NOT GUILTY BY RACE

As has been the case all too often in America's history, race and the
law have clashed in court once again. In a resolution to this latest
clash, the 9th U.S. Circuit Court of Appeals recently ruled that, in
most circumstances, law enforcement officials may not use race or
ethnicity as a factor for stopping motorists who may be suspected of
wrongdoing.

In a strongly worded decision, written on behalf of seven members of
the 11-judge panel, the appeals court said:

"Stops based on race or ethnic appearance send the underlying message
to all our citizens that those who are not white are judged by the
color of their skin alone. Such stops also send a clear message that
those who are not white enjoy a lesser degree of constitutional
protection - that they are in effect assumed to be potential criminals
first and individuals second."

In recent years, discussions of the so-called "driving while black"
and "driving while brown" phenomenon have swept the country. More than
200 law enforcement agencies are tracking racial and ethnic data in an
effort to assess the validity of complaints by Hispanic and
African-American motorists that they are pulled over more often than
whites, merely because of their brown skin. Bills have been introduced
in Congress and the California Legislature to expand the assessment of
police practices.

The 9th Circuit decision stems from a 1996 El Centro, Calif., case in
which U.S. Border Patrol agents detained three Mexican nationals after
receiving a tip that separate cars driven by two of the suspects had
made U-turns about a mile from a Border Patrol checkpoint. Marijuana
and a loaded gun were found.

The agents relied on the tip, the fact that the two cars had made
U-turns in tandem, that the cars had Mexicali license plates, that one
driver had glanced away from the agent and that the suspects were "of
Hispanic descent." U.S. District Judge Irma E. Gonzalez of San Diego
rejected claims that the searches that turned up the drugs and weapon
were illegal.

Last May, in a 2-12 ruling, a three-judge 9th Circuit panel upheld the
guilty verdicts and maintained that the defendants' ethnic appearance
could be considered along with other factors. When a majority of the
court's current 21 members decided to revisit the May decision, it was
withdrawn, setting the stage for the ruling, which upheld the
convictions, but concluded that ethnic appearance could not be
considered in such situations by law enforcement officials.

"In concluding that reasonable suspicion existed," the court said,
"both the district court and the panel majority relied in part upon
the Hispanic appearance of the three defendants. We hold that they
erred in doing so."

Thankfully, the court decision left room for law enforcement officials
to do their jobs. But legal observers noted after the strongly worded
ruling that a line had been drawn prohibiting equating of ethnicity or
race with criminality. By upholding the Fourth Amendment's ban on
unreasonable searches, the court has taken a step forward.