Kevin R. Johnson

excerpted from: Kevin R. Johnson, Racial Profiling after September 11: the Department of Justice's 2003 Guidelines, 50 Loyola Law Review 67-87, 77-87 (Spring 2004)(110 Endnotes)

II. The Intersection of Racial Profiling: Immigrants and the "War on Terror"

September 11 had a dramatic impact on the nation's collective view of racial profiling. After that fateful day, the nation reconsidered the reliance on race, racial stereotypes, and statistics in law enforcement activity. The focus on terrorism and national security deflected attention away from the efforts to eliminate race-based law enforcement. Energies instead were directed at national security and the horrible specter of mass destruction.

The reliance on race is difficult to cabin or limit to one aspect of law enforcement. Racial profiles build and reinforce popular stereotypes about the propensity for criminality among racial minorities. Popular stereotypes are used to justify targeting African Americans, Latina/os, Asian Americans, Native Americans, and Arabs and Muslims in law enforcement activity. Unfortunately, once race is considered in one area of law enforcement, it often directly or indirectly influences other areas as well. Relying on the race of one group for targeted enforcement makes it easier to rationalize the same practice directed toward other racial minority groups, even when the stereotypes relied upon are different.

The tragic loss of life on September 11 increased national awareness of the potential for terrorism. The federal government reacted quickly and decisively. Hundreds of Arab and Muslim noncitizens were arrested, questioned, detained, and deported. The dragnet was directed at a large group of people based loosely on race, nationality, national origin, and religion. Arab and Muslim noncitizens in the United States were subject to special registration procedures, with some arrested and deported when they reported to the immigration authorities in an effort to comply with the law. Noncitizen Arabs and Muslims were subjected to special scrutiny at airports across the country and a new phrase--"Flying While Arab"--entered the national vocabulary.

The federal government enlisted the immigration laws to aid in protecting national security. This made some sense since the September 11 hijackers were noncitizens and it appears that most of them had secured visas to enter the country. As a legal matter, it is relatively easy to target noncitizens, given the great deference afforded the federal government in immigration matters. The United States Supreme Court has emphasized repeatedly that "[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens." In times of national crisis, the federal government has targeted certain groups of noncitizens for special immigration procedures.

It is difficult to say that the treatment of Arabs and Muslims after September 11 does not amount to racial profiling, based on the definition that "'[r]acial profiling' occurs whenever a law enforcement officer questions, stops, arrests, searches, or otherwise investigates a person because the officer believes that members of that person's racial or ethnic group are more likely than the population at large to commit the sort of crime the officer is investigating." The focus of the "war on terror" that followed September 11, for the most part, was on one group of people without any specific belief in any individual's involvement in terrorist activities.

At least initially, there was little popular condemnation of racial profiling in the "war on terror" . The nation seemed committed to minimizing another September 11 whatever the costs. When the civil rights costs were imposed on a minority group, it became all the more feasible for the majority to support. The Bill of Rights exists in the U.S. Constitution, however, to protect unpopular minorities from the majority, especially in times of social stress. It is undoubtedly the case that tensions ran high in the days after September 11 and that the civil rights of a discrete and insular minority were under-valued. The rights of citizens were put in jeopardy as well. Congress passed the USA PATRIOT Act, which restricted civil rights of citizens as well as immigrants in new ways by expanding the surveillance powers of the federal government. Two U.S. citizens were labeled and detained as "enemy combatants" and denied basic constitutional protections, such as the right to counsel.

The excesses of the federal government's conduct in the days and months immediately following September 11 is now coming to light. In April 2003, the Office of the Inspector General released a report detailing the treatment of noncitizens held on immigration charges after September 11, which included failure to notify detainees of the immigration charges against them in a timely manner, making it difficult for detainees to obtain bonds and meet with attorneys, detaining them in harsh conditions (e.g., leaving lights on in their cells for twenty-four hours), and subjecting detainees to verbal and sometimes physical abuse. Other commentators have also voiced criticism of the federal government's treatment of Arabs and Muslims after September 11.

III. THE FUTURE OF RACIAL PROFILING

As the memory of September 11 grows more distant, there is hope that the elimination of racial profiling in law enforcement will again become a national priority. The excesses of the treatment of Arabs and Muslims have become clearer and over time likely will become even more so. Racial profiling unfortunately remains a daily fact of life for many African Americans and Latina/os across the United States.

The "war on terror" in some ways poses a challenging problem at the intersection of immigration and criminal law enforcement. The evidence indicates that noncitizens committed the atrocities of September 11. They also were of a particular religion and general racial or ethnic background. As in criminal law enforcement, however, it proved extremely difficult to limit the reliance on "race" once it entered the law enforcement calculus. In important ways, the federal government's war on terror is little different, although on a national scale, than what the police in Oneonta, New York did to African Americans in that small town when it was reported that an African American had committed a crime. Public criticism remains, even if legal challenges fail.

The lingering question is what should be done. Should race be considered in any law enforcement activities or is the potential for abuse too great? If race is considered, how heavily should it be weighed? The United States Department of Justice has attempted to reconcile its reliance on race and national origin in terrorism matters and its general condemnation of the reliance on race in domestic law enforcement. In Guidance Regarding the Use of Race by Federal Law Enforcement Agencies, the Civil Rights Division of the Justice Department offers its views on the proper consideration of race in law enforcement. The guidelines differentiate between: (1) "traditional law enforcement activities," in which race cannot be considered in a traffic stop or other investigatory activity unless it has been reported that the perpetrator of a crime is of a particular race; and (2) "national security and border integrity" activities, in which race can be considered to the full extent permitted by the U.S. Constitution and other federal laws. The distinction between the two types of law enforcement activities is clear, even if it is uncertain whether the legal constraints for the two are any different.

In the guidelines, the federal government suggests that selective prosecution of the laws based on alienage might be permissible. With little elaboration, the Justice Department justifies such treatment on national security grounds and suggests that the courts have tended to defer to the federal government on such weighty matters. However, important constitutional limits, especially when the noncitizens affected are in the United States, circumscribe the government's treatment of immigrants. Indeed, the United States Supreme Court has held that foreign citizens in the United States have certain constitutional rights--this is true for legal immigrants, undocumented immigrants, and legal immigrants subject to deportation. The Constitution also generally bars selective enforcement of the laws against certain racial or national origin groups. Nationality-based distinctions, however, at times have been upheld by the courts.

The Justice Department guidelines go into some detail in considering racial profiling in domestic law enforcement. Interestingly, the Justice Department relies on a hypothetical with facts similar to those in the Oneonta case to show that when the perpetrator of a crime has been identified by the victim as of a particular race, law enforcement officials can consider race in the investigation. The example, however, leaves out some of the extreme details of the dragnet in Oneonta, which included efforts to question all African American men in town. Less extreme investigatory techniques based on race are easier to justify, of course, and the Justice Department exercised sound discretion in not attempting to defend the police conduct in Oneonta, which has been condemned by all but the courts. However, the guidelines duck the difficult issue raised by Oneonta--namely, the potential over-reliance on race by law enforcement authorities in criminal investigations.

The Justice Department guidelines are remarkably sparse about the proper consideration of race in the case of national security and border integrity. They state that:

[I]n 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. The guidelines further suggest that airport screeners and other law enforcement authorities may rely on race because a compelling state interest (national security) justifies the racial classification and thus survives strict scrutiny. The guidelines recognize that the Supreme Court requires that all racial classifications be subject to strict scrutiny.

The guidelines cite United States v. Brignoni-Ponce as precedent, allowing for the consideration of race in law enforcement in certain circumstances. As previously discussed, in Brignoni-Ponce the Supreme Court stated that "Mexican appearance" may be one factor justifying an immigration stop. However, the Justice Department guidelines also rely on a case refusing to follow Brignoni-Ponce and prohibiting racial profiling. Thus, the guidelines are somewhat inconsistent in their treatment of authority addressing race-based law enforcement.

The guidelines themselves inadvertently reveal the potential for excessive reliance on race. One example suggests that if it is discovered that terrorists from a particular group plan to use commercial jetliners as weapons of mass destruction, then all persons from that group may be subjected to heightened scrutiny. As stated in the Justice Department guidelines:

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.

The Supreme Court, however, in its recent affirmative action decisions has emphasized that the use of racial classifications must be "narrowly tailored" to further a compelling governmental interest, a crucial requirement in the Court's 2003 affirmative action decisions. How that requirement is satisfied when it is based on loosely defined "ethnic groups," which may be prone to error and abuse, is left unexplained by the Department of Justice.

In this regard, the guidelines raise problems when they review the possible inspection of a person "who appears to be a particular ethnicity." One problem identified with the consideration of race sanctioned by the Supreme Court in Brignoni-Ponce was the fact that "Mexican appearance" is unduly broad and vague. Persons of Mexican ancestry come in many different complexions, with a variety of hair and eye colors. Muslims and Arabs, as well as people from most ethnic and racial groups, run the gamut of physical appearances. As Albert Alschuler observes

defenses of racial and ethnic profiling depend upon the ability of law enforcement to do it--to distinguish racial and ethnic groups from one another. Although Mexicans and Latinos often cannot be distinguished from others on the basis of their appearance, Arabs seem even less distinctive in their appearance than Latinos. It is noteworthy that after September 11 people "of Arab descent, as well as Sikhs and other people of South Asian and even Latino heritage have been removed from airplanes, harassed, and even murdered based on their appearance."

By affording law enforcement personnel the discretion to rely on the appearance of a person as falling into a certain racial, ethnic, or religious group, the potential for abuse is manifest. This has proved true in the cases in which the victim identifies the race of the perpetrator and the police rely excessively on race in investigating the crime. "Race" is not a narrowly tailored classification upon which law enforcement activities should be based. Indeed, this appears to have been one of the problems in the time immediately after September 11, with the federal government engaging in a dragnet of any Arab and Muslim noncitizens who fit a profile--young and male, noncitizen in the country on a certain type of visa. No individualized suspicion of wrongdoing was required. Not surprisingly, some local police agencies refused to assist the Justice Department in its efforts because they characterized the conduct as impermissible racial profiling.

In total, the Justice Department relies on shaky legal reasoning to justify race- and ethnicity-based enforcement of the laws to protect national security. At the same time, the Justice Department's efforts represent a move in the right direction. The guidelines attempt to deal with difficult issues concerning the place of race in ordinary law enforcement and national security matters. In sum, that the guidelines identify the correct issue is no small feat in a world in which careful attention to the relevant questions often is lost in the hysteria over terrorism. The guidelines fail, however, to answer the tough questions that are at the center of the "war on terror." A good first step would have been to analyze the difficult enforcement issues raised by the efforts to enforce the border and protect national security.

CONCLUSION

No one disagrees that national security must be protected. However, few would disagree that racial profiling in its crudest form is an evil that must be curtailed. Race-based law enforcement is part of the much larger problem centering on the disproportionate impacts of the criminal justice system on racial minorities in the United States.

September 11 appears to have temporarily curtailed the nation's efforts to eradicate racial profiling in law enforcement. Security is important to all Americans, and efforts are necessary to carefully balance security and civil rights in the future. The balancing articulated to this point by the Department of Justice in its Guidance Regarding the Use of Race by Federal Law Enforcement Agencies is not without flaws. However, the guidelines at least begin to raise the hard questions for the nation's consideration. Americans should begin to critically look at how race might be relied on by law enforcement and decide how problems might be remedied. This formidable task unquestionably deserves the nation's attention.

. Associate Dean for Academic Affairs, University of California at Davis, Mabie/Apallas Professor of Public Interest Law and Chicana/o Studies