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 -- 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 mrai 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 the 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 local 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 hasans, we're the 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 officers, 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 only 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 lenlis lagz 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. but you know when it comes to finding 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 -- some pretty 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 he doors some of what my copanelists have said. that it's very important in the war on terror that we have the cooperation of the overwhelming majority individual americans, arab americans and muslim americans. >> 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 examples of the world of 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 copanelist 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 action by individuals, statements that send singles this is not where practicing religion should be taken on is the activity on the internet. >> well, as professor harris said -- >> but that's the point i want to make. how we do that, communication is very important. so maybe you 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 a 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 object, 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 each -- we know we have not to protect. i know my organization and you have different points of view on abortion, for instance. yet i think you and i would

completely cohen side at anyone who dares to blow up an apportion clinic is not criminal. that's not speech. >> then would you feel comfortable sur veiling 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 who 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 that perhaps we find odeus, 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. there's central against the government or expressioning yourself in a different way.

you can radically feel prochoice. 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 em gragz system, this hearing highlights it. you have millions of people who are who are undocumented, illegal, and i would just be greatly offended if i were a corporal coming back from afghanistan who happened to have a his panic 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 an down side in illegal immigration in terms of crime and the way to solve that fob for me is coming helps iive reform. >> 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 an effect o people of color that you need most to 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, for us to acknowledge that we hold ourselves accountable is really what we're talking about. and it's easy to focus on the small percentage. i agree with the opening statement. but if the issue was as simple as ratism, it would be a bigger problem to fix. >> 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'll 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 cloes of senator graham's questions. under what circumstances have you profiled and if you could, talk a little bit more about what limiting principals 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 coming in from out of town to buy narcotics and quite often, they were white. so the prooms 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

criminology to the entire neighborhood. that means you're criminalizing everything that lives there. two, that suggested that the only reason why a white person to visit was to buy drugs. back seat besides being insulting, it just didn't work. so as we got better, we learned how to watch behaviors. now somebody yelling signals that a drug buy was about to take place or that the police officer was coming works better. the circumstances in which i think profiling would work would be under the category of aspects. people, when they're selling drugs, they engage in certain behaviors, whether it's how they dry, whether it's 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

rates ends up being a huge distracter. 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 snch. >> yes. in fact, there's much work in science into looking at some of the danger everies of basing communicate or arrests on lineup. if i may, one of the questions that came up earlier was about officers guessing on race.

it's interesting because we're supposed to assess race. and so the idea -- i don't think we're sucking that race has no place. so if you put something comes out on the radio that you're looking for a black male, 225 pounds, then it would make sense why help minimum. i could understand that. but the officer has to make an assessment at the time. there's a time and place b not just 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 credibilities and really should be used in

combination with other, if at all, characteristics, mainly conduct, bhaifr and so forth. what would you think that is? >> 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-on-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 in order in that. i think the skerming fact will as a tractioner as their complain for something been arrested of or stopped because

of your criminal conduct. i think there's an assumption by some, wrongly maybe, that snow 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 say, oh, you got me copper. i'm guilty. they look for anything they can to get out of it. >> the distracter is now if you pass a bill like this, you're going to now 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 this. 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, impediments to effective law enforcement. but i think that one of the roles of legislation, it's also to provide guidance, raise awareness and practice provide direction to police or their departments who maintd be as aware as you are or even other witnesses here. mr. romero. >> thank you, senator blument l blumenthal. officer gale, i must take some time to visit your fare city of denver because it doesn't look

liej any of the major cities i've visited in any 11 years as director of the aclu. with all due respect, you will forgive me for having to point out that your very apt mystic assertion that all is well is not born out by the daddy that we have have. let my give you data that we think very well in new york city, the country's largest police department. there were, from 2002 to 2011, there were more than 4.3 million street stuff. 4.3 million. 88% of those -- that's nearly 3.8 million -- were of independent workers. that means very much eithered arrests or summons. let's break it down place by place. norfolk is not a very good place for people who are african-american or latino.

in 2011, a record 285,000 people were stopped by the new york police department. 88% were totally innocent of any crime. 53% were black. 34% were latino. 9% white and 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 this is all conduct driven. 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 fraternal order of police nationwide lacks the trust from communities of color. i think you have said as much. so you have a pr problem, if you will, with communities of color. and i would assert that the reason why you mv that difficult with the communities of color

you are there to serve is that they know these. these weren't it. that's exactly why i think the racial profiling is essential. the data we have is problem. let's collect the data and put in place some remedies. your point about the supreme court and the equal protection clause giving sufficient comfort to those who have been roamed by the police, that's simply not true. the supreme court case in the case of wren basically allowed police officers to make a pretextual stop based on race, neglect nisty at times, this is why we weren't to come to but may not come to the attention of our supreme court. with all that, i thank you. >> thank you. my time is up.

i want to thank all of the witnesses. this has been a ve, very important and useful hearing and we have some areas of disagreement xh iveng 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 call me the chairman. it's protocol. >> you know, i think i need the advice -- i have a right to remain silent, don't i? >> yes, you do. >> unfortunately, i have an appointment, so i'm going to ask my questions and then you'll get the gavel and you'll be the chairman and get every due respect being called the chairman. >> thank you, senator

blumenthal. everyone here has talked about the importance of law enforcement officers and the communities that they serve. it seems everyone agrees racial profile can undermine trust in the authorities and can cause resentment us among the targeted groups. minnesota is home to a law comfort. in my sxries, reef lernt a few minutes sh come back from there. when i talked to director muller and maybe more importantly when i went back to the twin citys and talked to special agent in charge there, both said that the somali community had been

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

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

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

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

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

mr. romero, what actions can fbi take to show it is serious about reforming its training programs? >> thank you for the question, senator franken. and, yes, what i would first point out is, of course, those memos and files and training manuals surprised us. when we used the freedom of information act we go asking for documents we continue to know exist. and so we used the freedom of information act as democracies x-ray. thousand get documents we need. that questions, hunches, based on conduct of what we've seen already when the fbi's been tracking young muslim men between the ages of 18 and 33 asking them to come in for voluntary fingerprinting, we had a hunch they had to have some training materials that were going to be troubling and problematic, and lamentably our

hunches were borne out. i think frankly, one thing the fbi needs to, i would encourage, and director mueller is a man with whom we have great disagreements. we've sued him dozens of time, but for the record, he's a man of enormous credibility. he's probably the man in the justice department both under the bush and the obama team in whom i have the greatest personal regard and respect. seen quo none. and with all that i encourage you to encourage him to take a much more active position on these threat assessments, which i fear are only the tip of the iceberg. the attorney general guidelines allow now them to begin investigations on anyone they choose so long as they can claim they're doing it to gain information on criminal activities, national security or foreign intelligence. and the amount of reporting on those threat assessments is rather limited, as we all know.

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

assessments are used particularly in a muslim context would be of importance and focus. >> thank you. mr. chairman i noticed your back. you already took the gavel. didn't you? thank you all. thank you. >> senator kuntz. >> thank you, chairman durbin. thank you for calling this hearing for your long and passionate and vigilant advocacy four civil rights and your leadership in this area for this legislation and for this hearing. in my own role prior to becoming a senator as county executive, i worked hard in a 3 a380 sworn officer to ensure we had an effective and strong outreach not just traditionally to harassment and communities like the african-american and latino communities but also post-9/11 making sure there was better training and outreach in relationship with our muslim

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

causes a conflict within itself. within a community i would also probably argue that the community is suffering, because now you have a practice in which is losing touch with the community, making them very ineffective. in today's society, makes it much more expensive. 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 eschew herb issues incre sick leave and comp time. and most importantly, you have a community that is denied some basic rights. so as you know, as a county executive, you cannot serve the community effectively if they don't trust you. there's historic trust. there's always going to be some challenges and strains but to the extent that there's a legitimate outreach to the extent in which we're trying to, i agree with captain gale, listen, and respond, and respect, i think we have a better chance of being

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

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

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

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

suspicion of standard that controls the ability of law enforcement to stop and question an individual, as opposed to probable cause, which covers arrest. profiles appears to be a much larger problem potentially in the area of reasonable suspicion. how you have seen that play out? what is important in fighting that standard and then i 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. put your finger on something important. the reason 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 league 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 of standard, profiling and other ineffective approaches to law enforcement run rmp rampant and we have the statistics mr. romero state add moment ago. >> this can be a violation of civil rights as i believe it is under a whole line of case,

martinez, case i'm not familiar with personally but the line of analysis i think by the supreme court that laid this out. why do we not see more enforcement actions for racial profiles by the department of justice and if you would 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