New DOJ Guidance on Racial Profiling Falls Short

On Monday, the U.S. Department of Justice (DOJ) released guidance on the use of race by federal law enforcement agencies. These new guidelines, expanding upon guidance issued by the DOJ in 2003, follow the tragic deaths of Eric Garner, Mike Brown and Tamir Rice, and come at a time of increased public dialogue about the role of policing in America, particularly within communities of color. 

While the guidance does expand important protections to include gender, sexual orientation, gender identity and national origin, it leaves in tact gaping loopholes that permit discrimination by the Transportation Security Administration (TSA) and Customs and Border Protection at or within 100 miles of a border zone – a vast stretch of land that includes the entire state of Maine and most of New England.

The guidance also does not apply to state and local law enforcement agencies, except when officers are serving on federal agency task force.

In response to the new DOJ guidance, Laura Murphy, Director of the ACLU’s Washington Legislative Office, said:

“It’s so loosely drafted that its exceptions risk swallowing any rule and permit some of the worse 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.” – Laura Murphy, Director of the ACLU’s Washington Legislative Office.

Our Constitution and the Bill of Rights guarantee us all certain fundamental rights and liberties and promises equal protection before the law. Attorney General Eric Holder himself said that “it is patently unacceptable… for law enforcement officers to act on the belief that possession of a listed characteristic [like race, religion, national origin, or ethnicity] signals a higher risk.” And yet, the new guidance from the DOJ gives the green light for certain federal law enforcement to do just that. 

National origin, religion, sexual orientation and gender identity should never be a reason for law enforcement to label you a suspect, so the inclusion of these categories is a significant step forward. However, as a whole this guidance is inadequate. Recent events have shown that racial profiling is not only happening, it is ubiquitous nationwide. Regardless of circumstance, biased policing should never be tolerated and our government shouldn't get to designate “opt out” zones where our constitutional protections don't apply. Join us today in calling on President Obama to make the needed changes to the guidance and press Congress for the passage of the Racial Profiling Act

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