ACLU Response to Published Reports of Details included in the Revised DOJ Guidance on the Use of Race by Federal Law Enforcement Agencies

December 5, 2014 10:58 pm

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WASHINGTON— The Washington Post and other media outlets published articles tonight that highlight some details of what is included in the U.S. Department of Justice Guidance on the Use of Race by Federal Law Enforcement Agencies.

According to the articles and sources, the Guidance release is expected early next week.

The initial Justice Department guidance was issued in 2003 by Attorney General John Ashcroft. The Ashcroft Guidance banned racial profiling, which it condemned as discriminatory, ineffective, and unacceptable. However, it contained gaping loopholes that gave federal law enforcement express permission to discriminate.

According to the Washington Post and other outlets, the revised Guidance eliminates some of the existing loopholes, including one for national security. It also prohibits profiling based on national origin, religion, or sexual orientation. Sources also say that gender identity will also be covered.

However, the Guidance does not close the loophole permitting discrimination at the border by Transportation Security Administration (TSA) and U.S. Customs and Border Protection (CBP).

The following comments can be attributed to ACLU Washington Legislative Office Director Laura W. Murphy:

The revised Guidance is an important step in reducing the prevalence of racial profiling in federal law enforcement.

Closing loopholes:

We are pleased that the national security loophole, the source of many egregious constitutional violations is narrowed. But it’s difficult to celebrate knowing federal authorities will still be advised and permitted to target individuals at airports and in the vast 100-mile border zone not because they’ve done anything wrong, but because of their skin color or First Amendment-protected beliefs.

The TSA and CBP exemptions are distressing, particularly because Latinos and religious minorities are disproportionately affected. Let’s be clear: DHS wants to racially profile at the border because, as an anonymous immigration enforcement official said today, “There’s a very specific clientele that we look for.” That’s code for Latinos and other people of color who look to DHS police like they don’t “belong.” Focusing on an entire class of people instead of on actual conduct is unfair and harms our national security by wasting scarce government resources and eroding minority communities’ trust in government. The White House must insist that these DHS components do not engage in unconstitutional behavior.

We are also concerned that the Guidance permits the offensive practice of FBI racial mapping and that the national security loophole that was in the 2003 Ashcroft guidance is not sufficiently closed.


Your nationality, religion, sexual orientation, and gender identity should never be reason for law enforcement to label you a suspect, so the inclusion of these categories is a significant leap forward. Given the far too frequent experiences of LGBT people, particularly LGBT people of color, with targeting and profiling by law enforcement, the inclusion of sexual orientation and gender identity in this guidance is a significant one.

Prohibiting law enforcement from profiling individuals and communities based solely on their real or perceived religion is fundamental to upholding our nation’s commitment to religious liberty.

State and Local Enforcement:

The Guidance does not sufficiently cover state and local racial profiling. While the Guidance covers some joint federal and local law enforcement activities, we think that a nationwide ban on this unconstitutional practice is in order.

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