German Police: Racial Profiling: Between Legal Actions and State Recognition

In 2011, a then 26-year-old Black architecture student from Kasselsued the German police. He accused them of racial profiling him during a police check on a regional train the year before. After having been subjected to repeated checks by white police officers during his commute to and from university, the German student finally took the decision to take the police to courts for violating his constitutional rights. The case was initially rejected by an administrative tribunal after the judge declared identity checks on trains as necessary and non-discriminatory. Such police searches are based on article § 22 of the BPolG (Bundespolizeigesetz; Engl: Federal Police Laws), which allow police officers to conduct random searches on airports, railway stations and on board trains (inside the country and at its borders) to prevent so-called unlawful entries into the country.

The Administrative Tribunal of Koblenz dismissed the accusation of racist conduct and declared that the officers acted within the law. Though the Federal Police Law bars from explicit racial profiling, it accepts implicit discriminatory behavior by allowing officers to search for undocumented people based on phenotypical appearances. The court’s ruling was received with outrage by activists and human rights organizations. Following the ruling, the complainant went into revision. His search for justice continued a year later at the Higher Administrative Court of Rhineland-Palatinate. After a five-hour-long hearing, the court came to the conclusion that the student wasn’t frisked because there was anything suspicious about him but his skin color.

This in turn was a violation of the country’s anti-discrimination laws. The case was a judicial precedent in Germany. It brought the practice and vocabulary of racial profiling to the forefront in a society that still struggles to come to terms with questions on race, whiteness and present-day racism. Tellingly, German media and policy makers chose to replace the term racial with ethnic to describe the practice of racial profiling (ethnische profilierung). In doing so, Germans attempt to distance their present from their Nazi past by reinforcing the myth of a nation that has suddenly overcome the curse of racism with the end of Nazism.

Since the young German didn’t fight for a financial compensation but for an apology by the police officers, he was given such. One of the white officers admitted to having picked him out because of his dark skin. It wasn’t a heartfelt apology but rather a formal statement uttered without much remorse. Nonetheless, the student’s fight for public and legal recognition of a widespread institutional practice succeeded and made headlines across the country and beyond. The German police felt betrayed by the ruling and wrongly accused of racism. The court’s decision was therefore immediately critiqued by the Federal Police Union. It called the verdict counterproductive towards the police’s work to fight crime. Some officers struggled to understand how their behavior could be racist when the law encourages their actions. To consider the racist potential and intention of laws and lawmakers remained for most a taboo.

The head of the union, Rainer Wendt, went on to publically defend police officers against accusations of racism by stating that officers are provided cultural sensitivity trainings and acquire intercultural skills through police missions abroad. While rejecting that the German police racially profiles people, Wendt, however, also stated that the abolition of article § 22 of the BPolG would lead to an increase in illegal immigration. The German police thus acknowledged that it profiles people based upon criteria such as race, but has taken an issue with calling such practices racist. German human rights defenders on the other hand argue that individual police officers may not necessarily be racist, but that the law that enables their behavior sits at the core of the issue. Thus, they argue that these laws need to be altered or abolished all together for discrimination enacted by law enforcement officers to cease.

The 26-year-old student’s lawsuit created a snowball effect. His efforts were soon to be followed by a number of similar complaints made by racialized people against the German police. In 2014 a small but significant victory was achieved when the Administrative Tribunal of Koblenz restricted the police’s usage of § 22 of the BPolG by prohibiting the searches within trains that commute between two German cities without crossing an international border. With its ruling, the court moved border policing off national trains back to Germany’s territorial borders, airports and railway stations. The problem of racial policing in itself, however, remained largely unresolved. Racialized people are to date disproportionately often stopped by police officers across the country and treated as suspects of criminal behavior.

While anti-racist groups and activists continue to fight in Germany as elsewhere to reform institutions and bring about justice to those whose rights are infringed, the very core question of policing remains largely unshaken. Similar as to how the latest court ruling disbarred officers from policing specific spaces under particular set of conditions, it limited yet didn’t end the practice of stop-and-frisk. Will reforming liberal ideas on law and order then bring about palpable solutions to marginalized social groups, or does it require an all-out overhaul of the status quo for there to be substantial change? Differently put, is the question just one of reconfiguring laws that enable racist practices, to alternatively provide anti-racist training for individuals whose behavior is in question, to recruit more racialized police officers, or is the problem one that is goes far deeper?

Naomi Murakawa, an associate professor in African American studies at Princeton University, provides some intriguing answers on the matter. Unlike other scholars, Murakawa argues that racial profiling does not exist. According to her, the idea premises the notion of colorblind policing, which she considers an impossibility under our current social order. Murakawa notes that policing as a whole is built around practices of profiling humans according to systemic biases that regulate some groups more and at the expenses of others. This leads to the criminalization of bodies and spaces of poor and racialized people. It translates into differential treatment when facing regulating bodies such as the police, which yet again has detrimental effects to their everyday and well-being as individuals and communities.

Racial profiling is thus a technique that is intrinsically linked to existing power-relations and to the very institutions that establish and organize such. Attempts to correct laws by pressuring policymakers for changes constitute attempts at downscaling their fallout, but not attempts to directly bring the very system that produces such laws to its knees. They focus on ending visible forms of violations without changing its invisible manifestations. It’s a reformist solution but no immediate change of system. Murakawa supports a challenge to the very principle and intention of policing and how we today have come to interpret and understand violence. She pushes us to identify violence in its most mundane forms rather than merely in its visible extremes.

These forms of violence go beyond extreme acts of racial aggressions that can be witnessed, documented and used to mobilize masses. It’s the everyday inequalities that she is more interested in. These challenge concerned groups more regularly and systematically in, for instance, the shape of housing, labor or educational discrimination. Yet they hardly transfer to become public spectacles that can mobilize masses, let alone be solidarized with by unconcerned groups. These are, according to Murakawa, similar forms of violence that remain removed from mainstream discussions despite that they intersect with other experiences of racial violence, such as police profiling.

When German anti-racist activists push for the recognition of how racialized bodies are differently policed than white bodies, their activism is never just limited to the issue at hand: it extends far wider. The Black student who sued the police five years ago used the platform he created as a vehicle to disembark on a conversation on the everyday occurrence of racial profiling in Germany and how the police systematically discriminate against racialized people. The casehighlights how racialized bodies are still constructed as mobile borders that undergo controlling mechanisms quite different to those of white citizens irrespective of how far their bodies are placed from territorial borders. This appears particularly critical in face of Germany’s recent intake of scores of new asylum seekers, who are subject to a range of legally inscribed refugee-specific policing techniques while additionally also being affected by those experienced by other racialized residents.

The German police attempted to isolate the issue, but were challenged by a number of new legal complaints made by racialized people in the months and years to follow the precedential case. They highlighted the patterns behind such actions and the impossibility to limit the young Black man’s experience to one of happenstance. Unsurprisingly, successful lawsuits went largely underreported in mainstream German media. In a country that rarely allows for modern discussions on racism to go beyond anti-Semitism, these new discussions opened up opportunities to bring mostly silenced issues and invisibilized groups to the forefront. It enhanced public conversations on structural racism, a subject unfathomable in language and tone only a few years prior. When pressed to comment on the student’s lawsuit, the German government initially responded in support of non-discriminatory policing practices. Later, it reverted its own position only to take a similar stance as to the initial court ruling, arguing that article § 22 of the BPolG is a necessary requirement for policing. The government blatantly ignored the police officers admissions to having picked out the Black student for an identity check because of his skin color. It backtracked from its own position to support current policing practices while equally derailing genuine discussions on racial inequalities in the country.

The same year the student went to court to challenge the German police, the National Socialist Underground (NSU) group, a neo-Nazi terror cell that executed nine people of Turkish and Greek descent and a police officer between 2000 and 2006, was discovered. The revelations neatly tied into ongoing discussions on structural racism and the police’s role in discriminating against and obstructing racial justice efforts. While racial profiling cases could be dismissed by some as the actions of a few “bad apples” within the ranks of the police, it was impossible to do the same in the case of the NSU murders. Here, it was clear that several law enforcement agencies were so deeply invested in upholding racist myths on immigrant criminality and brutality that it sabotaged investigation efforts to resolve the execution series. For years, investigators dismissed a racial motif behind the murders and suspected the families and friends of the murdered to be responsible for the crimes instead. The crimes were considered to be too heinous to be committed by white Germans. As a result, it wasn’t neo-Nazis who were policed, but their very victims. Their ethnic origin as non-Germans was the deciding factor.

When the murders were then found out to be the work of a neo-Nazi cell, the German government was finally forced into actions. Chancellor Angela Merkel invited the families of the NSU victims to Berlin and issued an emotional apology in a televised speech viewed by several millions of Germans. Faced with an overwhelming amount of evidence, the government could no longer hide its own complicity in producing violence against innocent people. This stands in stark opposition to how the government reacted in response to the racial profiling verdict. While the trial against the only surviving member of the NSU cell continues to produce new scandals, the full depth of the police’s role in maintaining and protecting the terror group still needs to be investigated. The image of the German police is nonetheless already shaken by these incidents, much more so than any of the racial profiling cases could achieve. And this has to do with the magnitude of the case, its extreme and spectacular nature which even overshadows other more visible forms of discrimination such as racial profiling on trains. For the German government there was simply no way around but to acknowledge the state’s wrongs without fully acknowledging the extent of structural racism embedded in the fabrics of the country.

The news about German state complicity in nourishing and protecting the NSU cell may have well come as a shock to many white Germans. It was beyond many of their imaginations. For many racialized people however, this was far less shocking or novel. After facing racist burdens throughout their lives, the state’s reaction turned out to be a rare admission to how deeply interwoven and complex racist structures remain to be in the country. It was rather a shock to see that the state finally faced its institutionalized forms of racism. As the way both groups experience and perceive the police can be vastly different, if not even oppositional, it is no surprise that reactions turned out to differ amongst each. Despite the scale of the issue and its media presence, conversations on structural racism have however still not reached much of the German mainstream, including most policymakers and law enforcers who continue react numb to accusations of structural racism. It is no surprise that the government chose to admit its guilt in the case of the NSU scandal, whereas it chose to deflect from its guilt in the case of racial profiling. It speaks to the level of scrutiny and violence necessary for it to be seen and named. The German public may have been temporarily moved by the sensationalist and scandalous nature of the NSU episode, but its interest remains low for the very mundane ways of how violence navigates the everyday of many of the country’s residents. Until another event of such magnitude will strike the nation.