Justice Department to unveil new bans on racial profiling

Dec. 7, 2014, 10:56 PM EST

By Trymaine Lee and Anna Brand

The Justice Department on Monday announced revisions to rules for racial profiling by federal law enforcement amid lingering protests across the nation in response to grand jury decisions not to indict white police officers for the killings of unarmed black men.

Since 2003, federal agents have been barred from making decisions like spontaneous traffic stops on the basis of race or ethnicity. Under the new policy — five years in the making — profiling based on gender, national origin, religion, sexual orientation, and gender identity will also be banned. Federal law enforcement officers may now rely only on characteristics specific to a particular subject’s description. And officers may only consider those characteristics to the extent that there is trustworthy, relevant information.

“As Attorney General, 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.”

The new standards will also apply to areas of the Department of Homeland Security for the first time. Those responsible for airport screenings and border checks, as well as Secret Service-related missions, are excluded, however, “given the unique nature of parts of the DHS mission — most notably in protecting our borders and securing our skies,” a fast sheet from the DHS explained.

Outgoing Attorney General Eric Holder, who will leave behind a record grounded in civil rights enforcement when he steps down from the post after six years, teased the revised profiling policy at an event last Monday in Atlanta, saying the limits will “help end racial profiling, once and for all.”

The aim is to bolster training, oversight and accountability among federal authorities “so that isolated acts of discrimination do not tarnish the exemplary work that’s performed by the overwhelming majority of America’s hard-working law enforcement officials each and every day,” Holder said.

For the past two weeks, a department official said, planning around the new guidance has been the first item on Holder’s daily agenda during morning meetings with senior staff. He called the new guidance “a major and important step forward to ensure effective policing.”

Kevin Lewis, a spokesman for the department, described the initiative as “one of the signature accomplishments of his tenure.” Lewis said Holder hopes the new guidance will serve as a model to be replicated in state and local agencies.

While the new guidance applies to federal law enforcement agencies under the purview of the Justice Department it will also include local police that take part in joint task forces with the federal agencies.

Holder was set to brief law enforcement leaders across the U.S. on the policy Monday and planned to travel the country discussing the new curbs on profiling with law enforcement groups in the coming weeks, beginning on Tuesday with a speech in Memphis.

“What’s going to happen next is that the different agencies that are covered by the guidance are going to have to train their officers and their agents on the new guidance,” said Darius Charney, a staff attorney with the Center for Constitutional Rights in New York.

Charney said while the overall guidance should be applauded he said its limitations are concerning, including that it does not include agents conducting border security or airport screenings.

But there’s also the matter of the guidance translating from policy to practice.

“That’s the sixty-four thousand dollar question,” Charney said not long after the new guidance was announced.

“We know that the policy on paper is often very different from how police officers behave on the street,” Charney said. “That is the question we do not know the answer to just yet. Are federal agents going to comply with this guidance and if not how will it be enforced?”

Charney, whose organization is based out of New York and has done extensive work around the NYPD’s controversial stop-and-frisk policy which focused largely on stopping random black and Latino men, said a clear example of policy not translating to practice is the death of Eric Garner. Garner was killed by a chokehold he was placed in by a New York cop after being stopped for suspicion of selling loose, untaxed cigarettes. The chokehold has been barred by the NYPD since 1993. A grand jury last week opted not to indict Officer Daniel Pantaleo in Garner’s death.

The announcement comes on the heels of rising tension and monumental protests across the nation following the deaths of Garner and Michael Brown in Ferguson, Missouri, in which there were no criminal charges against the officers who took their lives. Protesters have taken to the streets to demand justice and spread the message that black lives matter.

“This policy represents a dramatic enhancement of protections for all Americans, while enabling federal law enforcement officers to continue working — consistent with the laws and the Constitution — to protect and defend our safety,” the Justice Department said.