not. we should put defensiveness down and realize we're here to serve, not be served and only going to be successful if the community engages with us, and the more we engage with them the safer we make them. the safer we make our communities, the more they'll partner with us. with the evidence that's showing time and time again of each major city and community, the stronger the relationship between the police and minority communities, the greater the

crime reduction is going to be. we do it one interaction at a time. we do it by holding officers accountable and we do it by acknowledging that which is in front of us. there is no greater insult as a minority is for someone to look me in my eyes and insult my intelligence by telling me there is not profiling when everything about me knows that it is. that happens with our communities and we need to stop doing that. >> officer gale? >> i think i agree with the chief that you have to do it one person at a time. but i think you have to be more global. you have to look at the community you serve and the different populations in that community and you have to make a concerted effort to be in those communities and having dialogue with those people and you have to listen. and it doesn't matter that you might not agree with the things that they say. years ago i was in the military and i went to a leadership school and they had a manual that said any problem real or perceived is still a problem, and i agree with that and i've

held to that. it doesn't matter if it's not the actual problem. if it's perceived to be a problem by someone or by a group of someones, we have to listen, we have to validate it and dialogue and we have to take and train agencies to understand who these populations are. that they're serving. what the concerns are those agencies are. i agree also with chief davis that, you know, we have to acknowledge the history of law enforcement. it has not always been one of stellar conduct and i think that that's being done in a lot of organizations. i think in the fraternal order of police we talk about it very honestly and candidly with our membership and say, this is the way you need to go to improve your relations with the communities that you serve. and so it's important to do those things, to hear what they have to say. but it's also important to explain to them what the challenges are. what we have to do if we're going to protect people. what, you know -- what we're

faced with as the challenges, when we are protecting communities, and it's important for us to illustrate that to individuals in the community. because, you know, no one's perfect. but if we understand each other better and we dialogue more, i think when there are these honest misunderstandings, we can move past them. >> thank you. mr. romero, in your written testimony on behalf of the aclu, you wrote about a recent, recently uncovered fbi training materials that rely on bigoted stereotypes of muslims. i think we can all agree that those materials are not acceptable. fbi director mueller acknowledged that those materials damaged the fbi's relationship with muslim communities and i commend chairman durbin for his recent letter to the fbi on the subject and i'm working on a letter to

express my concerns as well. mr. romero, what actions should the fbi take to show that it is serious about reforming its training programs? >> thank you for the question, senator franken. and, yes, what i would first point out is, of course, those memos and files and training manuals surprised us. when we used the freedom of information act we go asking for documents that we don't know exist. and so we used the freedom of information act as democracy's x-ray. how do get information we need. that questions, hunches, based on conduct of what we've seen already when the fbi's been tracking young muslim men between the ages of 18 and 33 asking them to come in for voluntary fingerprinting, photographing, mapping out mosques. we had a hunch they had to have some training materials that

were going to be troubling and problematic. and lamentably our hunches were borne out. i think frankly, one thing the fbi needs to, i would encourage, and director mueller is a man with whom we have great disagreements. we've sued him dozens of times, but for the record, he's a man of enormous credibility. he's probably the man in the justice department both under the bush and the obama team in whom i have the greatest personal regard and respect. sen quo non. and with all that i encourage you to encourage him to take a much more active position on these threat assessments, which i fear are only the tip of the iceberg. the attorney general guidelines allow now them to begin investigations on anyone they choose so long as they can claim they're doing it to gain information on criminal activities, national security or foreign intelligence. and the amount of reporting on

those threat assessments is rather limited, as we all know. asking those tough questions, how many of these threat assessments have been opened? how many of them are ongoing? they allow them to collect unlimited physical surveillance. we encourage the attorney general to retire the use of these threat assessments, but at the very first step, you can ask the fbi to do more vigorous reporting on you, even if it is en camera. retraining is essential. remember, all the folks that got that lovely little chart showing how the hour of mind is a cluster mind, and i'm quoting verbatim. is a cluster thinker while the western mind tends to be a linear thinker. they were trained on this. so until we retrain them and tell them that that's not the case, was never the case, they're going to continue to do those activities. and so i think retraining is essential, and probing into the assessments and have those

assessments are used particularly in a muslim context would be a place of important focus. >> thank you. thank you, mr. chairman. i notice you're back. you already took the gavel. didn't you? thank you all. thank you. >> senator kuntz. >> thank you, chairman durbin. thank you for calling this hearing for your long and passionate and vigilant advocacy for civil rights and for your real leadership in this area for this legislation and for this hearing. in my own role prior to becoming a senator as county executive, i worked hard in the supervision of a 380-sworn officer department to ensure we had an effective and strong outreach, not just traditional subject to harassment and communities like the african-american and latino communities but also post-9/11

making sure there was better training and outreach in relationship with our muslim community and given incidents that occurred in our community making sure we stayed as a policing organization engaged. and accountable. and i just wanted to start, officer gale and chief davis, by thanking you for your leadership in the policing community and for your service to the public. i appreciate your starting by just helping me understand what's the impact on a police force? that practices racial profiling, where it's either part of the policy or training, part of history or part of current practice? what's the impact on professionalism, promotion advancement and cooperation with communities? that's been touched on. you noticed because of votes, a number of us have had to step in and out and i'd be interested in your response. >> thank you. i think it's multiple parts by me. inside the organization, which we did not talk about, an agency that does engage in systemic racial profiling usually has very low morale, because now you have ulcers inside the

organization opposed. those engaging in it and it causes a conflict within itself. within a community, i would also probably argue that the community is suffering, because now you have a practice in which is losing touch with the community, making them very ineffective. in today's society, makes it much more expensive. because now you have the cost of crime going up. you have the cost of litigation, because people are now seeking some type of redress through the court system, and you have low morale issues which means you have increases in sick leave, workers' comp claims. so it's a very expensive venture when you engage in systemic racial profiling. and most importantly, you have a community that is denied some am their basic rights. so as you know, as a county executive, you cannot serve the community effectively if they don't trust you. so there's some historic trust. there's always going to be some challenges and strains but to the extent that there's a legitimate outreach to the extent in which we're trying to, i agree with captain gale,

listen, and respond, and respect, i think we have a better chance of being successful. so the issue of racial profiling, although we're talking about race from a chief's perspective, from an executive perspective, is very, it's poor managerial practices. it results in loss of revenues, support. causes internal strife. is not an effective strategy. >> thank you. would you agree, bad policing? does it have consequences internally? >> absolutely. the consequences of bad management in any agency result in, you know, these perceptions in the community that the police are not responsive, and that they're victimizing citizens and that they're somehow or another a rogue force. that's where it all drives from. it all drives from the management philosophy of the organization. and the chief is right. it does result in low morale. but it also results in low morale not just because of

people in the agency that would disagree with the practice or the fact that there's no appropriate accountability for officers who are clearly operating outside professional conduct. it has low morale when the community that we serve then becomes, you know, complaining about us being unprofessional. or about the reputation of the agency being, you know, that of a victimizer as opposed to a protector. so -- and the chief is absolutely right. it starts with the management. it starts with the very top person and the top level people allowing these things to occur in individuals that they won't hold accountable. as a captain in my agency, i believe it's my charge to hold people accountable when they conduct themselves unprofessionally, and i do so. you know. i think some people have said here that you know, well, there seems to be some kind of great thing going on in denver or what have you. i'm just going to tell you, and i love my city and it is a great

city. please, feel free to visit any time, but i'm just going to tell you, we hold people accountable in my agency. we hold them accountability and that's expected for, you know, we don't have to have specific rules that say, you can't do this. because we all know what bad behavior is when we see it, and if you challenge people and you hold them accountable, then there won't be a problem. the end result is that officers will just shut down and not conduct any type of police work, and then the city doesn't get protected. >> senator, if i may add one point. there's a phrase we have especially for chiefs that it calls for a moment of pause. and what happens is when an agency does not have the type of trust and confidence that we're alluding to and discussing, many cases you have racial powder kegs sitting there. if you look at our history, usually there's some type of incident. and it gets confusing, because quite often it may be a legal incident, it may be something

that really by itself would not make sense to call such a response, but it reflects years of abuse and neglect. it reflects the kind of, i think, one of the congress persons said earlier, enough is enough. so when agencies are blind to this or systematically engaging in it, they're sitting on these powder kegs that an incident like a trayvon martin or an oscar grant in oakland can ignite and then that's when we see large demonstrations and you start having race riots. because it's not the incident by itself as much as it is the buildup to that incident. the lack of acknowledgement of where we were at before. >> and, chief, if i've heard all the members of the panel right, who have said that racial profiling is bad policy, it's not just those powder keg moments. it's also the simmering distrust, the disconnect from the community you seek to protect and to serve that can also have a negative impact on your effectiveness? on your ability to effectively police, that's something we've heard across the whole panel. i wanted to move, if i could,

professor harris to a question about standards. if you look at reasonable suspicion of standard that controls the ability of law enforcement to stop and question an individual, as opposed to probable cause, which covers arrest. profiling appears to me just at first blush to be a much larger problem potentially in the area of reasonable suspicion. how you have seen that play out? what do you think is important in fighting that standard? and then i'm going to want to move to this bill, and why it might be necessary. professor? >> thank you. thank you for the question, senator. you're absolutely right. you put your finger on something very important. the reasonable suspicion standard arises in terry versus ohio, the case that allows police officers to use stop and frisk when there is reasonable fact-based suspicion. the problem is, and where this can intertwine with profiling is that reasonable suspicion is a very low legal standard. it is lower than probable cause. when i'm in class, i like to say, probable cause is somewhere near my waist.

reasonable suspicion is below my knees. and you have a standard where you can use very little evidence to take significant police action. and where we see this showing up in the context of profiling to give you one example is in the stop and frisk activity in new york city over many years and it's a good example, because there is very significant amount of data on this. we often find that even though the standard is reasonable suspicion, there is hardly anything recorded. and sometimes nothing at all recorded. reflecting reasonable suspicion or the idea is simply thought of as boiler plate. so with that low a standard, profiling and other ineffective approaches to law enforcement run rampant and we have the kind of statistics that mr. romero cited just a minute ago. >> thank you. mr. romero, if i might then, if racial profiling can be a violation of civil rights, as i

believe it is, under a whole line of cases, martinez, ponce, these are not cases i'm familiar with personally but that'sed line of analysis, i think, by the supreme court that has laid this out, why do we not see more enforcement actions for racial profiling by the department of justice? and if you would just follow up on professor harris' comment, how do we, in the gap between the formal policies create police entities that, as captain gale describes it, are accountable, are professional, and where at all levels are engaged in moving us forward towards a more just and effective policing community? >> when you look -- thank you for the question, senator kuntz -- when you look at our, the testimony we submitted, you see we detail a number of the seminal racial profiling cases. in fact, some of them brought by

david harris. one might be instructed for why this piece of legislation is essential is to track when the incident occurred and when the case was decided. because you'll note that many, in many instances and the one i'm looking at now, you're looking at a span of several years of time between when you get pulled over by a police officer on a highway and the case of robert wilkins, and ultimately when that case was decided by a court. and for many minority group members especially those in our communities and families who lack resources to hire private attorneys, it is not simple or economic to retain private counsel, even when you've been wronged. we turn away many, many cases and individuals who write to us every day simply because we lack the resources to take on every single case. we take on cases where we think we have a -- an ability to have a high impact, which means systemically at the highest levels.

the number of heartbreaking letters i send back saying i understand you were profiled by the police, but we have them under a consent decree and will throw your fact scenario in the consent decree doesn't really give the individual who's often been aggrieved, even if they're willing to step forward, much comfort. i think that's really what's at stake here. i think the burden on hundreds of thousands of new yorkers, let's say the 400,000-plus i cited have been wrongfully stopped by the police, the idea you would ask 400,000 new yorkers who were innocent and yet stopped by the police to file all individual lawsuits, i can't believe that any member of this chamber would believe that would be an efficient use of our resources. this is one of the times when by the senate taking action and putting in place a legal regime and being able to stop the type of rush to the courthouse steps due to both the economy and our civil liberties a service.