you will, with communities of color, and i would assert that the reason why you have that difficult with the communities of color that you are there to serve is because they know these facts. they may not know them the way i know them, but they experience it, and that's precisely why the end racial profiling act is essential. the data we have already tells us that there's a problem. let's collect more data, and let's put in place some more 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 truth. the supreme court case lastbly in the case of wren which i can cite for you, basically allows police officers to make a pretextural stop based on race, ethnicity and national origin. it is the law of the land according to our supreme court. at times our supreme court gets it wrong, which is why which exhort this congress and this senate to step in and to enact a law when we know that there is a problem that has yet not come to the attention of our supreme

court. so 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 need 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 called me chairman. that's the protocol. >> i think i need the advice. i have the right to remain silent, don't i? >> yes, you did. unfortunately, i do have to 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 cooperation between law enforcement officers and the communities they serve, and it seems that everyone agrees that racial profile can undermine trust in the authorities and can cause resentments among the targeted groups. minnesota is home to a large population of somali-americans. in my experience nobody -- no community was more upset than the somali community when we learned that a few somali-americans had been -- had gone back to somalia and become involved with al shabab. when i talked to both the fbi director muller and when -- and maybe 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 question is 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 that police have played, the role of law enforcement with regard to race in this country.

i think we still have generations of people that remember desegregation. we have generations of people that were still -- are still here that remember when the police were the enforcement tool and the rule of law with regards to jim crowe laws and black codes, and so we have to acknowledge that we may start off with this lack of trust and confidence, so it's one interaction at a time. i think the first thing law enforcement can do is acknowledgement, to 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 still have a very disparate results with regards to people of color, whether intended or not. we should put our defenses down and realize we're here to serve and not be served and we have to realize we're only going to be successful if the community engages with us. the more we engage in that, the safer we make them. the safer we make our communities, the more they will then partner with us. with the evidence that's showing time and time again in each major city and community, the

stronger relationship between the police and minority communities, the greater the crime reduction is going to be, so we do it one interaction at a time. we do it which holding officers accountable, and we also do it by acknowledging that which is in front of us. there's no greater insult as a minority and someone looking into my eyes and insult my intelligence say there's not profiling when everything about it is and that's one thing in our communities that we need to stop doing. >> 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, whether

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, then we have to listen. we have to validate it, and we have to dialogue through it, and i think we have -- we have to take agencies and train agencies to understand who these populations are that they are serving and what the concerns of those agencies are. i agree also with chief davis that, you know, we have to acknowledge the history of law enforcement 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 very candidly with our membership and say that this is the way that 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, 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. marilyn, your written testimony on behalf of the aclu, you wrote about 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 muller 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 -- 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 -- what i would first point out is, of course, those -- 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 a democracy's x-ray, how do we get documents that we need, 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 to come in for a voluntary fingerprinting and photographing, mapping out mosques. we had a hunch that they had to

some training material works that were going to be troubling and problematic, and lamentbly our hunches were borne out. i think, frankly, one thing that the fbi has to do, that i would encourage, director muller is a man with whom we have great disagreements. we have sued him dozens of times, but for the record he's a man of enormous credibility. he's probably the men in the justice department, both under the bush and obama teams and whom i have the greatest regard and respect sine qua non and i would encourage you and him to take up more active perceptions on the threat assessments which is only the tip of the iceberg. the attorney general guidelines allow them now to begin investigations on anybody they choose so long as they can claim they are 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 encouraged the attorney general to retire the use of these threat assessments, but at least in the very first step you can ask the fbi to do more vigorous reporting on you, even if it is in camera. retraining is essential, because, remember, all the folks that got the lovely little chart showing how the arab mind is a cluster mind, and i'm quoting verbatim, is a clustered 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 are going to continue to do those activities. and so i think retraining is

essential, and probing into the assessments and how those assessments have been used, particularly in the muslim context, i think would be a place of important focus. >> thank you, mr. romero, and thank you, mr. chairman. i noticed you're back so i'll -- you already took the gavel, didn't you? thank you all. thank you, gentlemen. >> senator coons. >> 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 a county executive, i worked hard in supervision of about a 380 sworn officer department to ensure that we had effective and strong outreach, not just to traditionally subject to harassment or questioning communities like the

african-american or latino communities but also post- 9/11, making sure there was better training and outreach and relationship with our muslim community and given some incidents that concerned with our lbgt community and just making sure that we stayed as a policing organization engaged and accountable. and i just wanted to start, officer gale and chief davis, for thanking you for your leadership in the policing community and for your service to the public of i appreciated you starting by just helping me understand what's the impact on a police force that practices racial profiling where it's either part of 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 but as you notice because of votes, a number of us have had to step in and out, and i'd be interested in your response it that. >> thank you, senator. i think it's multiple parts, if i might say. aside from the organization that we did not talk about, an agency

that does engage in systemic racial profiling has lower morale because you have those inside who are opposed to it, those engaged in it and it causes a conflict in itself. within a community i would probably argue that the community is suffering because now you have a practice in which they are losing touch with their community, which makes them very ineffective, and quite frankly in today's society it makes them 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 and workers' comp claims. so it's a very expensive venture when you engage in systemic racial profiling. most importantly, you have a community that is denied some of their basic rights. and so, as you know, as a county executive, can you not 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, and 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, though we're talking about race from a chief's perspective, from an executive perspective is very -- is poor managerial practice. it results in loss of revenues, support. like i said, it causes internal strife. it's just not an effective strategy. >> captain gale, would you agree that this is bad policeing? does it have consequences internally? >> absolutely. i mean, 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 are victimizing citizens and they are somehow or another a rogue force, but that's where it all drives from. it all drives from the management fill option if i of the organization, and the chief is right. it does result in low morale,

but it also results in low morale, not just because you're going to have people in the agency that would disagree with the practice or the fact that there is no appropriate accountability for officers who are clearly operating outside professional conduct, it has low morale when the community that we serve then becomes 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 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 unprofessionly, and i do so, you know. i think some people have said here, 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 and 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 accountable, and that's expected. you know, we don't have to have specific rules that say that 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, but 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, and it calls for a movement pause. what happens is when an agency does not have the type of trust or confidence to which we're alluding or discussing, you have racial bowed kegs that are sitting there. if you look at our history, there's usually been some kind

of incident and it gets confusing because the incident may be a legal incident. it may be something that by itself would not make sense to cause such a response, but it reflects years of abuse and neglect. it reflects i think one of the congress persons said earlier enough is enough, and so when agencies are blind to this or systematically engaging in it, they are signature on these bowed kegs that an incident like a trayvon martin or oscar grant in oakland can ignite and that's when we see large demonstrations and you start having race riots. it's not the incident by itself as much as it is the buildup to thanks dent. 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 serve that can also have a negative impact on your effectiveness, on your ability

to effectively police. we've heard that across the whole panel. i want to move, if i could, professor harris, to a question about standards. if you look at the reasonable specks standard that controls the law enforcement ability to stop and 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 have you 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 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, forte, and others, these are not all cases that i'm familiar with personally, but that's the line of analysis by the supreme court that has laid this 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 that we detail a number of the seminole 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. >> senator, if i may, the one area, going to the question you had about the lawsuits, or why people can't file the complaint is, in many cases, i think the bigger challenge is that it may actually follow a legal stop. this is why the legislation is critical. why data collection is critical. i think when we think of profiling people, people sometimes unfortunately think that the stop itself may not have legal cause. so we have a phrase in policing, give me a car, two minutes and a vehicle code and i'll find a reason to stop you. so the stop may be justified. cracked windshield, bald tires. you know, you'll see those low discretionary stops being used quite often to get to, as to we talked about a pretext to other things. so it makes it hard on an individual basis, the person complains for being stopped but in fact they did have a cracked windshield. or a cracked taillight, and it makes it hard for that individual case, what you need to do to track holistically to

see that that's the 10,000th cracked windshield, 90% of them may be all of one group of color. >> i see that i am well past my time and i appreciate the concerns that have been raised by this conversation, this hearing today, about the definition of racial profiling, about the importance of being narrowly targeted in a legislative response but i'm grateful chairman durbin for your crafting a bill that insists on training on data collection, and on a narrowly crafted response to a significant problem. thank you very much. >> thanks, senator kuntz. following up on your question, i think one of the obstacles, mr. romero can probably back this up, is when you're dealing with the question of whether or not race or ethnicity or profiling is the sole cause for the stop, you run into a real obstacle. our staff did a little research. turns out this isn't the first time that congress has talked about this. arguing the discrimination should only be prohibited if based solely on race and

ethnicity has an unfortunate congressional lineage. segregationists attempted to gut the civil rights act of 1964 by offering an amendment that would limited the act's reach of discrimination based solely on race. senator clifford case of new jersey argued in opposition saying this amendment would place upon persons attempting to prove a violation of a section no matter how clear the violation was an obstacle so great as to make the title completely worthless. and senator warren of washington said limiting the civil rights act on discrimination based solely on race would "negate the entire purpose of what we're trying to do." so the courts have set a standard which makes it extremely difficult, and chief davis, your examples, there might be a cracked taillight, as the reason they're being pulled over. what we found in illinois, incidentally, to go to my home state, consent searches by the illinois state police between 204 and 2010. hispanic motorists in my state were two to four times more likely to be searched. african-american two to three times more likely to be subject to consent searches than white

motorists. however, white motorists were 89% more likely than hispanic motorists and 26% more likely than african-american motorists to have contraband in their vehicles. so it made no sense from a law enforcement viewpoint to do this, and yet it is done. i thank you for this hearing, and i'm sorry it took ten years to get back together, and i'm sorry that we need to get back together, but to put it in historic perspective, back to our nation's very beginning, our founding fathers started wrestling with issues of race, gender and religion, and this year's presidential campaign wrestles with issues of race, issues of gender and religion, and it is an ongoing debate in this nation. there are moments of great leadership and there have been moments of ignominious contact. conduct. as far as accountability is concerned, yes, this would hold

law enforcement accountable but i hope we hold every person in our government accountable, including members of congress. let me concede i came to this job saying -- remembers what bill clinton once said when he was being interviewed before he became president. is there any issue you will not compromise on? he said, i will never compromise on race. he said that as a man who grew up in arkansas and saw segregation. i thought that is a good standard, durbin. you saw it, too, in your hometown. hold to that standard, and i looked back and remember in my time in the house of representatives of voting for a measure that turned out to have a dramatically negative racial impact. the establishment of the crack cocaine standard and sentencing of 100 to 1. years later i was given an opportunity in this committee to try to make that right, and

bring it back to 1 to 1. i couldn't get the job done because of the nature of compromise, it's been reduced to 18 to 1. still a terrible disparity but a dramatic improvement. what happened as result of that bad vote? by black and white congressmen? we lost trust in the african-american community. many people serving on juries said i'm not going to do this. i am just not going to send that woman, that person away for ten or 20 years because of a crack cocaine violation. we lost their trust, officer gale. and i can see it when the judges came and talked to us about it. we moved back to try to establish some trust in that community by doing the right thing, but we need to be held accountable. this senator and all of us. whether we're in elected or appointed office in our government, we serve. we serve the public. and that accountability has to be part of that service. this is not going to resolve the issue. i think it is, i mentioned earlier, more complicated today, because of concealed carry and some of the standards being established in states. more complicated today, as mr. clegg has said, because the war on terror raises legitimate concerns about the safety of our nation and how far will we go to respect our national security, without violating our basic values under the constitution.

i thank you all for your testimony. it's been a very positive part of this conversation, which we need to engage in even further. there's a lot of interest in today's hearings. 225 organizations submitted testimony. thank goodness they didn't come here to speak. but we're glad to have their testimony. and we'll put it in the record without objection. that's good. it will include the episcopal church, illinois association chiefs of police, the illinois coalition for immigrant refugee rights. japanese-american citizens league, leadership conference on civil and human rights, muslim advocates, naacp. national council, national immigration forum, rights working group sheikh coalition. south asian-americans and the southern poverty center and these statements will be made part of the record kept open for a week for additional statements. it's possible someone will send you a written question. it doesn't happen very often, but if they do i hope you'll