ACLU Analysis of APD Racial Profiling Policy

By Scott Henson, Last updated August 31, 2001

The Austin Police Department had already pledged to begin a racial profiling documentation policy before the Texas Legislature passed SB 1074. The policy was created without apparent knowledge of SB1074, which includes several requirements APD failed to address. But some portions of APD policy which are responsive to SB 1074 are exceptionally good and should be considered models for other departments.

Data gathering issues

First, APD should be commended for requiring data collection on all police interactions with citizens, including traffic and pedestrian stops. Under state law, this level of data collection was not required until 2003, and APD deserves recognition for going the “extra mile.” ACLU encourages other law enforcement agencies to follow their example.

But the data collection policy also has shortcomings. APD has repeatedly stated that its data collection exceeds requirements of state law. This is technically true but somewhat misleading. Because the “field observation” cards have not yet been finalized (a consultant is presently working on them at last report), it’s impossible to know exactly what field data APD will gather. As mentioned, APD requires including pedestrian stops immediately, whereas under SB1074 that requirement doesn’t kick in until 2003. But the policy does not require collection of the full range of “Phase 2” data – including whether a search was conducted, whether consent was given, and other data – which also kicks in January 1, 2003. To put it another way, if current APD policy were to remain stagnant, it would go out of compliance with state law on this issue on January 1, 2003 unless the “field observation” cards include the full range of Phase 2 data listed in SB 1074.

APD has made no indication it intends to install video in every car, so we assume it will begin to comply with the Phase 2 data collection in 2003 anyway. ACLU recommends that since APD already is setting up the infrastructure, they should implement the full Phase 2 data collection from the beginning, serving as a model for other cities.

No complaint process designated for racial profiling

State law requires that each department establish a complaint process for racial profiling complaints. It also requires that each department adopt a public education campaign to inform people about the ban on racial profiling and the recourses afforded them under the law.

It’s probable that APD will elect to use its existing process to handle racial profiling complaints, but this is not stated in the current policy. That process is undergoing reforms as a result of creating the new Police Monitor position. The City should carefully consider SB1074’s effects when setting policies for that office. ACLU recommends that the civilian Police Monitor’s office receive citizen complaints related to racial profiling, rather than uniformed officers in the Internal Affairs Division.

One serious omission: APD’s racial profiling policy contains no mention of the state-required public education campaign to support the new policy. State law requires that each department launch a public education campaign about how to file racial profiling complaints. ACLU recommends that the Police Monitor’s office, not the APD public information office, be allocated the funds for this public education campaign. This should be additional one-time money for a multi-media public education campaign, not money already stipulated for the Monitor’s office. As the new state requirement essentially constitutes an “unfunded mandate” by the state, it should not be used as a vehicle by the department to diminish resources available to the Police Monitor’s office.

ACLU believes any community education campaign at a minimum should convey through several media a clear statement of complainants’ rights. Those rights include but are not limited to the right to file by mail, the right to bring another person or attorney in to witness/advise in an IAD interview, the right to record any interrogation, the right not to be interrogated about items outside the scope of the incident complained about, the right to present witnesses or other evidence of racial profiling if any. The public education campaign should also include referral information to ACLU and other civil rights and community groups who work on racial profiling issues.

No policy on officer discipline

SB 1074 requires a department policy specifying an appropriate corrective action for the offense of racial profiling by a peace officer. APD’s policy offers no such standard for officer discipline.

While the chief’s recent dismissal of an officer ostensibly on the grounds of racial profiling was encouraging, it is at best anecdotal evidence of good intentions, and no substitute for the “detailed written policy” required in the statute by 1-1-02.

ACLU believes that dismissal is an appropriate punishment for racial profiling offenses by officers. However, if departments choose to institute lesser punishments, ACLU recommends that under no circumstances should the punishment be less than a formal disciplinary action as defined by the Attorney General: Terminations, demotions, or temporary suspension without pay. Such a policy would ensure that information about sustained allegations of racial profiling would become public records, which would not be the case otherwise under the Local Government Code’s municipal civil service laws chapter 143.089.

An important side issue: APD’s failure to create written policies on punishments – known in police management jargon as a “uniform disciplinary matrix” – has been a longstanding source of trouble and litigation for the department. Officers are routinely reinstated by alleging favoritism or discriminatory practices stemming from applying differing punishments to the same violation. Hector Polanco is one Austin officer who got back on the force that way. APD should install a uniform disciplinary matrix not just for racial profiling violations as required by law but for the full range of rules violations as a long-term solution to its disciplinary problems.