October 20, 2008 Los Angeles Board of Police Commissioners Anthony Pacheco, President John Mack, Vice President

Andrea Ordin Robert Saltzman Alan Skobin 150 N. Los Angeles Street Los Angeles, CA 90012

Dear Commissioners: I write to provide you the attached copy of A Study of Racially Disparate Outcomes in the Los Angeles Police Department, a report prepared for the ACLU of Southern California by Prof. Ian Ayres (hereinafter the Ayres Report). Prof. Ayres is an economist appointed jointly at Yale School of Management and as the William K. Townsend Professor at Yale Law School. After conducting a variety of analyses, Prof. Ayres concluded that [t]he results of this study raise grave concerns that African Americans and Hispanics are over-stopped, over-frisked, over-searched, and over-arrested. (Ayres Report at 27.) The ACLU of Southern California has long been concerned about racial profiling and race-based disparities in policing. Prof. Ayress report ends debate about the existence of the problem and validates the experience in communities of color of police interactions attributable to driving while black or driving while brown. But the ACLU recognizes that the LAPD has recently taken steps to improve training on and investigations of bias-based policing. While more is needed, Prof. Ayres report demonstrates the need to complete the task and to adopt training, policies, and systems of analysis that could make LAPD a model in this area. Background As you are well aware, the Department has collected data pursuant to the federal consent decree for seven years, but has produced only one substantive analysis of that data the report on post-stop outcomes by the Analysis Group,

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released in 2006.1 That report was largely inconclusive. The Analysis Group described its results by saying, Although some divisions/bureaus have statistically significant racial disparities for some outcomes and some races, when evaluated across all outcomes, there is no consistent pattern of race effects across divisions or races. (Analysis Group at 4.) The reports authors ultimately concluded that they could not draw definitive conclusions about the existence or non-existence of racial profiling by the LAPD. (Analysis Group at 5.) Following the issuance of the Analysis Groups report, the ACLU of Southern California requested the data on which the report was based under the Public Records Act. We ultimately obtained the very same data files used by the Analysis Group in preparing their report, and provided them to Prof. Ayres, who replicated the Analysis Groups study, examined it for methodological flaws, and conducted additional analyses that would be probative of racially biased policing. Revisions to the Analysis Groups Methodology of Post-Stop Analysis Although Prof. Ayres report examines the same data as the Analysis Group, it goes beyond the scope of that report in its analysis, in several respects. First, while the Analysis Group calculated racial disparities for each of the Departments 18 geographic divisions separately, it never calculated the disparities across the entire Department. As Prof. Ayres points out, this approach not only avoids the core question of whether the LAPD, on the whole, exhibits racial disparities in its treatment of Angelenos, but it also artificially reduces the sample size, lessening the likelihood that disparities would show statistical significance. Second, the Analysis Group controlled for officer characteristics such as years on the force or number of commendations or complaints in other words, concluding that if racial disparities correlated with a record of officer complaints, that the problem was due to officers with complaints, not due to racial profiling. As Prof. Ayres explains, controlling for such variables is inappropriate. Racial disparities are no more justifiable because they come from rookies as opposed to veteran officers, or officers with who have received more complaints rather than those with pristine records. Prof. Ayres report eliminates the inappropriate consideration of officer characteristics from its analyses. Making these adjustments, Prof. Ayres shows substantial racial disparities in post-stop action. Accounting for all the variables the Analysis Group included, with the exception of officers characteristics, Prof. Ayres found that city-wide: Stopped African Americans were 29% more likely than stopped whites to be arrested, and stopped Hispanics were 32% more likely than stopped whites to be arrested. When limited to more discretionary arrests, stopped African Americans

A Study of Racially Disparate Outcomes in the Los Angeles Police Department, (Analysis Group 2006), available at http://www.lapdonline.org/home/pdf_view/32911.

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remained 13% more likely to be arrested and stopped Hispanics2 were 21.4% more likely to be arrested than stopped whites. Stopped African Americans were 166% more likely and Hispanics were 132% more likely to be asked to exit vehicles than stopped whites. Stopped African Americans were 127% more likely and Hispanics were 43% more likely to be frisked or patted down than stopped whites. Stopped African Americans were 76% more likely and stopped Hispanics were more than 16% more likely than stopped whites to be asked to submit to a consensual search. These results were all statistically significant to greater than 99% confidence, except for highdiscretion arrests of African Americans, which was statistically significant to greater than 95% confidence. Stop Rate Disparities The Analysis Group did not examine the disparities in the rates at which people of color are stopped by police in the first place. This approach leaves a crucial element of racial profiling out of the picture, as stops themselves can be a form of harassment, apart from any frisks or searches that are conducted. This omission can lead to misleading results for example, although African Americans, once stopped, are given citations at a lower rate than whites, African Americans are stopped at such dramatically higher rates that the overall citation rate of African American residents is still substantially higher than that of whites. Performing the stop-rate analyses that the Analysis Group omitted, Prof. Ayres found that African Americans were much more likely to be stopped than non-minorities. In the single year of data, there were more than 4,500 stops for every 10,000 African Americans residents but only 1,750 stops for every 10,000 residents classified as white or other. This marked racial disparity in the likelihood of being stopped is not merely an artifact of different area crime rates in regressions controlling for both violent and property crime rates, statistically significant disparities in stop rates persisted for both African Americans and Hispanics. Nor do the disparities result from assigning more police to neighborhoods with higher concentrations of African Americans or Hispanics. Indeed, the racial disparity in stop rates was higher in neighborhoods with a lower percentage of people of color than in neighborhoods that were predominantly African American or Hispanic. Prof. Ayres concludes, These stark statistics from a single year of LAPD motor vehicle and pedestrian stops give a numeric lens for the lived experience of driving while black or driving while Hispanic. (Ayres Report at 27.)

Because LAPDs system of data collection uses the racial category Hispanic, I use that term when discussing the data.

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Prof. Ayres conducted another new analysis of the stop rate data to help test whether disparities in arrest and citation rate might be the product of racial bias, by looking at disparities in those interactions where the officer and suspect were both African American or both Hispanic. Assuming that an officer of the same race as the subject is less likely to be affected by racial bias, racial disparities caused by bias would be lower in these same race interactions. Prof. Ayres analysis revealed that the racial disparity in arrests disfavoring stopped African Americans fell from 27% with regard to non-minority officers to 18% when an African American was the stopping officer. African American officers were also nearly 20% less likely than non-minority officers to force African Americans to participate in a no action stop. These officer race disparities were statistically significant. As Ayres concluded, [t]he relatively better treatment that stopped African Americans experienced when stopped by African American officers versus non-minority officers raises concerns of racially biased policing. (Ayres Report at 7.) Correlation between African American/White and Latino/White Arrest Disparities Prof. Ayres examined the disparities in arrest rates of African Americans and Hispanics for individual officers, and compared the disparities for each officer. His analysis reveals a strong correlation between the two in other words, an officer who is likely to arrest African Americans at a disproportionately high rate is also likely to arrest Hispanics at a disproportionately high rate. This correlation suggests that the disparities in arrest rates are not simply noise or randomness, but that the same underlying factors drive two types of racial disparity. (Ayres Report at 2223.) Search Productivity, or Hit Rate Analysis Finally, Prof. Ayres performed another new analysis (not performed by the Analysis Group in their report) to examine the outcome of frisks and searches, also known as a hit rate study. This analysis examines whether frisks and consent searches of Angelenos of color resulted in the discovery of evidence at a rate comparable to searches of whites. Prof. Ayres investigation revealed that frisks and consent searches of African Americans and Latinos uncover evidence of criminal activity significantly less often than searches of whites, suggesting that officers ask for consent searches of African Americans and Latinos with less indication of potential criminality. This finding also rebuts any suggestion that the disproportionately high rate at which African Americans and Latinos are frisked and asked to submit to consensual searches is justified by higher criminality. As Prof. Ayres concludes, It is implausible that the higher frisk and search rates were justified by higher minority criminality, when these frisks and searches were less likely to uncover weapons, drugs or other types of contraband. (Ayres Report at 27.) The hit rate study also demonstrates that racially biased policing is ineffective

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policing, because it leads officers to spend time stopping and investigating persons who are less likely to have engaged in criminal activity. LAPD Policy and ACLU Recommendations Racial profiling by the LAPD has been a subject of concern for the ACLU and other civil rights advocates, driven by a widely held observation among communities of color that they are targeted by law enforcement simply for driving while black or driving while brown, and subjected to more aggressive treatment once a stop occurs. Indeed, the fact that the 2001 Consent Decree addresses racial profiling reflects the history of concern about the issue. Section H of consent decree, entitled Non-Discrimination Policy and Motor Vehicle and Pedestrian Stops, reiterates the requirement that Department must bar bias in law enforcement activities and requires all stops to be supported by legitimate, articulable reasons consistent with the standards of reasonable suspicion or probable cause (CD 102.) The Consent Decree goes on specifically to bar LAPD officers from us[ing] race, color, ethnicity, or national origin (to any extent or degree) in conducting stops or detentions, or activities following stops or detentions, except when engaging in appropriate suspect-specific activity to identify a particular person or group. (CD 103.) In response to the concerns about racial profiling, however, LAPD for years rejected any suggestion that its enforcement had an unjustified disparate impact on people of color. In January 2007, the Police Commission heard from the Inspector General that of over 850 civilian complaints of racial profiling filed in the previous four years, none had been sustained.3 While the Commission and Department responded by revising the protocols for racial profiling investigations, an audit the following year revealed that none of the subsequent 320 complaints had been sustained either.4 Over that period, the Department also considered and approved the adoption of in-car cameras to record officers interactions with members of the public, which will provide valuable additional evidence in complaints about officer conduct, including racial profiling. In August 2008, both the Department and the Commission staff reported on various aspects of the Departments policies and practices with respect to racial profiling, including the investigation of racial profiling complaints, the relevant provisions of the Consent Decree and Department policy, recruitment and hiring practices, and data collection.

Patrick McGreevy, LAPD Probes of Alleged Profiling to Be Reviewed, Los Angeles Times, B-4 (Jan. 31, 2007).
4

Rachel Uranga, LAPD to Review Profiling Findings, The Daily News (Apr. 29, 2008).

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The ACLU recognizes that, after years of refusing to acknowledge that racially biased policing posed any problem, the Department has recently taken steps to improve investigation of racial profiling complaints, to better record interactions through in-car camera systems, and to begin discussions on improved training. While the ACLU applauds LAPDs recent attention to the issue of racial profiling, more is needed. Prof. Ayres makes important recommendations in his report. Based on the evidence Prof. Ayres presents and the ACLUs knowledge of the history and operations of the LAPD, the ACLU recommends that the LAPD take the following additional action: First, the Department should continue to collect data on stops through TEAMS II, and make better use of the data to identify officers or units with significant racial disparities in their actions by analyzing the data on at least an annual basis. This recommendation mirrors Prof. Ayres suggestion for ongoing and enhanced data collection and an early warning system of periodic assessment. LAPD already uses continuous data collection and analysis to anticipate trends in crime and deploy its resources through the Compstat system, and operates a sophisticated data-based personnel management and early warning system in TEAMS II. The Department should make use of the data it already collects in TEAMS II through regular analysis, identification and retraining of officers whose policing yields significant racial disparities. While setting up even a one-time analysis may be beyond the technical capability of Department personnel and expensive to obtain through contractors, the LAPD would not have to perform each analysis from scratch. Outside contractors or academics may be able to set up a system that allows Department personnel to re-run an analysis of stop data annually with relative ease. The Department should investigate this possibility. Second, the Department must further reform the racial profiling complaint process. While the complaint investigation process has improved with the adoption and refining of protocols for racial profiling investigations and the work of the Professional Standards Bureau, the revised protocols still allow complaint investigations to be resolved when an officer can credibly articulate probable cause or reasonable suspicion for his or her actions, without examining patterns in that officers conduct. This approach entirely misses allegations of selective enforcement on the basis of race even where an individual stop may be justified, the use of enforcement discretion in a racially biased manner raises both constitutional concerns and, when the effects are aggregated, significant negative impact on communities of color. Accordingly, racial profiling complaints should trigger a mandatory review of the patterns of conduct of the officer, unit, or division, as appropriate for the complainants allegations, preferably through an analysis of TEAMS II data as discussed above. Third, the Inspector General should be given powers and resources to review the complaint investigations in real time. The Departments record of sustaining none of the nearly 1200 civilian complaints of racial profiling complaints filed over the past five years is, as members of this Commission have noted, simply an implausible record for a department of this size. While it may be difficult for these investigations to prove an officers state of mind, because of the important issue and the Departments history, it is urgent that the public be given

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immediate assurance that the investigations are being conducted as thoroughly and diligently as possible. The public should not have to wait for the Inspector Generals retrospective audits for assurance that the complaint system is working much less for another iteration of revisions if the IGs office determines the quality of the investigations are still lacking. Instead, the Inspector Generals office should oversee racial profiling complaints in real time by reviewing the complaint investigations before adjudication and by being empowered to send investigations back to the Department for improvement as necessary. To its credit, Internal Affairs Group has modified the racial profiling complaint investigation protocols, and has invited greater involvement by the IGs office in the complaint process. But for the sake of community confidence, the IGs role should be formalized, at least while the complaint investigation process is in transition. Fourth, the commission has heard from Professor Lorie Fridell on the effect of unconscious biases on decision-making and judgment about criminality. The Department should adopt additional anti-bias training aimed at helping officers identify and eliminate even latent bias in policing decisions. As Prof. Ayres recommends in his report, such training should be validated to the extent possible. But this training cannot be limited only to senior supervisors and Internal Affairs Group investigators, but must be made available department-wide. Finally, the Department should take more focused action with respect to consensual searches. Consensual searches require neither reasonable suspicion nor probable cause, but may be requested by an officer at any time. However, many subjects asked for a consensual search acquiesce because they do not understand that they have the right to refuse. Because they are left completely to the discretion of the officer, without guiding standards of probable cause or reasonable suspicion, they are more susceptible to biases. Prof. Ayres study shows that African Americans are 76% more likely than whites to be asked to submit to a consent search, but that such searches are 37% less likely to lead to discovery of drugs and 23% less likely to lead to discovery of drugs than the same searches of whites. The Department should reduce the disparate impact of consensual searches by requiring officers to inform subjects who they request to search that they have the right to refuse the search.

Sincerely,

Peter Bibring Staff Attorney cc: Chief William J. Bratton Mayor Antonio Villaraigosa