Via Religion Clause, the Department of Justice yesterday issued new guidance to federal law enforcement officers prohibiting profiling based on religion, as well as race, ethnicity, gender, gender identity, sexual orientation, and national origin while making “routine or spontaneous law enforcement decisions.” The rules expand upon guidance from 2003 which barred race and ethnicity from being taken into account in those circumstances.
The guidance offers detailed discussion and examples but boils down to 2 fundamental standards:
- In making routine or spontaneous law enforcement decisions, such as ordinary traffic stops, Federal law enforcement officers may not use race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity to any degree, except that officers may rely on the listed characteristics in a specific suspect description. This prohibition applies even where the use of a listed characteristic might otherwise be lawful.
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. In order to rely on a listed characteristic, law enforcement officers must also reasonably believe that the law enforcement, security, or intelligence activity to be undertaken is merited under the totality of the circumstances, such as any temporal exigency and the nature of any potential harm to be averted. This standard applies even where the use of a listed characteristic might otherwise be lawful.
A press release from the Justice Department announcing and outlining the new guidelines is here.
The Baptist Joint Committee has previously called for an end to law enforcement profiling on the basis of religion. In a letter to a U.S. Senate Judiciary Subcommittee considering the issue in 2012, the BJC and 34 other organizations warned that religious profiling “not only [has] the effect of discriminating against religion generally and religious minorities in particular, but also fuel divisiveness by casting suspicion over an entire religious community.”