Two years ago, a man and a woman stood by the side of Route 7 in Ferrisburg. Their vehicle had run out of gas. Neither of them had any money. A Vermont State Police trooper came by, and instead of offering them help, she asked them for their driver’s licenses. When they weren’t able to produce the documentation, she detained them on the spot.
The couple was from Mexico. They had been picked up in Addison County, a region well-known for its large Mexican migrant worker population and tolerant local law enforcement agencies that refuse to investigate the immigration status of undocumented Mexicans not suspected of criminal activity.
In the Route 7 incident, the State Police took a different tack. The trooper detained the 20-somethings with Arizona plates and reported them to Immigration Customs Enforcement. They were eventually deported.
In Hartford last month, police struck a man with a night stick, handcuffed him, blasted him with pepper spray and dragged him out of his own home because a cleaning lady had reported a “burglary in progress” at the Wilder residence, according to a report from the Valley News. The man had passed out in a bathroom on the third floor because of a medical condition. A neighbor tried to explain that the man police hauled out of the town home was not a burglar at all, but actually lived there, according to Jim Kenyon, a columnist for the newspaper. The intervention was futile; Hartford police threatened to incarcerate the neighbor as well. The man eventually was released.
The man in the second instance — allegedly abused by police — is black. Police didn’t question the maid’s assumption that a black man on the premises was conducting a robbery. That police action is under investigation.
Civil rights activists say these are classic examples of racial profiling. Anecdotal reports of biased police behavior in Vermont are numerous, representatives of minority groups say, and there is a perception among minorities and immigrants that they are not treated fairly by law enforcement here.
And as the state, which is 96.5 percent white, sees an influx of refugees and workers from around the world — one out of every three new Vermont residents is a racial or ethnic minority, according to the Vermont Advisory Committee to the U.S. Commission on Civil Rights — advocates and law enforcement officials alike say they are trying to curtail incidents of racial profiling.
But change is long in coming. It was only last year, after the Vermont advisory committee released a damning report that cited numerous examples of abuses, that law enforcement officials began to step up the pace of reforms.
It recommended six steps Vermont police should take to address rampant racial profiling problems. Of these, two have been tackled head-on this year:
1. The Vermont State Police began collecting statewide racial profiling data as of July 1
2. The attorney general’s office has introduced a draft model for bias-free policing rules for the state’s more than 70 local law enforcement entities.
No progress has been made in the following areas:
* An expansion of compulsory comprehensive training for anti-bias policing at the Vermont Police Academy for officer certification and in-service training throughout an officer’s career;
* Installation of video cameras in all front-line patrol vehicles to record all motor vehicle stops;
* The development of police-community partnerships like Uncommon Alliance to promote bias-free law enforcement practices around the state;
* Legislation that prohibits racial profiling of motorists and pedestrians.
When Vermont police play immigration cop
State and local efforts to purge agencies of racial prejudice are complicated by an issue that is intertwined with racism: immigration. In Vermont, roughly 1,500 undocumented Mexican migrants work on Vermont farms and provide crucial support for the state’s teetering dairy industry. The workers, especially those who live on farms near the international border, are forced to stay put or risk becoming targets for the police or the Border Patrol. Those who are picked up outside a Wal-Mart, en route to visit friends and family, or even right off the farm – are typically deported.
An immigration backlash has reached a fever pitch in other states. Last spring, the Arizona Legislature passed a law empowering local and state officials to act as federal immigration officials. Police officers can detain and arrest anyone they suspect of being undocumented, effectively making it a crime to live in the state as an undocumented foreign national.
Outraged at what they see as a violation of civil rights, activists have called for an overhaul of national policy for its failure to address the burgeoning population of undocumented Mexican migrant workers.
The Burlington City Council recently passed a resolution calling for a boycott of Arizona because of its new state law, which requires local and state police to arrest anyone suspected of being an “illegal alien.”
But in practice, there is nothing to prevent Vermont law enforcement officials from playing a similar role under certain circumstances. Since the 9/11 World Trade Center attacks, local and state police have stepped up their surveillance to identify potential terrorist threats in conjunction with the Department of Homeland Security.
Vermont law enforcement officials are not required under federal law to detain anyone they suspect of being an “alien,” but they have the authority and discretion to do so, under the rubric of suspicion. Once an undocumented foreign national is detained, a local police officer or state trooper calls the Border Patrol. The person is then detained until Immigration Customs Enforcement (ICE) is available to investigate and process their immigration status. Detainees are sent to a Clinton (N.Y.) County jail or a large national detention center in Buffalo. Eventually, they are deported.
Comprehensive statistics of “illegal alien detentions” were unavailable at this writing from ICE, but the Vermont State Police released the following total Vermont detentions by year: 28 in 2008, 19 in 2009, and 11 in 2010. These numbers do not include Border Patrol, county sheriffs or local police department apprehensions. The Mexican consulate told Vermont Public Radio that 123 Mexicans were detained in Vermont in 2006; that same year, police arrested 33 Mexicans in Massachusetts.
No Vermont law enforcement agency has signed a memorandum of agreement with Immigration Customs Enforcement under Section 287(g), which “allows a state and local law enforcement entity to enter into a partnership with ICE,” to become a de facto immigration agency.
The only state in New England to adopt 287g is Rhode Island. In 2008, the governor of Rhode Island signed a MOA with ICE, which requires state troopers to act on behalf of the federal agency. The agreement also requires that the employment eligibility of all executive branch workers be electronically verified through a program called E-verify. Municipal police forces in Hudson, N.H., and Danbury, Conn., and the Massachusetts Department of Corrections have also signed on with ICE. In all, 71 law enforcement entities in 28 states have formed ICE partnerships.
Vermont police also sometimes ask pedestrians and passengers of vehicles for IDs to determine immigration status and report suspected “illegal aliens” to the Border Patrol. (The notable exceptions are Burlington, South Burlington and Middlebury police departments, which have adopted “don’t ask, don’t tell” policies regarding immigration investigations, unless the individual is a suspect in a crime.)
The Vermont Supreme Court determined that there is no lawful basis for police to investigate beyond the initial purpose — that is issuing a ticket to the driver. An officer is not supposed to inquire about immigration status of passengers in a car unless there is a specific suspicion about the occupants, according to Robert Appel, executive director of the Vermont Human Rights Commission. The U.S. Supreme Court, however, has ruled otherwise.
The upshot is, Vermont State Police, and many police departments and sheriffs, can help to enforce federal immigration law, and will likely continue to do so, even at a time when officials are attempting to address ongoing racial profiling complaints in the midst of a budget crunch.
That’s because new policies developed by the Vermont attorney general and the Vermont State Police sidestep the issue of immigration status.
Paul Duquette, chief of the Newport Police Department and a former head of the Vermont Association of Chiefs of Police, describes the AG’s policy as a template “that you modify for your own area.” The majority of association members have already adopted anti-bias rules that they developed as a group last year; the AG’s recommended policy will be released by early fall.
“(The AG’s policy) covers the high points that should be addressed, and then locally departments can flesh it out a little,” Duquette said.
The current AG draft includes a glaring omission, as far as advocates are concerned: The policy doesn’t mention whether the immigration status of individuals should be taken into account, nor does it extend protection to victims and witnesses of crimes who may be undocumented foreign nationals. The latter is part of the Vermont State Police, Winooski, Burlington and S. Burlington rules because officials say immigrants won’t report crimes if they fear they’ll be deported.
John Treadwell, Vermont assistant attorney general, said his office was not asked to look at immigration status within the context of a “bias-free” policy.
“This office believes that the draft provides substantial guidance and clarity regarding bias-free policing,” Treadwell said. “The intent was to provide broad-based guidance to law enforcement agencies to establish a framework within which all law enforcement functions are conducted in a bias-free manner.”
Robert Appel, of the Human Rights Commission, said questions about immigration status and racial profiling go hand in hand. Police – state troopers, sheriff’s departments and local police departments – sometimes use minor traffic violations and routine encounters to apprehend immigrants and people of color in Vermont whether they are suspected of a crime or not, he said, and for this reason, he supports the less expansive Middlebury Police Department approach.
“Under the Middlebury policy, the directive says don’t inquire about immigration status unless there is suspicion that the person is engaging in criminal activity or is the subject of an outstanding warrant or a threat to homeland security,” Appel said. “In addition, the Middlebury policy recognizes a matricula consular, a government identification issued by the Mexican consulate as proof of identity. That’s where I’d like to see the rest of the state.”
Duquette says this isn’t a worry in Newport, where, he says, the Border Police are a presence in the city and routinely apprehend undocumented foreign nationals.
“As far as we’re concerned, we don’t have the need to go around asking for people’s immigration status,” Duquette said. “If somebody’s broken down, and they don’t look like they’re from around here, we’re going to pull over and say can we lend you a hand.”
Appel said the template also neglects to address “disciplinary procedures” for officers or “complaint channels” for aggrieved individuals — other than to state each policy should have one. Ideally, he said, the Vermont Human Rights Commission would be the enforcement entity.
While some local departments have already adopted bias-free policies, the effort is by no means uniform, because Vermont’s law enforcement system, like its educational system, is highly decentralized, Appel said. Though the attorney general can make recommendations – on bias-free policing policy or Taser use, according to Treadwell — it doesn’t have the authority to require each municipality to take action. Only the Legislature can mandate standards. An attempt to introduce legislation to prohibit racial profiling failed in 2002.
State police modify anti-bias policy
The Vermont State Police will be working closely with the attorney general’s office to help finalize the statewide model policy. It has had its own bias-free policy since 2003, which requires that officers not consider race and other “improper criteria,” such as gender or sexual orientation, in establishing reasonable suspicion or probable cause.
The new policy extends to all members of the Vermont State Police and it outlines procedures for screening calls from members of the public who make biased reports. Sometimes Vermonters, police say, will call in a sighting of a group of young black men hanging out in a park, or an Hispanic woman catching a bus on Shelburne Road. Police dispatchers and other officers are required to explain to callers that their complaints are biased and unacceptable; that unless there is criminal activity, they have nothing to report.
The new policy does not include “don’t ask, don’t tell” language regarding immigration status.
Thomas Tremblay, the commissioner of the Department of Public Safety helped to develop Burlington’s bias-free policing policy when he was the city’s police chief. He said more liberal immigration rules, like those promulgated in Chittenden County, wouldn’t be possible for the Vermont State Police to adhere to because they often provide backup surveillance services for the Border Patrol.
Col. James Baker, the former head of the Vermont State Police, decided before he retired a few years ago, that he wouldn’t allow troopers to pursue illegal migrant workers on local dairy farms. That policy hasn’t changed, Tremblay said.
“We are not interested in going on raids to farms and seeking out undocumented workers on our farms or in our communities unless they’re involved in criminal activity or unless we stumble onto them through routine enforcement activity such as traffic stops,” Tremblay said.
“If we are called to investigate a crime, and we come across someone and we’re seeking identification, whether we pulled you over in a car or whether we were investigating a situation you were involved in, we always identify the people that we’re talking to,” Tremblay said. “When people can’t offer sufficient ID, we continue to investigate to determine their identity, whether it be a car stop or a criminal investigation or suspicious behavior. If we have the authority to stop and detain you, we’re going to seek to properly identify you, and there comes the potential conflict for folks who are not properly documented.”
Asking passengers for IDs as part of a routine traffic stop is a possible scenario, Tremblay said.
“It’s very difficult to try to explain what an officer might see in the car,” Tremblay said. “Suspicions might be raised for a variety of reasons. I’ve certainly seen situations where there is a car full of individuals that are pulled over, and nothing suspicious is raised, and the operator is the only one identified. And there are other situations where suspicions are raised and law enforcement may seek to identify the people in the car.”
Appel is disappointed that the Vermont State Police policy does not list immigration status as an improper criteria for initiating an investigation or police encounter.
“Given the tightness of state budgets, the VSP, like all Vermont police agencies, has its hands more than full in enforcing Vermont statutes and providing caretaking functions as necessary without taking on the vast and controversial task of enforcing our questionable federal immigration policies,” Appel said.
Though the newly revised policy (the original was created in 2003), includes improvements, such as the screening of biased reports from citizens, Appel said it contains a crucial flaw that renders it unenforceable: In order to show that the rule has been violated, it must be demonstrated that the biased act was based “solely on improper criteria,” that is solely on race, for example.
“A trooper may watch 30 cars go by on the Interstate traveling at 74 miles an hour, and decide to stop the late model Mercedes with Florida plates operated by an African-American man at the same speed,” Appel wrote in an e-mail. “Such a stop, although likely to be motivated by bias, is not based “solely” on race.
“I have pushed for years to change the term ‘solely’ to ‘in whole, or in part,’ which is a standard that one attempting to show bias in the hypothetical above could probably meet,” Appel wrote.
In addition, Appel said Tremblay ignored his attempts to help with the development of the policy; Tremblay didn’t include him, in spite of his many years of experience with racial issues. His final criticism: The policy is apparently not available on the Department of Public Safety’s Web site.
Racial-profiling data points make good policy
Until the Vermont State Police started collecting racial profiling data at the beginning of this month, Vermont had the ignominious distinction of being the only state besides Mississippi that didn’t track the number of minority drivers an individual police officer pulls over.
Four local police departments in Chittenden County – Burlington, South Burlington, Winooski and the University of Vermont – began collecting racial profiling data for routine traffic stops a year and a half ago, and Northeastern University in Boston is now analyzing the results.
Thomas Tremblay, the commissioner of Public Safety, said the State Police began a pilot traffic stop program in January, and recently conducted diversity training and updated its anti-bias policy. An analysis of the statewide statistics they have begun to amass won’t be available for more than a year, he said.
Allen Gilbert, executive director of the Vermont chapter of the American Civil Liberties Union, said it took 15 years for activists to get local and state law enforcement to recognize “what’s been a flashpoint in this state for longer than 15 years — the perception that there’s rampant racial profiling in (Vermont).”
“The problem has been that nobody has been able to determine whether there is indeed racial profiling, because police have resisted the collection of racial profiling data when they stop people, particularly motorists,” Gilbert said.
Tremblay bristles at the idea that the State Police haven’t moved fast enough. “The reality is, the Vermont State Police have been at the table for a couple of years now,” Tremblay said. “It’s very different for a small department to collect data. We have 12 barracks across the state with 300-plus troopers, and so we have been increasing training around diversity and cultural competency and updating our policies and putting ourselves in best position to collect data.”
The data may be long in coming, but it’ll be worth it, in Wanda Hines’ book.
Hines is the driving force behind Uncommon Alliance, an organization that brings together law enforcement officials and local community members to eradicate racial profiling from the criminal justice system.
“What’s fantastic about that is, once you establish that baseline data field, the results will provide you with better tools to better manage local law enforcement, to create more equitable communities, to enhance quality of life and to move communities as a whole, our state as a whole, to a place where everybody is treated fairly,” Hines said.
