The Obama administration issued guidelines on Dec. 8 that restrict the ability of federal law enforcement agencies to profile on the basis of religion, national origin and other characteristics, protocols the Justice Department hopes could be a model for local departments as the nation tackles questions about the role race plays in policing.
The policy, which replaces decade-old guidelines established under the Bush administration, also will require federal agencies to provide training and to collect data on complaints.
Civil rights advocates said they welcomed the broader protections, but were disappointed that the guidance will exempt security screening in airports and border checkpoints and won’t be binding on local and state police agencies.
“It’s so loosely drafted that its exceptions risk swallowing any rule and permit some of the worst law enforcement policies and practices that have victimized and alienated American Muslim and other minority communities,” Laura Murphy, director of the ACLU’s Washington Legislative Office, said in a statement. “This guidance is not an adequate response to the crisis of racial profiling in America.”
Though the policy – five years in the making – was not drafted in response to recent high-profile cases involving the deaths of black individuals at the hands of white police officers, it’s nonetheless being released amid an ongoing national conversation about standards for police use of force, racial justice and the treatment of minorities by law enforcement.
“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,” said Attorney General Eric Holder, referring to the August shooting by a white police officer of an unarmed black 18-year-old in Ferguson, Missouri, and the chokehold death weeks earlier of a man in New York City.
Holder, who has made the release of the guidelines a priority before leaving the Justice Department next year, called the guidelines a “major and important step forward to ensure effective policing” by federal law enforcement.
The policy extends a prohibition on routine racial profiling that the Justice Department announced in 2003 under then-Attorney General John Ashcroft. Civil rights groups have long said those rules left open too many loopholes by allowing an exemption for national security and by failing to extend the ban to characteristics beyond race and ethnicity. The new guidelines would end the carve-out on national security investigations and widen the profiling curbs to prohibit the practice on the basis of religion, national origin, gender, sexual orientation and gender identity.
The rules cover federal agencies within the Justice Department, including the FBI, the Drug Enforcement Administration and the Bureau of Alcohol, Tobacco, Firearms and Explosives. They also extend to local and state officers serving on task forces alongside federal agents. Some activities of the Department of Homeland Security are covered, such as civil immigration enforcement, though border and airport security screening are exempt along with interdictions at ports of entry.
The policy was laid out in a memo that provides concrete examples of law enforcement actions that would and would not be permissible. The memo makes clear that agents may take race, ethnicity and other factors into account during investigations in limited circumstances, such as if they have information linking a person of a particular characteristic to a specific crime.
That means, for instance, that if U.S. Park Police officers are told to be on the lookout for a fleeing bank robbery suspect of a particular race and gender, they’d be permitted to use those factors in deciding which drivers to pull over on a highway.
Still, the policy’s practical impact remains to be seen, especially since local police officers are the ones primarily responsible for traffic stops, 911 calls and day-to-day interactions with the communities they patrol. Though not binding on local agencies, the Obama administration views the guidelines as a roadmap, with Holder encouraging local law enforcement officials to adopt the federal policy.
The administration would welcome “any decision that’s made by local law enforcement to apply these policies at the state and local level as well,” White House spokesman Josh Earnest told reporters Monday.
Some advocacy groups for minority communities said the new guidelines didn’t go far enough, in part because they don’t cover state and local law enforcement and would still permit circumstances in which religion and national origin can be taken into account. Muslim Advocates, a national organization, noted that federal law enforcement would still be permitted to “map communities based on race, ethnicity or religion” and use that information to recruit informants.
“You can’t be against profiling in some contexts but for it in other contexts,” said Rajdeep Singh, policy director of the Sikh Coalition.
Some also complained about the airport and border exemptions for the Department of Homeland Security, which agency officials attributed to “the unique nature of border and transportation security as compared to traditional law enforcement.”
“This does not mean that officers and agents are free to profile,” the department said in a statement. “To the contrary, DHS’ existing policies make it categorically clear that profiling is prohibited,” while allowing for limited circumstances in which race, ethnicity and other characteristics could be considered.