- The Department of Justice released a new policy on December 8th on when federal agents are allowed to use profiling.
- Federal law enforcement agents will, in most cases, no longer be allowed to consider religion, national origin, gender and gender identity, or sexual orientation when deciding whether to investigate someone. (It was already illegal in most cases for agents to consider race.)
- Federal agents will still be allowed to profile people "in the vicinity of the border." Under the old profiling policy, "the border" was defined as anywhere within 100 miles of a land or sea border — but it's not clear whether the "vicinity of the border" applies to that whole area, or to a more limited part of it.
- Agents will also be allowed to profile as part of "protective, inspection, or screening activities" — which includes airport screenings.
- The new rules apply not just to the Department of Justice, but to immigration agents and other federal law enforcement as well.
- But they don't apply to state and local police departments (unless they're working as part of a federal task force).
1) Why does the federal government allow profiling at all?
The government's justification for profiling has been that it's more useful to law enforcement than it is harmful to individuals. That justification led the Supreme Court, in 1975, to issue a decision that (in the federal government's interpretation) allows Border Patrol agents to use racial profiling in border enforcement. And it's the same logic that federal law enforcement agents have used more recently to target Muslim Americans in terrorism investigations.
But critics aren't sure the logic holds up in 2014. For example, they question whether it's all that useful for Border Patrol agents to profile Latinos along the US/Mexico border — where most US citizens are Latino themselves. Rep. Beto O'Rourke (D-TX) has asked, "How can race help a Border Patrol agent or customs officer do a better job in a city like El Paso, where 85 percent of the people are Hispanic?"
And Cecilia Wang of the ACLU points out that when the Supreme Court made its 1975 ruling, it might have underestimated just how much of a burden it was placing on Latino citizens. The Court, she said, argued that "the intrusion on the individual is so brief, Border Patrol testified that these stops take only a minute or two."
This, she said, ignores the reality, which is "that for people who live in these border communities, you're going to get stopped all the time. It's not a minimal intrusion to have Border Patrol stopping you constantly, when you're trying to drop your kids off at the pool, or go to work, or go to the grocery store, or whatnot."
2) What were the old federal standards for racial profiling?
Until today, the federal government has been using a policy that was put out by the Bush administration in 2003. (Before 2003, the federal government didn't have any policy banning profiling.) That policy explicitly banned profiling on the basis of race — but didn't say anything about profiling based on other characteristics. That left federal law enforcement free to single out Muslims in terrorism investigations, for example, or people of Mexican descent in immigration investigations. (Just because it was allowed doesn't mean it happened frequently — but it wasn't explicitly prohibited by federal policy.)
The 2003 policy included exceptions on racial profiling: it was allowed when "preventing threats to national security," which explicitly included potential threats at airports, or when "protecting the integrity of our nation's borders."
In California and Arizona, racial profiling by Border Patrol agents was already banned — thanks to a 2000 decision in the federal Ninth Circuit Court of Appeals. So profiling was allowed along parts of the US/Mexico border, but not all of it.
In general, though, when it comes to immigration enforcement, the government's definition of the border stretches 100 miles into the United States — not just from the land borders with Canada and Mexico, but into the coasts as well:
This created a pretty broad profiling exception. And there's evidence that the Department of Homeland Security has taken advantage of it — having border patrol agents board public transportation in upstate New York, for example, and asking certain passengers to show proof that they're in the United States legally.
3) What has changed under the new standards?
The biggest change in the new standards is that racial profiling is no longer the only kind of profiling that's banned. In any case where federal agents weren't allowed to consider race before, they're now not allowed to consider race, religion, national origin, gender and gender identity, or sexual orientation.
The other change is that one of the big loopholes in the old policy is a little smaller, and another has been totally eliminated. There's no longer an exemption for "national security." In fact, the new policy is very clear that the government expects law enforcement officers to be able to keep the country safe "without invidious profiling." Press reports have indicated that, for example, the FBI will still be allowed to map neighborhoods for demographic information — but they won't be allowed to directly target Muslim Americans in terrorism investigations.
The new policy keeps the loophole for Border Patrol agents — but clarifies they're only allowed to use profiling "in the vicinity of the border." It's not clear whether that covers the entire 100-mile zone, or a smaller area. And it makes it clear that Immigration and Customs Enforcement agents, who are responsible for immigration enforcement in the interior of the country, don't get to take advantage of that loophole to profile in standard immigration enforcement.
4) So when is profiling still allowed?
At border checkpoints and patrol stops — sometimes. Border Patrol agents are still going to use race and national origin as factors in determining who to pull over for a traffic stop near the borders, or who to flag for secondary screening at border checkpoints. Technically, they're not allowed to do this in any of the states covered by the Ninth Circuit decision banning such profiling, but there's evidence that they're doing so anyway.
For example, at a border checkpoint in Arivaca, Arizona, last spring, volunteer activists recorded who was asked to show ID and pulled over for secondary screening. They found that Latinos were 26 times more likely to be asked to show ID than whites, and 20 times more likely to be pulled over for further inspection.
At airports, and other "inspection and screening" activities. The new policy doesn't apply to "protective, inspection, or screening activities." So the TSA will still be allowed to use race, religion and nationality as factors in deciding who to pull aside for secondary screening, or detain for questioning, before letting them fly.
6) What does the new policy mean for state and local police?
None of this covers what state and local law enforcement are allowed to do on a day-to-day basis. That's governed by state laws — and only some states have racial profiling bans on the books:
However, when state and local law enforcement agents are working as part of federal task forces — which happens in immigration enforcement, drug enforcement, and national-security investigations, for instance — the new policy does apply. So if the NYPD is working with the FBI on a joint terrorism task force, it's bound by the federal prohibition on profiling Muslims — even though New York state doesn't have an anti-profiling law of its own on the books. On the other hand, it's possible that local-federal immigration task forces, will be allowed to use racial profiling in deciding who to screen, under the exception for "border integrity."
In the opinion of profiling critics, however, what the new policy explicitly allows local law enforcement to do doesn't matter. They believe that simply by acknowledging that profiling is acceptable in some cases, the federal government opens the door for police to engage in widespread profiling and abuse.
Sheriff Joe Arpaio of Maricopa County, Arizona, is currently in the middle of a 7-year-long trial for profiling Latinos under the guise of immigration enforcement. Arpaio's defended his actions by saying that the federal government was allowed to do it, and they'd trained his deputies. "The lesson we take from the Arpaio example, and many others around the country," said the ACLU's Wang, "is that this guidance is giving those officers who would like to racially profile Latinos a basis to do it."