AGAINST RACIAL PROFILING†
A police officer sees a suspicious bulge in the pocket of a passing pedestrian and de-
liberates whether to stop and search. The pedestrian is also a young, black man,
and from past searches and convictions, the police arguably know that such men
are much likelier than other people to carry an illegal firearm. Should the police offi-
cer be instructed to take this information into account? This article objects to racial
profiling because it relies on the following type of inference: from the individual’s
membership of a certain racial group, the searcher is invited to infer that the indi-
vidual is likelier to exhibit some culpable behaviour. The article shows that such an
inference to culpable behaviour requires contradictory presuppositions about the free-
dom of the suspected behaviour. On the one hand, racial profiling ought to presup-
pose that the individual suspect’s behaviour is unfree because the inference it
involves takes the suspect’s behaviour to be determined by his race, age, and gender,
none of which is within his control. On the other hand, similarly to criminal trials,
search practices ought also to presuppose the exact opposite: that the individual is
free to determine his own behaviour. If the suspected behaviour is free, the involved
inference to culpable behaviour is not probative of the individual suspect’s beha-
viour, so profiling methods which rely on it are useless. And if the suspected beha-
viour is unfree, the inference is probative, but the suspect is not culpable and should
thus not be put to trial, whatever the profiled search yields.
Keywords: freedom, causation, policing, searches, criminal process
A police officer sees a suspicious bulge in the pocket of a passing pedes-
trian and deliberates whether to stop and search. While the bulge is not
necessarily proof of carrying an illegal firearm, it is certainly a legitimate
indication. The pedestrian is also a young, black man, and from past
searches and convictions, the police arguably know that such men are
much likelier than other people to carry an illegal firearm. Should the
police officer be instructed to take this information into account? The
issue is not limited to policing, as some Muslims who are regularly
* Lecturer, Buchmann Faculty of Law, Tel Aviv University, Tel Aviv, Israel
† I would like to thank the University of Toronto Law Journal, the anonymous referees, and
the editor, David Dyzenhaus, for helping me improve the quality of this article. I am deeply
grateful to Ronen Avraham, Yitzhak Benbaji, Antje du Bois-Pedain, François du Bois, Ha-
noch Dagan, Benjamin Eidelson, Ariel Porat, Guy Sela, Victor Tadros, and Charlie Webb
for their constructive and helpful comments. I also benefited from engaging discussions
with participants of workshops at Oxford, Cambridge, St Andrews, and Tel Aviv. The
research leading to these results has received funding from the European Community’s Se-
venth Framework Programme (FP7/2007–2013) under Grant Agreement 299653.
(Spring 2017) UTLJ © UNIVERSITY OF TORONTO PRESS
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