and jails. captain gale is currently the commander of the training academy in the community relations unit and the public information officer. he has received numerous awards and declarations from the fraternal order of police and the denver sheriff's department. captain gale, it's an honor to have you here today. please proceed. >> thank you. good morning, mr. chairman and distinguished members of the senate subcommittee on constitution, civil rights and human rights. my name is frank gale. i'm a 23-year veteran in the denver county sheriff's department and currently hold the rank of captain. i am the national second vice president for the fraternal order of police, representing more than 330,000 rank and file law enforcement officers in every region of the country. i'm here this morning to discuss our strong opposition to s-1670, the end racial profiling act. i want to begin by saying that it is clear racism is morally and ethically wrong. and in law enforcement is not only wrong but serves no valid purpose. it is wrong to think a person

criminal because of the color of their skin. but it is equally wrong to think a person is a racist because they wear a uniform and a badge. this bill provides a solution to a problem that does not exist unless one believes the problem to be solved is that our nation's law enforcement officers are patently racist and their universal training is based on practicing racism. this notion makes no sense. especially for anyone who truly understands the challenges we face protecting the communities we serve. criminals come in all shapes, colors and sizes. to be effective as a law enforcement officer, it is necessary to be colorblind as you make determinations about criminal conduct or suspicious activity. there is the mistake and perception on the part of some that the ugliness of racism is part of a culture of law enforcement. i'm here today not only to challenge this perception, but to refute it entirely. we can and must restore the bonds of trust between law enforcement and the minority community. to do so would require substantial effort to find real solutions. restoring this trust is critically important because

minority citizens often suffer more as victims of crime, especially violent crime. i do not believe that s-1670 will help repain the bonds of trust and mutual respect between minorities and law enforcement. in fact, i think it will make it more difficult because it lends the suggestion that all cops are racist and that we engage in a tactic that has no purpose but to violate the rights of citizens. that is inhibitive of building trust and respect and lead to a belief that law enforcement officers should not be trusted or respected. this bill proposes to prohibit racial profiling which it defines very broadly and is not a legitimate police practice employed by any law enforcement agency in the united states that i know of. in rand versus the united states, the supreme court made et clear that the constitution prohibits selective enforcement of the law based on considerations such as race. further, as one court of appeals has explained, citizens are entitled to equal protections of

the law at all times. if law enforcement adopts a policy, employs a practice or in a given situation takes steps against a citizen solely on the citizen's race without more then a violation of the equal protection clause has occurred. the united states constitution prohibits racial profiling. yet here we have a bill that proposes to prohibit it. the premise of the bill seems at odds with common sense and current law. the bill does not prohibit racial profiling as the definition of racial profiling and the bill is far too broad. it prohibits officers from the exercise of legitimate routine action involved in deterring involvement in a crime or criminal activity. the bill purports to allow exceptions to these prohibitions when there is a description provided by a trustworthy eyewitness to a suspect's race or ethnicity but in real life, this is not practical.

in the practice of routine investigatory action, law enforcement receive and develop information through a wide range of activities and authorized that are designed to identify suspects, prevent crime or lead to an arrest. this bill would ban many of these types of methods. therefore, a whole range of legitimate law enforcement methods would be prohibited beyond the unconstitutional purely race-based activity. the legislation also threatens to penalize local and state law enforcement agencies by withholding federal law enforcement funding unless these agencies comply with the requirements of the bill to provide all officers training on racial profiling issues. collect racial and other sociological data in accordance with federal regulation and establish an administrative complaint procedure or audit program to ensure an appropriate response to allegations of racial profiling. the fop has testified before you about the dire and dangerous consequences of budget cutbacks for law enforcement in the past. how can we fight the battle if we also propose to deny these funds to agencies that need them because they cannot afford new

training or new personnel to document allegations of racial profiling issues? how can we achieve a colorblind society if the policies of the federal law require the detailed recording of race when it comes to something as common as a traffic stop. what if the officer is unable to determine the driver's race? will police officers now be required to ask for driver's license, registration and proof of ethnicity, please? at a time when citizens are concerned with protecting their personal information, be it concerns about the real i.d. act, voter identification laws or cybercrime, it seems at variance with common sense and sound public policy to ask yet another representative of the government, in this case a law enforcement officer, to collect racial or other personal data and turn that data over to the federal government for analysis. why would something as simple and routine as a traffic stop require such an extraordinary imposition on a driver? i submit to this subcommittee that we do have a problem in our

nation today. the lack of trust and respect for our police officers, police officers have a problem in that they have lost the trust and respect and cooperation of the minority community. this is tragic. because as we have already discussed, it is minorities in our country most hurt by crime and violence. this bill, however, is not the solution. it will make matters worse, not better. for these reasons, the fraternal order of police strongly opposes the bill and i urge this subcommittee to reject it. thank you for the opportunity to appear before the subcommittee. >> thank you very much, officer gale, for being here. roger klaig is the next witness. president of the center for equal opportunity. he's held a number of senior positions in the justice department during the reagan and george h.w. bush administrations, including assistant deputy attorney general in the civil rights division and deputy assistant attorney general in the environment and natural resources division,

attorney general in the office of legal policy. he was a graduate of yale university law school. thank you for being here, sir. please proceed. if you would, turn your microphone on. it's in that box in front of you there. >> thank you very much, senator durbin, for inviting me here today. i'm delighted to be here. let me just summarize briefly my written statement. the first point i make is that care has to be taken in defining the term "racial profiling." and in particular, i think that it's important to bear in mind that racial profiling is disparate treatment on the basis of race. good police activities that happen to have a disparate impact on the basis of race are not racial profiling. the second point i make is that the amount of racial profiling that occurs is frequently exaggerated and that care needs to be taken in analyzing the data in this area. all that said, racial profiling,

as i define it, is a bad policy. and i oppose it for the reasons that many of my co-panelists here are giving. there is one possible exception that i would make, and that is in the anti-terrorism context. in brief, i think that it is quite plausible to me that in the war on terror where we are fighting an enemy that has a particular geopolitical and perverted religious agenda, that it may make sense in some circumstances to look at organizations that have particular religious and geopolitical ties. i'm not happy about doing that. i think it should be done as little as possible. but the stakes are so high that i am not willing to rule it out

all together. the last point i would make is that there are problems with trying to legislate in this area in general. and i think that the end racial profiling act in particular is very problematic. i don't think that this is an easy area for congress to legislate a one-size fits all policy that's going to apply to all law enforcement agencies at all levels of government at all times in all kinds of investigations. and i think it's also a bad idea to encourage heavy judicial involvement in this area. and these are things that the end racial profiling act does. let me also say that i think that chief gale does a very good job of identifying some additional costs in the end racial profiling act, the fact that it is insulting, the data collection is time consuming, and that inevitably, we're going

to either have to guess on -- inaccurately on people's racial and ethnic background or else train the police on how to identify people racially, which is a pretty creepy enterprise. with respect to my other panelists' testimony, i will say briefly in the terrorism and border security context, as i read some of this testimony, they would equate racial profiling with taking a particular look at visitors from particular countries, at considering immigration and citizenship status and at considering language. i don't consider any of those things to be racial profiling. let me make one last point. i think that this is an important point to make whenever we're talking about racial disparities. as i said, mr. chairman, i am

opposed to profiling, particularly to profiling in the traditional law enforcement context where frequently it is african-americans who are the victims of that profiling. i'm against that. nonetheless, i think we have to recognize that it's going to be tempting for the police and individuals to profile, so long as a disproportionate amount of street crime is committed by african-americans and there will be a disproportionate amount of street crime committed by african-americans for so long as more than seven out of ten african-americans are being born out of wedlock. i know this is not a popular thing to say, but i think whenever we are discussing racial disparities in the united states, that is the elephant in the room and it has to be addressed. so ultimately, people like me anl and everyone else in this audience who don't like racial

profiling is going to have to face up to this problem. >> i would ask those in attendance here to please maintain order. >> thank you, mr. chairman. i think i'm at the end of my five minutes, anyway. >> thank you, mr. clegg. david harris, associate dean for research at the university of pittsburgh law school. he's one of the nation's leading scholars on racial profiling. author of the book in 2000, "profiles in injustice, why racial profiling cannot work." and in 2005, "good cops, the case for preventive policing." professor harris appeared at both of the previous senator hearings on racial profiling. so welcome back. >> thank you very much, senator durbin, members of the subcommittee. i'm grateful for the chance to talk to you today. senator durbin's statement opened by recalling for us president bush's promise that racial profiling, quote, is wrong and we will end it in america. sad to say that that promise remains as yet unfulfilled. instead, we have a continuation

of profiling as it existed then with a new overlapping second wave of profiling in the wake of september 11th, as other witnesses have described. directed mostly at arab americans and muslims. now we have a third overlapping wave of profiling, this one against undocumented immigrants. but the context and the mission of whatever these law enforcement actions are does not change the fundamentals. the fundamentals are these. racial profiling does not work to create greater safety or security. instead, racial profiling ethnic profiling, religious profiling mablg all make our security and police less effective and less accurate in doing their very difficult jobs. i would define racial profiling

as the use of racial, ethnic, religious, national origin or other physical characteristics as one factor, not the sole factor, but one factor among others used to decide who to stop, question, frisk, search or take other routine law enforcement action. this is very close if you look at it to the definition of the profiling guidance of the justice department. and i would note that it does not include actions based upon description. description of a known suspect, a person who has been seen by a witness. that is not profiling. that is good police work. all profiling falls on the same set of data, data from across the country, different law enforcement agencies, different missions. it's all about hit rates. when we talk about effectiveness, what we're asking is what is the rate at which police officers and security officers succeed or hit when

they use race, ethnic appearance, religious appearance as opposed to when they do not? and the evidence, the data on this question is unequivocal. it comes from all over the country. when police use race or ethnic appearance or religious appearance this way, they do not become more accurate. in fact, they don't even stay as accurate. they become less accurate than police officers and security agents who do not use these practices. in other words, racial profiling gets us fewer bad guys. why is this? a lot of people find this counterintuitive. there are two big reasons. number one, profiling is the opposite of what we need to do in order to address as yet unknown crimes by as yet unknown suspects. that is addressed most effectively through observation,

careful observation of behavior. and when you introduce race, even as just one factor into the mix, what happens is the observation of behavior becomes less accurate. measurably so and police officers' efforts are damaged and wasted. second, using profiling effects our ability to gather crucial intelligence and information from communities on the ground. and this is true, whatever the context is in which profiling is used. particularly in a national security context, this is absolutely critical. if we are in danger, if there is a threat from international terrorists and if, as some say those international terrorists may be hiding in communities, of arab americans and muslims, the people we need right now as our partners like we have never needed other partners, are people in those arab american and muslim communities. and i want to say that those communities have been strong,

effective, continuously helpful partners to law enforcement in case after case across the country. these communities have helped. but if we put the target of profiling on these whole communities, we will damage our ability to collect intelligence from them because fear will replace trust. in response to some of the comments made by my fellow panelists, a bill like s-1670 which deserves support is not insulting to law enforcement. it's all about accountability. and everybody who is in law enforcement or any other pursuit needs accountability just like i do as a professor, just like everybody else does. racial identification is not an issue. you will not have police officers asking people what their race or ethnic group is. in fact, that's not what we would want at all because it's all about the perception of the officer. that's all that would have to be recorded.

and black street crime is not the issue. the issue is how we deploy our law enforcement officers in ways that are effective, fair and carry out the most important ideals of our society. so for those reasons, i would support any efforts to pass s-1670, the end racial profiling act and to revise the department of justice's profiling guidance. i thank you very much for the opportunity to talk to you and i look forward to the committee's questions. thank you. >> thank you very much, professor harris. chief davis, you spent your lifetime in law enforcement and you've heard the testimony of officer gale that suggested in various strong and pointed language that raising this question, racial profiling, really -- he says unless you believe police are racist, he suggests this is unnecessary.

so what is your answer to this? as i said at the outset, you trust, we trust these men in uniform, women, as well, who risk their lives every day for us. and the question he's raised is if we cannot trust their judgment and assume that they are going to violate the constitution and the law, then we are suspicious of them when we should be more trusting. >> thank you, mr. chairman, for the question. i completely disagree with my colleague. the idea that a police officer or police department should not be held accountable is counter to the idea of democracy. if any group should be held accountable, it must be the police. we have awesome power and responsibility. the power to take life and the power to take freedom. the idea that we could not collect data to ensure that that power is used judiciously and prudently would be counter to sound managerial principles. we collect data every day. we collect data on crime. we collect data for budget purposes. we collect data for our very justification and existence.

we use it to tell you that you need to increase budgets to the state. we use crime to justify why we deploy resources. the idea of using data means that you're using intelligence. intelligence led policing prevents the need to do guesswork or bias-based policing. and so where i do appreciate the notion that we should respect law enforcement, as a law enforcement officer, i think there is no more noble professor but the idea that i'm except from the constitution or exempt to accountability is counter to why i got in the job. i don't think it's insulting. i think what is insulting is to allow police officers to come under the threats of accusations of racial profiling and not be in a position to counter it, not be in a position to make sure that 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 really 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, notorious 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 minimal requirements. i think the idea that people should be held accountable including our community is very real. the issue of racial profiling is in many cases, and maybe the trayvon martin case may bring this out later, gets into what role law enforcement plays with its own community bias. 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 that we simply respond and stop without inquiring why the person is suspicious, is it their behavior, the fact that they were engaged in criminal activity or because they're wearing a hoodie and they're black? 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. we do have to look at the idea that law enforcement not only enforces the law, they also set in many ways the moral authority of its community on how to interact with each other. >> officer gale, your statement was very strong. but the conclusion of it raised a question. and i don't have it in front of me, but as i recall and 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 acknowledges that in fact we are engaged in activities where we are attempting to help law enforcement officers and 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 enforcement activities. and so i think the problem, though, has become that we seem to want to blame the enforcers for everything that goes wrong. the problem with that is that the enforcers show up on the scene to deal with the situation 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 couldn't quarrel, i hope you don't quarrel with chief davis' premise 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. i think my testimony illustrated situations where the court had ruled that officers had to be accountable in issues of race and we accept that and embrace it, because we believe it's proper. we believe it's appropriate. >> mr. clegg said a number of things which 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 elison 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 happened to be part of an ethnic group which had just attacked the united states, the japanese, i should say, attacked the united states. therefore, they were branded as possibly being a danger in the second world war because of some connection they might have with a geopolitical or political

group. how would you make that distinction or do you happen to think japanese interment 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 into 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 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 descriptor 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 lists 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 eminently reasonable. >> i certainly disagree. that's why -- >> you don't think it would be reasonable? >> no, i don't. i really think when you start going that far afield, why do you stop with