View from Lodi, CA: ACLU Racial Profiling Coup in California
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The lives of drug mules, terrorists and other sundry bad guys who use the California freeways to ply their trade just got a lot easier.

The astonishing settlement [PDF] by the California Highway Patrol of a 1999 racial profiling lawsuit originally brought by San Jose attorney Curtis Rodriguez will end C.H.P. consent searches until at least 2006. This despite a 1996 Supreme Court decision which ruled (Ohio v. Robinette) that explicitly-given permission searches are legal.

The settlement also requires officers to have "objective" evidence that drugs will be found before searching any vehicle. Finally, officers must document, subject to supervisory review, the race or ethnicity of each person stopped.

The American Civil Liberties Union of Northern California, which represented the plaintiffs, may never have had an easier case. Despite the Supreme Court precedent, the California Highway Patrol, with the presumed assent of Governor Gray Davis, folded up like a cheap suit.

The California Highway Patrol is the now nation's first law enforcement agency to prohibit officers from asking motorists for consent to search their cars or persons.

California Highway Patrol Commissioner Dwight "Spike" Helmick took the fall for Davis. The ACLU's lead counsel, the San Francisco law firm of Keker & Van Nest rubbed salt in his wounds. Said partner Jon Streeter, "Commissioner Helmick and his top deputies convinced us that they recognized a problem and were committed to making significant changes to eradicate the egregious practice of racial profiling."

What problem would that be? Anyone who doesn't want to be searched has only to say, "No!"

Helmick denied that the California Highway Patrol practices profiling. He also insisted drug arrests have not been adversely impacted since the 2001 moratorium on consent searches. And in a most curious comment, Helmick referring to suspects, said, "I want to treat them like family."

But Hemlick's take on the California Highway Patrol doesn't square with the views held by district attorneys and criminologists. All agree that the volume of drugs and cash seized is down since consent searches ended.

And the highly trained narcotics officers are demoralized. Here is an example one expert gave me of how efficiently the California Highway Patrol operated:

"CHP officers must have a "reasonable suspicion" of a crime before they can pull someone over. This reasonable suspicion of a law violation must be based on non-race based evidence before the officer can pull the guy over (e.g., the motorist was speeding).

"Once the officer makes the stop, he contacts the person. Then, the officer goes through his standard litany of questions, gets the license, etc.

"During this contact, the officer, through his experience, may recognize certain things about the motorist that are common with other people in the officer's past (and training) who have committed crimes.

"On Highway 395, for example, the CHP officer knows that the Central Valley Mexican gangs use Mexican illegals to run the dope north. So — when the officer is confronted with a Mexican illegal, with no luggage, and who only has a vague ability to describe where he is going and who he is going to see, the officer might just want to SEARCH THAT CAR.

"However, because the officer does not have actual evidence that the guy is carrying dope, the officer will rely on the simple request for consent. Very often the driver will consent, even if there is a huge amount of dope in the car.

"Major drug busts are made this way and it is one of the most effective tools for road cops to use to stop the flow of dope."

But today, thanks to the ACLU and Governor Davis, suspicious behavior is not enough.

The ACLU hailed the CHP settlement as a "landmark."

And Brooklyn Law School Professor Emeritus and constitutional expert Henry Mark Holzer agrees - but for different reasons. "What you have here," said Holzer, "is the ACLU making the laws of California without going through the legislative process."

"This is rampant political correctness. Not only has the Supreme Court upheld consent searches but racial profiling—whatever that means— is not unconstitutional," Holzer told me.

Ward Connerly of the American Civil Rights Institute agrees with Holzer. Connerly tells me:

"Law enforcement has to be given sufficient ability to do its job. This settlement has a number of foolish components that will drive up the cost of law enforcement without commensurate benefits to the public. In particular, requiring officers to record drivers' race and ethnicity and to have this documentation reviewed daily is racial idiocy gone amok.

"Clearly, by settling this lawsuit in the manner that it was, Governor Davis played into the hands of the ACLU and aided them in their opposition to the Racial Privacy Initiative."

And that is the scariest of all: the ACLU has struck so much fear into our legislators that the mere mention of buzz words like "racial profiling" send them running for cover.

While they're hiding, new "laws"—like the ban on consent searches—are enacted without a single vote cast.


The powerful ACLU presents itself as the most vigorous defender of First Amendment rights. But the organization is oh-so-selective about for whose rights it will fight.

Those who wish to speak out against federal immigration policy are not prospective ACLU clients. Consider the case of ProjectUSA.

In October 2000, ProjectUSA erected a billboard at the foot of New York's Brooklyn Bridge. Referencing the U.S. Bureau of the Census, its message read, "Immigration is doubling US population in our lifetimes."

After a mere 13 days, the owner of the property, the Port Authority of NY/NJ, ordered the board removed.

Executive Director Craig Nelsen appealed to the ACLU not once, not twice but three times to support ProjectUSA's First Amendment rights.

Nelsen was denied each time.

The ACLU told a reporter that ProjectUSA had no case. But an ACLU staff attorney confided in Nelsen that a "large and growing immigrants' rights faction" would make it difficult for the ACLU to become involved.

In 2002, ProjectUSA won an out of court settlement from the Port Authority - thus proving the ACLU wrong.

Nelsen, now Director of Friends of Immigration Law Enforcement, noted that if the ACLU had promoted open and honest debate about immigration, as anyone truly committed to freedom of speech would do, then possibly "the chaos and stupidity that lead to the 9/11 attacks might have been avoided."

A cruel and ironic footnote: the Port Authority owned the World Trade Center.

Joe Guzzardi [email him], an instructor in English at the Lodi Adult School, has been writing a weekly column since 1988. It currently appears in the Lodi News-Sentinel.

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