The Obama administration on Monday formally announced long-awaited curbs on racial profiling by federal law enforcement, but the new rules will not cover local police departments, which have come under criticism in recent months over allegations that their officers profile suspects.
Attorney General Eric H. Holder Jr. expanded Justice Department rules for racial profiling to prevent FBI agents from considering gender, national origin, religion, sexual orientation and gender identity, in addition to race and ethnicity, when opening cases. The department also is banning racial profiling from national security cases for the first time.
Holder’s revised policy covers state and local law enforcement officers while they participate in federal law enforcement task forces. But it is considered only guidance for police officers in state and local departments.
The profiling rules come at a time of racial tension around the country after the recent deaths of three African Americans at the hands of police in Ferguson, Mo., New York and Cleveland, and the absence of criminal charges against the white police officers who were involved.
“As attorney general, I have repeatedly made clear that profiling by law enforcement is not only wrong, it is profoundly misguided and ineffective,” Holder said. “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, it’s imperative that we take every possible action to institute strong and sound policing practices.”
A Justice Department official said the goal is for federal law enforcement agencies to “model” these policies, proving to state and local authorities that successful policing does not require profiling. Holder held a conference call Monday with local law enforcement leaders to brief them on the policy and encourage them to adopt it.
“At this historic moment in our nation’s race relations, the release of this revised guidance is an important signal of progress, but it does not completely address the need for reform of policing tactics at the state and local level,” said Laura W. Murphy, director of the American Civil Liberties Union’s Washington legislative office.
The rules also apply for the first time to many activities at the Department of Homeland Security, including 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.
But DHS officials will not be covered by the new racial profiling ban when they screen airline passengers and guard the country’s Southwestern border.
Customs and Border Protection, for example, still will be allowed to use profiling when conducting screenings and inspections at the country’s ports of entry and interdictions of travelers at the border, government officials said. Secret Service protective activities also will not be covered by the rules.
“Having a particular skin color, religious belief or last name is not a crime,” said Rajdeep Singh, director of law and policy at the Sikh Coalition, the largest Sikh American civil liberties organization. “This is not a 50-50 issue. The Obama administration can either ban profiling or allow it. It sounds like they’re committed to allowing it.”
A fact sheet on the policy said that some DHS activity is not covered by the policy because of the “unique nature of DHS’s mission.”
“This does not mean that officers and agents are free to profile,” according to the DHS fact sheet. “To the contrary, DHS’s existing policies make it categorically clear that profiling is prohibited, while articulating limited circumstances where it is permissible to rely in part on these characteristics, because of the unique nature of border and transportation security as compared to traditional law enforcement.”
President George W. Bush banned racial profiling in 2003, but the prohibition did not apply to national security investigations and covered only race — not religion, national origin, gender or sexual orientation and gender identity.
Civil rights groups and Democratic lawmakers have pushed for expanded anti-profiling protections since President Obama was elected in 2008. Holder began the process to revamp the rules in 2009 and considers the new policy one of the signature accomplishments of his tenure.
About six months ago, the Justice Department delivered the rules to the White House. But they applied only to the department, and White House officials wanted the polices to cover additional agencies.
The rules have been delayed in part because DHS officials pushed the White House and the Justice Department to allow major exclusions for agencies such as the Transportation Security Administration, Immigration and Customs Enforcement, and Customs and Border Protection.
In several high-level meetings, DHS Secretary Jeh Johnson argued that immigration and customs agents and airport screeners needed to consider a variety of factors to keep the nation safe, according to officials familiar with his personal efforts. TSA officials argued that the rules should not apply to them because the TSA is not a law enforcement agency.
In its fact sheet, DHS officials said that they will review activities not directly covered by the guidance to ensure that “we are including every appropriate safeguard and civil rights protection in the execution of those important security activities, and to enhance our policies where necessary.”
But that was not enough assurance for civil liberties advocates.
“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,” the ACLU’s Murphy said. “This guidance is not an adequate response to the crisis of racial profiling in America.”