December 01, 2014

DOJ announces new guidance expanding bar on profiling

U.S. Attorney General Eric H. Holder Jr. announced a new guidance Dec. 8 for federal law enforcement agencies that expands a 2003 policy barring racial and ethnic profiling to include national origin, gender, gender identity, religion and sexual orientation.

The new policy applies a uniform standard to all law enforcement, national security and intelligence activities conducted by Justice Department law enforcement components and state and local law enforcement law officers participating in federal law enforcement task forces. The policy does not, however, apply to security screening in airports and border checkpoints.

In announcing the new guidance, Holder said that biased law enforcement practices not only perpetuate negative stereotypes and promote mistrust of law enforcement, they are counterproductive to the goal of good policing.

A memorandum issued by the department set out two standards:

•In making routine or spontaneous law enforcement decisions, such as ordinary traffic stops,  federal law enforcement officers may not use race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity to any degree, except that officers may rely on  listed characteristics in a specific suspect description; and

•In conducting all activities other than routine or spontaneous law enforcement activities, federal law enforcement may consider race, ethnicity, gender, national origin, religion, sexual orientation or gender identity to the extent that there is trustworthy information, relevant to the locality or time frame, that links persons possessing a particular listed characteristic to an identified incident, scheme, or organization, a threat to national or homeland security, a violation of federal immigration law, or an authorized intelligence activity. In relying on any of the listed characteristics, an officer must also reasonably believe that the activity to be undertaken is merited under the totality of the circumstances.

The guidance also requires federal law enforcement agencies to take specific steps on training, data collection and accountability.

Holder explained that the guidance is the product of five years of “scrupulous review” and “codifies important new protections to those who come into contact with federal law enforcement agents and their partners.” He added that the guidance “brings enhanced training oversight and accountability to federal law enforcement across the country, so that isolated acts do not tarnish the exemplary work that’s performed by the overwhelming majority of America’s hard-working law enforcement officials each and every day.”

The ABA adopted policy in 2008 urging federal, state, local and territorial governments to enact effective legislation, policies, and procedures to ban racial or ethnic profiling by law enforcement agencies and police officers engaging in domestic law enforcement.

When legislation was introduced early in the 112th Congress to end racial profiling and grant the United States or an individual injured by racial profiling the right to obtain declaratory or injunctive relief, ABA Governmental Affairs Director Thomas M. Susman expressed ABA support for the legislation.

“When law-abiding citizens are treated differently by those who enforce the law simply because of their race, ethnicity, religion or national origin, they are denied the basic respect and equal treatment that is the right of every American,” Susman wrote.

He added that the practice of using race as a criterion of law enforcement undermines the progress that has been made toward racial equality since passage of sweeping civil rights legislation decades ago.

There was no action on legislation during the 112th Congress or 113th Congress, but representatives from the Leadership Conference on Civil and Human Rights and the American Civil Liberties Union expressed support for such legislation during a Dec. 10 hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights titled “The State of Civil and Human Rights in the United States.”

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