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DRIVING WHILE BLACK
RACIAL PROFILING

The following excerpted from: "DRIVING WHILE BLACK Racial Profiling on Our Nation's Highways" by David Harris, Professor of Law, University of Toledo College of Law
Reprinted with permission

There is nothing new about this problem. Police abuse against people of color is a legacy of African American enslavement, repression, and legal inequality. Indeed, during hearings of the National Advisory Commission on Civil Disorders ("The Kerner Commission") in the fall of 1967 where more than 130 witnesses testified about the events leading up to the urban riots that had taken place in 150 cities the previous summer one of the complaints that came up repeatedly was "the stopping of Negroes on foot or in cars without obvious basis."

Significant blame for this rampant abuse of power also can be laid at the feet of the government's "war on drugs," a fundamentally misguided crusade enthusiastically embraced by lawmakers and administrations of both parties at every level of government. From the outset, the war on drugs has in fact been a war on people and their constitutional rights, with African Americans, Latinos and other minorities bearing the brunt of the damage. It is a war that has, among other depredations, spawned racist profiles of supposed drug couriers. On our nation's highways today, police ostensibly looking for drug criminals routinely stop drivers based on the color of their skin. This practice is so common that the minority community has given it the derisive term, "driving while black or brown" -- a play on the real offense of "driving while intoxicated."

One of the core principles of the Fourth Amendment is that the police cannot stop and detain an individual without some reason -- probable cause, or at least reasonable suspicion -- to believe that he or she is involved in criminal activity. But recent Supreme Court decisions allow the police to use traffic stops as a pretext in order to "fish" for evidence. Both anecdotal and quantitative data show that nationwide, the police exercise this discretionary power primarily against African Americans and Latinos.

No person of color is safe from this treatment anywhere, regardless of their obedience to the law, their age, the type of car they drive, or their station in life. In short, skin color has become evidence of the propensity to commit crime, and police use this "evidence" against minority drivers on the road all the time.

DRUG TRAFFICKERS ARE NOT "MOSTLY MINORITIES"

Racial profiling is based on the premise that most drug offenses are committed by minorities. The premise is factually untrue, but it has nonetheless become a self-fulfiIling prophecy. Because police look for drugs primarily among African Americans and Latinos, they find a disproportionate number of them with contraband. Therefore, more minorities are arrested, prosecuted, convicted, and jailed, thus reinforcing the perception that drug trafficking is primarily a minority activity. This perception creates the profile that results in more stops of minority drivers. At the same time, white drivers receive far less police attention, many of the drug dealers and possessors among them go unapprehended, and the perception that whites commit fewer drug offenses than minorities is perpetuated. And so the cycle continues.

This vicious cycle carries with it profound personal and societal costs. It is both symptomatic and symbolic of larger problems at the intersection of race and the criminal justice system. It results in the persecution of innocent people based on their skin color. It has a corrosive effect on the legitimacy of the entire justice system, it deters people of color from cooperating with the police in criminal investigations. And in the courtroom, it causes jurors of all races and ethnicities to doubt the testimony of police officers when they serve as witnesses, making criminal cases more difficult to win.

Yet despite overwhelming evidence including the police department's own statistics on traffic stops -- officials in law enforcement continue to deny the reality of racial profiling on our nation's highways. Some deny that the phenomenon of racial profiling even exists, while others declare with indignation that their officers do not stop motorists on the basis of skin color.

Still others argue, without apology, that making disproportionate number of traffic stops of African Americans and other minorities is not discrimination, but rational law enforcement.

The ACLU believes that addressing the problem will require a multi-faceted effort. Our state affiliates and other civil rights advocates have brought lawsuits based on showings of discrimination by law enforcement agencies, but legal action is only a beginning; these cases are always difficult, long-term efforts that take considerable resources and plaintiffs of unusual fortitude. For instance, a lawsuit filed in Oklahoma earlier this month on behalf of SFC Gerald and his son may take years to resolve.

Legislation at the federal and state levels and local voluntary efforts can advance the momentum to collect accurate data on the problem and rein in overzealous -- and sometimes illegal -- law enforcement practices.

Fighting crime is surely a high priority. But it must be done without damaging other important values: the freedom to go about our business without unwarranted police interference and the right to be treated equally before the law, without regard to race or ethnicity. "Driving while black" assails these basic American ideals. And unless we address this problem, all of us -- not just people of color -- stand to lose.

THE ROAD TO "DRIVING WHILE BLACK"

The pervasiveness of racial profiling by the police in the enforcement of our nation's drug laws is the consequence of the escalating the so-called war on drugs. Drug use and drug selling are not confined to racial and ethnic minorities in the U.S.; indeed five times as many whites use drugs. But the war on drugs has, since its earliest days, targeted people of color. The fact that skin color has now become a proxy for criminality is an inevitable outcome of this process.

The latest escalation of the war on drugs was declared officially in 1982, when President Ronald Reagan established the Task Force on Crime in South Florida under Vice President George Bush's direction. The primary mission of the Task Force was to intensify air and sea operations against drug smuggling in the South Florida area, but it was not long before the Florida Highway Patrol entered the fray. In 1985, the Florida Department of Highway Safety and Motor Vehicles issued guidelines for the police on "The Common Characteristics of Drug Couriers." The guidelines cautioned troopers to be suspicious of rental cars, "scrupulous obedience to traffic laws," and drivers wearing "lots of gold," or who do not "fit the vehicle," and "ethnic groups associated with the drug trade." Traffic stops were initiated by the state troopers using this overtly race-based profile.

The emergence of crack in the spring of 1986 and a flood of lurid and often exaggerated press accounts of inner-city crack use ushered in a period of intense public concern about illegal drugs, and helped reinforce the impression that drug use was primarily a minority problem. Enforcement of the nation's drug laws at the street level focused more and more on poor communities of color.

In the mid-to late-1980s, many cities initiated major law enforcement programs to deal with street-level drug dealing. "Operation Pressure Point" in New York was an attempt to rid the predominantly Hispanic Lower East Side of the drug trade. Operation Invincible in Memphis, Operation Clean Sweep in Chicago, Operation Hammer in Los Angeles, and the Red Dog Squad in Atlanta all targeted poor, minority, urban neighborhoods where drug dealing tended to be open and easy to detect.

The goal of these inner-city efforts was to make as many arrests as possible, and in that respect, they succeeded. Nationwide, arrests for drug possession reported by state and local police nearly doubled from 400,000 in 1981 to 762,718 in 1988. Comparable figures for arrests for drug sale and manufacture rose from 150,000 in 1981 to 287,858 in 1988 .Minorities were disproportionately represented in these figures.

According to the government's own reports, 80 percent of the country's cocaine users are white, and the "typical cocaine user is a middle-class, white suburbanite." But law enforcement tactics that concentrated on the inner city drug trade were very visibly filling the jails and prisons with minority drug law offenders, feeding the misperception that most drug users and dealers were black and Latino. Thus a "drug courier profile" with unmistakable racial over-tones took hold in law enforcement.

The profile, described by one court as "an informally compiled abstract of characteristics thought typical of persons carrying illicit drugs," had been used in the war on drugs for some time. The first profile was reportedly developed in the early 1970s by a Drug Enforcement Administration (DEA) Special Agent named Paul Markonni while he was assigned to surveillance duty at the Detroit Metropolitan Airport. By 1979, Markonni's drug courier profile was in use at over 20 airports. The characteristics of the Markonni profile were behavioral. Did the person appear to be nervous? Did he pay for his airline ticket in cash and in large bills? Was he going to or arriving from a destination considered a place of origin of cocaine, heroin or marijuana? Was he traveling under an alias?

In the 1980s, with the emergence of the crack market, skin color alone became a major profile component, and, to an increasing extent, black travelers in the nation's airports and found themselves the subjects of frequent interrogations and suspicionless searches by the DEA and the U.S. Customs Service. These law enforcement practices soon spread to train stations and bus terminals, as well.

Sometimes the discriminatory nature of profile stops and searches was so blatant that judges took notice. In the early 1990s, one New York City Criminal Court judge, in dismissing the charges against an African American woman who had been stopped and searched in the Port Authority Bus Terminal, wrote: "I arraign approximately one-third of the felony cases in New York County and have no recollection of any defendant in a Port Authority Police Department drug interdiction case who was not either black or Hispanic."

In 1986, a racially biased drug courier profile was introduced to the highway patrol by the DEA. That year the agency launched "Operation Pipeline," a little known highway drug interdiction program which has, to date, trained approximately 27,000 police officers in 48 participating states to use pretext stops in order to find drugs in vehicles. The techniques taught and widely encouraged by the DEA as part of Operation Pipeline have been instrumental in spreading the use of pretext stops, which are at the heart of the racial profiling debate. In fact, some of the training materials used and produced in conjunction with Pipeline and other associated programs have implicitly (if not explicitly) encouraged the targeting of minority motorists.

The consequences of these law enforcement practices and sentencing policies are painfully evident today in the demographics of our prison population. According to an April 1999 report prepared for the U.S. Commission on Civil Rights by The Sentencing Project, there are now an estimated 400,000 inmates in the U.S. either awaiting trial or serving time for a drug offense, out of a total inmate population of 1.7 million. "The combined impact of increased drug arrests along with harsher sentencing policies has led to a vast expansion of drug offenders in the nation's prisons and jails," the report explains. "As these policies have been implemented, they have increasingly affected African American and Hispanic communities The African American proportion of drug arrests has risen from 25 percent in 1980 to 37 percent in 1995. Hispanic and African American inmates are more likely than non-Hispanic whites to be incarcerated for a drug offense."

Today, blacks constitute 13 percent of the country's drug users; 37 percent of those arrested on drug charges; 55 percent of those convicted; and 74 percent of all drug offenders sentenced to prison.

WHREN v. U.S.: THE SUPREME COURT UPHOLDS PRETEXTUAL TRAFFIC STOPS

At the same time that racial profiling by law enforcement was expanding, the Supreme Court's sensitivity to Fourth Amendment rights was contracting. The constitutionality of pretexual traffic stops -- using a minor traffic infraction, real or alleged, as an excuse to stop and search a vehicle and its passengers -- reached the U.S. Supreme Court in 1996 in a case called Whren v. U.S.

The question before the Court was, is a search constitutional if it would never have taken place if the police were not looking for an excuse to get around the requirements of the Fourth Amendment? In its friend-of-the-court brief, the ACLU argued that pretextual searches violate the core principles of the Fourth Amendment, and warned that to sanction such searches was to "invite discriminatory enforcement." The Court did not heed our warning, however, and instead declared that any traffic offense committed by a driver was a legitimate legal basis for a stop, regardless of the officer's subjective state of mind.

In practice, the Whren decision has given the police virtually unlimited authority to stop and search any vehicle they want. Every driver probably violates some provision of the vehicle code at some time during even a short drive, because state traffic codes identify so many different infractions. For example, traffic codes define precisely how long a driver must signal before turning, and the particular conditions under which a driver must use lights. Vehicle equipment is also highly regulated. A small light bulb must illuminate the rear license plate. Tail lights must he visible from a particular distance. Tire tread must be at a particular depth. And all equipment must be in working order at all times. If the police target a driver for a stop and search, all they have to do to come up with a pretext for a stop is follow the car until the driver makes an inconsequential error or until a technical violation is observed.

Since Whren, the Court has extended police power over cars and drivers even further. In Ohio v. Robinette, the Court rejected the argument that officers seeking consent to search a car must tell the driver he is free to refuse permission and leave. Maryland v. Wilson (1997) gave police the power to order passengers out of stopped cars, whether or not there is any basis to suspect they are dangerous. And in Wyoming v. Houghton, decided on April 5, 1999, the Court ruled that after the lawful arrest of the driver, the police can search the closed purse of a passenger even though she had nothing to do with the alleged traffic infraction and had done nothing to suggest involvement in criminal activity.

THE DATA ARE IRREFUTABLE

Talking with African Americans leaves little doubt that pretextual traffic stops have a profound impact on each individual stopped, and on all blacks collectively. There is also no doubt that blacks view this not as a series of isolated incidents and anecdotes, but as a long standing pattern of law enforcement. For those subjected to these practices, pretext stops are nothing less than blatant racial discrimination in the enforcement of the criminal law. But is there proof that would substantiate the strongly-held beliefs of blacks that traffic stops are used regularly in a racially biased way? What statistics exist that would allow one to conclude, to an acceptable degree of certainty, that "driving while black" is, indeed, more than just the sum of many individual stories?

Data on this problem are not easy to come by. This is, in part, because recognition of the problem has only come recently. It may also be because record keeping concerning police conduct in this area is either irregular or nonexistent. But it may also be because there is active hostility in the law enforcement community to the idea of keeping comprehensive records of traffic stops... there is now no requirement, at either the federal or the state level, that law enforcement agencies collect data on traffic stops that includes race. Thus all of the data gathering so far has been the result of statistical inquiry in law suits or independent academic research.

In the Spring of 1998, several members of the Ohio General Assembly told me that they wished to sponsor legislation to address the "driving while black" problem by requiring that police departments collect data. But in order to sponsor a bill that would require data collection on racial disparity in traffic stops, they wanted some preliminary statistical evidence -- a prima facie case, one could say -- of the existence of the problem. This would help them persuade their colleagues to support such an effort, they said. I was asked to gather this preliminary evidence. The methodology used here presents a case study in how to analyze this type of problem when the best type of data to do so are not available.

In the most fundamental ways, the task... (to) ...use statistics to test whether blacks in Ohio were being stopped in numbers disproportionate to their presence in the driving population. Doing this would require data on stops broken down by race, and a comparison of those numbers to the percentage of black drivers on the roads. ...there are no statewide data on traffic stops in Ohio that can be correlated with race. Similarly, no police department of any sizable city in the state keeps any data on all of its traffic stops that could be broken down by race. Another way of finding out who was stopped would have to be found. Second, the state legislators wanted some preliminary statistics to demonstrate that "driving while black" was a problem in all of Ohio, or at least in some significant -- and different -- parts of the whole state.

In order to address the first question -- the percentage of blacks stopped -- when all other possible sources of information proved unavailing, I obtained data from municipal courts in four Ohio cities. Municipal courts in Ohio handle all low-level criminal cases and virtually all of the traffic citations issued in the state. Most of these courts also generate a computer file for each case, and that file includes the race of the defendant as part of a physical description. Using municipal court data enabled me to obtain a breakdown of all tickets given by the race of the driver for Toledo Municipal Court, Akron Municipal Court, Dayton Municipal Court, and Franklin County Municipal Court, which includes Columbus.

The downside of using the municipal court data is obvious: it only includes stops in which citations were given. Stops resulting in no action or a warning are not included. Thus these data do not include all stops. In all likelihood, using tickets alone might underestimate any racial bias that is present in stops, because police might not ticket blacks stopped for nontraffic purposes. Since using tickets could underestimate any possible racial bias, it makes any resulting calculations conservative, i.e., it tends to give law enforcement the benefit of the doubt. Similarly, the way the statistics are grouped in the analysis is also conservative because I have used only two categories of drivers: black and nonblack. In other words, all minorities other than African Americans are lumped together with whites, even though some of these other minorities, notably Hispanics, have also complained about targeted stops directed at them. Using conservative assumptions means that if a bias does show up in the analysis, we can be relatively confident that it exists. The percentage of all tickets issued in 1996, 1997, and the first four months of 1998 that were issued to blacks by the Toledo, Akron, and Dayton Police Departments and all of the police departments in Franklin County are set out in Table 1.

Table 1
TICKETING OF AFRICAN AMERICAS FOR 1996, 1997, 1998 (thru 4/30/98)

CITY % of all tickets in city
issued to African Americans
Akron 37.6%
Toledo 31%
Dayton 50%
Columbus/Franklin County* 25.20%

* Franklin County data includes 1996 and 1997, but not 1998. Includes tickets issued by all law enforcement units in the county, not just the city of Columbus

With ticketing percentages to give us a surrogate measure of the stops, attention turns to the other number needed for the analysis: the presence of blacks in the driving population. Given the concerns raised above concerning the use of Lamberth's method in a statewide, preliminary study, another approach -- a less exact one than direct observation, to be sure, but one that would yield a reasonable estimate of the driving population -- was devised. Data from the U.S Census breaks down the populations of states, counties, and individual cities by race and by age. This data is readily available and easy to use. Using this data, a reasonable basis for comparison with ticketing percentages can be constructed: black versus nonblack driving age population. This was done by breaking population down both by race and by age. By selecting a lower and upper age limit -- fifteen and seventy-five, respectively -- for driving age, the data yield a reasonable reflection of what we would expect to find if we surveyed the roads themselves. The data on driving age population can also be sharpened by using information from the National Personal Transportation Survey, a study done every five years by the Federal Highway Administration of the U.S. Department of Transportation. The 1990 survey indicates that 21 percent of black households have no vehicle. If the driving age population figure is reduced by 21 percent, this gives us another baseline with which to make a comparison to the ticketing percentages Both baselines -- black driving age population, and black driving age population, less 21 percent -for Dayton, Toledo, Akron, and Franklin County are set jut in Table 2.

Table 2
POPULATION BASELINES

CITY Black Driving Age Population*
(% of City total)
Black Driving Age Population
Less 21% of Black Households without vehicles**
Akron 22.7%* 18%**
Toledo 18%* 14%**
Dayton 38%* 30%**
Columbus/Franklin County*** 16.0% 12.6%

* Source: U.S. Census Bureau
** Source: National Personal Transportation Survey, U.S. Dept. of Transportation (1995); Eric Hill, Research Associate
*** Data are for all of Franklin County, not just Columbus

The ticketing percentages in Table 1 and the baselines in Table 2 can then be compared by constructing a "likelihood ratio:" a number that will show whether or not blacks are receiving tickets in numbers that are Out of proportion to their presence in the driving age population and the driving age population less 21 percent. The likelihood ratio will allow the blank in the following sentence to be filled in: "If you're black, you're -- times as likely to be ticketed by this police department than if you are not black." A likelihood ratio of approximately one means that blacks received tickets in roughly the proportion one would expect, given their presence in the driving age population. A likelihood ratio of much greater than one indicates that blacks are receiving tickets at a rate higher than would be expected. Using both baselines -- the black driving age population, and the black driving age population less 21 percent -- the likelihood ratios for the Toledo, Dayton, Akron and Franklin County are presented in Table 3.

TABLE 3
LIKELIHOOD RATIO
"IF YOU'RE BLACK, YOU'RE TIMES AS LIKELY TO GET A TICKET IN THIS CITY THAN IF YOU ARE NOT BLACK"

CITY
Black Driving Age Population*
Black Driving Age Population
Less 21% of Black Households without vehicles**
Columbus/Franklin County*** 1.8 2.4
Akron P.D. 2.04 2.73
Toledo P.D. 2.02 2.7
Dayton P.D. 1.8 2.5

* Source: U.S. Census Bureau
** Source: National Personal Transportation Survey, U.S. Dept. of Transportation (1995); Eric Hill, Research Associate
*** Includes all police agencies in Franklin County, not just Columbus

As is surely obvious, the method used here to attempt to discover whether "driving while black" is a problem in Ohio is less exact than the observation-based methods.... There are assumptions built into the analysis at several points, all in an attempt to arrive at reasonable substitutes for observation-based data. But all of the assumptions are conservative, calculated to err on the side of caution.

According to sociologist and criminologist Joseph E. Jacoby, the numbers used here probably are flawed -- blacks are probably "at an even greater risk of being stopped" than these numbers show. For example, blacks are likely to drive fewer miles than whites; the National Personal Transportation Survey, which reports that whites average 4.4 vehicle trips daily and blacks average 3.9, supports Jacoby's contention. 105 Since better data do not exist, all of the assumptions made in the analysis involve some speculation. But the important point, Jacoby says, is that all of the assumptions probably result in an underestimate of the risk of blacks being stopped. In statistical terms, the biases in the assumptions are additive, not off-setting.

What do these figures mean? Even when conservative assumptions are built in, likelihood ratios for Akron, Dayton Toledo, and Franklin County, Ohio, all either approach or exceed 2.0. In other words, blacks are about twice as likely to be ticketed as nonblacks are. When the fact that 21 percent of black households do not own a vehicle is factored in, the ratios rise, with some approaching 3.0. Assuming that ticketing is a fair mirror of traffic stops in general, the data suggest that a "while black" problem does indeed exist in Ohio. There may be race-neutral explanations for the statistical pattern, but none seems obvious. At the very least, further study -- something as accurate and exacting as Lamberth studies in New Jersey and Maryland -- is needed.

TABLE 4
COMBINED POPULATION BASELINES AND LIKELIHOOD RATIOS

CITY
Black Driving Age Population*
Black Driving Age Population Less 21% of Black Households without vehicles**

Columbus/Franklin County 16.0% 12.6%
LIKELIHOOD RATIO 1.8 2.4
Akron 22.7% 18%
LIKELIHOOD RATIO 2.04 2.73
Toledo 18% 14%
LIKELIHOOD RATIO 2.02 2.7
Dayton 38% 30%
LIKELIHOOD RATIO 1.76 2.5

* Source: U.S. Census Bureau
** Source: National Personal Transportation Survey, U.S. Dept. of Transportation (1995); Eric Hill, Research Associate

THE PERSONAL AND SOCIETAL COSTS

Race-based traffic stops turn one of the most ordinary and quintessentially American activities into an experience fraught with danger and risk for people of color. Because traffic stops can happen anywhere and anytime, millions of African Americans and Latinos alter their driving habits in ways that would never occur to most white Americans. Some completely avoid places like all-white suburbs, where they fear police harassment for looking "out of place." Some intentionally drive only bland cars or change the way they dress. Others who drive long distances even factor in extra time for the traffic stops that seem inevitable.

Perhaps the personal cost exacted by racially-biased traffic stops is clearest in the instructions given by minority parents to their children on how to behave if they are stopped by police, regardless of economic background or geographic region. African American parents know that traffic stops can lead to physical, even deadly, confrontations. Karen, a social worker, says that when her young son begins to drive, she knows what she'll tell him: "The police are supposed to be there to protect and to serve, but you being black and being male, you've got two strikes against you. Keep your hands on the steering wheel, and do not run, because they will shoot you in your back. Let them do whatever they want to do. I know it's humiliating, but let them do whatever they want to do to make sure you get out of that situation alive. Deal with your emotions later. Your emotions are going to come second -- or last."

Christopher Darden, the African American prosecutor in the O.J Simpson case, says that to survive traffic stops, he learned the rules of the game years before... Don't move. Don't turn around. Don't give some rookie an excuse to shoot you." The perspective of Mr. Darden -- who spent 14 years working closely with police to prosecute accused criminals -- is not unique. And for people of color it continues to be reinforced by far too many real-life experiences.

Widespread DWB practices deeply undermine the legitimacy -- and, therefore, the effectiveness -- of the criminal justice system. Pretextual traffic stops fuel the belief that the police are not only unfair and biased, but untruthful as well. Each pretextual traffic stop involves an untruth, and both the officer and the driver recognize this. The alleged traffic infraction is not the real reason that the officer has stopped the driver. This becomes obvious when the officer asks the driver whether he or she is carrying drugs or guns and seeks consent to search the car. If the stop was really about enforcement of the traffic code, there would be no need for a search. Stopping a driver for a traffic offense when the officer's real purpose is drug interdiction is a lie a legally sanctioned one, to be sure, but a lie nonetheless.

What happens when law enforcement embraces a tactic that is based on the systematic and transparent deception of overwhelmingly innocent people? And, what happens when that tactic is employed primarily against people of color? It should surprise no one that those who are the victims of police discrimination regard the testimony and statements of police with suspicion. If jurors don't believe truthful police testimony, crimes are left unpunished, law enforcement becomes much less effective, and the very people who need the police most are left less protected.

Pretext stops capture some who are guilty but at an unacceptably high societal cost. The practice undermines public confidence in law enforcement, erodes the legitimacy of the criminal justice system, and makes police work that much more difficult and dangerous.

Some Resources on "Driving While Black"

We are seeing more and more information on perceived and documented cases of racial injustice throughout the criminal justice system in Ohio and the rest of the country. We are fortunate to have pending legislation such as H.B. 363 which we can use as a focal point for examination of these complex and important issues. Democracy cannot work if a significant number of citizens are unjustly treated by a major branch of our government.

BOOKS
No Equal Justice: Race and Class in the American Criminal Justice System by David Cole, 1999, published by New Press, (distributed by Norton)

Race, Crime and the Law by Randall Kennedy, 1997, published by Pantheon

ARTICLES
The Color of Suspicion by Jeffrey Goldberg
New York Times Sunday Magazine June 20, 1999 (Can be accessed from their website at www.nytimes.com/archives)

WEB SITES
www.healthfoundation.org Website for the Health Foundation of Greater Cincinnati Look for: "Mental Illness and Substance Abuse in the Criminal Justice System"

www.aclu.org Look under "Police Practices"

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