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1999-05-19
N.J. Class Action Targets Racial Profiling

By Shannon P. Duffy

U.S. Courthouse Correspondent

Four of Philadelphia's top civil rights lawyers have joined forces to file a class-action suit in U.S. District
Court in New Jersey alleging claims of racial profiling by the New Jersey State Police.

Attorneys Alan L. Yatvin and Howard D. Popper of Popper & Yatvin filed the suit on behalf of two
African-American motorists and the South Burlington County Branch of the NAACP. Joining them as
co-counsel are David Rudovsky of Kairys Rudovsky Epstein Messing & Rau and Professor Seth F.
Kreimer of the University of Pennsylvania Law School, as well as Justin T. Loughry of the Cherry Hill
firm Tomar Simonoff Adourian O'Brien Kaplan Jacoby & Graziano.

The suit alleges that "for a significant period of time, the defendants have engaged in a practice, policy or
custom of racial profiling on the New Jersey Turnpike. Plaintiffs, on behalf of themselves and all others
similarly situated, seek to enjoin this policy, practice or custom of stopping, questioning, detaining and
searching motorists on New Jersey highways because of their minority status and/or without the
requisite cause required by the United States Constitution and state laws."

Named as defendants in the suit are former New Jersey State Police Superintendents Colonel Carl A.
Williams and Clinton Pagano, current Superintendent Colonel Michael Fedorko, former Attorney
General Peter Veniero, and the New Jersey Turnpike Authority.

Yatvin said police misconduct cases are unique in many ways, but that "this case is even more unusual in
that massive numbers of people appear to have suffered deprivation of their rights simply because they
fit some offensive, unconstitutional profile."

Although a suit is already underway in New Jersey's state courts, Yatvin said "we wanted to put
together a team of lawyers with the experience and expertise to litigate this massive civil rights class
action in federal court."

Loughry is one of the attorneys handling State of New Jersey v. Pedro Soto, et al. in which New Jersey
Superior Court Judge Robert E. Francis ruled in March 1996 that the New Jersey State Police did
make race-based profile stops to increase criminal arrests and that this practice violated minority
motorists' constitutional rights to equal protection and due process.

Rudovsky is a Senior Teaching Fellow at the University of Pennsylvania Law School and is the
co-author of Police Misconduct: Law and Litigation, the seminal resource material for lawyers who
focus on police misconduct. In his three decades as a lawyer, Rudovsky has litigated numerous police
misconduct cases in a variety of courts, including the U.S. Supreme Court, where he successfully
argued City of Canton v. Harris, a landmark case that has profoundly affected the standards for
establishing municipal liability in police misconduct cases.

Kreimer, who teaches Constitutional law and Constitutional litigation, often joins Yatvin and Rudovsky
in major cases, including the recent litigation over the 39th District police corruption scandal.

The New Jersey suit, which seeks both damages for the members of the class and remedial injunctive
relief, has been assigned to U.S. District Judge Joseph E. Irenas.

The suit alleges that for almost 25 years there have been complaints of racism on the Turnpike by both
the public and, in more recent years, by minority State troopers themselves.

In 1975, the U.S. Justice Department filed a lawsuit against the NJSP under the Civil Rights Act of
1964 and the Equal Opportunity Act of 1972, alleging that the NJSP overlooked qualified minority and
women applicants for employment.

The court criticized the department for ignoring past findings of discriminatory practices and not setting
up objective and standardized criteria and procedures for assignments, tenure, promotion and discipline
to assure that minorities and women are treated equally and fairly.

In response to the lawsuit, the NJSP agreed in a consent decree to increase the number of
African-Americans and Hispanic troopers to 14 percent of the State Police force within five years. At
that time, out of 1,765 troopers employed by the State Police, 13 were black, five were Hispanic and
there was only one woman.

Thereafter, three subsequent decrees were entered into in the Department of Justice lawsuit before the
lawsuit was resolved in 1992 - 17 years after the suit was filed.

In 1989, WOR (Channel 9) television aired a four-part investigative news program documenting racial
profiling by the NJSP entitled "Without Just Cause." The series included the complaints of dozens of
black motorists allegedly stopped, detained, humiliated, but not arrested.

The news program also presented statistical data revealing that, whereas the percentage of black
motorists driving the turnpike was modest, between 75 percent and 89 percent of all persons stopped
by the NJSP were minorities and that 76 percent of those arrested were black.

The suit says trooper training has included information alleging that black people of American, Jamaican
and Nigerian background, and Hispanic people who who can trace their ancestry to several Latin
American countries, are the people transporting drugs through the state.

"The training exacerbated racism by suggesting to some state troopers that Jamaicans were particularly
violent," the suit says. "A training video featured sensationalized and fictional movie clips portraying one
Jamaican slashing another with a knife and showing street violence during a political demonstration ... all
of which had nothing to do with drug trafficking."

In Soto, Judge Francis found that race was a critical trigger for police stops, including statistical
evidence that a black was 4.85 times more likely than a white to be stopped by troopers.

Francis found that the racially discriminatory practices were tolerated and even encouraged at the
highest levels of State Police, saying that the "utter failure of the State Police hierarchy to monitor and
control ... or investigate the many claims of institutional discrimination manifests its indifference if not
acceptance" of those unconstitutional practices.

But the suit says that instead of reacting responsibly to the Soto decision and making the necessary
changes in the police bureaucracy, New Jersey officials "attempted to conceal the disparity."

Only last month, the suit says, Attorney General Verniero "finally commenced review of the data that
had been ignored, and which demonstrated that the practice of racial profiling was both real and
entrenched." The belated move came in response to outcry over the shootings of four unarmed black
men in April 1998.

The Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling reported
that state troopers singled out black and Hispanic motorists because of the color of their skin, and that
once they were pulled off the road, they were three times as likely as whites to have their cars searched.