High bar: Proving racial profiling in Texas means first showing an officer ‘is racist’

Investigations
Investigative Summary:

Our Failure to Report investigation found the Texas Commission on Law Enforcement isn’t holding police agencies accountable for not following the state’s racial profiling law. Hundreds of departments never submitted the raw data of traffic stops and TCOLE never collected a single report showing departments analyzed their data to identify possible racial profiling. Now, we’ve found even that data and the analysis might not be enough, and proving profiling is happening is nearly impossible.

Editor’s Note: A previous version of this report incorrectly stated Buda Police Chief Bo Kidd met with Briana Nunn in June 2020. Nunn’s meeting was instead with Captain Brandon Hale, according to a city spokesperson.

AUSTIN (KXAN) – Briana Nunn was on her way home with her children and her 13-year-old brother when she rolled past Willie’s Joint on Main Street in Buda. Nunn eventually spotted a police car behind her.

She made the first left onto Sequoyah Street, and so did the police car. The officer eventually turned his headlights to bright, Nunn said.

She continued driving toward her home, which is inside a neighborhood across the street from the Buda Police Department headquarters.

Briana Nunn points to the intersection where she said a Buda Police officer sat and watched her for a half-hour in May 2020. Nunn said the officer followed her through her neighborhood as she drove home with her children in the car around 10 p.m. that night. (KXAN Photo/Jody Barr)

“The vehicle was driving at a very slow speed,” the officer, Connor Fleming, wrote in an email to his supervisor later that night. The posted speed limit on Sequoyah Street is 25 miles an hour, but Fleming didn’t indicate Nunn’s exact speed in his notes.  

The officer claimed Nunn was “suspicious” to him because she was “slow rolling” through the neighborhood and that Nunn failed to signal a turn before she stopped at a stop sign. Nunn stopped at one more stop sign before turning into a driveway on Mandan Street.

That driveway was her home.

“Getting a little nervous, I come to my house. I park, I get my kids out and then he’s driving slow,” Nunn said. The officer drove past her home and cut the block, she said. “He comes around and then he parks and he’s just watching us.”

Cell phone video Nunn recorded that night shows a patrol unit parked at an intersection two doors down from her home. The officer turned off his headlights and never left his patrol car, she said.

It was around 10 p.m. and a dimly lit streetlight shined down into the intersection where the officer parked. The video showed Nunn’s property was not lit at all.

“I get scared, I get terrified. My kids are scared. My little brother is 13, so he completely understood what was happening,” Nunn said. “I called 911 to see what was going on and the 911 operator was completely rude. She told me ‘This is not a reason to be calling.’ And, I called multiple times because he still was not leaving.”  

Fleming later told his supervisors in an email that he ran Nunn’s license plate, and it came back registered to an address in Austin. The officer told his bosses since the address was out of town, he thought Nunn was a burglary suspect and decided to park and watch her.

Nunn estimates Officer Fleming surveilled her home for at least a half-hour or longer. Fleming’s email to his bosses disputes that timeline. Fleming wrote that the entire encounter – from the time he first saw Nunn’s car until he left her home – spanned 16 minutes.

This page from the Buda Police Department’s internal affairs investigative report shows the department did not find racial profiling was a factor in the Nunn incident. (Buda Police document)

The internal investigation found the officer never approached Nunn to find out what was going on. Nunn said she thought about walking to Fleming’s car to ask him what he wanted with her.

“But then I thought, ‘I could get shot just for walking in the dark up to a cop car.’ It could easily happen to me. That is the only reason I didn’t,” she said.

Hays County dispatchers eventually connected Nunn with Fleming’s supervisor, Sgt. William Kuykendall. While on the call, Nunn said she mentioned to the sergeant the reason she was in fear was that she is Black and that she felt the reason Fleming targeted her was “racially motivated.”

That’s when everything changed.

“The moment that I said I’m Black and being followed, he snapped,” Nunn said. “I never said that anyone was racist, I never said the cop was racist or trying to intimidate me — I just said ‘I’m being followed and I’m scared and my kids are scared’ and he got upset. He was extremely upset, and he refused to help me at that moment.”

Kuykendall, Nunn said, told her she shouldn’t bring race into the matter. “He was giving me no solution. He just told me at the end of the conversation, ‘If you have an issue, you can go make a formal complaint.'”

So she did, the next morning at the Buda Police Department. It took more than two weeks for the department to finish its internal affairs investigation, finding Fleming did not commit any policy violations and that Nunn’s racial profiling complaint was “unsubstantiated.”

Nunn’s complaint was the only one filed against the department between 2016 to present, according to police department records.

“The only statement I will make at this time is that, regarding Briana Nunn is, I ordered an internal investigation that did not reveal any evidence of racial profiling as Ms Nunn alleged,” Buda Chief Bo Kidd wrote in a June 2020 email (listed below) to KXAN.

“The Buda Police Department takes allegations of racial profiling very seriously. We strive for transparency and excellence in our day-to-day interactions with the public and in our internal operations. After conducting a thorough investigation, we concluded there was no evidence of racial profiling in this case. However, we are always striving to do better as an organization and we take citizens’ concerns and complaints very seriously. As Police Chief, I can say it is incredibly important to this Department that we have the confidence and trust of the community we serve.” – Chief Bo Kidd, Buda Police.

Fleming never responded to messages sent to his police department email.

Captain Brandon Hale, who records show conducted the internal affairs investigation, agreed to meet with Nunn on June 4, 2020. She decided to record the conversation.

“He (Fleming) says at the stop sign — you stopped at the stop sign, and then you signaled intent at the stop sign. So, if I’m being honest — and I’m going to be completely honest with you — if I was suspicious of you, I’d have lit you up at the stop sign,” Hale told Nunn on the recording. “As soon as I got that violation for failure to signal intent within 200 feet of a stop sign, I’d have pulled you over, the reason I pulled you over — you failed to signal intent within 200 feet.”

Although the department determined Fleming did not commit any technical violations of policy or the law, the chief counseled the officer over his decision to sit outside Nunn’s home for so long.

“What I would have done is I would have taken the opportunity to step out my car, light up my flashlight and say, ‘Hey is everything going alright? I’m officer Fleming, I (inaudible) your name, this is what I saw. He didn’t do that, but it’s not a violation. It’s not a policy violation. Could it have been handled better? Absolutely and we’ve discussed that with him,” Hale told Nunn in the recording.

Sgt. Kuykendall, who Nunn connected with after the 911 call that night, was also in the meeting and is heard on the recording addressing Nunn’s concerns he dismissed her in the phone call where she mentioned the rationale for her concern she was being racially profiled. “My whole point in being here is that I don’t want you to feel that I don’t have your back,” Kuykendall said in the recording.

“You didn’t that night when I was fearing for my life,” Nunn replied.

“You know why? Because you upset me very badly,” the sergeant replied.

“Do you understand the rhetoric of cops getting upset and acting on that instead of the fact that you’re a cop?” Nunn replied.

“I’m offended by what you said,” the sergeant told Nunn.

“It doesn’t matter, you’re still a cop. You’re paid to hold other people accountable,” Nunn replied.

“You’re right,” Kuykendall responded. Nunn said she believed the sergeant put his personal feelings ahead of her call for help that night.

“I never did call you racist. I don’t even know you. So, let’s play the thing so I can prove to you that I never called you racist,” Nunn said asking that the sergeant’s body camera video that recorded her call that night be played in the June meeting.

“I don’t think you ever called me racist,” Kuykendall replied.

“Then, why were you offended?” Nunn asked.

That question led to this exchange captured in Nunn’s recording:

Sgt. Kuykendall: “Because the situation was pointed to — the whole situation that this whole thing stems from is that you were Black.”

Nunn: “Yes. So, why is that offensive to you? I am Black and cops are killing Black people every day— in this state, country, down the street, everywhere in this world — so why are you offended by the fact that I’m saying ‘I am Black?’ Why is that more offensive to you than the fact that I’m saying ‘I’m scared for my life?’”

Sgt. Kuykendall: “I don’t know. I’m offended because I took it personal, that’s why.”

The department’s internal investigation ended with a finding noted as “Unsubstantiated,” according to the report.

“There is no evidence to support the claim Ofc. Fleming was harassing Ms. Nunn or acted in a bias manner. Although Ms. Nunn was alarmed by Ofc. Fleming being parked on a public street near her home for an extended period, this is not a policy violation, nor were any criminal acts committed,” Buda Police Captain Brandon Hale wrote in his report closing in the investigation.

Required to report, but problems with the data

Texas’ racial profiling law requires all Texas law enforcement agencies report the number of racial profiling complaints received each year to the Texas Commission on Law Enforcement, also known as TCOLE. Those reports are supposed to include the outcome of those investigations.

Like what happened in Buda, departments investigate those complaints in-house through internal affairs departments.

In 2019, records KXAN obtained from TCOLE show no Texas law enforcement agency substantiated any complaints. The state’s largest law enforcement agency, the Texas Department of Public Safety, reported 24 formal racial profiling complaints in all of 2019.

DPS records show none of the 24 complaints resulted in any disciplinary actions, according to records provided to KXAN under an open records request.

TCOLE publishes racial profiling reports on its website each year for every law enforcement agency in the state. That report contains a column showing the number of racial profiling complaints for 2019, the latest data available.

TCOLE’s data contains multiple reporting errors in the information some agencies reported to the state. For example, the data shows the El Paso County Constable Precinct 7 Office had 299 racial profiling complaints in 2019.

When contacted by KXAN, the constable’s office confirmed it’s not had a single racial profiling complaint, “in years,”according to Deputy Constable Mark Brammer. The 299 number would be the number of traffic stops made in an entire year, the office confirmed.

The next-highest number of racial profiling complaints behind DPS is the Houston Police Department, which reported 18 complaints in 2019. None of the 18 were sustained and no officers were disciplined, the department reported.

High hurdle to prove racial profiling

Of the 22 agencies reporting racial profiling complaint data to TCOLE that did not appear to have reporting errors, TCOLE records show 106 total complaints. Not one of those 106 resulted in disciplinary action against an officer.

The reasons are complex.

“It’s exceedingly difficult to know whether or not a police officer harbored a racial animus toward a particular class of people prior to the stop. Without any sort of corroborating evidence that that person is in fact a racist — and that’s very, very hard to figure out,” said Dr. Brian Withrow, a Texas State University professor and racial profiling expert.

Brian Withrow (Texas State University Photo)
Brian Withrow (Texas State University Photo)

Withrow was with DPS for 13 years, starting as a State Trooper and working his way up to a Bureau Manager.

Although DPS had the highest number of complaints, the agency conducts hundreds of thousands of traffic stops across Texas each year.

“Not a lot of complaints, so that may indicate to me there isn’t a lot of racial profiling going on,” Withrow said.

“But, remember, the Texas Department of Public Safety is primarily focused in rural enforcement and they don’t do a whole lot of enforcement in cities where there are larger minority populations,” Withrow explained.

Texas law has created a high bar for proving whether racial profiling has happened in a single traffic stop, which is typically where a complaint originates. The hurdle is the way the state defines racial profiling, according to Withrow: “If an officer initiates an enforcement action based solely on the basis of race.” That means investigators must prove the accused officer is “a racist,” Withrow said.

Finding a reason to initiate a traffic stop isn’t hard, Withrow said, pointing out that a violation such as failing to signal or not staying in the center of a lane provides enough legal justification for a traffic stop.

“All the officer needs to do is say ‘I observed that person rolling through a stop sign, so I initiated a traffic stop because it’s against the law to do that.’ I’m entitled to do that; indeed, I have responsibility to do that. So, that makes the case exceedingly difficult to prove.”

Withrow acknowledged research shows most racial profiling complaints don’t meet the definition of “racial profiling.” Withrow believes most departments now take formal, written complaints seriously. But, he said many departments, like DPS, warn the person filing the complaint of the penalties of perjury if any of the details aren’t true.

“There’s some evidence to suggest that that may deter people from actually initiating a complaint,” Withrow said. “Some people think that if they say ‘This is what I believe,’ that if it turns out that that’s not true that they’re going to be arrested for something even though that’s not what perjury really means.”

Still, Withrow said proving racial profiling takes more than looking at the race and gender statistics of an officer’s stops to determine whether an enforcement action contained any racial animus.

“There’s no test that can really look into the heart of a police officer and can tell whether or not they harbor discriminatory attitudes or prejudicial attitudes to one particular race or another,” he said.

“You really have to look more deeply at what, over time, that police officer actually does. If you look at what the police officer actually does versus what they say they do, or do not do, then I think you get a more insight into whether or not there may be an unconscious bias. Or, there may be a conscious bias that is being effectively hidden by that officer,” Withrow said.

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