New Racial Profiling Guidance Retains Broad Exemptions For Immigration, National Security

CREDIT: AP Photo/Dario Lopez-Mills

A man who was driving a carload of illegal migrants who fled when stopped by the border patrol sits handcuffed by the side of the road near the town of Aravica, Arizona.

Arizona Smuggling Law

CREDIT: Ross D. Franklin/ AP

Facing a national conversation on police brutality, the Department of Justice released long-awaited revised guidelines on racial profiling Monday. While recent debate has focused on police treatment of African Americans, the expanded DOJ guidelines primarily add several new categories to a racial profiling policy that previous banned profiling only based on race and ethnicity. The new categories include gender, national origin, religion, sexual orientation, and gender identity.

Monday’s guidelines also narrow an expansive exception for “national security” activities. But some civil rights organizations are critical that the guidelines would still permit a broad swath of law enforcement activity aimed particularly at Muslims, as well as exempt some Department of Homeland Security agencies, such as the Transportation Security Administration and the Customs and Border Protection from continuing to stop people at the airport and at the southwest border.

Issued by outgoing Attorney General Eric Holder, the guidelines replacing existing DOJ rules from 2003, and prohibit federal law enforcement officers (or state officials working in tandem with federal officials) from using such characteristics to make “routine or spontaneous” law enforcement decisions, such as traffic stops.

“Profiling by law enforcement is not only wrong, it is profoundly misguided and ineffective, because it wastes precious resources and undermines the public trust,” Holder said in a statement. “Particularly in light of certain recent incidents we’ve seen at the local level — and the widespread concerns about trust in the criminal justice process which so many have raised throughout the nation — it’s imperative that we take every possible action to institute strong and sound policing practices.”

But in an extended footnote, the memo notes that “this Guidance does not apply to interdiction activities in the vicinity of the border, or to protective, inspection, or screening activities.” The memo also makes clear that the guidelines apply in the national security context, but with a broad exception for “trustworthy information” related to national security, immigration, or intelligence. Among the sorts of activities that are provided of examples of still-valid activities is the mapping of ethnic groups if “undertaken pursuant to an authorized intelligence or investigative purpose.” In New York, the NYPD “demographics unit” (which would not be covered by this guidance unless working with federal officials) came under fire for mapping out the city’s Muslims, and the unit was later disbanded after the FBI said it sowed distrust among Muslims.

For some civil rights organizations that have been at this since President Obama’s 2008 election, the revisions seem shortsighted and modest. ACLU Washington Legislative Office Director Laura W. Murphy said in a press statement, “It’s baffling that even as the government recognizes that bias-based policing is patently unacceptable, it gives a green light for the FBI, TSA, and CBP to profile racial, religious and other minorities at or in the vicinity of the border and in certain national security contexts, and does not apply the Guidance to most state and local law enforcement.”

USA Today reported that profiling “will still be permitted during screening of commercial airline passengers, border inspections and during protective functions initiated by the U.S. Secret Service, all overseen by the Department of Homeland Security.” The new rules would otherwise affect “all Immigration and Customs Enforcement civil immigration enforcement, U.S. Coast Guard law enforcement activities, Border Patrol activities not near the border, DHS officers protecting government buildings and federal air marshals,” the Washington Post reported. It would also exempt officials from screening airline passengers and those guarding the country’s southwestern border. As Vox explained, “Under the old profiling policy, ‘the border’ was defined as anywhere within 100 miles of a land or sea border — but it’s not clear whether the ‘vicinity of the border’ applies to that whole area, or to a more limited part of it.”

Border agents have come under intense scrutiny for testing the limits of its use of force tactics, including using the border search exemption of the Fourth Amendment to justify searches that have nothing to do with the border. A 2008 guidance document has allowed agents to search individuals at the border who carry in electronic devices such as laptops and cell phones without “reasonable suspicion of a crime or without getting a judge’s approval.” On more than one occasion, federal investigators used their border search authority as a means to investigate U.S. citizens to get around violating the Fourth Amendment.

The guidelines would likely have little effect in Arizona, where the anti-immigration state law colloquially known as the “show me your papers” law is still enforced. Immigration advocates have long charged that Arizona police officers disproportionately and indiscriminately pull over members of the Latino community. In October, a cop threatened to “kill” or “shoot” a Latino man pulled over for a traffic violation.