By Jennifer Epstein
December 8, 2014
The Obama administration will Monday unveil its long-anticipated updates to its guidelines on racial profiling, tightening limits on the practice but still allowing federal law enforcement agencies to employ it at airports and along the border.
The new rules replace guidelines created by the Bush administration in 2003, which banned racial profiling for federal law enforcement, but included broad exemptions for national security and border security. The Bush rules applied only to race, but the new policy also bans profiling on the basis of religion, national origin, sexual orientation and gender identification.
The release of the new guidelines comes at a moment of heightened national attention on the role that race plays in law enforcement, amid continued protests spurred by the killings of black men in New York and Ferguson, Missouri, by white police officers.
But it has been in the making for more than five years, with Attorney General Eric Holder pressing to complete the project before his departure from the Justice Department, expected early next year. During the past two weeks, it was the first agenda item at his daily senior staff morning meetings, a department official said, adding: “It will be one of the signature accomplishments of his tenure.”
“As attorney general, I have repeatedly made clear that 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.”
Holder hopes that federal agencies’ use of the new guidelines will lead by example, showing state and local authorities that “successful policing does not require profiling,” the official said. He will brief local law enforcement leaders during a Monday conference call and follow up with other events in the weeks ahead, including a speech on Tuesday in Memphis.
The guidelines apply to state and local law enforcement officers while they are participating in federal law enforcement task forces, but not more broadly.
They do, though, apply to all federal law enforcement agencies, including those housed in the Justice Department and the Department of Homeland Security.
The guidelines include what DHS described in a preview as “stringent and expanded anti-profiling requirements” for all U.S. Immigration and Customs Enforcement civil immigration enforcement, federal air marshals, and U.S. Border Patrol enforcement not in the vicinity of the border.
But there are exceptions: for screening and inspection at the border and for transportation security, for Border Control and ICE activities at the border, and for Secret Service protective activities. But, DHS said, “This does not mean that officers and agents are free to profile. To the contrary, DHS’ 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.”
DHS has committed to conducting an additional review aimed at examining the practices not barred by the new guidelines “to ensure 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.”
The American Civil Liberties Union welcomed the revisions as “an important step in reducing the prevalence of racial profiling in federal law enforcement.” But Laura Murphy, the director of the group’s Washington legislative office, also warned that it does not do enough to guard against profiling by state and local law enforcement.
“We think that a nationwide ban on this unconstitutional practice is in order,” she said.
For more information, go to: www.beverlyhillsimmigrationlaw.com