Who Profiles The Profilers?

On Monday, the Justice Department issued updated guidelines (pdf) to federal law enforcement agencies on profiling – be it by race, nationality, gender, or sexuality. But advocates of reform aren’t quite cheering, because the guidelines aren’t binding on state or local police and include some pretty broad exceptions:

“It’s better than the Ashcroft guidance, but it doesn’t go far enough,” said the ACLU’s Laura Murphy, referring to the directives issued during the Bush administration in 2003 by Attorney General John Ashcroft. Murphy said in a phone interview she had been hopeful the Obama administration would go further in cracking down on profiling of Latino and Muslim travelers (among other groups) by the TSA at airports.

In making “routine or spontaneous law enforcement decisions,” federal authorities may not use profiling “to any degree,” except if they are given a specific suspect description. In all other activities, however, the guidelines say that federal authorities may use race and other characteristics as factors “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.”

Federal agents enforcing immigration law are still allowed to profile “in the vicinity of the border”, though it’s not clear what that means, so the guidelines don’t really address one of the most controversial uses of racial profiling:

Border agents have come under intense scrutiny for testing the limits of its use of force tactics, including using the border search exemption of the Fourth Amendment to justify searches that have nothing to do with the border. A 2008 guidance document has allowed agents to search individuals at the border who carry in electronic devices such as laptops and cell phones without “reasonable suspicion of a crime or without getting a judge’s approval.” On more than one occasion, federal investigators used their border search authority as a means to investigate U.S. citizens to get around violating the Fourth Amendment.

The guidelines would likely have little effect in Arizona, where the anti-immigration state law colloquially known as the “show me your papers” law is still enforced. Immigration advocates have long charged that Arizona police officers disproportionately and indiscriminately pull over members of the Latino community. In October, a cop threatened to “kill” or “shoot” a Latino man pulled over for a traffic violation.

Ian Thompson is pleased that the DoJ added protections for gay and trans victims of profiling, but he’s disappointed that they don’t really have any teeth:

The largest national survey of transgender people to date found that 22 percent of respondents who have interacted with the police reported harassment by law enforcement due to bias, with substantially higher rates (29-38 percent) reported by respondents of color. As important as it is that this guidance is explicitly LGBTQ-inclusive, the failure on the part of the Justice Department to fully extend it to state and local law enforcement agencies, as recipients of vast amounts of federal funding, is a significant omission.

Jazz Shaw criticizes the guidelines, casting doubt on whether racial profiling exists in the first place:

This is one of those areas where common sense is overwhelmingly trumped by politics in both government and in the coverage of the subject in narrative journalism outlets. I’ve spoken to more than a few cops in New York on the topic (including a couple of relatives, just for full disclosure) and the message is pretty consistent. It’s not always a matter of race so much as location, but particularly in New York City the two are often impossible to split apart. But the short version of the police line of thinking on this is that you do the “hard policing” (as it has often been referred to on CNN) in the places where the crime is. And where is that?