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 also note that this celebrated case, this notorious case involving trayvon martin, involved a person being accused who is 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 while it's important and why we need the data, 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 basically engaged in criminal activity or because they're wearing a hood are and because they are black? at some point law enforcement must stand firm. this is where we need the justification with the law to stand firm and even tell community members, no, 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 that 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, you know, over the course of several years that there's work to be done by law enforcement in the minority community to 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 don'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 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 happened to be part of an ethnic group which had 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 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 give 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, 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, you cross 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. now, that is racial profiling, according to your bill, but i think it would be imminently 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 arabic names? why wouldn't you include all of muslim religion, then? i mean, that just strikes me as the very core of the reason that we are gathering today, that 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. a police state may be more -- much more efficient in many respects, but it isn't america. >> well, listen, i in my pm, i in my whole -- my organization's whole focus is on the principles

of e. plushus unum. i take that very seriously, mr. chairman. 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's 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 is how complicated this issue is. mr. gale, do you think you have ever been racially profiled? >> probably. >> yeah, i -- 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, mr. clegg, i couldn't agree with you more. the reality of the fact is that i wish we had done more to major

hasan, 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, that if -- in the law enforcement community in this country fails to find out about the major hasans, we either first one 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 to your wing commander and say this person

said 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 but just 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 when it comes to fighting the war on terror, the fact of the matter is that great britain and france are going through this very similar situation right now where they have groups within the country that are espousing some pretty radical ideas, and they just expelled someone, i think, from great britain just today or yesterday, an iman who

was saying some pretty radical things. 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 great strengths of our country is that even though homegrown 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 the example to the world of how you assimila assimilate. >> no, i think that's right. stereotyping is very dangerous in this area. most arab-americans are not

muslims. i believe 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 arab-american communities, 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 t 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 -- this is not where, you know, practicing religion should be taking one, is the activity on the internet. >> well, what professor harris has said. >> that's what i want us to -- how we do that i think is very complicated because when you monitor these websites, maybe you capture 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 just say something, am i going to get myself in trouble? >> but, senator, if i may interject, nice to see you again, senator, thank you for yielding to me. i think part of the challenge we have in a country that's dedicated to free speech is how you draw that line well in a way that doesn't quell speech we want to protect. i know that 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've shared with you, i know you and i would completely coincide that anyone who dares to blow up an abortion clinic is a criminal. >> that's not speech. >> and yet then would you feel comfortable surveilling the anti-abortion websites for individuals who perhaps would be willing to blow up an abortion clinic just because they happen to share the points of view of 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 in the context of speech that perhaps we find odious, perhaps we find difficult, but that is what america is about. democracy is a great many things, but it should never be quiet. but if we all agree it's not the america we know and love, sir -- >> i guess this is where maybe legislation could happen. my time is up. 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 you would 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 have millions of people here who are 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 that i'm here illegally. i could be greatly offended, but the fact of the matter is that, you know, there's a downside of illegal immigration in terms of crime, and the way to solve that problem is clear it me is comprehensive immigration reform. thank you all. this has been a very good hearing, and we'll see if we can work with senator cardin to find something maybe 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 i think what's telling, not only have i been profiled, 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 bias. it may be no malice intended. but at the end of the day, the result is that you have a disparate effect on the people of color that you need most to help address some of the issues that were 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, for us to require that we are trained in it, that we hold ourselves accountable so that we don't have these disparate outcomes is really what we're talking about. and it's easy to focus on the small percentage. i agree with the opening statement. only a small percentage of our profession i believe are racist. but if the issue was as simple as racism, it would be an easy problem to fix. it's a much bigger issue, and i think we have to tackle it at that level. >> well said. >> thank you, senator graham. i'm going to take an extraordinary risk here and put this committee in the hands of senator franken. >> at ease. >> in all seriousness, we're on a roll call vote and senator graham and i have to vote, and senator franken, i'm going to 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 actually very accessible to the freeway so we had customers coming in from out of town to buy narcotics and quite often they were actually white.

so the presumption on my part and many others that any white person in the neighborhood would then 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 was based on the actions of a few which means that you're criminalizing everyone that lives there, and, two, that suggested that the only reason why a white person would visit someone black is to buy drugs. besides being ineffective and insulting to the neighborhood, it wasn't very -- it just did not work. so as we got better, we learned how to watch behaviors. so now someone leaning on a car, someone exchanging money, somebody yelling signals that a drug buy was about to take place or the police officers were coming works a lot better. doing proper investigations. the circumstances in which i think profiling would work would be under the category of criminal profiling when you're looking at behavioral aspects of what a person is doing. in other words, a person -- people that when they're selling drugs, they engage in certain behaviors. whether it's how they drive, whether there's furtive movements in a car, something that would be 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 that what ends up -- race ends up doing is being a huge distractor, so now we've seen this time and time again. we did operation pipeline in california where we targeted so-called drug couriers, and we did not get what we were looking for because we were so busy looking for black or brown people driving on a freeway. and we've proven wrong time and time again, and with enlose 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 now looking into some of the dangers of basing convictions and even 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 really 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 a radio that you're looking for a black male, six foot tall, 225 pounds and very hand some that did a robbery, then it would make sense that you would stop me. i could understand that. >> objection. >> but the officer has to make an assessment at the time. so there's a time and place, just 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 if used for identifying or profiling

individuals can be either distracting or undermining credibility and really should be used in combination, if any, used 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. you know, one of the things we talk about is the stop and frisk, terry stop type of situations. it's all 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 is that now you would have criminals who are 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. and i think there's a presumption by some and wrongly so, i believe, that, you know, no criminals ever complain against police officers and that no criminals ever, you know, don't just acknowledge that they do crime. my experience in 23 years is that it's very rare to roll up on someone engaged in criminal conduct and have them say oh, you got me, copper. i'm guilty. they don't do that. they look for any way they can to try to get out of that process. conduct is what drives all of it. the distractor is now that if you pass a bill like this, you're going to now say here's something you can use in addition. i think the courts have already told law enforcement agencies very clearly 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 loathe to create what you have charitably called distractions, impediments to effective law enforcement. but i think that one of the roles of legislation, it's 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 guess i must take some time to visit your fair city of denver because it doesn't look like any of the major cities that i've visited in my 11 years as director of the aclu. with all due respect, you will forgive me for having to point out that your very optimistic assertion that all is well is just not borne out by the data we already have. let me give you data that i know quite 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 either arrested for summons or -- either issued a summons or arrested. now let's break it down by race, because obviously it's a much better place. if you're a puerto rican like

me, you might live in denver, but new york is not a very good place for people who are african-american or latino. in 2011 a record 685,000 new yorkers were stopped by the new york city police department. 88% were totally innocent of any crime. 53% of those 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 demure when you say that this is all conduct driven because clearly these facts bear otherwise. i think one point where we agree is the fraternity order of police nationwide lacked the trust from communities of color. i think you've said as much.