Memorandum
City of Lawrence
Legal Services
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TO: |
David L. Corliss, Assistant City Manager & Director of Legal Services
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FROM: |
Scott J. Miller, Staff Attorney
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Date: |
October 6, 2005 updated November 14, 2005
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RE: |
Senate Bill 77 – Racial Profiling |
TABLE OF CONTENTS
II.............................. Mandatory policies and procedures and Citizen’s Advisory Board.
Several concerns regarding specific provisions of proposed Ordinance 7936 were expressed at the October 18th, 2005 Lawrence City Commission meeting. At the direction of the Commission, several portions of the ordinance were modified to reflect those concerns. A summary of the changes is included below.
1. The annual required report of the Police Department to the Lawrence Citizen Advisory Board was changed from no later than February 1 of each year to no later than January 31 of each year. This date is the deadline for an identical report to be filed with the Kansas Attorney General. In addition, the ordinance mandates that the report to the Advisory Board take place prior to the transmittal of the report to the Attorney General.
2. A requirement that the Advisory Board report to the City Commission regarding its activities at the first regularly scheduled City Commission meeting following January 31 of each year has been added.
3. The language empowering the Advisory Board to review and render advice on such other matters as are assigned by the City Commission, City Manager or Chief of Police has been explicitly limited to matters relating to racial profiling.
4. Certain matters involving the ex officio, nonvoting member of the Advisory Board have been clarified. First, the limitation against receiving payment for service on the board has been limited to the voting members of the board. The ex officio member, who is a City employee, is not prohibited from being compensated for serving. Second, further clarification has been offered regarding the ex officio member’s term of office by specifying that the Chief of Police’s designee will serve at the pleasure of the Chief of Police.
5. Finally, as there was some objection to the third recital contained in the original ordinance, that recital was deleted. Its deletion should have no effect on the operation of the ordinance.
Background
This memo is written in response to your request to detail the steps that the City needs to take to comply with Senate Bill 77, which was passed during the last regular legislative session. Senate Bill 77 is the racial profiling bill, and has imposed several requirements on law enforcement in regards to officer training, police policy, the creation of a citizen advisory board, and ultimately on the data that police agencies collect during citizen contacts.
Our deadline for compliance with the policy requirements was established by § 5(b) of the bill and is set at one year from the effective date of the act. The effective date was July 1st of this year, so we must be in compliance with the act on or before that date in 2006.
Race based discrimination by governmental actors, including racial profiling, has long been actionable under 42 U.S.C. § 1983. The racial profiling bill supplements existing law by addressing several peripheral issues in an attempt to create a more standardized training and response regimen, and creates a statutory rather than constitutional cause of action for this activity. § 6(b) of the bill in question provides that a victim of racial profiling will have a cause of action against both the law enforcement officer and the law enforcement agency and “shall be entitled to recover damages if it is determined that such persons or agency engaged in racial profiling.” The prevailing party in such a case is also entitled to reasonable attorney fees. Whether this act imposes liability on cities for racial profiling in excess of that provided by federal law is a question that the courts will ultimately be called upon to settle.
“Racial profiling” is defined in the act as:
the practice of a law enforcement officer or agency relying, as the sole factor, on race, ethnicity, national origin, gender, or religious dress in selecting which individuals to subject to routine investigatory activities, or in deciding upon the scope and substance of law enforcement activity following the initial routine investigatory activity. . .
Routine investigatory activities are defined by law to include frisks and searches following traffic stops as well as other consensual or nonconsensual searches of persons or property. Also, the factors listed in the racial profiling definition may not be the basis for determining whether a person should be arrested or detained by law enforcement following a routine investigatory activity.
The act has an effect on law enforcement operations in three general areas:
1. It establishes uniform record keeping and reporting requirements.
2. It mandates that certain policies and procedures be adopted including the creation of or use of an existing independent citizen’s advisory board.
3. It involves the Kansas Human Rights Commission in the internal discipline of officers accused of racial profiling.
Each of these impacts will be discussed in more detail below.
I. Uniform record keeping and reporting requirements.
There are two sets of record keeping and reporting requirements in the legislation. The first set is found in § 5(d) of the bill. This section requires law enforcement agencies to keep records of all complaints of racial profiling received by them and to report to the Attorney General annually by January 31st. The annual report must contain, at a minimum, the date the complaint is filed, any action taken in response to the complaint, the decision upon disposition of the complaint, and the date that each complaint is closed. There reports are open public records and the attorney general is required by law to post the reports to his or her official website.
The second set of record keeping related provisions are more anticipatory or prospective in nature in that they set the stage for further legislation on the subject. The law requires that the governor appoint a 15 member taskforce to design uniform standards for the collection of data related to racial profiling. This taskforce is required to report with their recommendations to the governor and legislature on or before November 1, 2005. I would expect some version of their recommendations to be considered in the 2006 legislative session.
II. Mandatory policies and procedures and Citizen’s Advisory Board.
Each Kansas law enforcement agency must adopt a written policy prohibiting racial profiling, as that term is defined in the bill. The policy must contain:
1. A statement prohibiting racial profiling.
2. A requirement for annual training for law enforcement officers on racial profiling including such subjects as the cultural and historical systems that perpetuate racial profiling, self-evaluation strategies, and the ability to recognize racial profiling practices.
3. For cities of the first class, including Lawrence, the establishment of an independent citizen advisory board to assist and advise the police department in policy development, education and community outreach on issues related to racial profiling. This board must include participants who reflect the racial and ethnic community. The size of the board is not specified.
4. Policies for disciplinary action against officers who engage in racial profiling.
5. A provision that specifies that an officer who is found to engage in racial profiling will be disciplined appropriately, including being given demerits, suspensions or termination from employment.
6. Community outreach and communication efforts that the agency will take to let the public know about their ability to file a complaint with the Kansas Human Rights Commission or the law enforcement agency, and the complaint procedure within the law enforcement agency.
7. A list of procedures used to handle a racial profiling complaint.
From the perspective of what tasks we need to complete to comply with the directives of the legislation, it is clear that some of these provisions will require little work to comply with because of established procedures, while others cause us to create completely new structures. Chief Olin is in communication with the Kansas Law Enforcement Training Center, where a training curriculum that meets the requirements of the law is being developed. After that curriculum is developed, we can rely on local expertise if necessary to round out the training program and to implement it. The Lawrence Police Department has a well-developed internal affairs procedure that could be used to investigate complaints of racial profiling just as it does any other similar legal or policy violation.
A task that will require the creation of a new entity will be the establishment of an independent citizen advisory board. The statute is not very specific regarding the structure or organization of such a board. It appears that the purpose of the board contemplated by the legislation is to act as a link between the police department and community, expressing community concerns in the process of policy formation and letting the community know that there are procedures in place to investigate racial profiling complaints and to discipline officers, if appropriate. In section IV, below, a proposed ordinance is discussed that would, in my opinion, meet the requirements of the legislation.
III. Kansas Human Rights Commission Involvement
The bill’s third major impact is the involvement of the Kansas Human Rights Commission in the investigation of complaints of racial profiling. As a supplement to a law enforcement agency’s internal procedures regarding the investigation and discipline resulting from complaints of racial profiling, the Kansas Human Rights Commission is given coterminous authority to review, and if necessary independently investigate the complaints. After review or investigation, the commission’s designee is required to consult with the head of the law enforcement agency. The Human Rights Commission is then given authority to make final recommendations regarding the discipline of a law enforcement officer or other disposition of the complaint.
The enactment is not specific about what the effect of these recommendations should be. There is no explicit requirement that the head of a law enforcement agency follow or even consider the Human Rights Commission’s suggestions. In any event, this outside agency may become involved in the investigatory stages of a police department’s internal personnel matters, which is a departure from existing law.
Attached to this document is Ordinance 7936, staff’s proposal to meet part of the requirements of Senate Bill 77 by establishing an independent citizen’s advisory board. This board would be called the Lawrence Citizen Advisory Board, and would consist of seven citizens of the City of Lawrence, each appointed by the Mayor with the approval of the City Commission. In addition, the Chief of Police would be able to appoint a city employee to serve as his liaison to the Advisory Board in a nonvoting capacity.
Section 1-2202 of the proposed ordinance defines the purpose of the Advisory Board in terms substantially identical to the language of Section 5(c)(3) of Senate Bill 77, the portion of Senate Bill 77 that mandates the creation of such a board. This section states that the purpose of the Advisory Board is “to advise and assist the City of Lawrence and its police department in policy development, education, community outreach and communications related to racial profiling.” The ordinance expands upon this statement by listing specific duties of the Advisory Board which meet or exceed the statutory requirements. These duties include:
1. Reviewing Lawrence Police Department’s racial profiling policies and recommending amendments of, or additions to, those policies.
2. Reviewing the Police Department’s annual training curriculum regarding racial profiling and suggesting any changes or supplements to that training. It may also participate directly in that training.
3. Assisting the Police Department with community outreach opportunities regarding racial profiling.
4. Providing the Police Department with advice regarding community concerns related to racial profiling.
5. Receiving an annual report from the Police Department detailing the past year’s racial profiling complaints and their resolutions.
6. Reporting to the City Commission as needed.
7. Reviewing and rendering advice to the City Commission, City Manager or Chief of Police on any other related duties that are assigned to it.
Each member of the Advisory Board would be appointed for a term of three years, with the initial terms of appointment of some members shorter so that the terms would be staggered. The Advisory Board would elect its own chairperson and could draft the rules, regulations and by-laws necessary for its efficient operation, subject to the City Commission’s approval.
This memo is only a general summary of the provisions of the law, and suggests an ordinance that provides one way to meet the some of the requirements of that law. Senate Bill 77 is included with this document for your reference. I would be glad to provide any additional information that you might need concerning the specifics of implementing the things that are required. Please contact me with any questions that you may have.