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A bill approved by the Texas Senate prohibits law enforcement officers in the state from engaging in racial profiling and requires them to collect racial and ethnic data on the people they stop for traffic offenses or other suspected violations of the law. But before the 28-2 vote on April 4, the Senate added an amendment aimed at preventing cities and counties from being targeted by lawsuits based on the data collected and reported by police and sheriffs’ departments. “I want everyone to understand this is not a trial lawyers’ bill. This is not a bill that’s intended to generate huge lawsuits,” Sen. Royce West, D-Dallas and the bill’s author, assured his colleagues during the Senate debate. West’s S.B. 1074 would require every law enforcement agency in the state to adopt a detailed written policy on racial profiling. Such policies must include a process by which an individual could file a complaint if he believes an officer is stopping people based on the color of their skin; the process must also include appropriate corrective action for the conduct. The bill, which was referred to a House committee on Monday, also would require law enforcement agencies to install video and audio equipment in patrol cars, if the state comes up with the money to cover the costs. Agencies that install the equipment in patrol vehicles and use it for traffic and pedestrian stops would be exempted from the reporting requirements. The reports required by the bill would detail the race or ethnicity of all persons stopped, searched, issued a citation or arrested within an agency’s jurisdiction. If a vehicle is searched, the law enforcement officer who makes the stop must report whether the owner gave permission for the search. The reporting requirements in the original bill raised red flags for some Republicans in the Senate. Sen. Robert Duncan, R-Lubbock, said he became concerned when he first started working with West on the bill that it might be “a Trojan horse” for liability cases. Duncan, a partner in Crenshaw, Dupree & Milam in Lubbock, drafted an amendment to address those concerns. The Duncan amendment eliminates a requirement that a law enforcement agency analyze the information it collects. If police departments are required to do the analysis, it could be used in court, says West, a partner in Robinson, West & Gooden in Dallas. The amendment also provides that the data that an agency compiles cannot constitute prima facie evidence of racial profiling. “Just because you have the numbers, that doesn’t necessarily mean that’s racial profiling,” West says. “I think what you have to do is go behind the numbers and look at what’s behind the numbers to ascertain whether or not someone is engaging in that particular practice.” William Harrell, Texas state director of the American Civil Liberties Union, says no one can win a suit on racial profiling simply by showing the numbers of minorities stopped and searched. Among other things, the plaintiff has to show that such profiling is intended and that the law enforcement agency has the supervisory capacity to prevent it, he says. “There’s much more in any lawsuit that you need to show than numbers,” Harrell says. Houston sole practitioner Robert Schaffer, past president of the Houston Trial Lawyers Association, agrees that the statistics collected on traffic stops would not be enough. Succeeding in a liability case against a governmental entity is difficult to begin with, Schaffer says, because the plaintiff must convince the jury not only that the entity was wrong in what it did but that its action caused him injury. “If all the claim is, ‘I got stopped and shouldn’t have and was let go,’ it’s going to be very, very hard to find a lawyer to do that, unless it’s somebody who is going to take it [the case] for the matter of principle,” Schaffer says. Harrell says he’s concerned that lawmakers thought Duncan’s amendment is necessary. “It almost seems they are acknowledging there is a problem and are trying to shelter municipalities from responsibility,” he says. “Elected officials should be the last to be taking that position. They should be saying if there’s a problem then all mechanism of enforcement should be put into place.” But Harrell says West is “an absolute genius” for pulling together the various stakeholders — including the ACLU, NAACP, League of United Latin American Citizens, other civil rights groups and the police — months ago to begin working on the legislation. “Every single possible question that would have come up, we have dealt with over and over again,” Harrell says. FUNDING ISSUES In an October 2000 report, the Texas Department of Public Safety said that troopers do not engage in racial profiling. The DPS report shows that the vast majority of the motorists stopped by troopers from March through July 2000 were white. However, the report also shows that about half of the people who had their vehicles searched were minorities. Of the 779,961 stops recorded during the reporting period, 26,737 resulted in searches, DPS reported. While 531,397 whites were stopped, only 13,866 whites had their vehicles searched by troopers, the report indicates. DPS reported that 154,278 Hispanics were stopped and troopers searched 8,617 of their vehicles. The report shows that troopers stopped 75,313 blacks and 3,832 of them were the targets of vehicle searches. In a rare move, Texas Lt. Gov. Bill Ratliff joined in the state Senate vote for the bill banning racial profiling. It was only the second time that Ratliff has cast a vote on legislation since his December election as the Senate’s presiding officer by his peers, says Kathy Staat, director of Senate Media Services. Sen. Jon Lindsay, R-Houston, and Sen. Jane Nelson, R-Flower Mound, cast the only dissenting votes. Lindsay said he was concerned about smaller police departments being able to pay for the software needed to implement the reporting requirements. Nelson noted that some people might find it offensive to be asked about their race or ethnicity when stopped by a law enforcement officer. The bill still could run into problems because of concerns about how to pay for the video equipment and the costs of retrofitting local law enforcement agencies’ computers to handle the data collection. West estimates that installing approximately 8,000 video cameras will cost the state about $35 million. The provision in the bill requiring the equipment in patrol cars will not be implemented unless the state provides the funding, he says. A possible funding source mentioned during the Senate debate is an increase in the court costs for traffic tickets. “I’m confident that we will find a funding mechanism,” West says. Rep. Senfronia Thompson, a Houston Democrat and a lawyer, is sponsoring a companion bill in the House. H.B. 2458 is in the House Calendars Committee awaiting a date to be determined for its consideration by the House. Thompson says she is not sure whether she will try to substitute the Senate-approved bill for hers. “I’m trying to pinpoint a source of money [for the video equipment],” she says. “In the House, we’re not allowed to come to the floor with a bill that spends.” Under House rules, a funding source must be identified for any piece of legislation that will cost the state.

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