Posted on December 9, 2014

Justice Department Issues New Guidelines Barring Racial Profiling by Federal Agents

Devlin Barrett, Wall Street Journal, December 8, 2014

Attorney General Eric Holder on Monday laid out new guidelines [Editor: Here they are.] against racial and other types of profiling, citing law-enforcement cases that have sparked protests even as the new federal policy wouldn’t affect local police.

The federal government since 2003 has banned profiling on the basis of race or ethnicity, though it has made an exception for national-security investigations. The new policy also will bar profiling on the basis of religion, gender, national origin, sexual orientation or gender identity, according to officials.

But the new policy won’t apply to screening at borders and airports, where Department of Homeland Security personnel have long given extra scrutiny to people from certain countries.

The policy also doesn’t apply to local or state law enforcement, beyond those personnel assigned to federal task forces. Because of that, the rules don’t speak to the cases involving Michael Brown, who was shot and killed by a Ferguson, Mo., police officer, and Eric Garner, who died after being put in an apparent police choke hold in New York City. {snip}

Concerns about racial profiling on the part of civil-liberties groups mostly have to do with traffic stops and pat-downs of pedestrians. Because federal law-enforcement agents rarely engage in those activities, barring them from profiling may have little impact on how and why people are stopped in their everyday lives.

Still, Mr. Holder cited the recent cases as a reason for the new policy, and he said he would encourage local authorities to adopt the same guidelines. “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 . . . it’s imperative that we take every possible action to institute strong and sound policing practices,” he said.


Federal agencies including the Federal Bureau of Investigation and Drug Enforcement Administration have long said racial profiling isn’t part of their law-enforcement work. In internal discussions about the policy, the FBI has resisted efforts to restrict considerations of religion and national origin or ethnicity in counterterrorism investigations, because those things may be relevant factors to such an investigation, according to people familiar with the discussions.

The new policy allows federal agents to consider such factors only if there is information that links people with a particular characteristic to a specific scheme, organization or threat, and if the law-enforcement officials believe such investigation is merited under the totality of the circumstances, according to a person familiar with the new policy.