Driving While Being Black, The Racial, Ethnic And Social Profiling Dilemma

This morning I received a phone call from my daughter advising me that she had been stopped by a police officer for the offense of “Driving While Being Black”. The first time I had heard that expression was several years ago when I was at a dinner party hosted by a Superior Court Judge. He shared his similar experience where while attending a conference in the state of Arizona he was detained on a traffic stop for no probable cause.

I was surprised to hear the expression again some years later. Three days ago my daughter, having risen successfully to a mid-management position at a major distributing company was able to purchase her first new car, a black fully loaded sports sedan. She removed the paper dealer advertising within the dealer installed license plate frames, not wanting to advertise the town or place where she purchased the car and attached stylish chrome license plate frames in their place. As is required by California law the temporary registration was attached to the front windshield lower right-hand corner by the dealership upon sale of the car. She was in total compliance with the law. There is no requirement that within the license plate frame there has to be a paper plate proclaiming “Purchased From ABC Dealership” and frames with the dealership logo and name.

At a stop light to her left was a police unit. As she pulled forward at the green light the police car fell behind her and pulled her over. At that point before pulling behind her all he knew is that a young attractive black women was driving a new expensive car. He began questioning her regarding ownership of the car and his questioning implied that he suspected a stolen vehicle, when in fact the registration and all documentation was in compliance with California law. Clearly there is an implication that “Driving While Being Black” was the probable cause for the stop. In my 46 years of practice and extensive research through the Penal Code, Evidence Code and reported California cases I have found no such legal principle.

At the time of the stop my daughter’s son was in the passenger seat and of course had many questions. The important part of this encounter is that my daughter in the tradition of Martin Luther King advised her son that in these circumstances to follow her lead and avoid confrontation and answer the questions and cooperate fully with the requests of the officer. Within minutes my daughter was free to leave and was able to relate this experience to me.

I am grateful for her making me part of her experience because it caused me to reflect on my life and the experiences that I have had, surprisingly similar in a span of 74 years of life. I recall when I was 18 years old I had been dropped off by my father early in the morning at a school in Van Nuys, California to take the SAT exam as a prerequisite to my admission to Cal, Berkeley. After completing the exam I walked to a supermarket to occupy an hour of time until I could be picked up. I walked around the store and then read some magazines and when exiting the store was detained by store security for allegedly stealing a woman’s purse. Of course, I had done no such thing and the purse was not in my possession. Even though I was an honor student, a 2 sport letterman, on the student council and on my way to a prestigious university I sported the teenage look of the time, emulating James Dean and Elvis Presley, big hair, low hanging pants and rolled up sleeves and a pack of Marlboros in the shirt pocket.

It was explained to me that the store had been having trouble with juveniles recently. At that time there were no gangs as we know them but all young people with the style I emulated were classified as juvenile delinquents who required special scrutiny.

As time went on I nearly forgot the incident and did not hold it against police or store security. Some decades later after years of law practice and serving as a Deputy District Attorney I was driving my expensive red Corvette with my wife, a Deputy Sheriff, in the passenger seat on the way to Venice Beach, driving past the courthouse where we both worked. At the time because of the traffic we were travelling at 20 miles per hour. A police unit pulled behind and stopped us and asked for the usual identification. I pulled out my ID case with my driver’s license as well as my badge and advised that my passenger also carried a Sheriff’s badge and in the glove compartment was a fully loaded Smith and Wesson 9 millimeter chrome plated off duty weapon and if he had any further questions. As expected he had none but did stick to the script and advised that the car was beautiful and that I should drive more carefully. Certainly the profile in this instance was an attractive black woman as a passenger in an expensive car driven by a white man in a downtown neighborhood which could only compute to a prostitute and a customer.

Profiling and sociological value judgements are part of our daily life. Another more innocent experience some years later occurred in a parking lot of a supermarket. My wife was driving a Jaguar automobile with custom chrome wheels and limited addition tires, opal metallic blue in color with a dark blue leather interior. As we exited the car my wife overheard a remark by an older lady to her husband, a remark probably intended for our ears also, “How can she be driving that car?” In effect, what is a black woman doing driving a Jaguar. In a tongue in cheek but somewhat accurate comment by my wife responded “I am married to a successful Jewish lawyer.”

As time has gone on with the tragedy of 911 and the growing threat of terrorism and gang violence, a degree of profiling that was limited to race has now entered other aspects of our life. In Israel, a country that faces hostile threats every day of its existence, profiling is used to detain and question suspected terrorists. The airports and public transportation in Israel are the safest in the world because of this profiling.

In metropolitan cities in our country police in the war against drugs and gang violence use profiling to identify gang members. In fact, some gang members by merely being in the area of shootings, can be charged with conspiracy to commit those shootings even though they actually were only at the location by coincidence. This type of expert testimony has withstood court scrutiny and can be effectively used in court with difficulty in defending.

In the 1960’s in a football game between Syracuse and West Virginia, played in West Virginia, the coach of the Syracuse Orangemen would not let the great Ernie Davis score a touchdown for fear that the safety of his team travelling by bus in West Virginia back to New York could not be ensured if a black man was allowed to score. Ernie Davis confronted his coach and told him that he, the coach, could not treat him as invisible. He would have to be allowed to score and that his scoring would be for the team and as a confrontation against racial prejudice. Ernie Davis facing prejudice and unequal treatment, as well as Jim Brown before him responded not with confrontation but with courage and excellence on the field of play.

My daughter today followed in the tradition of Jim Brown, Ernie Davis and Martin Luther King in realizing that her success is in recognition and self-control and her victory will be social and financial success as she climbs the corporate ladder.

It is my hope that my grandson, a gifted high school football player, will follow the advice of his mother and one day be in the starting backfield of the Syracuse Orangemen.