Racial classifications are permitted only if the government meets the heavy burden of demonstrating that the discrimination is necessary to achieve a compelling government purpose. In other words, the government must show an extremely important reason for its action and it must demonstrate that the goal cannot be achieved through a less-discriminatory alternative.
Racially selective law enforcement violates our nation’s constitutional values at the most fundamental level. Unequal application of the criminal laws to white and black persons was one of the central evils addressed by the framers of the Fourteenth Amendment. The requirements for a claim of racially selective law enforcement draw on what the Supreme Court has called "ordinary equal protection standards.” The citizen must demonstrate that the defendant’s actions had a discriminatory effect and were motivated by a discriminatory purpose. These standards have been applied to, for example, traffic stops. The discriminatory purpose need not be the only purpose, but it must be a motivating factor in the decision.
Some examples where courts have recognized viable race-selective law enforcement claims:
- where driver (black male) was stopped by police officer for allegedly failing to stop at a stop sign, but the traffic stop happened only after the officer followed the driver for several blocks to make eye-to-eye contact, and then accused the driver of using crack.
- where Mexican-Americans were arrested by park rangers for swimming after hours, while non-Hispanic persons were not, the court found adequate evidence of a discriminatory purpose because one of the park rangers had allegedly referred to “Mexicans” in a derogatory tone.
We know how to win these types of claims.