New Jersey Supreme Court bans racial profiling, again

6 minute read

A Camden police officer pats down a suspect during a patrol stop in Camden, New Jersey. REUTERS/Shannon Stapleton

Register now for FREE unlimited access to Reuters.com

The New Jersey Supreme Court outlawed racial profiling in police investigative stops, again, on Jan. 25, clarifying that it is discriminatory for police to stop people based on just race, gender and the occurrence of a crime nearby.

The court’s decision is likely to curb racial profiling by police in New Jersey to some degree. But it was also a missed opportunity to compel police departments to make immediate, practical changes to their procedures and to send a stronger message that biased policing is ineffective, harmful and unconstitutional.

The court unanimously overturned the convictions of two Black men who went to prison for robbing about $600 from a 7-Eleven store, saying the police stop was unconstitutional because the only information the officer had at that time was the race and sex of the suspects in a nearby robbery.

Register now for FREE unlimited access to Reuters.com

Of course, racial profiling by police has been unlawful under both the U.S. Constitution and New Jersey’s for decades, although it's safe to say the practice persists to some degree in every state in the country. The court’s Jan. 25 ruling cites its own precedents – going back to the late 1980s and the 1990s – which say that police can’t rely on hunches when they stop people and that racial profiling, specifically, is unlawful.

Still, police in New Jersey, and especially the New Jersey State Police, have a long and checkered history of race discrimination, including a national scandal that led that department to agree to monitoring by the Department of Justice’s Civil Rights Division in 1999.

In 2006, a leaked memo showed that the head of the state police had written “No!” next to a recommendation to hold individual troopers responsible for racial profiling and subject them to counseling, ABC News reported in January that year. In 2019, an internal memo showed that the state police were aware of racial profiling for years, but “attempted to divert the attention of federal investigators,” the New Jersey Star-Ledger and news website NJ.com reported that March.

In 2018, Black people in New Jersey were still 3.5 times more likely to be arrested for marijuana possession than white residents, despite similar usage rates, according to a 2020 ACLU report.

In this latest case, State v. Nyema, an officer with the Hamilton Township Police Department received a transmission that a robbery had just been committed by “two Black males, one with a handgun.” Officer Mark Horan then began pointing his spotlight at the faces of passing drivers as he drove to the scene – a technique that isn’t approved by the department, according to the opinion by New Jersey Supreme Court Justice Fabiana Pierre-Louis. Horan stopped a car with three Black men inside because they didn’t react to the spotlight. (People tend to react with annoyance and alarm, he later said.) Officers ended up searching the car, and found money and a gun.

The Hamilton Police department didn't respond to my questions about the ruling.

The ACLU of New Jersey submitted an amicus brief on behalf of dozens of Black ministers and other clergy members that addressed law enforcement's continual flouting of well-settled law (incidentally, the Star-Ledger report from 2019 notes similar efforts by a group of Black ministers in New Jersey in 1998). The National Coalition of Latino Officers also joined several other advocacy groups in arguing that the stop here wasn’t legitimate.

“Bold interventions” are needed, the ACLU-NJ said. “Although the law is clear that a description that contains race and gender and nothing more cannot justify a stop, in reality, this has not and cannot substantially alter police behavior and thus will not significantly diminish the harms caused by racial profiling.”

The New Jersey Constitution gives the Supreme Court special “supervisory authority” to create rules that apply to law enforcement, and it should do so to clarify that reasonable suspicion can't rest on extremely common features – like race or gender, the group said.

The New Jersey high court in fact made such a bold intervention in a 2011 case called State v. Henderson. That ruling on the admission of eyewitness evidence essentially instituted a requirement for New Jersey cops to ask certain questions of witnesses who are identifying a suspect.

But the court in this latest case ultimately declined the clergy members’ and ACLU-NJ’s request as to racial profiling in street stops.

Alexander Shalom, a supervising attorney at the ACLU-NJ, told me the ruling makes clear that “casting a pall of suspicion over an entire race does not have the specificity the constitution requires to justify an invasive stop of an automobile.”

Still, “a declaration under their supervisory authority that vague references to race and sex can't constitute reasonable suspicion would have sent a wider, much clearer message to law enforcement about the impermissibility of racial profiling,” Shalom said.

He added that police instructors would be wise to explain the implications of the decision to officers so that other cases don’t get thrown out. Still, that process would be more straightforward if the court had used its supervisory authority to lay out when race -- in combination with other descriptors -- can constitute reasonable suspicion. In that scenario, supervisors can just point "to a plain rule and say ‘here’s what you need to do,’’ Shalom said.

In this case, Horan used an unsanctioned procedure – which doesn’t allow one to determine much more than race and gender -- when he shined his spotlight into approaching vehicles. This impermissible technique also appears to be persistent: during the state police scandal, a whistleblower told CBS News that cops were taught to illuminate vehicle interiors with their high beams while parked perpendicular to the highway, according to the October 1999 report.

Still, the Mercer County prosecutor’s office argued that the defendants' lack of a response to the spotlight was critical to establish reasonable suspicion, according to Pierre-Louis' ruling.

The stop was ultimately found unlawful under decades old precedent, but New Jersey acting attorney general Andrew Bruck’s office didn’t take a position on whether the stop was lawful or not. And local prosecutors argued there was indeed reasonable and articulable suspicion.

Of course, the case came before the New Jersey Supreme Court because a trial court had found the stop to be lawful, and an appeals panel had affirmed that decision.

Those circumstances seem to warrant more than a mere reaffirmation, or a small clarification, to existing law. The court could have used its supervisory power to compel police to change their procedures and to provide better guidance for prosecutors and the state justice system, as a whole, on how to stop perpetuating racial profiling.

Register now for FREE unlimited access to Reuters.com

Our Standards: The Thomson Reuters Trust Principles.

Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias.

Thomson Reuters

Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com