Feds release profiling restrictions

WASHINGTON — The Obama administration announced restrictions Monday on racial profiling by federal law enforcement agencies. The rules expand bans based on race and ethnicity to include gender, national origin, religion, sexual orientation and gender identity.

The new guidelines, issued by the Justice Department after five years of review, will for the first time apply to national security activities, which were exempted under the initial 2003 policy. But the long-criticized investigative tactic of profiling will still be permitted during screening of commercial airline passengers, border inspections and protective functions initiated by the Secret Service, all overseen by the Department of Homeland Security.

Included in the permitted profiling functions are Immigration and Customs Enforcement and Border Patrol "activities in the vicinity of the border and ... at ports of entry.''

"Given the unique nature of parts of DHS' mission – most notably in protecting our borders and securing our skies – some DHS activity is not covered by the policy,'' the DHS said in a statement. "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.''

The activities of the military, intelligence authorities and diplomatic personnel also are not covered, as they are not considered law enforcement authorities.

The guidelines come in the wake of national unrest related to recent incidents in which white police officers have killed unarmed black men, notably in Ferguson, Mo., and Staten Island, N.Y. In both cases, the officers were not criminally charged, prompting waves of protests that spread across the nation.

The guidelines apply only to federal authorities, though police would be covered when they participate in federal law enforcement task forces, including terrorism and major drug investigations.

Among the goals is for federal law enforcement to serve as a model for the policy and encourage local authorities to adopt it.

Attorney General Eric Holder briefed law enforcement officials on the policy during a conference call.

"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 characterized the policy as "a major and important step forward to ensure effective policing by federal law enforcement officials and state and local law enforcement participating in federal task forces throughout the nation.''

Laura Murphy, the American Civil Liberties Union's Washington Legislative Office director, said the guidelines marked "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,'' Murphy said. "However, several components … 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.

"This guidance,'' Murphy said, "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."

The Sikh Coalition, the largest Sikh advocacy group in the USA, offered a harsh assessment, saying the policy is "flawed and misleading'' because of the exemptions granted to border enforcement, the Transportation Security Administration and the Secret Service.

"This guidance is like a used car with new paint,'' said Rajdeep Singh, the coalition's law and policy director. "The car looks better, but once you look underneath the hood, you realize it's unsafe to drive.''