Black Chicagoans disproportionately bear the highest numbers of stop and frisks, and half of stops are not justified by the officers. The United States Department of Justice (“DOJ”) has recognized that when stop and frisk programs do not comply with constitutional principles and minorities are disproportionately stopped, there is a grave impact on the relationship between police and the community. The DOJ recently wrote a report on Newark, New Jersey, finding that the stop and frisk program failed to comply with constitutional principles and disproportionately stopped African Americans.(15) The DOJ found that the “experience of disproportionately being subjected to stops and arrests in violation of the Fourth Amendment shapes black residents’ interactions with the NPD, to the detriment of community trust, and makes the job of delivering police services in Newark more dangerous and less effective.”(16) The same can be said for Chicago.
These disparities might be explained by racial profiling, or by officers’ implicit bias. The Chicago Police Department has a written policy that “expressly prohibits ‘racial profiling’ and ‘other bias based policing.’”(17) But often, especially when decisions are subjective, people can be unknowingly influenced by implicit bias and not realize their decisions are influenced by race.(18) In assessing the Seattle Police Department, the DOJ recognized that sometimes “biased policing is not primarily about the ill-intentioned officer but rather the officer who engages in discriminatory practices subconsciously. … Understanding this phenomenon is the first step toward safe and effective policing.”(19) Federal law and Illinois law prohibit not just intentional discrimination, but also policies that result in discrimination – even when a person does not make a conscious decision to discriminate.(20)
Despite its legal obligation to refrain from policies that cause a racially disparate impact, the Chicago Police Department’s recordkeeping is a barrier to determining whether officers are engaged in biased policing. Neither police supervisors nor members of the public can do comprehensive analysis. Under existing CPD policy, there is no way to identify all stops – including stops which lead to arrests. Further, officers do not record or justify frisks. Therefore, unlike in other cities, we cannot assess how often the stops lead to an arrest, who is frisked and why, or how often frisks result in contraband.
Consistently, when faced with similar constitutional violations and disparities in other cities like Newark, Seattle, and LA, the DOJ has required better data collection to provide transparency and to ensure better practices.(21)
(15) Investigation of the Newark Police Department, UNITED STATES DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION, at 2 (July 22, 2014) http://www.justice.gov/usao/nj/Press/files/pdffiles/2014/NPD%20Findings%20Report.pdf [hereinafter Newark DOJ Report].
(16) Newark DOJ Report supra note 25, at 2; see also Statement of Interest of the United States, at 10, Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013) (No. 08 CV 1034), 2013 WL 8017535 (“Officers can only police safely and effectively if they maintain the trust and cooperation of the communities within which they work, but the public’s trust and willingness to cooperate with the police are damaged when officers routinely fail to respect the rule of law.”).
(17) See CPD General Order G02-04, effective date Feb. 22, 2012.
(18) See e.g., Linda Hamilton Krieger & Susan T. Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 Cal. L. Rev. 997, 1030-31 (2006).
(19) Investigation of the Seattle Police Department, UNITED STATES DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION, at 34 (Dec. 16, 2011) http://www.justice.gov/crt/about/spl/documents/spd_findletter_12-16-11.pdf [hereinafter Seattle DOJ Report].
(20) See 42 U.S.C. § 2000d; 42 U.S.C. § 3789d(c)(1); 740 ILCS 23/5(a)(2) (creating a cause of action for disparate impact discrimination).
(21) See e.g. Newark DOJ Report supra note 25, at 4 (“The NPD further must collect and analyze data related to stops, searches, and arrests, so that it can minimize the disparate impact of its enforcement efforts and avoid bias in policing.”); Seattle DOJ Report supra note 29, at 8; Consent Decree, United States v. City of Los Angeles, LAPDONLINE.ORG, http://assets.lapdonline.org/assets/pdf/final_consent_decree.pdf; see also Third Report to Court and Monitor on Stop and Frisk Practices for Plaintiff, Bailey v. City of Philadelphia (2013) (C.A No 10-5952), available at http://www.aclupa.org/download_file/view_inline/1015/198/ (report on data recorded as part of settlement with a lawsuit brought by the ACLU of PA).
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