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New Jersey is in an uproar and its State Police Superintendent is out of a job over the issue of driver profiling, the practice by which the police arbitrarily single out members of specific groups, stopping and searching them in the hope of uncovering crimes.
Yet the current furor revisits an old theme. Indeed, the practice of driver profiling might have been nipped in the bud a quarter century ago but for the intervention of the Supreme Court and William Rehnquist. Yes, the William Rehnquist who now has four gold stripes on his black robe.
In recent years, law suite have been filed in New Jersey and several other states against police agencies accused of driver profiling, and Federal civil rights authorities are investigating whether New Jersey state troopers have illegally stopped black drivers. On Sunday, Gov. Christine Todd Whitman fired the head of the new Jersey State police, Carl A. Williams, after an interview in which he linked particular drugs to specific racial groups.
But it was way back in 1970 that the Constitutional Litigation Clinic, which I had just established at Rutgers Law School in Newark, brought the first profiling suit against the State Police. It was brought not on behalf of African-Americans, but on behalf of a class referred to in the Federal Court Complaint as Long Haired Travelers -- that is hippies.
The American Civil Liberties Union office here had gathered numerous complaints from long-haired college students who said they had been arbitrarily singled out on the New Jersey Turnpike and other state roads. The cops seemed obviously to be going after people who they felt were part of the drug culture of the day. Ninety-five per cent of the "suspects" were found to be "clean" and released, but the occasional drug arrest was considered an important trophy by troopers seeking commendation and promotion. Since there was never a penalty for making unconstitutional searches, the troopers considered it a "no lose" game.
The case -- George Lewis, et. al. vs. George Kugler, Attorney General of New Jersey -- sought a sweeping injunction stopping the practice and punishing officers who engaged in it.
Although we pursued the case on behalf of the Long Haired Travelers, we suspected that African-American and other non-white motorists were also being singled out. But these motorists did not as a rule file complaints with anyone. Back then they seemed relieved just to be let go and not physically abused. It was the middle-class college students who tended to want redress and, perhaps, who felt they had a chance of getting it from the courts.
Our case was initially heard by in Federal District Court a conservative judge who granted the State's motion to dismiss on the ground that it was beyond the power of a Federal court to supervise state police practices. But the United States Court of Appeals for the Third Circuit, g in Philadelphia, agreed that our case deserved to be heard. Citing a number of Supreme Court decisions on the obligation of federal courts to protect constitutional rights, the appeals court unanimously held that a federal court had a duty to protect citizens against such police misconduct.
The case had a long and tortured history after the appeals court ruling. A trial back in Federal District Court extended over six months, but the trial judge died before he could render a decision. Three trial judges and five years later the case returned to the Circuit Court.
In the meantime, a Federal District judge in Philadelphia, based on the earlier appellate ruling in our case, had issued an injunction against the Philadelphia Police Department and its Chief, Frank Rizzo, forbidding it to stop and harass black citizens without probable cause. The ruling was upheld in the Circuit, but Chief Rizzo appealed to the Supreme Court.
By that time, President Nixon, who had campaigned in 1968 against the "activism" of the Warren Court, had put his stamp on the Supreme Court. William Rehnquist, an official in Nixon's Justice Department, had become an Associate Justice.
Although Nixon's assault on the Warren Court had focused on the rights of criminal defendants, the new majority was cutting back on the rights of everybody. In the Philadelphia case in 1976, Justice Rehnquist wrote an opinion for the new majority that principles of "federalism" precluded a Federal court from supervising local police departments, even as a remedy for a pattern of unconstitutional conduct.
When our case finally returned to the Circuit Court, the judges lamented that the Supreme Court ruling in the Rizzo case had changed the law and left them powerless to provide a remedy for what they called the "callous indifference by the New Jersey State police for the rights of citizens using New Jersey roads."
In other words, Justice Rehnquist and the new majority had allowed open season on motorists. As a consequence, the problem which the Court of Appeals had been prepared to take care of 25 years ago persists. Whenever I see those stripes on the Chief Justice's robe, I can't help but think that he earned them from the New Jersey State Police.
