Justice Department broadens ban on racial profiling

The Justice Department on Monday issued new guidelines to federal law enforcement officers that will regulate their use of racial profiling in investigations, an update to a policy first put in place in 2003 by then-Atty. Gen. John Ashcroft.

The policy is intended to eliminate discrimination without hindering federal inquiries and law enforcement. The old guidelines banned profiling based on race or ethnicity. Now, for the first time, religion, national origin, gender, sexual orientation and gender identity are also covered.

But some critics have already complained the new rules don’t go far enough and may not change the situation for many people.

Here are some examples of how the new guidelines might apply:

Will the new rules help prevent the kinds of deadly encounters seen recently in Ferguson, Mo., and New York that have left African American men dead at the hands of white police officers?

Not likely. The new guidance applies only to federal law enforcement officers, such as those from the FBI and Justice Department. Local or state police would have to abide by the guidelines only if they were working on a joint task force with federal officers.

But Justice Department officials said Atty. Gen. Eric H. Holder Jr. is hopeful that the federal guidelines will become a nationwide model that is eventually embraced by local law enforcement as well.

Can a Border Patrol agent stop a legal U.S. resident in San Diego who appears to be of Mexican origin and ask him for identification, even if the agent has no reason to believe the person committed a crime or was in the country illegally?

According to civil rights groups, yes. A border agent will still be able to stop, question and demand proof of legal residency or citizenship from individuals near the border solely on the basis of their race and ethnicity.

Though the new guidance revoked the Border Patrol’s blanket exemption from the previous anti-profiling guidelines, it still allows them to continue such profiling within “the vicinity of the border.” Department of Homeland Security officials have told civil rights leaders the “vicinity” will be defined as within 100 miles of the border. So from the point of view of some civil rights leaders, little has changed in this area.

However, government officials say Border Patrol agents are focused on stopping people who appear to have crossed the border illegally, not on citizens.

Can federal law enforcement investigate someone simply because they are gay or lesbian?

No. For the first time, sexual orientation and gender identity are protected in the anti-profiling guidelines. Gay rights advocates have praised the new language.

Does the new policy apply to terrorism and national security cases?

In theory, yes. The new guidance revoked the national security exemption that had existed under the old rules.

But like border agents, the FBI and other agencies that investigate terrorism argued that profiling was sometimes needed to protect the nation. Civil rights lawyers say other provisions in the rules appear to permit certain kinds of profiling in the name of national security.

The new guidance specifically allows the FBI and other federal law enforcement to continue to “map” communities, focusing their investigations on neighborhoods or communities based, for example, on religion or national origin. Also, some critics of the new rules are concerned that Holder was noncommittal Monday when asked whether the FBI field manual would be updated to reflect the new guidance, raising questions about whether federal agents will change their behavior.

Can an undercover FBI agent enter a Brooklyn, N.Y., mosque and conduct surveillance without any probable cause to believe a crime is being committed or that terrorists are operating within the mosque.

Yes, according to civil rights groups.

“The Justice Department says the guidelines eliminate the national security loophole,” said Farhana Khera, president of Muslim Advocates, one of the civil rights groups most involved in advocating for the changes. “While it eliminates it in name, our concern is that not much changes in practice.”

Can a Transportation Security Administration officer stop and question someone trying to board a flight to Europe from LAX simply because she is wearing a head scarf that indicates she may be a Muslim?

Technically no. The TSA should not stop and question someone solely on the basis that their dress indicates they practice a particular religion, such as Islam. Religion is one of the new banned profiling characteristics.

But like border agents, the TSA received an exemption from parts of the guidelines. So if the TSA has specific intelligence suggesting that a Muslim woman were planning an attack, the agent might be justified in stopping her. But according to government officials, the description or behavior of the passenger would have to match a specific security threat.