In November 2023, the Texas state legislative body passed Senate Bill 4, a state law addressing illegal immigration. At the time of writing, this law remains in legal limbo but may at any point come into effect in Texas.1 Although this is a law specific to Texas, there is an emerging trend among other states to pass similar legislation. Iowa recently ratified its own immigration law (Senate Bill 2340), largely mirroring the language of Texas.2 Other states, including Idaho, Kansas, Louisiana, Missouri, South Carolina, and Mississippi are in various stages of legislative processes to consider their own versions of immigration laws similar to the Texas law.3
Texas Senate Bill 4 challenges police in the state to enforce immigration laws while simultaneously protecting the civil rights of all individuals. However, it must be questioned if this is even possible or feasible given what appears to be countering perspectives in the current Texas laws. Perhaps the most significant issue is that, as immigration continues to be a frequent topic of discussion in the current political climate, it is likely that all police departments across the United States will face similar experiences as Texas police agencies in the near future.
Texas Racial Profiling Law and Senate Bill 4
Given the frequency of discussion related to illegal immigration in the United States, it is not surprising that Texas, a southern border state, has weighed in on this debate. However, the discussion has extended to the past legislative session when Texas passed into law its own immigration enforcement mandate, otherwise known as Senate Bill 4.
In 2001, Texas became one of the first states to adopt racial profiling legislation. That original legislation was amended after a traffic stop involving the Texas Department of Public Safety (DPS) and Sandra Bland, which resulted in her unnecessary arrest and death. The Sandra Bland law occasioned even stronger admonishments regarding the dangers of racial profiling and positioned the state of Texas among the leaders in the United States with regard to eliminating racial profiling.4 The Sandra Bland law provided a robust dataset in open-source format, allowing anyone to research the state of racial profiling in Texas, thus elevating the transparency of Texas policing. However, in 2023, the state passed Senate Bill 4 in an attempt to address growing concerns of illegal immigration at the southern border of the United States. These two laws—the Sandra Bland law and Senate Bill 4—may inadvertently threaten to undermine the progress Texas has made in addressing racial profiling.
The Sandra Bland law, which became effective in 2017, was designed to do more than merely prohibit racial profiling, which was already prohibited under the original racial profiling law that went into effect in 2001. The Sandra Bland law addresses the prohibition of racism at the individual, public, and institutional level. First, at the individual level, it explicitly prohibits peace officers from making decisions regarding motor vehicle stops based on the race of the driver, reiterating the concerns from the original racial profiling law.
Second, at the public level, the law requires that racial profiling data must be reported to the state annually. This generates data transparency and encourages a public trust that police officials are acting ethically.
Third, at the institutional level, the law also requires an annual analysis of each agency’s racial profiling data. This promotes the idea that, as agencies review their annual data, they may be encouraged to make course corrections if any anomaly in the data suggests necessary changes at the institutional level.
Overall, the Sandra Bland law prohibits racial profiling, requires data transparency, the institutional analysis of traffic data, and the creation of a collaborative effort between individual peace officers, the public, and police departments.
Data Analysis of Racial Profiling in Texas
Under Texas law, peace officers are prohibited from considering the race of a subject among the variables as a reason to conduct a motor vehicle stop. That is, peace officers cannot simply decide to stop a motor vehicle solely based upon the race of the driver. But racial profiling is more than just not conducting motor vehicle stops based on race. Peace officers often make decisions after the motor vehicle has been stopped— and, thus, when the race of the driver is known to the officer—including whether to cite or warn the driver, search the vehicle, request consent to search the vehicle, or initiate an arrest. Once a peace officer has stopped a motor vehicle and contacted the driver, the race of the driver must also not factor into these decisions. Thus, the intent of the law is that peace officers conducting motor vehicle stops should attempt to make consistent decisions that are based on facts other than the race of the driver. In theory, this should result in a dataset that looks equitable when disaggregated by race.
An explanatory note here before proceeding. Under the racial profiling legislation (Texas Code of Criminal Procedure §2.132), the state defines race by way of a list of races/ethnicities, including Hispanic.5 That is, although sociologically, Hispanic is considered an ethnicity, for racial profiling purposes under Texas’ law, Hispanic is regarded as a race. Thus, the use of the term race throughout this article includes Hispanic.
Researchers at Tarleton State University’s Institute for Predictive Analytics in Criminal Justice (IPAC) have conducted an annual analysis of the entire Texas racial profiling dataset since 2020, when the full impact of the Sandra Bland law went into effect. Despite the ethical intentions of the Sandra Bland racial profiling law, these annual reports from IPAC have consistently shown some bias against Hispanic drivers. For example, statewide, Hispanics were searched at a higher rate relative to the search rate of whites, and, when searched, Hispanics had a significantly lower contraband hit rate than whites.6 These findings—higher search rate, lower contraband hit rate—give researchers cause for concern at the possibility that racial profiling, even if inadvertent, could be the source of the disparity. In addition to these findings, researchers at IPAC also discovered that these disparities between the treatment of Hispanic drivers relative to the treatment of white drivers, were most noticeable in those regions adjacent to the border of Texas and Mexico.7
However, it should be noted that the state provides only aggregate data from each agency, which is not as useful when determining racial profiling, as this act, for the most part, is undetectable at the aggregate level. That is, regardless of whether analyzing smaller agencies—those that may have conducted only a few hundred motor vehicle stops annually—or Texas DPS, which conducts nearly 2 million motor vehicle stops annually, the aggregate data cannot provide incontrovertible evidence regarding an agency’s engagement in racial profiling. Determining the presence of racial profiling is not possible without fully disaggregated and granular data on motor vehicle stops. Until researchers are able to access line item–level data, disaggregated by each individual officer, proving the charge of racial profiling will be impossible.
However, even the cause for concern that has emerged in the existing aggregate data would not be possible without the effects of the Sandra Bland law. To reiterate, the legislation, which prohibits racial profiling at the individual level, develops public trust by generating data transparency. In reporting and requiring institutional analysis of officer-individual contact data, the state of Texas demonstrates its good faith effort to combat the unethical practice of racial profiling.
Senate Bill 4
Despite the earlier attempts to be proactive in identifying racism among Texas police agencies through the requirement to collect and analyze motor vehicle stop data, the Texas 88th legislative session (2023) introduced and passed Senate Bill 4, which presents a challenge for police entities in the state. That is, Senate Bill 4 constitutes an attempt by the Texas legislature to address growing concerns for security at the southern border between Texas and Mexico. Although the bill was signed into law by Governor Greg Abbott, it was immediately met with legal challenges. Currently, the Fifth Circuit Court of Appeals has issued an injunction on Senate Bill 4, and there is an anticipated appeal to the U.S. Supreme Court to have the law undergo final constitutional review.8 Further, Mexico has filed an amicus brief challenging the constitutionality of the law, as it is anticipated that this law will have a negative effect on the Mexican economy. The bill has both supporters and opponents, each arguing about downstream political and practical consequences of the implementation of the law.
Senate Bill 4 supporters argue that the law protects the state border and the citizens of Texas with the belief that some of those who enter the United States illegally intend harm and are a threat to national security. Further, the law is a recognition of the fact that the state, as well as the United States, as a whole, operates under the rule of law. Supporters also suggest that the law indicates a responsibility to taxpayers and especially the financial burdens borne by Texas for costs associated with health care and education of undocumented immigrants. Supporters add that this legislation is complementary, not contradictory, to existing federal immigration law and that the enforcement of Senate Bill 4 would create a deterrence of illegal entry into the United States.
Senate Bill 4 opponents argue that immigration is strictly a federal responsibility and that this bill only generates confusion within the policing community. Opponents add that the bill, on its face, challenges federal supremacy and, as the bill prohibits enforcement in certain locations, such as places of worship and hospitals, it appears to restrict where federal agents are authorized to enforce federal immigration laws. Further, it is argued that Senate Bill 4 perpetuates bias and stereotypes and will undoubtedly lead to racial profiling and subsequently undermine public trust in the police—the very trust that was built upon the strength of the Sandra Bland racial profiling law. Opponents add that state legislation focusing exclusively on enforcement of immigration law fail to see the humanitarian side of the equation, which is broader than mere illegal entry, but includes asylum seekers, refugees, and unaccompanied minors. Finally, opponents argue that Senate Bill 4 disregards civil rights and due process and that the increased fear of deportation will erode trust of the police in minority communities who will become increasingly reluctant to engage in dialogue with police.
Practical Consequences—Police Precarity
Notwithstanding either side of the political spectrum related to the implications of Senate Bill 4, most legal scholars agree that immigration issues in the United States are to be dealt with exclusively by the federal government. Despite this, Senate Bill 4 authorizes local Texas police officials to engage in immigration enforcement and, therefore, assume a role that has been reserved exclusively for the federal law enforcement authorities. This bill renders local law enforcement officials the authority to make determinations of a subject’s immigration status and authorizes them to arrest individuals determined to be an undocumented immigrant, with the provision to have a state court issue an order of deportation.
Perhaps an unintended practical consequence of Senate Bill 4 is that it would work to undermine the progress the state of Texas has made regarding racial profiling. The state has been working diligently since the original racial profiling legislation in 2001 to be a leader in the United States as it pertains to the prohibition of racial profiling. As noted earlier, the Sandra Bland law works at the levels of the individual, the public, and the institution to combat the unethical practice of racial profiling by local police officials. But with the introduction of Senate Bill 4, the state is inadvertently sending a mixed message to local police departments.
Racial profiling law prohibits taking race into account when local police officers make decisions prior to and during motor vehicle stops. But Senate Bill 4 tacitly, if not explicitly, authorizes local police officials to reverse course by considering race prior to and during motor vehicle stops. This tacit approval to use race as a consideration occurs because of the ambiguity of the bill’s language. For example, the bill created new sections to the Texas Penal Code. In §51.02, the bill states, “a person who is an alien commits an offense if the person enters or attempts to enter this state directly from a foreign nation at any location other than a lawful port of entry.”9
Senate Bill 4 does not define alien, rather it borrows the definition from 8 U.S.C §1101, where the federal government defines alien as “any person not a citizen or national of the United States.”10 How are local peace officers to know whether a person is an alien as defined by Senate Bill 4, unless they make direct contact with the subject to inquire? In other words, what does an alien, as defined by Senate Bill 4, look like? Without direct knowledge that a person is an alien as defined by Senate Bill 4, the bill appears to authorize peace officers to make judgments about a person’s immigration status based on race alone. In effect, Senate Bill 4 may inadvertently be criminalizing race.
Thus, some provisions under the Sandra Bland law and Senate Bill 4 are in direct opposition to one another. This is mixed messaging, and it places police departments in a precarious position. On the one hand, police understand they are prohibited from making decisions based on race under the Sandra Bland law, but on the other hand, they are inadvertently encouraged to make decisions based on race when considering whether to apply Senate Bill 4 to a situation they encounter.
Furthermore, the mixed messaging is particularly precarious for police leaders (chiefs, sheriffs, etc.). Chiefs must ensure that their departments comply with the requisites of the Sandra Bland law, but are bound by statute, under Senate Bill 4, that they are not allowed to prohibit their own officers from acting within the color of the provisions of Senate Bill 4.
It may be easier to understand the precarity by way of a scenario. Consider a local peace officer, especially one who works in the southern portion of Texas, who observes a subject who appears to be of Hispanic descent getting into a motor vehicle. Under the Sandra Bland law, the officer not only cannot use the race of the subject to decide whether to conduct a motor vehicle stop, but the officer must have probable cause—derived from the Fourth Amendment of the U.S. Constitution—before making lawful contact with the driver. Furthermore, the officer cannot allow race to factor into any decisions during the motor vehicle stop (citation, search, arrest, etc.). But under Senate Bill 4, if the officer believes the subject is an undocumented immigrant (based on no other information other than the race of the subject) and is therefore in violation of criminal law as provided by Senate Bill 4, the officer may, despite the prohibitions in the Sandra Bland law, and without Fourth Amendment authority, conduct a motor vehicle stop based on nothing more than the race of the subject. And if the officer, after contacting the driver, has reason to believe the subject is an undocumented immigrant, they may arrest the subject and, under orders of someone without federal judicial authority, may deport the subject, even in the face of objections by the administration of their police department.
While prohibited from considering race under the Sandra Bland law, there are no such prohibitions under Senate Bill 4. Thus, the mixed messaging of these two pieces of legislation. The unintended practical consequence of Senate Bill 4 is that it risks to not only nullify the Sandra Bland law, but, over time, erode and erase all the goodwill that the state invested in becoming an early adopter of racial profiling prohibition legislation. As noted earlier, racial profiling is already difficult to prove at the aggregate data level, and if allowed to go into effect, Senate Bill 4 would further erode any possibility of detecting racial profiling even at the disaggregate level if officers, when challenged regarding the reasons for any disparity in their racial profiling data, could simply hide under the cover of Senate Bill 4, stating they were merely checking the immigration status of a subject of a motor vehicle stop. If previous racial profiling data analysis is any indication of the future, there is an expectation that the racial profiling data among Texas police departments would be more indicative of a pattern and practice of profiling, particularly toward Hispanic drivers in Texas.
If Senate Bill 4 survives constitutional review and is integrated into Texas law, it will be incumbent upon police leaders to ensure that the goodwill gained by the Sandra Bland law is not lost in the implementation of provisions of Senate Bill 4. To do this, police leaders need to consider taking deliberate actions including additional training of personnel and updating unambiguous policies that reflect both the spirit of racial profiling laws and Senate Bill 4. Further, leaders need to ensure robust supervision to confirm compliance, and they would do well to conduct regular audits of both their data and motor vehicle stop camera footage to see that personnel are following both laws. Finally, leaders need to place within the structures of their institutions mechanisms for transparency and accountability, and agencies should include deliberate outreach to minority communities.
Conclusion
Recognizing that 2024 is an election year in the United States with a number of high-profile elections and that immigration is trending as a top political concern, state immigration laws like those passed by Texas and Iowa, as well as other states considering similar bills, are likely to place police leaders in precarious positions of having to balance laws with competing interests. Leaders will need to find creative solutions to balance proactive enforcement of immigration laws with the call for constitutional policing. The use of race in any enforcement action could not only begin a pattern and practice of racial profiling but also erode public trust in police departments.
Police leaders will need to develop unambiguous policies regarding enforcement of immigration while distancing themselves from unethical racial profiling practices. Further, police leaders should communicate with their constituents, especially those in minority communities who may feel the most threatened by the discussions and enforcement of immigration laws, that the police are committed to respecting the dignity and rights of all, while fairly applying the law to situations as they emerge. Leaders should also be clear that, even where laws appear to have competing interests and may sound like mixed messages, they will work to fairly enforce laws.
The good men and women of local police agencies already work hard to maintain public trust in a time of elevated political rhetoric, and new legislation like Texas’s Senate Bill 4 may generate unnecessary complications for police leaders and line officers. Police leaders will need creative and balanced solutions that protect the interests of the community with the integrity of their respective institutions. Without such bold and balanced solutions, much of the goodwill built by police departments could easily be lost.
Notes:
1An Act Relating to Prohibitions on the Illegal Entry into or Illegal Presence in This State by a Person Who Is an Alien, SB 4, 88th Legislature 4th Special Session (Texas, 2023).
2Illegal Entry or Presence, Prohibition and Enforcement, SF 2340, 90th General Assembly (Iowa, 2024).
3Catherine E. Shoichet, “A Controversial Texas Law Has Become a Blueprint for Other States. Immigrant Communities Are Worried,” CNN, April 14, 2024. Accessed April 15, 2024.
4Sandra Bland Act, SB 1849, 88th Legislature (Texas, 2017).
5Law Enforcement Policy on Racial Profiling, Texas Code of Criminal Procedure, §2.132 (3)(E).
6Alex Del Carmen et al., Additional Analysis of State of Texas 2021 Racial Profiling Data (The Institute for Predictive Analytics in Criminal Justice, 2022).
7Del Carmen et al., Additional Analysis of State of Texas 2021 Racial Profiling Data.
8Kevin McGill, “Appeals Court Keeps Texas’ Migrant Arrest Law on Hold,” Texas Tribune, March 27, 2024.
9An Act Relating to Prohibitions on the Illegal Entry into or Illegal Presence in This State by a Person Who Is an Alien, SB 4 (Texas, 2023).
108 U.S.C §1101 (3), definition of alien.
Please cite as
Alex del Carmen and Barry Bowling, “A Precarious Balance: Enforcing the Law While Protecting Civil Rights,” Police Chief Online, August 7, 2024.
