Thus local law enforcement, or anyone else who deals with street crime, will always rely on de facto profiling of young black males. And precisely because effective local law enforcement will inevitably lead to racial profiling, Eric Holder’s Department of Justice is working to ban it.
Here, it’s important to recognize the different experiences between local and federal law enforcement. Local law enforcement is driven by the banal reality that most criminals are exactly what you expect them to be. If Michael Brown, the late Gentle Giant of Ferguson, was “profiled,” it was because he was a walking stereotype in criminality, and, no surprise, he turned out to be a thug.
In contrast, federal law enforcement organizations generally deal with criminals and criminal organizations that they already know about. There’s rarely any need to profile by race, much less ethnicity, gender, national origin, religion, sexual orientation, or gender identity.
That is not to say that race, national origin and ethnicity, have nothing to do with Federal law enforcement. If you target Al Qaeda, you will be targeting Muslims, international drug smuggling organizations are generally defined by race, ethnicity, and national origin, and many cigarette smuggling organizations are dominated by Hezbollah operatives easily identified by their Lebanese national origin and Muslim religion [Cigarette Smuggling Linked to Terrorism, by Sari Horwitz, Washington Post, June 8, 2004]. Similarly, illegal immigration is dominated by specific racial, ethnic and national groups, Hispanics in general and Mexicans, Salvadorans, and Guatemalans, in particular. No white ethnic group or nationality has any large number of illegal aliens in the United States.
Contrary to popular opinion, racial profiling, whatever that means, is not illegal, and never was. There is no law against using race in law enforcement.
Racial profiling is merely the use of race in the creation of a profile of a criminal. Given racial disparities in crime, an officer stopping random black males instead of white males is more likely to stop a criminal but police don’t do that. They use racial profiles to stop people in specific circumstances and there is always something more than just race involved.
Nonetheless, Bush Attorney General John Ashcroft “outlawed” racial profiling back in 2003. Because of mostly black complaints about being “targeted,” Ashcroft decided to bypass Congress and issue an order to Federal law enforcement to stop “racial profiling”:
"Racial profiling" at its core concerns the invidious use of race or ethnicity as a criterion in conducting stops, searches and other law enforcement investigative procedures. It is premised on the erroneous assumption that any particular individual of one race or ethnicity is more likely to engage in misconduct than any particular individual of another race or ethnicity.Note that, as emphasized, the DOJ admitted that “racial profiling” was both legal and Constitutional. More than that, further in the report the DOJ essentially rescinded its own prohibition, giving itself a loophole to use racial profiling:
Racial profiling in law enforcement is not merely wrong, but also ineffective. Race-based assumptions in law enforcement perpetuate negative racial stereotypes that are harmful to our rich and diverse democracy, and materially impair our efforts to maintain a fair and just society.
The use of race as the basis for law enforcement decision-making clearly has a terrible cost, both to the individuals who suffer invidious discrimination and to the Nation, whose goal of "liberty and justice for all" recedes with every act of such discrimination. For this reason, this guidance in many cases imposes more restrictions on the consideration of race and ethnicity in Federal law enforcement than the Constitution requires. [Emphasis added]
[Guidance Regarding Use of Race by Federal Law Enforcement Agencies, DOJ Civil Rights Division (CRD), June 2003]
National Security and Border Integrity. The above standards do not affect current Federal policy with respect to law enforcement activities and other efforts to defend and safeguard against threats to national security or the integrity of the Nation's borders, to which the following applies:This kind of strange doublethink regarding racial profiling is found throughout the document:
In investigating or preventing threats to national security or other catastrophic events (including the performance of duties related to air transportation security), or in enforcing laws protecting the integrity of the Nation 's borders, Federal law enforcement officers may not consider race or ethnicity except to the extent permitted by the Constitution and laws of the United States. [Emphasis added]
Traditional Law Enforcement Activities. Two standards in combination should guide use by Federal law enforcement authorities of race or ethnicity in law enforcement activities:Thus, according to Attorney General Ashcroft, racial profiling was bad and illegal, except for when it was useful and legal. The explanation for all this: Attorney General Ashcroft wanted to be seen as doing something about “racism” without actually handicapping law enforcement officers.
In making routine or spontaneous law enforcement decisions, such as ordinary traffic stops, Federal law enforcement officers may not use race or ethnicity to any degree, except that officers may rely on race and ethnicity in a specific suspect description. This prohibition applies even where the use of race or ethnicity might otherwise be lawful. [Emphasis added]
Now, Eric “My People” Holder has issued a new “Guidance” that supersedes Ashcroft’s confused orders and eliminates the national security exemption for profiling.
In conducting all activities other than routine or spontaneous law enforcement activities, Federal law enforcement officers may consider race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity only to the extent that there is trustworthy information, relevant to the locality or time frame, that links persons possessing a particular listed characteristic to an identified criminal incident, scheme, or organization, a threat to national or homeland security, a violation of Federal immigration law, or an authorized intelligence activity.However, even the Holder document still admits that profiling is both legal and Constitutional.
[Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity, Department of Justice, December 2014]
Officers, however, must use caution in the rare instance in which a suspect’s possession of a listed characteristic is the only available information. Although the use of that information may not be unconstitutional, broad targeting of discrete groups always raises serious fairness concerns. [Emphasis added]So, profiling is legal and Constitutional, but not “fair.”
But does the Holder DOJ recognize profiling as effective? It must, because in a footnote, the DOJ exempted law enforcement efforts at the border and security checkpoints from its requirements.
In addition, this Guidance does not apply to interdiction activities in the vicinity of the border, or to protective, inspection, or screening activities. All such activities must be conducted consistent with the Constitution and applicable Federal law and policy, in a manner that respects privacy, civil rights and civil liberties, and subject to appropriate oversight.Why is there this exception? Because Department of Homeland Security officials lobbied for it heavily, over Eric Holder’s objections:
Then came the shock that the attorney general's views didn't win out: Customs and Border Protection (CBP) and the Transportation Security Administration (TSA) have exemptions to use racial profiling in "screening and inspection for border and transportation security" and "U.S. Border Patrol interdiction activities in the vicinity of the border and ICE Homeland Security Investigation (HSI) interdiction activities at ports of entry."When it matters most, even Jeh Johnson apparently knows racial profiling is necessary.
[A Dangerous Precedent: Why Allow Racial Profiling at or Near the Border? by Chris Rickerd, ACLU, December 8, 2014]
But the question remains: why does the Department of Justice refuse to allow law enforcement to use a tactic that is legal, Constitutional, and effective.
And the answer is obvious: protecting Americans is less important to Eric Holder than protecting “his people,” no matter how many law abiding Americans are sacrificed to his agenda.
The blogger Federale (Email him) is a 4th generation Californian and a veteran of federal law enforcement, including service in the legacy Immigration and Naturalization Service, the Department of Homeland Security, and other federal law enforcement agencies.
Federale's opinions do not represent those of the Department of Homeland Security or the federal government, and are an exercise of rights protected by the 1st Amendment to the Constitution of the United States.