ACLU Response to Revised DOJ Guidance on the Use of Race by Federal Law Enforcement Agencies

December 8, 2014 12:00 am

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WASHINGTON— The U.S. Department of Justice released a revised version of its Guidance Regarding the Use of Race by Federal Law Enforcement Agencies, today.

The initial Justice Department guidance was issued in 2003 by Attorney General John Ashcroft. The Ashcroft Guidance banned racial profiling, but contained gaping loopholes that gave federal law enforcement express permission to discriminate.

According to the White House and Justice Department, the revised Guidance will eliminate some of the existing carve-outs for law enforcement activities related to “protecting national security or the integrity of the borders.” It will prohibit profiling based on national origin, religion, gender, sexual orientation, and gender identity, in addition to race and ethnicity. It also will apply to state and local law enforcement agencies participating in federal law enforcement task forces.

The Guidance does not eliminate carve-outs permitting discrimination at the border by Transportation Security Administration (TSA) and both at and in the “vicinity” of the border by U.S. Customs and Border Protection (CBP), nor does it fully bar biased profiling in the national security context.

The following response to the official revised Guidance can be attributed to ACLU Washington Legislative Office Director Laura W. Murphy:

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.

The inclusion of new categories such as national origin, religion, sexual orientation and gender identity; establishment of much-needed data collection and training, and coverage of some state and local law enforcement activities are elements of the Guidance we should celebrate.

However, several components of the Guidance do little to nothing to protect some minority populations that have to endure unfair targeting by law enforcement every day. Using race, the color of someone’s skin, religion, or ethnicity as any basis for suspicion or investigation is demoralizing, unconstitutional, and a practice that should be left in the history books, where it belongs.

It’s baffling that even as the government recognizes that bias-based policing is patently unacceptable, itgives 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.

While the Guidance purports to close the national security loophole, 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.

This Guidance is not an adequate response to the crisis of racial profiling in America. The President should compel all his federal police, as well as state and local agencies to adhere to the law and stop engaging in biased profiling now.

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