El Paso police say they don’t have a racial profiling problem. Their own data may indicate otherwise.
Thomas “T.J.” Johnson’s African-American family moved to El Paso from the Midwest in the 1980s, when he was a teenager. He graduated from Andress High School and spent two years at UTEP in the early 1990s, where he studied journalism and played football. He now owns a roofing company. He is a 49-year-old businessman who has spent much of his adult life feeling racially profiled during traffic stops by local law enforcement.
“Every time I get stopped by the police in El Paso I get asked about drugs and guns,” Johnson told El Paso Matters. “Every African-American male I know goes through the same thing. Even college graduates. They ask us every time.”
El Paso touts itself as a racially egalitarian city. Its population of almost 700,000 is 81 percent Latinx, 13 percent white, and just over 3 percent African-American. With racism in the United States historically based on the notion of white supremacy over African-Americans and other people of color — including Latinxs — it makes intuitive sense that heavily Latinx El Paso would be tolerant, especially to its Black community of some 22,000 people. So it might be hard to imagine that law enforcement officers could be systematically racially profiling drivers like T.J. Johnson.
But data from the El Paso Police Department suggest that officers may be discriminating and may have done so for years, especially against African-Americans.
How El Paso police measure profiling
El Pasoans hear about selected, benign-sounding El Paso Police Department data when the department talks publicly about racial profiling. Local police officials for over a decade have appeared every spring before City Council, with figures related to how people are handled when they are stopped for traffic violations. The mayor and city reps generally accept the officials’ claim that the data shows no evidence of racial profiling.
But the police hardly talk to City Council about other numbers — data which, though by no means conclusive, suggest that profiling may be significant and systemic.
“Every time I get stopped by the police in El Paso I get asked about drugs and guns. Every African-American male I know goes through the same thing. Even college graduates. They ask us every time.” – T.J. Johnson
The data that the police concentrate on at City Council are pairs of numbers that compare the ratio of traffic stops for El Paso’s various ethnic and racial groups, to total traffic stops for all groups. The three largest groups are whites, “Hispanics” — as Latinxs are labeled by the police — and African-Americans.
One pair of numbers in the data represents white drivers. The first figure shows white people’s percentage of El Paso’s total population. The second number is the percentage of white people among all motorists who were stopped for traffic violations in the past year.
A second pair of numbers shows the same two things for Hispanics. A third pair represents African-Americans.
The idea for displaying these pairs is that the percentage of each racial groups’ traffic stops — the second number in the pair — should roughly equal the first number, the group’s percentage in El Paso’s population. If the two numbers more or less match, the police say, there is no evidence of racial profiling in traffic stops.
But these numbers are confusing and don’t help to answer questions about possible racial profiling.
In the Police Department’s 2016 data, for instance, whites made up about 14 percent of El Paso’s population, but white drivers comprised about 22 percent of total traffic stops — their stop rate was higher than their population rate. Hispanics were about 81 percent of the population but only 73 percent of the stops — their stop ratio was a bit lower than their population. African-Americans were 3.4 percent of the population and 3.8 percent of the stops. On cursory examination, that last number looked high, but just barely. It was less than half percentage point more than the ratio of Blacks El Paso.
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Taken together, the six numbers for the three racial groups displayed no significant evidence of systemic racial profiling. El Paso police say they can seldom see people before they stop them and say they can’t determine race of a passing motorist — at least until they get near the driver’s window and take a look.
This may be why El Paso’s traffic stop figures, broken down by race, say little or nothing about the possibility of racial profiling occurring at a later point in the stop. Randomness in the paired numbers holds across most of the 12 years of data available online from the El Paso Police Department since 2007.
Examining these numbers by themselves, it’s easy to conclude there’s no hard evidence of traffic-stop profiling in El Paso. And that is what University of North Texas criminologists Eric Fritsch and Chad Trulson have told the EPPD after collecting the data every year for the agency and putting it into a report that the police present to City Council. The reports typically end with a summary such as this one, from 2016: “The analysis of statistical information from the El Paso Police Department reveals that there are no methodologically conclusive indications of systemic racial profiling by the department.” City Council accepts the non-conclusiveness.
Troubling numbers in the profiling reports
But the police rarely discuss other numbers in the report: those regarding something that can occur later in traffic stops, what criminologists call a “consent search.”
T.J. Johnson, the African-American business owner, said he constantly gets asked if he is carrying contraband. The last time it happened was just a few weeks ago. “I was going down Transmountain, doing 60 in a 55 mile zone,” he said. “I was stopped. The officer asked, ‘Any drugs or alcohol in the vehicle?’”
A few months before that, he was moonlighting from his roofing business by driving for Uber. He says he was stopped for a traffic infraction on Rio Grande Street in Central El Paso. He was asked if he was carrying contraband. He said no and was asked again. The police officer finally accepted his denials and didn’t request permission to search.
“The analysis of statistical information from the El Paso Police Department reveals that there are no methodologically conclusive indications of systemic racial profiling by the department.” – El Paso Police Department
But, Johnson said, so many of his Black friends and relatives in El Paso have been searched for trivial infractions that he fears it will happen to him.
One friend, a teacher, was confronted by a police officer while parked illegally and selling snacks outside of a nightclub without a permit. He refused to consent to his car being searched, the officer arrested him, and the arrest made it legal to search the car without consent. The officer found a misdemeanor amount of marijuana, less than two ounces. The charges were later dropped but the teacher had to leave his job. Johnson hates what he perceives as racial profiling in El Paso leading to searches — including consent searches.
Searches and consent searches in El Paso
According to Fourth Amendment law, police in America may look inside a vehicle under several circumstances. One is if they have gone to a judge and received a search warrant. Another is if they have arrested a driver or impounded a car. Police can also search if they perceive that the vehicle contains evidence of a crime. Their decision to search is then based on a “probable cause,” which they must be able to put into words. Smelling marijuana is a common probable cause for a search. Seeing a weapon lying on a seat is another.
And then, there is the hunch — a police officer’s mere feeling that the vehicle might contain something illegal, but which feeling they can’t express with words. Hunches can translate into “Do you mind if I…?” requests. Drivers can refuse. But if they give permission, the officer can do a “consent search.”
Of his stops on Transmountain and while driving for Uber, Johnson said he knows he could have withheld consent for searches if he’d been asked — but if he’d been asked for permission he would have said yes. “If you’re African-American,” he said, “you don’t want to play with the police.”
Johnson’s fears track El Paso Police Department data which clearly shows that, relative to their population, African-Americans in El Paso undergo significantly more consent searches than do other groups.
El Paso Matters reviewed 12 years of EPPD traffic stop records from 2007 to 2018, the last year when data was available. The records show that, on average over those years, Black drivers were more than twice as likely to be consent searched than white drivers. And they were 1.4 times more likely than Latinx drivers to be consent searched. Latinx drivers also suffered a disparity. They were one-and-a-half times more likely to be consent searched than whites.
The data also shows a highly unusual police practice regarding consent searches that all groups in El Paso are subjected to.
Nationally and in Texas, most police searches of vehicles happen subsequent to arrests, impoundments, and determinations of probable cause. But not in El Paso over most of the past several years. For a decade between 2008 and 2017, over 90 percent of searches here were consent searches. That is, almost all drivers in El Paso who got searched had the experience merely because a police officer had a hunch. Then, in 2018, according to EPPD data, the consent search rate fell dramatically. That year about 51 percent of searches occurred subsequent to drivers giving consent. In 2019 the ratio was 48 percent.
The El Paso Police Department declined to explain the decrease — Police Chief Greg Allen, an EPPD spokesperson said, could not comment on anything related to racial profiling data or policy because of “pending litigation.”
But regardless of why consent ratios have gone down, El Paso’s numbers remain uniquely and disturbingly high compared with other Texas cities.
In Dallas only 11 percent of searches done in 2018 were consent searches, and the 2019 figure dropped to 7 percent. San Antonio’s numbers averaged 9 and 11 percent during the same two years. Austin’s were far lower: 0.6 percent and 0.5 percent, meaning that of every 200 searches done, only about one involved consent.
Midland lately has acquired a reputation for troubled police relations with the city’s Black community, as well as especially high consent-search rates relative to total searches. Midland’s 2018 and 2019 ratios were 34 and 28 percent, respectively. Fort Worth’s ratio in 2019 was 38 percent.
At 51 and 48 percent for 2018 and 2019, El Paso consent search rates were notably higher than those of other major Texas cities. And while El Paso’s figures have dropped dramatically in the past two years after the decade of annual rates over 90 percent, it’s not clear whether the lower numbers will hold in the future or if they are anomalies.
Meanwhile, the El Paso County Sheriff’s Office also consent searches at high rates. According to Scott Henson, a former ACLU of Texas researcher who currently writes the widely read Texas criminal justice blog “Grits for Breakfast,” 77 percent of EPCSO’s searches after traffic stops in 2004 were consent searches. In 2017, according to data the office filed with the Texas Commission on Law Enforcement, the rate was 91 percent. In 2018 it dropped to 54 percent, but last year it was up to 60 percent.
The problem with heavy reliance on consent searches
Too much consent searching during traffic stops is bad policing, say many criminologists and other law enforcement professionals. One is Texas State University professor Brian Withrow. Before he became a criminologist specializing in racial profiling, he was a Texas state trooper. His father was a policeman.
Withrow says that police departments’ cost of doing lots of consent searches is relatively low because each one takes little time — even if few of the searches find contraband. But the “cost from the perspective of the citizen is huge,” Withrow says. “It interrupts their life. It puts them in danger. It’s extremely stressful.”
Frequent consent searching also often seems related to racial profiling — at least in the public mind. Across the country, researchers, criminal justice reformers, and even some police chiefs worry that citizen perception of racial disparity in consent stops erodes not just public safety but also community efforts to achieve racial equity.
El Paso Matters asked Withrow to comment on El Paso’s extremely high consent search rate. He said it seems “out of whack” with the city’s demographics and with contemporary policing.
The consent-search problem extends well beyond El Paso, as shown by data including an enormous research project conducted at Stanford University. The Stanford Open Policing Project examined almost 100 million traffic stops conducted from 2011 to 2017 by 21 state patrol agencies and 29 municipal police departments, among them New Orleans, Philadelphia and several Texas cities including Lubbock, Austin, Houston and San Antonio.
The data revealed that two-thirds of the policing agencies were stopping and searching Black and Latino drivers on the basis of less evidence than for white drivers — though white drivers were more likely to be found with contraband.
Those findings track data reported over a decade ago, in a 2005 report released by the American Civil Liberties Union of Texas, the National Association for the Advancement of Colored People Texas, the League of United Latin American Citizens Texas and the Texas Criminal Justice Coalition. Four years earlier, the Texas Legislature had ordered law enforcement agencies to send yearly traffic stop data to the state, with an eye to identifying racial profiling and working to lessen it.
The investigators took advantage of the new law to collect 2003 traffic stop consent-search data from over 1,000 law enforcement agencies in Texas.
The 2003 data showed that two-thirds of the agencies had searched Blacks and Latinos at higher rates than whites after a traffic stop, and 69 percent searched Latinos at higher rates than whites. Of the agencies that searched Blacks and Latinos at higher rates, over half found contraband in possession of whites at a higher rate than among the two other groups. In other words, the white drivers had what criminologists call higher “hit rates.” The disconnect between over-searching people and color and under-finding contraband in their vehicles suggested that racial profiling was occurring.
In 2005, the same year that the damning Texas study was published, the Texas Senate and House voted to require law enforcement officers to obtain audiotaped or written consent from drivers before doing consent searches. The bill also created a data-gathering plan that included looking at the traffic-stop-and-search practices of individual law enforcement officers, to ascertain whether a small number were racially profiling large numbers of drivers.
The bill passed, but it was vetoed by then-Gov. Rick Perry. He said that it might prove onerous to law enforcement officers.
But by the time Perry vetoed the law, the city of Austin had already noticed a huge disparity in the ratio of Black drivers being consent searched compared to white drivers – the difference in 2003 was five-to-one. So in 2004, the Austin Police Department began requiring that police obtain written consent from drivers to search vehicles. Consent searches declined by 90 percent.
But Austin remained as safe as ever, officials said. The city’s police officers were freed up for better uses, such as combating serious crime. (However, Austin continues to stop Black drivers at higher rates than it does white drivers.)
In other states, consent searches have been banned for over a decade in New Jersey, Minnesota, Rhode Island, as well as by the California Highway Patrol. And some jurisdictions have moved ahead with new policies related to consent searching. This past February, San Francisco District Attorney Chesa Boudin announced that his office would not charge people for possession of contraband if it was found after police used a minor traffic infraction to pull over a vehicle and search it.
The American Civil Liberties Union of Texas, League of United Latin American Citizens Texas, NAACP Texas and the Texas Criminal Justice Commission recommended that Texas policing agencies break down consent searches by race and report that data to the state. “Hit rates” should also be broken down by race. Without such data, the organizations said, “there’s not enough information available to tell for sure what this data means.”
A 2017 state law was supposed to provide the information. The law passed after Black driver Sandra Bland was stopped for a traffic violation in East Texas in 2015, arrested, taken to jail, and later found dead in her cell. She had apparently committed suicide. The law mandated that the Texas Commission on Law Enforcement gather not only consent-search data broken down by race, but also hit rates categorized the same way.
That didn’t happen. Nor does the El Paso police department send search data by race to TECOLE. It’s available only because criminologist Eric Fritsch collects it for the annual report EPPD presents to City Council. As for racially-specified hit-rate data, the EPPD apparently does not collect it at all. El Paso Matters has twice made open records requests for hit rate data. EPPD has responded with unrelated figures.
How cities can better spot racial profiling
Criminologist Withrow said that, in addition to hit-rate data, “internal benchmarks” may be the way to definitively spot racial profiling. Testing individual police officers for evidence of implicit — that is, unconsciously held — racial bias could identify employees at high risk of profiling citizens.
In addition, many criminologists say, policing agencies need to keep data on every officer’s consent searches. Just a few officers in a department may be racially profiling. Their patterns should be identified. Detection requires long term record keeping for officers doing the same work on the same beat during the same shift.
“If somebody bubbles to the top — does a whole bunch of little, crappy things over the course of their career, including making more stops than other officers of, say, Hispanics, then there’s something there,” Winthrow said.
Withrow said that it may not be possible to statistically prove what’s causing more consent searching among people of color during traffic stops in El Paso — or in any locale. Higher consent search rates in one place could be because more people of color live or travel through poorer and highly policed parts of town. They could be because poorer people have more problems with their vehicles – expired registration stickers, broken lights, for instance — and in many communities, including poverty is statistically more highly associated with one race than another.
But none of this explains the complaint of a middle-class man on Transmountain. Or those of his El Paso friends who are college-educated professionals.
Nor does it explain myriad cases recounted by lifelong El Pasoan Ouisa Davis, an African-American lawyer and community leader. Among those cases: that of a middle-aged Black man, a professional, whom Davis defended after he was accused — falsely, she said — of texting while driving. When stopped, the man was ordered to place his hands on his car dashboard, and the officer yelled at him when he reached into his glove compartment to get his insurance papers.
In court later, before the officer had a chance to re-examine the ticket he’d written, Davis questioned him about what he remembered about the stop. He implied that it was Davis herself whom he’d stopped. The judge threw out the case. “We were profiled,” Davis said, about her client and herself.
“Black people,” she said, “have historically been no more safe in El Paso than any other place.”
Without internal benchmarking in individual policing agencies, Withrow said, it is impossible to statistically prove systemic misbehavior. But the problem goes far beyond statistics, he said. He sees it as deeply historical.
“No white man in policing knows what it feels like to live as the victim of white supremacy and slavery,” he said. And more recently, he said, “There have been times in my lifetime where relationships between the police and communities of color were better. There was a movement for community-oriented policing in the late 1980s, and it flourished until 9/11. All of a sudden then, policing changed — it became much more focused on terrorism and external threats to the country. Our budgets increased. Police became much more militarized. Meanwhile, police after 9/11 started to dress differently and behave differently. At protests today they look like Ninja Turtles! The old, professional-efficiency model came back. It’s a style that’s very quantitative: you take the report and get right back to another call. For most of the 20th century we were doing that, even though community involvement is what makes policing work.
On May 31 in El Paso, T.J. Johnson went to the Black Lives Matters protest for George Floyd — the one where police officers, dressed like Ninja Turtles, threw tear-gas at El Pasoans, most of them people of color, and fired upon them with bean-bag rounds.
Withrow is white. He said that his son, whose white father and grandfather were law enforcement officers, says that he hates the police.
“The profession of policing has an obligation to step up and help fix this problem,” he said about the perception, held by so many people of color, that they are racially profiled even during interactions such as traffic stops, which for white people are generally trivial. “We have to begin,” Winthrow said, by saying ‘I’m sorry.’”
Data visualizations by Emma Baker/El Paso Matters.
Cover photo: T.J. Johnson, shown outside his home, believes that El Paso needs to confront its everyday racism. (Corrie Boudreaux/El Paso Matters)