A Victory in France in the Struggle against Racial Bias in Policing

On an autumn night in 2011, two French university students were sitting outside a McDonald’s restaurant in the city of Lyon, when a police car stopped nearby. Police officers approached, asked the two, Nadir and Armel, for their identity papers, and frisked both of them. They were the only nonwhites among the crowd sitting at the restaurant, and the only ones checked.

For Nadir and Armel, this kind of thing happens regularly; ethnic profiling by police was and remains all part of being a young man of Arab or African origin in France. But this time was different. Both subsequently joined a group of 13 young men in an unprecedented legal challenge to what the French call contrôle au faciès, or “appearance check.”

This month, more than four years after the complaints were filed, France’s top civil court ruled that the police in France are indeed subject to antidiscrimination law (the authorities had argued that it only applied in employment cases), and that the police needed to be able to demonstrate that they were not acting in a discriminatory fashion (the authorities had argued that the burden of proof should lie exclusively with the victim).

The ruling made headlines in France, with Le Monde saying that it “would require a change in police practices”—exactly what the claimants, backed by the Open Society Justice Initiative, have sought to achieve. The hope is that the ruling will require the police to collect data on who is stopped and why—the first step to acknowledging bias that can fuel tensions with minority communities and antagonize people unnecessarily.

It has been a long journey. French police do not release information about their stop and search practices, and France does not collect statistics on ethnicity that can show unequal treatment. So successive French governments have denied there is a problem, and taken no steps to address it.

The Open Society Justice Initiative has been working on the issue of ethnic profiling in France and elsewhere in Europe for over a decade now. (In the United States, the Open Society Foundations support groups leading the battle against racially biased “stop and search” policing, as well.)

In 2009, together with France’s National Centre for Scientific Research, the Justice Initiative published a scientific study that provided the first quantitative proof that France’s ethnic minorities are singled out unfairly by police. The data showed those presumed to be black were, on average, six times more likely to be stopped than those presumed to be white. Those presumed to be Arab were eight times more likely to be stopped than those presumed white.

Even this evidence of clear racial bias was unable to break through the wall of official denial. Legal action was the next step, albeit a challenging one. There is no precedent in France for responding to discriminatory stops that do not result in penalties, such as a simple stop and search. There is also no specific legal provision in French law that prohibits racial discrimination by the police.

The lawyers therefore had to find a creative way to challenge this practice using more general civil and administrative provisions in combination with constitutional guarantees and international law.

Proof was also a significant hurdle. In France, a person who is stopped, asked for their identity documents, frisked, and even searched receives no document that allows them to prove that the stop took place. Demonstrating further that the stop was discriminatory is even more difficult.

The lawyers decided to follow the “keep it simple” rule. They resorted to a method of proof that is at the very core of French civil procedure: affidavits. There is, after all, no reason that the affidavit of a black or North African man should not carry the same weight in court as that of anyone else, regardless of the person’s social status or place of residence. (Most of the claimants reside in France’s poor suburbs).

The case also involved a new form of social mobilization in the field of nondiscrimination in France. A wide range of nongovernmental organizations, local community leaders, political actors, artists, and committed individuals joined this fight for basic civil rights—nondiscrimination, freedom of movement, protection of privacy and against arbitrary deprivation of liberty—using the law. They used innovative methods, such as a series of videos of rappers talking about their personal experiences being stopped and searched, to help find victims of discriminatory stops who would be willing to take on the Ministry of Interior in a legal challenge. This effort also put the issue onto the political agenda, although an electoral promise by President François Hollande to address the issue came to nothing, as the result of opposition from the powerful police unions.

Now this new court ruling requires things to change, but continued pressure on elected officials will surely be needed to make the changes happen soon. Digital activists have already launched a new petition making use of the judgment in their campaign that engages citizens in this struggle.

Organizations and activists mobilized around the case are preparing efforts to inform those targeted for checks about their options for recourse. The new recourse requires the state to demonstrate that it had objective grounds for checks; without any record of checks, this is challenging. So, a pipeline of new cases will maintain pressure on authorities to introduce stop forms.

The Interior Ministry can look elsewhere for examples of how this works—police in England, and in parts of Spain, already give people “receipts” to record identity checks and searches. The resulting data enables the police to know that they are not wasting their own time on stops that do nobody any good—and to identify racially biased practices that can then be properly eradicated, to the benefit of all.