in a position to counter it or to be in a position to make sure your own policies and practices does not make them unintentionally engage in this practice. laws are designed to set standards, to hold us accountable and to set a clear message. i think that's what we're doing. >> before i turn to officer gale, i'd like to note that this celebrated case involving trayvon martin involved a person being accused who was not a law enforcement official, per se. he was an individual citizen as part of a neighborhood watch. 49 states now, my own state being the only exception, have concealed carry law which allows individuals under some circumstances to legally carry a firearm. in this case, i don't know if mr. zimmerman complied with florida law. that will come out, i'm sure, in terms of what it took to have a concealed weapon. but it certainly raises a question that wasn't before us as much ten years ago. we are not just talking about professionalizing law enforcement and holding them

accountable. we are talking about a new group of americans who are being empowered to carry deadly weapons and to make decisions on the spot about the protection of their homes and communities. which i think makes this a far more complex challenge than it was ten years ago. i'd like your response. >> yes, sir. i agree, the issue for california, we have the issue of open carry, carrying of loaded firearms with very limited requirement. i think the idea that people should be held accountable including our community is very real. the issue of racial profiling is so important and why we need the data is in many cases, and maybe the trayvon martin case will bring this out later. the role law enforcement plays with its community. and so when people call the police and say there's a suspicious person walking in my neighborhood, what makes that person suspicious? and the police must ask those question. and the idea we simply respond and stop without inquiring why the person's suspicious, is it their behavior or is it because they were engaged in a criminal

activity or is it because they are wearing a hoodie and because they're black? at some tonight, law enforcement must affirm -- this is where we need a justification with the law to stand firm and tell community members, i'm not going to stop this person because he or she has done nothing. law enforcement not only enforces the law, they set in many ways the moral enforcement in the community of how to react with each other. >> officer gale, your statement was very strong. but the conclusion raised a question. and i don't have it in front of me, but as i recall -- and is tell me if i'm stating this correctly. you said many members of the law enforcement community were not trusted in the minority communities. can you explain that? you need to turn the microphone on, please. >> my apologies. i think it's pretty clear from what we've seen in media reports recently, especially, but over the course of several years that there's work to be done by law enforcement in the minority

community. rebuild that trust. and i say that -- i say that openly. i think the fop knowledges that. in fact, we are engaged in activities where we are attempting to help law enforcement agencies do just that through community work. so i think that's an important piece. you know, i think the professor talked about the fact that a lot of times in minority communities you have people in those communities that are a valuable resource to law enforcement. i agree with that. in the aspect of law enforcement and the profession of law enforcement, it's necessary to have people in communities where crime is occurring assist you with the an enforcement activities. and so i think the problem has become we seem to blame the enforcers for everything that goes wrong. the problem with that is the enforcers show up on the scene to deal with the information that they have available to them at the time. and our job, when we show up, is

to stabilize the situation. >> but you don't quarrel, i hope you don't quarrel with chief davis' protectionism yeas that law enforcement community has extraordinary power in the moment, the power to arrest, the power to detain, the power to embarrass. and holding them accountable to use that power in a responsible, legal, constitutional way, you don't quarrel with that premise, do you? >> i don't think the fop quarrels with the fact that law enforcement officers have that power, nor do we quarrel with the fact that law enforcement officers should be held accountable. in fact, we are accountable. my testimony illustrated situations where the court had ruled that officers had to be accountable in issues of race. we accept that and embrace it because we believe it's proper. we believe it's appropriate. >> mr. clegg, you said a number of things that caught my attention. and you said that you thought the war on terror justified some measure of profiling.

>> well -- >> well, let me come to the question and then you can certainly explain your position. and i wrote notes as quickly as i could. we need to look at organizations with geopolitical and political ties. i think is something that you said in the course of that. you've heard testimony here from congressman ellison and others about what is happening to muslim americans across the board and many of them are not affiliated with any specific organization. they are affiliated with a faith. and it appears that that has become a premise for surveillance and investigation. i worry, as an amateur student of history, how you could distinguish what you just said from what happened to japanese americans in world war ii where 120,000 were rounded up with no suspicion of any danger to the united states, and their property taken from them, detained and confined because

they happen to be part of an ethnic group which just attacked the united states, the japanese, i should say, attacked the united states and, therefore, they were branded as possibly being a danger in the second world war because of some connection they have with a geopolitical or political group. how would you make that distinction or do you think japanese internment camps were justifiable? >> no, i don't. and when i say that in some limited circumstances some consideration of individuals or organizations, geography and religion can be justified in the war on terror, i am not saying that that means that any consideration under any circumstances of ethnic

profiling and religious profiling is okay. all i'm saying is that i am unwilling to say that it can never be used. and i'll give you examples in my testimony. for instance, you know, suppose that on 9/11 the fbi had gotten reliable information that an individual on one of the grounded airplanes, one of the grounded jets, jetliners had a backup plan. and that he was going to fly a private plane filled with explosives onto a skyscraper. >> but there's a clear distinction and let's make that for the record a predictor and a descriptor. >> no, no, no -- >> when you talk about the class of people guilty for 9/11 and say why wouldn't we go after that class of people in training

to fly and so forth and so on, that is a decrypt -- descriptor that law enforcement can use. but when you conclude that because they were all muslim, we should take a look at all muslims in america across the line. >> well, i didn't say that. and i think that the line that you are drawing between predictor and scripter is inevitably a gray one. this is one reason why i think legislation in this area is a bad idea. isn't it predictive when the fbi, in my hypothetical, says, you know, the individual who is going to fly this plane into a skyscraper is not somebody -- it hasn't already been done. you know, we are trying to predict who it's going to be. and we are going to look at the passenger list on the grounded airplanes and we have only limited resources and limited time. we're working against the clock here and we are going to start by looking at individuals with arabic names. that is racial profiling, according to your bill.

but i think it would be imminently reasonable. >> i certainly disagree. >> you don't think it would be reasonable? >> no, i don't. i really think that when you start going that far afield, why do you stop with arabic names? why wouldn't you include all of muslim religions then? that strikes me as if very core of the reason why we are gathering today. if we are going to say to people across america, you have certain rights and freedoms because you live in america and we have certain values, that it does create perhaps more of a challenge to law enforcement. police state may be much more efficient in those respects, but it isn't america. >> listen, in my testimony, my organization's whole focus is on the principal of e plueribus unum. i take that very seriously. but what i'm saying is there are going to be some circumstances where i think it would be very

unwise for congress to say that law enforcement agencies cannot give some limited consideration to an individual or an organization's geopolitical and, you know, religious background. >> i'd like to defer now to senator graham who has patiently waited for his opportunity. >> thank you all. i guess what we're trying to highlight, in fact, complicated this issue is mr. gale, do you think you've ever been racially profiled? >> probably. >> yeah, i can't say i understand because i don't. i've never been in that situation. but the fact that you're a law enforcement officer and you probably, sometime in your life, have been viewed with suspicion by police makes your testimony pretty persuasive to me in the sense that you're now sitting in

the role of a law enforcement official, trying to protect the community. and the zimmerman case is a private individual, not a law enforcement organization. and i just really -- i think i understand the problem. i just don't know where the line between good law enforcement and racial profiling ends and begins because let me tell you one thing about congress. we'll be the first one to jump on you when you're wrong. when you get a phone call that somebody looks suspicious in the neighborhood and you ask a bunch of questions, well, that doesn't seem to justify us going in and that person winds up killing somebody, or robbing or raping somebody, we'll be the first ones to blame you. so you're in an untenable situation. and when it comes to the war on terror, i couldn't agree with you more. the reality of the fact is, i wish we had done more, not less. there's some websites out there that i'm glad we're monitoring.

there's some groups within america that are saying some pretty radical things. and i hope we follow the leaders of these groups to find out what they're up to because homegrown terrorism is on the rise. how do you fight it without fighting a religion? how do you fight homegrown terrorism without fighting people who are very loyal to america who belong to a particular faith? i don't know. but i know this. if the law enforcement community in this country fails to find out about the major assans, we're the first to be on your case. why didn't you follow this website? he said these things in these meetings and why didn't the supervisor tell the wing commander you've got somebody who is really out of sorts here? and as an air force officer, when do you go though your wing commander and say, this person says something that makes me feel uncomfortable and you do so

at your own peril. so i just don't know what the answer is. i know what the problem is. and i think in the last decade, we've made some progress, chief davis and maybe having legislation that makes us focus on this problem more might make some sense, quite frankly. maybe we would look at redefining it and collecting information to show exactly what happens day in and day out in america so we can act logically on it. i know you want to say something, mr. clegg. but you know when it comes to fighting the war on terror, the fact of the matter is that great britain and france are going through this similar situation right now where they have groups within the countries that are espousing radical ideas. they just expelled someone, i think, great britain, today, yesterday. i don't know when national

security starts and individual liberties begin. what's your thought? >> i want to endorse what some of my co-panelists have said that it's very important in the war on terror that we have the cooperation of the overwhelming majority of individual americans, arab americans and muslim americans. >> don't you think one of the greatest strengths of our country is that even though home grown terrorism is on the rise, generally speaking, american muslims have assimilated in our society and our culture, thousands serve in the military, and that we're actually an example in the world how you assimilate? >> no, i think that's right. stereotyping is very dangerous in this area. most arab americans are not muslims. they're christian. you can't just look at somebody's name and conclude things about them.

as my co-panelist said, it's very important to have the cooperation and the trust of the arab american community. so i don't want to give the impression that i think it should be, you know, open season on anyone on account of their ethnicity or their religion. i'm simply saying there are going to be circumstances -- >> what we should be looking for is actions by individuals within groups, statements made that send signals that this is not where practicing religion should be taken on, it's the activity on the internet. >> well, as professor harris said -- >> that's what we are talking about. how you do that is very complicated. because when you monitor these websites, you may catch some

innocent conversation. so having judicial oversight i think is important. but i guess that's what i'm looking for is sort of objective indicators of, you know, this is getting out of bounds here. >> senator graham, you're absolutely right. it is about behavior. that's the key to everything and making statements, whether out loud or on the internet, that's action. that's behavior. >> and here is the problem we have. if you're an air force member and you have an american muslim in the group and they say something that alarms you, you have to think, well, if i say something, am i going to get myself in trouble? >> but, senator, if i may interject, and it's nice to see you again senator, thanks for yielding to me. i think part of the charge we have in a country that's dedicated to free speech, is in how you draw that line well in a way that doesn't quell speech we want to protect. i know perhaps my organization

and you have different points of view on abortion, for instance. yet i think you and i would completely coincide from the moments i shared with you, i know you and i would completely coincide that anyone who dares up to blow up an abortion clinic is a criminal. >> that's not speech. >> then would you feel comfortable surveilling the anti-abortion website for individuals who perhaps would be willing to blow up an abortion clinic just because they may share the points of view the radicals who would blow up a clinic? i know you would not feel comfortable if i put the words in your mouth. >> i know exactly what you're saying. >> so the context is not that different than the speech we find odious or perhaps we find difficult, but that is what america is about with. democracy is a great many things, but it should never be quiet. but if we all agree it's not the america we all know and love, sir. >> i guess this is where maybe legislation could happen. having thoughts against the government or expressing yourself in an aggressive way, you can be radically pro-choice, radically against abortion.

you can feel the way would you like to feel. you can speak your mind, but there comes a point in time when the rest of us have to defend ourselves and our way of life. and what i hope we'll do in this discussion is not ignore the threats that do exist. there is a lurking, looming threat against this country. and against our way of life. and i hope we will not get so sensitive to this dilemma that we will basically unilaterally disarm ourselves. and when it comes to basically the immigration issue, if there was ever a reason to fix our immigration system, this hearing highlights it. you've got millions of people here undocumented, illegal, and i would just be greatly offended if i were a corporal coming back from afghanistan who happened to have an hispanic last name and got stopped because somebody thinks i'm here illegally. i could be greatly offended.

but the fact of the matter is there's a downside of illegal immigration in terms of crime and the way to solve that for me is a comprehensive immigration reform. thank you very much. i hope we can find something more bipartisan. >> mr. chairman, can i just answer one question? you asked captain gale had he ever been profiled. i'll take a shot at that. unequivocally, yes. but not only that, but as a law enforcement officer, i have profiled. that's the part that we bring to the table that in many cases may be implicit by us. it may be no malice intended. but at the end of the day, the result is you have a disparity effect on the people of color that you need most to address some of the issues that were addressed at the table. so i think for us not to acknowledge that it exists, to acknowledge implicit bias is a

human behavior, that no one is exempt from, that we be trained it in and hold ourselves accountable is what we are talking about. it's easy to focus on the small percentage. i agree with the opening statement. only a small percentage are racists. if it were as simple as racism, it would be an easy problem to fix. but this is a much bigger issue and we have to tackle it at that level. >> thank you senator graham. i'm going to take an extraordinary risk here and put this committee in the hands of senator franken. in all seriousness, we're in a roll call vote and senator graham and i have to vote and senator franken, i recognize you and i'll let you monitor your own time used and watch senator blumenthal proceed and then i'll return. >> thank you. >> you may regret this. i have the gavel. in that case, i'll turn it over to senator blumenthal.

>> i have a -- if i may, i have a question, chief, to follow up on the remark that you made at the close of senator graham's questions. under what circumstances have you profiled and if you could, talk a little bit more about what limiting principles you think should apply to profiling when it is used legitimately, if it can be used legitimately, in your view. >> yes. the example that stands out for me when i was a police officer in oakland, you would have an area that we would identify as high crime. this area was very accessible to the freeway so we had customers from out of town coming in to buy narcotics, and quite often, they were actually white. so the presumption on my part and others was that any white person in the neighborhood would be buying narcotics. the problem with that assessment, it attaches criminality to the entire neighborhood.

so that the only way that neighborhood could be judged is based on the -- that means you're criminalizing everyone that lives there. two, that suggested that the only reason why a white person to visit was to buy drugs. besides being insulting to the neighborhood, it just didn't work. so as we got better, we learned how to watch behaviors. somebody leaning in a car, somebody exchanging money, somebody yelling signals that a drug buy was to take place or that a police officer was coming works better. the circumstances in which i think profiling would work would be under the category of criminal profiling would be the behavior aspects of what a person is doing. in other words, people when they are selling drugs, they engage in certain behaviors. whether it's how they drive or something specific to their actions. i cannot think of any context in which race is appropriate, other than when you're describing someone that's committed a crime. 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? >> 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 process. 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 data that we already 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 stops. 4.3 million. 88% of those -- that's nearly 3.8 million -- were of innocent new yorkers. that means they were neither issued a summons or arrested. 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 685,000 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. because clearly these 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