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The Golden Rule of Racial Profiling

September 22, 2002|VIKRAM AMAR | Vikram Amar is a professor of law at UC Hastings College of Law.

SAN FRANCISCO — As a robot searched for explosives in a car driven by one of three men of Middle Eastern descent suspected of being terrorists, federal and state law enforcement officers watched from a safe distance. A major Florida highway had been closed, creating a huge traffic jam. Tens--if not hundreds--of thousands of tax dollars were being spent to check out a terrorist threat. All this because a nurse in a northern Georgia restaurant claimed to have overheard the trio discussing an imminent terrorist attack that was to take place in Miami. As Florida Gov. Jeb Bush proudly announced, "This system works."

I suppose that depends on what system you're talking about. If "the system" means the official government response to terrorist scares, perhaps things worked as well as can be expected in our post-Sept. 11 world. After all, the police closed the road, put on special bomb-protection gear and called in the robot only after they had determined the threat was credible.

They had interviewed Eunice Stone, the nurse who had contacted authorities. She told police--and has since maintained her story--that she clearly heard the men laughing at the 9/11 remembrances airing on television at a coffee shop. One of them said, she claimed, that "if they [Americans] mourn Sept. 11, what will they think about Sept. 13?" Another talked about "bringing down" something.

Furthermore, before detaining the men, the police followed their two cars, whose license plate numbers Stone had provided, and witnessed the apparent failure of one of the drivers to stop and pay at a toll booth. (Since then, the police, based on a review of videotape, have dismissed the citation they issued the driver for the alleged violation.) Again, before pulling out all the stops, the police conducted a relatively unobtrusive search of the cars using explosive-sniffing dogs. When they indicated the possible presence of black powder, officials took drastic action.

Although the search turned up no bombs or other explosive materials, the cops probably acted properly based on the information--and the reasonable inferences they could draw from it--that they had at the time. Even the three men, all medical students, who said they were questioned for 12 hours without being told why they were being detained, do not blame the police. On CNN's "Larry King Live" last week, the students said the police acted professionally and correctly in responding the way they did. All in all, the governmental system seemed to have worked, if a bit expensively.

But the "system" that matters is not just governmental. It is also societal. And here the system may not have worked so well. There are a number of possible explanations for what happened. First, the medical students might have conspired to create the impression Stone got, either because they were in the mood for a sick practical joke and/or because they were tired, as they said on "Larry King Live," of being viewed suspiciously in public places.

That kind of a hoax, whether motivated by understandable feelings of unfair treatment or not, is unacceptable. Sept. 11 is no laughing matter. Neither is playing on the fears--even the hysterical and perhaps ethnically insensitive fears--of a nervous nation. For these reasons, an intentional hoax, if proved, could itself be the basis for criminal charges.

The medical students, two of whom are American citizens and all of whom profess loyalty to the United States, vehemently deny that they engaged in any such hoax. They further deny ever referring to either Sept. 11 or Sept. 13 in their conversation. "Bringing down" something, they contend, referred to a car one of the students wanted to transport to Miami, where they were to begin training at a hospital.

The students' steadfast denials lead to a second possibility: that Stone made up the story and intentionally misled police. This scenario, while also criminal if true--knowingly making false reports to police is a no-no--seems unlikely. Stone, by all accounts, had no incentive to victimize the men. More generally, she does not seem like the kind of person to purposefully lie to the police.

All this leads to a third, and perhaps most likely, possibility: that no one is really lying, but that Stone seriously misheard or misinterpreted the men's conversation. This possible mistake by Stone, even if negligent, is not something the law has a remedy for. By misreading the situation, even unreasonably misreading the situation, she did not break any law.

Yet negligent overreaction is precisely the glitch in the system that might persist. All mistakes that lead to restrictions on an innocent person's freedom are troubling. What is especially worrisome is that particular kinds of mistakes may get repeatedly made in such a way as to wrongly cast suspicion on and limit the freedoms of particular people because of their skin color and appearance--that is, racial profiling.

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