With debate looming on the primary seatbelt bill
, opposition comes from former Judge Wendell Griffen
, who believes it will open the door to racial profiling.
Dear Chairman Sample and Members of the House Public Transportation Committee:
Because you are members of the House Public Transportation Committee in the 87th General Assembly, I suspect that you may be asked to support SB 78 (the primary seat belt bill) and SB 299 (the racial profiling advisory task force bill) that Senator Hank Wilkins is primary sponsor of in the Senate and that Representative Fred Allen is running in the House. Those measures are scheduled for a special order of business tomorrow morning before the House Transportation Committee. I am writing to the members of the Committee for whom I could obtain e-mail addresses to share my personal opposition to SB 78, as currently worded, and am providing a copy of this message to Senator Wilkins and Representative Allen. I am also providing a copy of this message to the Arkansas Surgeon General, Dr. Joseph Thompson.
Despite my membership on the Arkansas Center for Health Improvement (ACHI) Policy Board and my strong view that a primary seat belt law will benefit public health in Arkansas, I cannot support SB 78 because it creates one more gateway for law enforcement officials to engage in racial profiling. At the same time, neither SB 78 nor SB 299, its companion measure that would create a racial profiling advisory task force, contain safeguards that will deter law enforcement from using the primary seat belt law as pretext for what might otherwise constitute racially discriminatory policing under the guise of enforcing the primary seat belt law.
Please click on the link shown above. You will be routed to the October 29, 2008 decision by Judges Josephine Hart, Eugene Hunt, and I of the Arkansas Court of Appeals in Martin Hinojosa v. State, where we reversed Hinojosa's conviction for drug offenses arising from what would have appeared to be a routine traffic stop by a member of the Arkansas State Police on Interstate 40 because the stopped vehicle had a license plate holder that partially obscured the designation of the state where the vehicle was registered. The State Trooper testified that he stopped the vehicle because he could not tell what state it was registered in because of the license plate bracket.
On cross-examination, however, the Trooper admitted that the license plate clearly had a desert cactus image on it and the words "Grand Canyon State," that he knew that the Grand Canyon is in Arizona, that the desert cactus image is associated with license plates on vehicles registered in that state, and that he understood that the plate was from Arizona because there is only one Grand Canyon, which is located in Arizona. The Trooper had no reason to believe that he was doing anything other than stopping a vehicle that bore an Arizona license plate. However, based on the traffic stop for the "improperly mounted license plate" however, the asked the motorist whether he had ever been arrested (as if that information had anything to do with the license plate). I hope you will read my concurring opinion in the Hinojosa case in which I addressed the racial profiling aspect of the traffic stop.
Plainly, racial profiling is not a myth or mere urban legend. Unfortunately, its reality contributes to a real distrust by persons of color concerning whether law enforcement practices are even-handed. Arkansans expect our laws to be enforced that the people who enforce our laws to be respected. However, respect for the law and law enforcement is undermined when law enforcement practices are tainted by racial discrimination. The Hinojosa decision clearly shows that black and brown motorists in Arkansas remain susceptible to racial profiling.
The ACHI Policy Board had a lengthy discussion about this issue several weeks ago and agreed to support the idea of a primary seat belt law, provided that provisions are added to safeguard against the threat of racial profiling. Because the current version of SB 78 does not include any safeguards against racial profiling, I have informed Surgeon General Dr. Joseph Thompson that I am unable to support it. I believe in wearing seat belts and support the idea of a primary seat belt law. However, I cannot and will not pretend that racial profiling does not exist, that it does not exist in Arkansas, or that motorists of color in Arkansas will not be more likely targets of racial profiling if SB 78 is enacted. To do so would be to ignore the facts in Hinojosa, not to mention considerable other evidence nationally about racial profiling by law enforcement. In opposing SB 78 in its current form and communicating my position to you, I am acting in my solitary capacity. I do not speak for the Arkansas Center for Health Improvement, its Policy Board, or any other person or entity.
Finally, I offer what is a workable solution that can easily be worked into SB 78. Specifically, SB 78 could be amended to add the following language: "Violation of the primary seat belt law shall not constitute reasonable suspicion for a search or seizure." Adding this language will not deter from the enforceability of the primary seat belt law. However, it will reduce the risk that the primary seat belt law will be used as a pretext for racially discriminatory traffic stops. As presently worded, SB 78 does not deter racial profiling, but merely creates another primary offense that can operate as a pretext for engaging in that discriminatory police conduct in the guise of traffic enforcement and public safety.
I hope Arkansas legislators will not vote as if racial profiling is to be tolerated, if not invited, in the interest of public safety (and a chance to qualify for nine and a half million dollars in federal highway safety funds). The Arkansas law enforcement community has long appeared insensitive concerning and defensive about racial profiling. Passage of SB 78 will amount to legislative endorsement of that attitude.
Arkansas legislators can and should craft a primary seat belt law that promotes public health and safety while also providing safeguards against discriminatory law enforcement practices. Please do so. Thank you for considering my concern and suggestion.
Wendell L. Griffen, CEO