lready, police officers across the country have experienced a surge in contacts with non-English speakers.6 The language barrier presents challenges to the execution of a variety of law enforcement functions. Many jurisdictions are dealing with language barriers in an ad hoc fashion. But departments can and should do better. Having a plan in place to deal with unexpected language barriers can minimize the potential for bad outcomes.
Why Implement a Language Access Plan?
There are at least three reasons for implementing a language access plan:
- Language barriers make police officers less effective.
- Addressing language barriers can be cheaper in the long run.
- Federal law requires police departments to address the language barriers.
The steps identified in this article do not impose unrealistic expectations on police departments; rather, they are designed to ensure that police can provide to per sons of limited English proficiency the same level of safety and protection afforded to others. In the process, police departments also protect themselves.
Language Barriers Make Police Officers Less Effective
Communicating across language barriers is challenging even under the best of circumstances. Police officers, firefighters, paramedics, and emergency room professionals often encounter vulnerable LEP people in crisis situations, when the need for accurate communication is most critical.
Even interactions in more mundane circumstances can go awry as a result of impaired communication, and severe problems can result. Consider the routine traffic stop. When an officer is unable to communicate effectively during such a stop, he or she cannot transmit vital information, including the reason for the stop, the need for identification, the meaning of a written citation, and an explanation of the proper course of conduct.7 Moreover, some officers claim to have encountered LEP drivers who respond to traffic stops by following procedures used in their country of origin, such as getting out of a vehicle and walking to the patrol car.8 Better communication can reduce needless anxiety for both the officer and the LEP person during an encounter.
The importance of reliable communication is apparent in a variety of situations. Consider the implications for domestic violence enforcement if responding officers rely on an English-speaking child, or even a batterer, to communicate with, or on behalf of, an LEP domestic assault victim. Consider the valuable time lost in apprehending a rapist or robber if officers cannot effectively communicate with an LEP victim or witness at the scene; consider the implications for road safety where a drunk LEP driver has repeated opportunities to harm others on the road due to language barriers in the administration of Miranda warnings or field sobriety tests.
Thus, the need for good communication in life-threatening circumstances is not the only concern. Strained communication between officers and LEP persons can compromise the integrity of the judicial process. Numerous real-life examples illustrate the pitfalls of a lack of language preparedness in a variety of first-responder interactions, from the routine to the deadly.
- A drunk-driving suspect with minimal English skills who appeared to encounter a language barrier during the administration of a field sobriety test successfully challenged his conviction. Referring to the circumstances surrounding the sobriety test, the court found a lack of over-whelming evidence of the defendants guilt and concluded that admission of the defendants prior record was a harmful error that may have contributed to his conviction on drunk-driving charges.9
- A defendants incriminating admissions during a murder investigation in the San Diego area were suppressed in court because a police department employee failed to interpret the defendants request to go back to his jail cell and discontinue the interrogation.10
- A convicted LEP drug mule successfully appealed the admission of his interpreted confession, where the “facts of the case cast significant doubt upon the accuracy" of the interpretation.11 The appeals court noted that, because the bilingual officer who interpreted the defendant's confession did not testify at the trial court hearing, the defendant had no opportunity to question the officer’s “Spanish fluency, the subtleties or shades of possible meanings in the officer’s questions, or the defendant's responses."12 Weighing various factors, the court further found "the accuracy of the confession at issue here to be less reliable than the accuracy of the confessions"13 in other named cases and vacated the trial courts decision to admit the defendants confession.14
- A Spanish-speaking rape defendants confession was suppressed because, although he was provided Miranda warnings in Spanish, the detective administering the Miranda warnings had only minimal knowledge of Spanish.15
- A state government committee released a report exposing the difficulty of issuing Miranda warnings to LEP individuals, particularly illiterate LEP crime suspects who are unable to read Spanish-language Miranda waiver cards.16
- Firefighters treated an LEP victim for a gunshot wound, relying on the victim's nonverbal hand motions that resembled the firing of a gun. It was later learned that firefighters treated the man inappropriately, as he had been stabbed, not shot.17
- A news report exposed the difficulties officers face in an increasingly multilingual urban area.18
- Officers returned fleeing human trafficking victims to the custody of their traffickers due to language barriers impeding communication with the victims.19
These real-life examples illustrate that language barriers can interfere with crime control and undermine the core purpose of police work. Moreover, these examples confirm that law enforcement authorities need more than just an ability to communicate; they need the ability to communicate competently. Communicating inaccurately can be as damaging as not communicating at all, because inaccurate interpretation can serve as a basis for exonerating wrongdoers.
Addressing Language Barriers Can Save Money in the Long Run
Although bilingual staff, interpreters, translators, and other language services come at a cost, failing to undertake language assistance measures can make the police department vulnerable to civil suits with potentially expensive consequences.20
In addition to private lawsuits, police departments that fail to account for the needs of non-English speakers are subject to investigative scrutiny by federal agencies. Most police departments receive federal financial assistance and must comply with federal civil rights laws as a condition of the assistance received. These federal laws require police departments to take reasonable steps to make their programs and activities meaningfully accessible to LEP individuals. Undertaking comprehensive language assistance measures can also prevent costly consequences in the event that an investigating agency determines a police department to be non compliant with its civil rights obligations.
The costs involved in addressing language challenges may not be as high as some police administrators believe. Some language access measures, such as printing language identification flashcards available on federal agency or other Internet sites and duplicating multilingual Miranda warning cards, require departments only to spend a small amount of money and retool some of their practices. The fiscal cost of such simple measures may be offset in the long run,21 and federal technical assistance is available to provide police departments nationwide with strategies and tools to address language barriers. For example, the federal Web site www.lep.gov is a one-stop shop for materials that can easily be printed and reproduced for use in daily police work. Materials available at the site include language identification flashcards and a tool designed to help police departments create a language assistance policy and plan.
Federal Law Requires Police to Address Language Barriers
Beyond the common sense reasons for addressing language barriers in police work, there are laws obligating police departments to ensure that LEP people can access their services. As a condition of receiving federal money, police departments and other recipients of federal financial assistance must comply with certain legal obligations, such as adherence to Title VI of the Civil Rights Act of 1964 and its implementing regulations.
Under Title VI, police departments and other recipients of federal financial assis tance must provide services accessible to all, regardless of race, color, or national origin. Individuals who are limited in their English ability are often protected by Title VI, where language serves as a proxy for national origin discrimination.22 By failing to provide appropriate language services to an LEP individual, police departments effectively exclude that individual from accessing the same benefits, services, information, or rights as every one else. Noncompliant police departments facing a Justice Department investigation may find themselves drained of valuable time, money, and personnel resources as they attempt to defend themselves against allegations of civil rights violations.
Guiding Principles for Formulating a LEP Plan
The law does not impose unrealistic expectations on a police departments attempts to make its operations language accessible. Department of Justice (DOJ) Guidance, published in June 2002, highlights the standard that law enforcement agencies and other recipients should strive to meet: recipients should take "reasonable steps" to provide "meaningful access" to LEP people.23 The DOJ Guidance was published in response to instructions in an August 2000 executive order clarifying long standing language access obligations under Title VI.24 The DOJ Guidance also lists four factors that recipients should consider in determining the level of language assistance to provide.
Factor 1: Consider the number or proportion of LEP people in the eligible service population.
Police departments should first examine their history of contacts with persons with limited English proficiency and determine the languages they have encountered in the past. Generally, the greater the number or proportion of LEP people a department serves, the more likely it is that language services are needed. Police departments should refer to local census and school district data and consult with community organizations, religious organizations, and others to determine whether some subset of the community has been excluded from their calculations. Some ethnic or linguistic populations may be sizable but have only infrequent contact with law enforcement. In certain departments, one precinct may serve a large LEP population, but others may not. In such situations, departments should consider enhanced language assistance measures for the individual precinct. Also, departments should account for seasonal population shifts in the community by considering such transient populations as vacationers and migrant farm laborers.
Factor 2: Consider how frequently officers come into contact with LEP persons.
Certain departments may require more sophisticated plans than others. For example, those departments where officers come into contact with LEP people on a frequent basis may benefit from a more regularized interpretation arrangement than that provided by occasional use of a telephonic interpretation service. Similarly, officers may report frequent contact with speakers of certain languages (Spanish being the most common in many areas) but infrequent contact with speakers of other languages. Under such circumstances, the language assistance measures required in contacts with Spanish speakers may differ from those required during contacts with other LEP people.
Some police department activities and programs may affect some LEP individu als more than others. For example, a depart ment should consider enhanced language services during community meetings, which may draw participants from communities that otherwise have infrequent contact with law enforcement. Although the general rule is that a department has a heightened duty to provide language services for those language groups with whom it frequently comes into contact, department administrators should consider special circumstances.
Factor 3: Consider the importance to the LEP person of various services, benefits, or information departments provide.
Police officers are responsible for a wide range of services, some with more serious implications than others. In general, the more important the law enforcement activity or the greater the possible consequences for an LEP person, the more likely it is that language services are needed. Police officers have a heightened duty in carrying out criminal enforcement and emergency duties, such as arrests and the management of medical crises. Serious consequences for LEP individuals may also result where constitutional or other legally mandated rights are at stake in a particular police action, as in the delivery of Miranda warnings. Language assistance resources are a higher priority during these activities than they are during police actions that have less serious consequences, such as assisting lost motorist with directions.
Factor 4: Consider the resources available and the costs of providing various language services to LEP people.
There are several types of language services that police departments may use: oral interpretation, either in person or by telephone; written translation; and direct communication in the LEP individual's primary language, through a bilingual officer or other means. In addition, symbols, pictures, and hand signals can also prove effective. Departments have a range of choices for enlisting language services, including, but not limited to, hiring and training bilingual staff, using telephonic interpretation services, borrowing bilingual staff from other agencies or jurisdictions, adopting standardized translated documents from other agencies and departments, using professional translators and interpreters, and using community volunteers.
In deciding which options are best suited to meet the department's needs, officials should balance several factors. One factor could be the need for highly accurate, specialized, and unbiased interpretation that would require a professional staff or contract interpreter for certain high-stakes criminal situations. Another factor could be the need for expedited language assistance that could be provided by bilingual police officers who can facilitate immediate communication when responding to situations in a community with a large LEP population. Another factor is cost, including situations where a one-time or ad hoc use of a telephonic interpretation service is appropriate because either the size of the LEP community does not warrant, or resources do not permit, the hiring of bilingual staff.
Police departments have substantial flexibility in determining the appropriate mix of services for their needs. A department's size, its level of existing resources, its level of need, and the costs involved all factor into decision making. But departments should not overlook the need for competent and accurate language services. As some of the cautionary examples demonstrate, competent and unbiased communication is the key to preserving arrests and convictions, avoiding lawsuits, protecting the LEP community, and avoiding federal scrutiny.
Although LEP people may wish to use an interpreter of their own choosing in certain situations, departments should carefully consider whether such a request is appropriate, even though it may be cost-effective. For example, someone may feel uncomfortable discussing sensitive or embarrassing information in the presence of his or her friend or family member. Similarly, a friend or family member may be a poor choice where unbiased, unfiltered interpretation is critical. In particular, the use of children as interpreters should be avoided in most situations, both for accuracy and competency reasons and to protect the interests of the child. The greater the potential consequences, the greater the need to monitor interpretation services for quality. Investing in quality control protects the legal record, the department, and the interests of the LEP person.
Justice Department Compliance Factors
The Department of Justice uses this four-factor analysis to evaluate whether police departments and other recipients of federal financial assistance are in compliance with Title VI. Keep in mind that the standard underlying the four-factor analysis is one of reasonableness. Police departments are not held to an unyielding, nonnegotiable set of rules. Rather, departments are viewed in the context of their capabilities, needs, and the conditions in which they operate.
Custom-Designed Department Plan
A language plan should be designed to meet the needs of each department. There is no one-size-fits-all approach to drafting a language access plan, given that police departments vary widely in size, geographic location, and population served. The bottom line is that police officers and LEP individuals should be able to communicate with each other effectively, accurately, and with minimal time delays, especially in situations with potentially serious consequences.
Under such standards, a small department may perform the four-factor analysis only to find that very few LEP people reside within its jurisdiction and that officers seldom encounter LEP individuals. This department may deter mine that a cost-limited arrangement with a telephonic interpretation service that can provide interpreters skilled in law enforcement terminology sufficiently addresses the community need. Such a plan may be perfectly reasonable, given the character of the community, the infrequency of contact with LEP people, and the limited resources available to the agency. Care should be taken to research the connection times and quality control standards of various telephonic interpretation companies and to determine the number of languages for which services are available. The plan will also require periodic reevaluation and updating, as the character of the community changes.
By contrast, larger police departments with more significant LEP populations may perform the four-factor analysis and find that more comprehensive services are necessary. In addition to telephonic services, such departments may consider employing bilingual officers or surveying nearby police departments, universities, other local government institutions, and community organizations for volunteer or fee-for-service interpreters. Such departments may also consider concentrating bilingual and interpretation resources at substations or precincts serving a significant LEP population. Care should be taken to test and train such nonprofessional interpreters in the language abilities, technical skills, and ethical responsibilities necessary for quality interpretation and translation. Suggestions for implement ing such training are included in the accompanying checklists on page 48 and 49. Police departments can also consult the Civil Rights Division of the U.S. Department of Justice to locate testing and training resources. Call the divisions Coordination and Review Section at 202-307-2222.
All departments can benefit from creating a portable officer toolkit designed to assist officers who encounter LEP individuals in the course of their daily work. Items to include in the toolkit include a copy of the LEP plan specifying the type of lan guage assistance that is appropriate in various circumstances, language identification flashcards to assist officers in determining an LEP individuals language (available free of charge on (www.lep.gov)), the telephone number and access code for any telephonic interpretation service with which the department has a contract, a directory of bilingual employees and other interpreters, and Miranda warning cards and vital documents translated into commonly spoken languages.
These are just sample approaches; numerous possibilities abound. At the heart of every successful plan, however, are a few guiding principles:
(1) Conduct the four-factor analysis.
(2) Train department employees on correct use of the language plan.
(3) Test, train, and ensure the quality of the interpreter pool.
(4) Adapt as budget, personnel, and community changes take place.
With ingenuity and a little help from key resources such as the Justice Departments Civil Rights Division and www.lep.gov , police departments can improve language access and streamline operations involving non-English languages.
Officer Safety Is at Stake
Make no mistake: this article does not intend to suggest that language access measures can eradicate all language-related communications problems. But it is true that where language barriers have been overcome lives have been saved.
Recently, a Washington, D.C., police officer conducting a late-night traffic stop in a neighborhood with a significant Spanish-speaking population escaped unharmed from an attempt on his life. The reason? The officer knew enough Spanish to understand when the driver of the subject vehicle instructed another occupant in Spanish, “Shoot [the officer] when he gets closer.” The officer called for backup and ordered the suspects out of the car. When one of the suspects opened fire with a handgun, the officer was prepared and shot back. Though the suspects escaped, the officer did, too.25 This represents but one instance in which survival skills in a frequently spoken language proved to be a lifesaver.■
1U.S. Bureau of the Census, Language Use and English-Speaking Ability: 2000, www.census.gov/prod/2003pubs/c2kbr-29.pdf
2As used in the census, this term refers to individuals who self-identified as speaking English “not well” or “not at all.” See U.S. Bureau of Census, Ability to Speak English: 2000 (Table QT-P17),
(http://factfinder.census.gov/servlet/QTTable?_bm=y&-geo_id=01000US&-qr_name=DEC_2000_SF3_U_QTP17&-_geo_id=01000US&-_name=DEC_2000_SF3_U&-redoLog=false). The term LEP is not restricted to speaking ability alone. The term also applies to reading, writing, and comprehension abilities. See Department of Justice, “Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient
Persons,” 67 Fed. Reg. 117, 41455-41472,41457 (June 18, 2002).
3In South Carolina, for example, the public school system has seen a 200 percent increase in non-English speaking students between the 1991–1992 school year and the 2001–2002 school year. This rate of growth is matched by only 15 other states, mostly those in the Deep South and the Midwest. U.S. Department of Education, “Survey of the States, Limited English Proficiency Students and Available Educational Programs and Services, 1991–1992 through 2000–2001.”
4Almost 60 percent arrived during the 1990s, most since 1995. These new growth areas include the Rocky Mountain, the Midwest, and the Southeast. See Michael Fix and Jeffrey S. Passel, Immigration Studies Program, Urban Institute, “U.S. Immigration: Trends and Implications for Schools,” January 2003, (www.urban.org/UploadedPDF/410654_NABEPresentation.pdf).
5See Stephanie Simon, “Latinos Take Root in Midwest,” Los Angeles Times, October 23,2002, A1. The article describes growing pains and communications challenges for small rural communities in Iowa, Nebraska, Minnesota, and Kansas experiencing an unprecedented
growth in Spanish-speaking immigrants.
6See, for instance, Jeffrey Gettleman, “In New South, Racist Rally Is Not a Draw,” Los Angeles Times, July 14, 2002, A15. It mentions the need to institute an incentive pay program for bilingual police officers in Gainesville, Georgia, in order to attract officers with Spanish skills.
7See U.S. Department of Justice, “Final LEP Guidance to Recipients of Federal Financial Assistance,” 67 Fed. Reg 117, at 41468 (June 18,2002).
8See abstract of Stacey Mulick, “Police Offer Drivers Cards in Spanish,” Tacoma News Tribune, June 27, 2004. The article describes the procedure of providing LEP Spanish speakers in Washington State with Spanish-language literature explaining traffic stops and addressing frequently asked questions.
9Moreno v. State, 944 S.W.2d 685, 688, 693 (Tex. Ct. App. 1997).
10Teri Figueroa, “Obstacles Arise when Interrogating Non-English Speakers,” North-County Times, January 22,2005, (www.nctimes.com/articles/2005/01/24/news/top_stories/22_08_521_22_05.txtemployee).
11See United States v. Martinez-Gaytan, 213 F.3d 890, 891 (5th Cir. 2000).
13Id. at 892.
14Id. at 893.
15Rebecca Waddingham, “Woman Testifies in Rape Trial,” Greeley Tribune, January 26, 2005; Maria Sanchez-Traynor, “Woman Worries Translation Mistake Will Lead to Acquittal,” Greeley Tribune, March 21, 2004; People v. Aguilar-Ramos, 86 P.3d 397 (Co. 2004).
16Commission for Minority Affairs, 2003Findings from the Hispanic/Latino Ad Hoc Committee presented to Governor Jim Hodges,
17Juan Antonio Lizama, “Don’t Hang Up: Training, Pocket Guides, ‘Language Line’ Help Emergency Workers Bridge the Gap,” Richmond Times-Dispatch, November 5, 2003, H8.
18Anita Wadhwani, “Police Struggle with ‘No Habla Ingles’ Calls,” The Tennesseean, April 15, 2004, (www.tennessean.com/local/archives/04/04/49428338.shtml).
19Based on the author’s interviews with human trafficking victims in her former capacity as a federal prosecutor.
20Estate of Macias v. Ihde, 219 F.3d 1018 (9thCir. 2000), (http://caselaw.lp.findlaw.com/cgibin/getcase.plcourt=9th&navby=case&no=9915662); Justin Pritchard, “Sonoma to Pay $1 Million to Family of Woman Killed by Husband,”SFGate.com, June 19, 2002; Rebecca Vesely, “Settlement Reached in Domestic Violence Trial,” Women’s E-News, June 18, 2002, (www.womensenews.org/article.cfm/dyn/aid/944/).
In one tragic incident, the Los Angeles Times reported that Los Angeles Police Department (LAPD) officers picked up an elderly LEP
Korean immigrant who lost his way home, only to drop him off alone on city streets. The elderly Korean man was ultimately robbed and
beaten to death after the officers dropped him off. The deceased victim’s family was planning on filing a wrongful death lawsuit against the LAPD. See Julie Ha, “Serve, Protect, Translate:
After a Lawsuit over the Death of a Man Who Spoke No English, L.A. Police Moved to Make Interpreters Available and Give Incentives to
Bilingual Personnel,” Los Angeles Times, April 30, 1999, B2.
21See, for instance, Dennis Andrulis, Nanette Goodman, and Carol Pryor, “What a Difference an Interpreter Can Make,” a report sponsored by the Access Project, April 2002, at 10 (discussing “the business case for interpreter services”); see also Office of Management and Budget, “Report to Congress, Assessment of the Total Benefits and Costs of Implementing Executive Order No. 13166: Improving Access to Services for Persons with Limited English Proficiency,” March 14, 2002, at 16–17, (www.usdoj.gov/crt/cor/lep/omb-lepreport.htm). The OMB document acknowledges costs of language assistance measures but notes that “[i]ncreasing accessto government programs may lead to cheaper, more targeted early intervention, avoiding long-term and more costly services to government and society,” and encouraging standardized provision of language services over patchwork or ad hoc measures to result in efficiency gains.
22See, for instance, Fragante v. City of Honolulu, 888 F.2d 591, 596 (9th Cir. 1989), which finds that English language ability and accent are “intertwined” with national origin. See also Department of Justice, “Final Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibitions Against National Origin Discrimination Affecting Limited English Proficient Persons,” 67 Fed.
Reg. 117 (2002), which discusses case law finding that conduct having a disproportionate effect on LEP individuals constitutes national origin discrimination under Title VI.
23DOJ Guidance, supra, 67 Fed. Reg. 117, (www.lep.gov).
24Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency,” August 11, 2000 (emphasis added). The executive order also mandated that federal agencies themselves meet the same standard. The order is available at (www.lep.gov).
25Del Quentin Wilber, “D.C. Officer Unhurtin Exchange of Gunfire,” Washington Post, February 19, 2005, B2.