INTRODUCTION AND EXECUTIVE SUMMARY
In his February 27, 2001, Address to a Joint Session of Congress, President
George W. Bush declared that racial profiling is "wrong and we will end
it in America." He directed the Attorney General to review the use by
Federal law enforcement authorities of race as a factor in conducting stops,
searches and other law enforcement investigative procedures. The Attorney
General, in turn, instructed the Civil Rights Division to develop guidance
for Federal officials to ensure an end to racial profiling in law enforcement.
"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.
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.
(1)
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.
(2) This guidance prohibits racial profiling in law enforcement
practices without hindering the important work of our Nation's public safety
officials, particularly the intensified anti-terrorism efforts precipitated
by the events of September 11, 2001.
I. Traditional Law Enforcement Activities. Two standards
in combination should guide use by Federal law enforcement authorities of
race or ethnicity in law enforcement activities:
- 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.
- In conducting activities in connection with a specific investigation,
Federal law enforcement officers may consider race and ethnicity only to
the extent that there is trustworthy information, relevant to the locality
or time frame, that links persons of a particular race or ethnicity to an
identified criminal incident, scheme, or organization. This
standard applies even where the use of race or ethnicity might otherwise
be lawful.
II. 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,
(3) to which the following applies:
- 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.
Any questions arising under these standards should be directed to the Department
of Justice.
THE CONSTITUTIONAL FRAMEWORK
"[T]he Constitution prohibits selective enforcement of the law based
on considerations such as race." Whren v. United States, 517
U.S. 806, 813 (1996). Thus, for example, the decision of federal prosecutors
"whether to prosecute may not be based on 'an unjustifiable standard
such as race, religion, or other arbitrary classification.'"
(4) United States v. Armstrong, 517 U.S. 456, 464 (1996)
(quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)). The same is true
of Federal law enforcement officers. Federal courts repeatedly have held that
any general policy of "utiliz[ing] impermissible racial classifications
in determining whom to stop, detain, and search" would violate the Equal
Protection Clause. Chavez v. Illinois State Police, 251 F.3d 612,
635 (7th Cir. 2001). As the Sixth Circuit has explained, "[i]f law enforcement
adopts a policy, employs a practice, or in a given situation takes steps to
initiate an investigation of a citizen based solelyupon that citizen's race,
without more, then a violation of the Equal Protection Clause has occurred."
United States v. Avery, 137 F.3d 343, 355 (6th Cir. 1997). "A
person cannot become the target of a police investigation solely on the basis
of skin color. Such selective law enforcement is forbidden." Id.
at 354.
As the Supreme Court has held, this constitutional prohibition against selective
enforcement of the law based on race "draw[s] on 'ordinary equal protection
standards.'"Armstrong, 517 U.S. at 465 (quoting Wayte v.
United States, 470 U.S. 598, 608 (1985)). Thus, impermissible selective
enforcement based on race occurs when the challenged policy has "'a discriminatory
effect and . . . was motivated by a discriminatory purpose.'"Id.
(quoting Wayte, 470 U.S. at 608).
(5) Put simply, "to the extent that race is used as a proxy"
for criminality, "a racial stereotype requiring strict scrutiny is in
operation." Cf. Bush v. Vera, 517 U.S. at 968 (plurality).
I. GUIDANCE FOR FEDERAL OFFICIALS ENGAGED IN LAW ENFORCEMENT ACTIVITIES
A. Routine or Spontaneous Activities in Domestic
Law Enforcement
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.
Federal law enforcement agencies and officers sometimes engage in law enforcement
activities, such as traffic and foot patrols, that generally do not involve
either the ongoing investigation of specific criminal activities or the
prevention of catastrophic events or harm to the national security. Rather,
their activities are typified by spontaneous action in response to the activities
of individuals whom they happen to encounter in the course of their patrols
and about whom they have no information other than their observations. These
general enforcement responsibilities should be carried out without any
consideration of race or ethnicity.
- Example: While parked by
the side of the George Washington Parkway, a Park Police Officer notices
that nearly all vehicles on the road are exceeding the posted speed limit.
Although each such vehicle is committing an infraction that would legally
justify a stop, the officer may not use race or ethnicity as a factor
in deciding which motorists to pull over. Likewise, the officer may not
use race or ethnicity in deciding which detained motorists to ask to consent
to a search of their vehicles.
Some have argued that overall discrepancies in certain crime rates among
racial groups could justify using race as a factor in general traffic enforcement
activities and would produce a greater number of arrests for non-traffic
offenses (e.g., narcotics trafficking). We emphatically reject
this view. The President has made clear his concern that racial profiling
is morally wrong and inconsistent with our core values and principles of
fairness and justice. Even if there were overall statistical evidence of
differential rates of commission of certain offenses among particular races,
the affirmative use of such generalized notions by federal law enforcement
officers in routine, spontaneous law enforcement activities is tantamount
to stereotyping. It casts a pall of suspicion over every member of certain
racial and ethnic groups without regard to the specific circumstances of
a particular investigation or crime, and it offends the dignity of the individual
improperly targeted. Whatever the motivation, it is patently unacceptable
and thus prohibited under this guidance for Federal law enforcement officers
to act on the belief that race or ethnicity signals a higher risk of criminality.
This is the core of "racial profiling" and it must not occur.
The situation is different when an officer has specific information, based
on trustworthy sources, to "be on the lookout" for specific individuals
identified at least in part by race or ethnicity. In such circumstances,
the officer is not acting based on a generalized assumption about persons
of different races; rather, the officer is helping locate specific individuals
previously identified as involved in crime.
- Example: While parked by the side of the George
Washington Parkway, a Park Police Officer receives an "All Points
Bulletin" to be on the look-out for a fleeing bank robbery suspect,
a man of a particular race and particular hair color in his 30s driving
a blue automobile. The Officer may use this description, including the
race of the particular suspect, in deciding which speeding motorists to
pull over.
B. Law Enforcement Activities Related
to Specific Investigations
In conducting activities in connection with a specific
investigation, Federal law enforcement officers may consider race and
ethnicity only to the extent that there is trustworthy information, relevant
to the locality or time frame, that links persons of a particular race
or ethnicity to an identified criminal incident, scheme, or organization.
This standard applies even where the use of race or ethnicity
might otherwise be lawful.
As noted above, there are circumstances in which law enforcement activities
relating to particular identified criminal incidents, schemes or enterprises
may involve consideration of personal identifying characteristics of potential
suspects, including age, sex, ethnicity or race. Common sense dictates that
when a victim describes the assailant as being of a particular race, authorities
may properly limit their search for suspects to persons of that race. Similarly,
in conducting an ongoing investigation into a specific criminal organization
whose membership has been identified as being overwhelmingly of one ethnicity,
law enforcement should not be expected to disregard such facts in pursuing
investigative leads into the organization's activities.
Reliance upon generalized stereotypes is absolutely forbidden. Rather,
use of race or ethnicity is permitted only when the officer is pursuing
a specific lead concerning the identifying characteristics of persons involved
in an identified criminal activity. The rationale underlying this
concept carefully limits its reach. In order to qualify as a legitimate
investigative lead, the following must be true:
- The information must be relevant to the locality or time frame of the
criminal activity;
- The information must be trustworthy;
- The information concerning identifying characteristics must be tied
to a particular criminal incident, a particular criminal scheme, or a
particular criminal organization.
The following policy statements more fully explain these principles.
1. Authorities May Never Rely on Generalized Stereotypes,
But May Rely Only on Specific Race- or Ethnicity-Based
Information
This standard categorically bars the use of generalized assumptions
based on race.
- Example: In the course
of investigating an auto theft in a federal park, law enforcement
authorities could not properly choose to target individuals of a particular
race as suspects, based on a generalized assumption that those individuals
are more likely to commit crimes.
This bar extends to the use of race-neutral pretexts as an excuse
to target minorities. Federal law enforcement may not use such pretexts.
This prohibition extends to the use of other, facially race-neutral
factors as a proxy for overtly targeting persons of a certain race or
ethnicity. This concern arises most frequently when aggressive law enforcement
efforts are focused on "high crime areas." The issue is ultimately
one of motivation and evidence; certain seemingly race-based efforts,
if properly supported by reliable, empirical data, are in fact race-neutral.
- Example: In connection
with a new initiative to increase drug arrests, local authorities
begin aggressively enforcing speeding, traffic, and other public area
laws in a neighborhood predominantly occupied by people of a single
race. The choice of neighborhood was not based on the number of 911
calls, number of arrests, or other pertinent reporting data specific
to that area, but only on the general assumption that more drug-related
crime occurs in that neighborhood because of its racial composition.
This effort would be improper because it is based on generalized stereotypes.
- Example: Authorities
seeking to increase drug arrests use tracking software to plot out
where, if anywhere, drug arrests are concentrated in a particular
city, and discover that the clear majority of drug arrests occur in
particular precincts that happen to be neighborhoods predominantly
occupied by people of a single race. So long as they are not motivated
by racial animus, authorities can properly decide to enforce all laws
aggressively in that area, including less serious quality of life
ordinances, as a means of increasing drug-related arrests. See,
e.g., United States v. Montero-Camargo, 208 F.3d 1122, 1138 (9th
Cir. 2000) ("We must be particularly careful to ensure that a
'high crime" area factor is not used with respect to entire neighborhoods
or communities in which members of minority groups regularly go about
their daily business, but is limited to specific, circumscribed locations
where particular crimes occur with unusual regularity.").
By contrast, where authorities are investigating a crime and have received
specific information that the suspect is of a certain race
(e.g., direct observations by the victim or other witnesses),
authorities may reasonably use that information, even if it is the only
descriptive information available. In such an instance, it is the victim
or other witness making the racial classification, and federal authorities
may use reliable incident-specific identifying information to apprehend
criminal suspects. Agencies and departments, however, must use caution
in the rare instance in which a suspect's race is the only available
information. Although the use of that information may not be unconstitutional,
broad targeting of discrete racial or ethnic groups always raises serious
fairness concerns.
- Example: The victim of
an assault at a local university describes her assailant as a young
male of a particular race with a cut on his right hand. The investigation
focuses on whether any students at the university fit the victim's
description. Here investigators are properly relying on a description
given by the victim, part of which included the assailant's race.
Although the ensuing investigation affects students of a particular
race, that investigation is not undertaken with a discriminatory purpose.
Thus use of race as a factor in the investigation, in this instance,
is permissible.
2. The Information Must be Relevant to the Locality
or Time Frame
Any information concerning the race of persons who may be involved
in specific criminal activities must be locally or temporally relevant.
- Example: DEA issues an
intelligence report that indicates that a drug ring whose members
are known to be predominantly of a particular race or ethnicity is
trafficking drugs in Charleston, SC. An agent operating in Los Angeles
reads this intelligence report. In the absence of information establishing
that this intelligence is also applicable in Southern California,
the agent may not use ethnicity as a factor in making local law enforcement
decisions about individuals who are of the particular race or ethnicity
that is predominant in the Charleston drug ring.
3. The Information Must be Trustworthy
Where the information concerning potential criminal activity is unreliable
or is too generalized and unspecific, use of racial descriptions is
prohibited.
- Example: ATF special
agents receive an uncorroborated anonymous tip that a male of a particular
race will purchase an illegal firearm at a Greyhound bus terminal
in a racially diverse North Philadelphia neighborhood. Although agents
surveilling the location are free to monitor the movements of whomever
they choose, the agents are prohibited from using the tip information,
without more, to target any males of that race in the bus terminal.
Cf. Morgan v. Woessner, 997 F.2d 1244, 1254 (9th Cir. 1993) (finding
no reasonable basis for suspicion where tip "made all black men
suspect"). The information is neither sufficiently reliable nor
sufficiently specific.
4. Race- or Ethnicity-Based Information Must Always
be Specific to Particular Suspects or Incidents, or Ongoing Criminal
Activities, Schemes, or Enterprises
These standards contemplate the appropriate use of both "suspect-specific"
and "incident-specific" information. As noted above, where
a crime has occurred and authorities have eyewitness accounts including
the race, ethnicity, or other distinguishing characteristics of the
perpetrator, that information may be used. Federal authorities may also
use reliable, locally relevant information linking persons of a certain
race or ethnicity to a particular incident, unlawful scheme, or ongoing
criminal enterprise--even absent a description of any particular individual
suspect. In certain cases, the circumstances surrounding an incident
or ongoing criminal activity will point strongly to a perpetrator of
a certain race, even though authorities lack an eyewitness account
- Example: The FBI is investigating
the murder of a known gang member and has information that the shooter
is a member of a rival gang. The FBI knows that the members of the
rival gang are exclusively members of a certain ethnicity. This information,
however, is not suspect-specific because there is no description of
the particular assailant. But because authorities have reliable, locally
relevant information linking a rival group with a distinctive ethnic
character to the murder, Federal law enforcement officers could properly
consider ethnicity in conjunction with other appropriate factors in
the course of conducting their investigation. Agents could properly
decide to focus on persons dressed in a manner consistent with gang
activity, but ignore persons dressed in that manner who do not appear
to be members of that particular ethnicity.
It is critical, however, that there be reliable information that ties
persons of a particular description to a specific criminal incident,
ongoing criminal activity, or particular criminal organization. Otherwise,
any use of race runs the risk of descending into reliance upon prohibited
generalized stereotypes.
- Example: While investigating
a car theft ring that dismantles cars and ships the parts for sale
in other states, the FBI is informed by local authorities that it
is common knowledge locally that most car thefts in that area are
committed by individuals of a particular race. In this example, although
the source (local police) is trustworthy, and the information potentially
verifiable with reference to arrest statistics, there is no particular
incident- or scheme- specific information linking individuals of that
race to the particular interstate ring the FBI is investigating. Thus,
without more, agents could not use ethnicity as a factor in making
law enforcement decisions in this investigation.
Note that these standards allow the use of reliable identifying information
about planned future crimes. Where federal authorities receive a credible
tip from a reliable informant regarding a planned crime that has not
yet occurred, authorities may use this information under the same restrictions
applying to information obtained regarding a past incident. A prohibition
on the use of reliable prospective information would severely hamper
law enforcement efforts by essentially compelling authorities to wait
for crimes to occur, instead of taking pro-active measures to prevent
crimes from happening.
- Example: While investigating
a specific drug trafficking operation, DEA special agents learn that
a particular methamphetamine distribution ring is manufacturing the
drug in California, and plans to have couriers pick up shipments at
the Sacramento, California airport and drive the drugs back to Oklahoma
for distribution. The agents also receive trustworthy information
that the distribution ring has specifically chosen to hire older couples
of a particular race to act as the couriers. DEA agents may properly
target older couples of that particular race driving vehicles with
indicia such as Oklahoma plates near the Sacramento airport.
II. GUIDANCE FOR FEDERAL OFFICIALS ENGAGED IN LAW ENFORCEMENT
ACTIVITIES INVOLVING THREATS TO NATIONAL SECURITY OR THE INTEGRITY OF THE
NATION'S BORDERS
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.
Since the terrorist attacks on September 11, 2001, the President has emphasized
that federal law enforcement personnel must use every legitimate tool to prevent
future attacks, protect our Nation's borders, and deter those who would cause
devastating harm to our Nation and its people through the use of biological
or chemical weapons, other weapons of mass destruction, suicide hijackings,
or any other means. "It is 'obvious and unarguable' that no governmental
interest is more compelling than the security of the Nation." Haig
v. Agee, 453 U.S. 280, 307 (1981) (quoting Aptheker v. Secretary
of State, 378 U.S. 500, 509 (1964)).
The Constitution prohibits consideration of race or ethnicity in law enforcement
decisions in all but the most exceptional instances. Given the incalculably
high stakes involved in such investigations, however, Federal law enforcement
officers who are protecting national security or preventing catastrophic events
(as well as airport security screeners) may consider race, ethnicity, and
other relevant factors to the extent permitted by our laws and the Constitution.
Similarly, because enforcement of the laws protecting the Nation's borders
may necessarily involve a consideration of a person's alienage in certain
circumstances, the use of race or ethnicity in such circumstances is properly
governed by existing statutory and constitutional standards. See, e.g.,
United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975).
(6) This policy will honor the rule of law and promote vigorous
protection of our national security.
As the Supreme Court has stated, all racial classifications by a governmental
actor are subject to the "strictest judicial scrutiny."Adarand
Constructors, Inc. v. Peña, 515 U.S. 200, 224-25 (1995). The application
of strict scrutiny is of necessity a fact-intensive process. Id. at
236. Thus, the legality of particular, race-sensitive actions taken by Federal
law enforcement officials in the context of national security and border integrity
will depend to a large extent on the circumstances at hand. In absolutely
no event, however, may Federal officials assert a national security or border
integrity rationale as a mere pretext for invidious discrimination. Indeed,
the very purpose of the strict scrutiny test is to "smoke out" illegitimate
use of race, Adarand, 515 U.S. at 226 (quoting Richmond v. J.A.
Croson Co., 488 U.S. 469, 493 (1989)), and law enforcement strategies
not actually premised on bona fide national security or border integrity
interests therefore will not stand.
In sum, constitutional provisions limiting government action on the basis
of race are wide-ranging and provide substantial protections at every step
of the investigative and judicial process. Accordingly, and as illustrated
below, when addressing matters of national security, border integrity, or
the possible catastrophic loss of life, existing legal and constitutional
standards are an appropriate guide for Federal law enforcement officers.
- Example: The FBI receives reliable information
that persons affiliated with a foreign ethnic insurgent group intend to
use suicide bombers to assassinate that country's president and his entire
entourage during an official visit to the United States. Federal law enforcement
may appropriately focus investigative attention on identifying members of
that ethnic insurgent group who may be present and active in the United
States and who, based on other available information, might conceivably
be involved in planning some such attack during the state visit.
- Example: U.S. intelligence sources report that
terrorists from a particular ethnic group are planning to use commercial
jetliners as weapons by hijacking them at an airport in California during
the next week. Before allowing men of that ethnic group to board commercial
airplanes in California airports during the next week, Transportation Security
Administration personnel, and other federal and state authorities, may subject
them to heightened scrutiny.
Because terrorist organizations might aim to engage in unexpected acts of
catastrophic violence in any available part of the country (indeed, in multiple
places simultaneously, if possible), there can be no expectation that the
information must be specific to a particular locale or even to a particular
identified scheme.
Of course, as in the example below, reliance solely upon generalized stereotypes
is forbidden.
- Example: At the security entrance to a Federal
courthouse, a man who appears to be of a particular ethnicity properly submits
his briefcase for x-ray screening and passes through the metal detector.
The inspection of the briefcase reveals nothing amiss, the man does not
activate the metal detector, and there is nothing suspicious about his activities
or appearance. In the absence of any threat warning, the federal security
screener may not order the man to undergo a further inspection solely because
he appears to be of a particular ethnicity.
FOOTNOTES
1. See United States v. Montero-Camargo,
208 F.3d 1122, 1135 (9th Cir. 2000) ("Stops based on race or ethnic appearance
send the underlying message to all our citizens that those who are not white
are judged by the color of their skin alone.").
2. This guidance is intended only to improve the
internal management of the executive branch. It is not intended to, and does
not, create any right, benefit, trust, or responsibility, whether substantive
or procedural, enforceable at law or equity by a party against the United
States, its departments, agencies, instrumentalities, entities, officers,
employees, or agents, or any person, nor does it create any right of review
in an administrative, judicial or any other proceeding.
3. This guidance document does not apply to U.S.
military, intelligence, protective or diplomatic activities conducted consistent
with the Constitution and applicable Federal law.
4. These same principles do not necessarily apply
to classifications based on alienage. For example, Congress, in the exercise
of its broad powers over immigration, has enacted a number of provisions that
apply only to aliens, and enforcement of such provisions properly entails
consideration of a person's alien status.
5. Invidious discrimination is not necessarily
present whenever there is a "disproportion" between the racial composition
of the pool of persons prosecuted and the general public at large; rather,
the focus must be the pool of "similarly situated individuals
of a different race [who] were not prosecuted."Armstrong, 517
U.S. at 465 (emphasis added). "[R]acial disproportions in the level of
prosecutions for a particular crime may be unobjectionable if they merely
reflect racial disproportions in the commission of that crime."Bush
v. Vera, 517 U.S. 952, 968 (1996) (plurality).
6. Moreover, as in the traditional law enforcement
context described in the second standard, supra, officials involved
in homeland security may take into account specific, credible information
about the descriptive characteristics of persons who are affiliated with identified
organizations that are actively engaged in threatening the national security.