ABOUT RIGHTS WORKING GROUP
Formed in the aftermath of Sept. 11, 2001, the Rights Working Group (RWG) is a national
coalition of civil liberties, national security, immigrant rights and human rights organizations
committed to restoring due process and human rights protections that have been eroded
in the name of national security. RWG works to ensure that everyone in the United States
is able to exercise their rights, regardless of citizenship or immigration status, race, national
origin, religion or ethnicity. With 275 member organizations across the United States, RWG
mobilizes a grassroots constituency in support of a policy advocacy agenda that demands
accountability from the U.S. government for the equal protection of human rights.
RWG is led by a Steering Committee, composed of leading organizations representing the
key constituencies of the coalition. Steering Committee members include the AmericanArab Anti-Discrimination Committee; American Civil Liberties Union, American Immigration
Lawyers Association; Arab American Institute; Arab Community Center for Economic and
Social Services; Asian American Justice Center; Bill of Rights Defense Committee; Border
Network for Human Rights; Breakthrough; Center for National Security Studies; Coalition
for Humane Immigrant Rights of Los Angeles; Human Rights First; Human Rights Watch;
Illinois Coalition for Immigrant and Refugee Rights; The Leadership Conference on Civil and
Human Rights & Education Fund; Muslim Advocates; National Council of La Raza; National
Immigration Forum; National Immigration Law Center; New York Immigration Coalition; One
America; Open Society Policy Center; South Asian Americans Leading Together; and the
Tennessee Immigrant and Refugee Rights Coalition.
The full breadth of the RWG’s work can be seen at www.rightsworkinggroup.org.

LETTER FROM THE RIGHTS WORKING
GROUP
A year ago, the Rights Working Group (RWG) coalition launched the Racial Profiling:
Face the Truth campaign to fight all types of racial and religious profiling. The RWG
campaign recognized that “traditional” racial profiling, often referred to as being stopped
for “driving while black or brown,” persists today, even while new forms of profiling have
emerged or expanded significantly in the last decade. Since Sept. 11, 2001, Arab, Middle
Eastern, Muslim and South Asian communities in the United States have faced many forms
of racial and religious profiling, and increasingly in the last several years racial profiling
has been documented in immigration enforcement activities. To combat all types of
profiling by law enforcement, the Face the Truth campaign seeks to connect the many
communities targeted by profiling to work together and to deliver a simple yet powerful
message: racial profiling is ineffective, unconstitutional, and a violation of our human
rights.
During the past couple of years, a number of events have affected the public debate about
racial profiling. Early in 2009, the Center for Constitutional Rights released information
gained through a successful Freedom of Information Act suit yielding New York Police
Department data that proved NYPD officers disproportionately stopped, searched and
used physical force against African American and Latino individuals. Profiling became a
hot topic in the popular media later that summer, in part due to the high-profile arrest of
Professor Henry Louis Gates, Jr., and the subsequent “beer summit” between Gates, the
arresting officer, and President Obama. In December 2009, the failed bombing attempt
of a Northwest Airlines airplane struck fear in many, and the Obama Administration
responded with the adoption of a new Transportation Security Administration (TSA)
policy that required special screening of some passengers based on their national origin.
Although the policy was later lifted, concerns about targeting remain. In April 2010, the
state of Arizona enacted a law, Senate Bill (SB) 1070, requiring law enforcement officials to
inquire about the immigration status of anyone they suspected of being an undocumented
immigrant. This law created a national firestorm of controversy and resulted in a lawsuit
by the Department of Justice (DOJ) requesting that the courts place an injunction on the
provisions of the law that would likely result in racial profiling. The DOJ lawsuit won a
temporary injunction in July, but lawmakers in Arizona insist they will continue to mandate
immigration enforcement by local police.
So often, the public debate about whether or not racial profiling is happening, or whether
it is acceptable under certain circumstances, does not include the voices of those actually

targeted by the profiling. Not surprisingly, the most ardent supporters of SB 1070 or
post-9/11 policies that have targeted Arabs, Middle Easterners, Muslims, and South Asians
are not from the communities affected by the profiling. The Face the Truth campaign
decided to seek out those who have been targeted by profiling and to ask them to share
their stories and recommendations for stopping this practice. From May to July 2010, RWG
worked with partners in six communities around the country to organize public hearings on
racial profiling. In Burlington, WA; Detroit, MI; Houston, TX; Los Angeles, CA; Nashville,
TN; and Portland, ME, local organizations invited individuals who had experienced racial
and religious profiling to testify at the Face the Truth hearings. A group of National
Commissioners, experts on racial and religious profiling, volunteered their time to attend
these hearings, joining local community leaders in each city to listen to testimony and call
for reform.
This report seeks to share the voices and stories of the courageous witnesses who testified
at the Face the Truth hearings in the last few months. The findings of these hearings
are clear: racial profiling is a persistent and widespread problem, found in communities
across the country. Those who are targeted by racial and religious profiling are deeply
affected by their experiences and many continue to live with a fear of law enforcement
that creates real risks for public safety. Not only individuals are affected, but their families,
friends and neighbors in the community also lose trust in law enforcement, influencing
their willingness to report crimes or to serve as a witness. Local police lose their ability
to effectively implement community policing strategies, and government agencies lose
credibility amongst those communities targeted.
It is time to stop racial and religious profiling at all levels of law enforcement—federal,
state and local. We hope that this report demonstrates why urgent action is needed to
change laws, policies and practices at every level. For more information, please visit www.
rightsworkinggroup.org.

Margaret Huang, Executive Director
On behalf of Rights Working Group

ACKNOWLEDGEMENTS
Rights Working Group would like to express deep appreciation to the many individuals and
organizations who contributed to the field hearings and this report. In particular, we want to
acknowledge our partners who organized and supported the six Face the Truth hearings across
the country:
Arab Community Center for Economic and Social Services (ACCESS), with hearing in Detroit,
MI; Coalition in the Defense of the Community, with hearing in Houston, TX; Coalition
for Humane Immigrant Rights of Los Angeles (CHIRLA), with hearing in CA; Council on
American Islamic Relations, with hearings in Michigan, Greater Los Angeles, Houston, and
Washington; Maine Civil Liberties Union (MCLU), with hearing in Portland, ME; Maine People’s
Alliance, with hearing in Portland, ME; Nashville Racial Profiling Committee, with hearing
in Nashville, TN; One America, with hearing in Burlington, WA; Tennessee Immigrant and
Refugee Rights Coalition, with hearing in Nashville, TN.
Each of the hearings was also co-sponsored by other state and local coalitions and organizations,
and we are grateful to all of these groups for their support.
At each hearing, representatives of national organizations and local community leaders served as
commissioners to receive the community’s testimony. We deeply appreciate their support of this
effort through their active participation in the hearings.

National Commissioners included:
Annette Dickerson, Education and Outreach Director, Center for Constitutional Rights; Steve
Hawkins, Chief Program Officer and Executive Vice President, NAACP; Margaret Huang,
Executive Director, Rights Working Group; Farhana Khera, President and Executive Director,
Muslim Advocates; Ricardo Meza, Midwest Regional Counsel, Mexican American Legal Defense
& Education Fund; Karen K. Narasaki, President and Executive Director, Asian American Justice
Center; Dennis Parker, Director of the Racial Justice Program, American Civil Liberties Union;
Thomas Saenz, President and General Counsel, Mexican American Legal Defense & Educational
Fund; Vince Warren, Executive Director, Center for Constitutional Rights.

Local Commissioners included:
Nabih Ayad, Michigan Civil Rights Commission; Hussam Ayloush, Executive Director, Council on
American Islamic Relations of Los Angeles; David Esquivel, Conexion Americas, Nashville, TN;
Judge Steven Gonzalez, King County Superior Court, Washington; Thomas Harnett, Assistant

Maine Attorney General for Civil Rights Education and Enforcement; Pramila Jayapal,
Executive Director, OneAmerica, Seattle, WA; Maria Jimenez, Special Projects Coordinator,
CRECEN/America Para Todos, Houston, TX; Ester King, Community Activist, Houston,
TX; Dr. Christine Kovic, Associate Professor, University of Houston; Rev. Eric Lee, CEO
and President, Southern Christian Leadership Conference of Greater Los Angeles ; Newell
Lewey, Passamaquoddy Tribe and Member, Sipayik Criminal Justice Commission, Pleasant
Point (Maine); Barbara McQuade, U.S. Attorney for the Eastern District of Michigan; Salad
Nur, Al Farooq Mosque, Nashville, TN; Blanca Santiago, President, El Centro Latino,
Portland, ME; Shirley Sims Saldana, Metro Human Relations Commission, Nashville, TN;
Robert Talbot, Civil Rights Advocate and Political Action Chair, NAACP of Bangor, ME;
Rashida Tlaib, State Representative, 12th District, Detroit, Michigan; Timothy Watkins,
Executive Director, Watts Labor Community Action Committee; Hedy Weinberg, Executive
Director, ACLU of Tennessee; Rev. Neely Williams, IMF-Peniel, Nashville, TN.
Special thanks must be given to the witnesses who offered their testimonies at the hearings.
Their courage and willingness to speak out about injustice should inspire all of us to do more
to combat racial profiling.
Rights Working Group is grateful to the foundations that have supported the Racial
Profiling: Face the Truth campaign and the production of this report. In particular, we
wish to acknowledge the generosity of Atlantic Philanthropies, the Foundation to Promote
Open Society, The Ford Foundation, and the US Human Rights Fund, whose grants made
this work possible.
In drafting this report, law student Amanda Hackett (Howard University School of Law)
provided substantial research assistance and material; law student Christina Sinha (University
of California Berkeley School of Law) contributed as well.
And last but certainly not least, Rebecca Headen deserves recognition and deep appreciation
for serving as RWG’s National Fellow for the last year. Headen coordinated the hearings and
production and wrote the bulk of this report. Her colleagues Jumana Musa and Aadika Singh
contributed to the drafting and editing of the report; Pabitra Benjamin, Nadine Wahab and
Mitzi Bowen assisted in organizing the field hearings. Tong Lee also provided support to the
Face the Truth campaign.

For more information and a full list of Face the Truth campaign endorsements, please visit
www.rightsworkinggroup.org or the websites of our core partners.

FACES OF RACIAL PROFILING: A Report from Communities Across America

TABLE OF CONTENTS

EXECUTIVE SUMMARY

1

INTRODUCTION

15

VOICES FROM COMMUNITIES ACROSS AMERICA:
The Impact of Racial, Ethnic and Religious
Profiling

19

Racial Profiling and the “War on Drugs”
Stop and Search Practices Across the Country Show
Racial Profiling Does Not Work
Communities’ Experience with Customs and Border
Protection (CBP) Practices
Racial Profiling in the Context of Counterterrorism
Measures
Transportation Security Administration (TSA)
FBI Investigations
Racial Profiling and Immigration Enforcement
Local Law Enforcement of Immigration Laws: Formal
Programs
Community Impact of the 287(g) Program
The Criminal Alien Program
Fear and Confusion Surrounding the “Secure
Communities” Initiative
Local Law Enforcement of Immigration Laws: Informal
Programs

THE LAW REGARDING RACIAL PROFILING:
An Analysis of Existing Legal Framework Used
to Address Racial, Ethnic, Religious and National
Origin Profiling

45

Constitutional Law and Principles: The Foundation of
a Ban on Racial Profiling
Federal Statutory and Administrative Law
International Legal Instruments and U.S. Obligations
State and Local Laws: A Patchwork Solution

CONCLUSION AND RECOMMENDATIONS

61

Recommendations to the Obama Administration, the
Department of Justice, the Department of Homeland
Security, Congress and State and Local Governments
in order to end racial profiling

ENDNOTES

67

EXECUTIVE SUMMARY

“When

you are profiled, it totally
takes away your peace of mind. It totally
takes away how you respond to things in
the future.”

–Jolanda Jones, Houston City Council
Member, discussing the stories of her
own and her sons’ experiences being
profiled
The Bill of Rights clearly states that
everyone in the United States is entitled
to equal treatment and equal protection
under the law, that everyone should be free
from unreasonable searches and seizures,
and should be afforded a presumption of
innocence. However, this is not the reality
for millions of people in the United States
who have been denied these rights—and
many others—due to racial profiling. This
report seeks to demonstrate the pervasive
nature of this nationwide problem,
document its impact on individuals, families
and communities across the country, and
propose recommendations to end this
harmful and ineffective practice.

What is Racial Profiling?
“Racial profiling” is defined by the End
Racial Profiling Act of 2010 as “the practice
of a law enforcement agent or agency
relying, to any degree, on race, ethnicity,
national origin, or religion in selecting
which individual to subject to routine or
spontaneous investigatory activities or in
1

deciding upon the scope and substance of
law enforcement activity following the initial
investigatory procedure, except when there
is trustworthy information, relevant to the
locality and timeframe, that links a person of
a particular race, ethnicity, national origin, or
religion to an identified criminal incident or
scheme.” 1 Throughout this report, the term
“racial profiling” is used to describe all of the
types of racial, ethnic and religious profiling
that are referenced in this definition.
In other words, racial profiling occurs
when law enforcement uses one of these
characteristics as a factor in deciding who
they will investigate, question, arrest, or
detain. This practice assumes that certain
people or communities are more likely to be
engaged in illegal behavior simply because
of the color of their skin, their religion, or
some other characteristic.
Racial profiling can occur due to an
officer’s individual bias, inadequate training,
a government program that facilitates
or encourages racial profiling, or some
combination of these elements. No matter
the reason for its occurrence, this illegal
practice has been shown time and time
again to be a failed law enforcement
strategy that is not only morally wrong,
but also counterproductive to its goal of
preventing crime, so much so that it actually
makes communities and the nation less, not
more, safe.
In an effort to demonstrate the
prevalence of racial profiling, Rights
Working Group, working with local and
national partners, organized six hearings

across the country to gather people’s
stories and experiences dealing with
racial profiling. The picture that emerges
clearly shows that this practice is pervasive
throughout the country at the local, state,
and federal levels, and these testimonies
reveal the devastating impact this practice
has on individuals, families and entire
communities.

Voices from Communities:
The Impact of Racial
Profiling

“I’m

here today to tell my story and
because I’m interested in making sure
residents of Watts are no longer afraid to
leave our houses without getting stopped
by police just for being outside in our
neighborhood.”
—John Jones, III, Los Angeles resident

“Racially biased policing is at its core

a human rights issue. While some may view
it as merely a public relations problem,
a political issue, or an administrative
challenge… it is antithetical to democratic
policing. Protecting individual rights is not
an inconvenience for modern police; it is
the foundation of policing in a democratic
society…”
—2001 Report funded by the
Department of Justice’s Community
Oriented Policing Services

In 2004, Amnesty International reported
that approximately 32 million Americans, a
number equivalent to the entire population
of Canada, have been the victims of racial
profiling. However, it has been proven
repeatedly that racial profiling is a failed
strategy in multiple law enforcement
ventures, whether it is combating the
drug trade, fighting terrorism or enforcing
immigration law. The discriminatory and
ineffectual law enforcement practices
described below are all examples of racial
profiling, as they all rely on race, ethnicity,
religion or national origin as a substitute for
relevant indicators of criminal activity.

Racial Profiling in the “War on
Drugs”

“I

have been stopped so many times
that I cannot count. I was stopped six times
in one week, once. I was stopped with my
son in the car and the police asked me if I
had any drugs in the car. They dismantled
the car right in front of us, and of course,
there were no drugs.”
—Los Angeles resident and community
advocate Tim Watkins, who has lived in
his neighborhood for over 50 years.

In 1971, President Nixon initiated a “War
on Drugs” campaign that criminalized drug
addiction and emphasized arrests and
prosecutions as a solution to the social
ills caused by the illegal drug trade. Forty
years later, this program has done little to
curb the drug market or drug use; however,
2

FACES OF RACIAL PROFILING: A Report from Communities Across America

it has been used by law enforcement to
single out primarily African Americans and
Latinos for drug searches.

Racial Profiling and Customs &
Border Protection (CBP)

In 2002, a national survey conducted by
the Department of Justice found that blacks
and Latinos were two to three times more
likely to be stopped and searched for drugs
than whites, but were less likely to be found
actually in possession of contraband.2
Numerous other national studies and
surveys prove that racial profiling is
ineffective, and that when law enforcement
instead utilizes a strategy that prioritizes
targeting relevant indicators of criminal
activity, such as behavior, rather than racial
or ethnic identity, their productivity rate (the
rate at which they actually find drugs on
someone they search) goes up.

hen I passed through customs, I was
stopped by ICE [Immigration and Customs
Enforcement] officers… who stated that I
“looked Arab” rather than Mexican…. They
asked me about my faith. I told them I
was a Catholic and why was it an issue.
They asked me if I had been considering
becoming converted to Islam and I asked
why would I tell them? Why would that be
an issue? Is it illegal now to be a Muslim?”

In 2004 to 2005, the Narragansett Police
Department in Rhode Island began basing
their decisions to search on probable
cause, rather than on race, and seeking
supervisory approval. As a result, minorities
went from being three times as likely to be
searched to only 1.5 times as likely. The
department’s search productivity rate
jumped to 50 percent, one of the highest
in the state.3 While it has been proven that
law enforcement officers are more effective
when they base investigations on relevant
indicators of criminal activity rather than
on race, data collected in numerous states
shows that racial profiling still continues.

3

“W

—Francisco Argüelles, witness,
Houston

After Sept. 11, 2001, the government
adopted new programs and policies that
severely curtailed civil rights, civil liberties,
and human rights in the name of “national
security.”
As a result, Arabs, Middle
Easterners, Muslims, South Asians—and
those who are mistaken for them—have
become automatically suspect and have
been targeted by law enforcement, both
at the border and within the United States.
They have been subjected to surveillance,
stops, interrogations, intrusive questioning,
invasive searches, and lengthy and arbitrary
detentions.
CBP guidelines allow agents to “review
and analyze information” transported by
those entering or leaving the country without
individualized suspicion.4 This opens the
door to racial profiling. Agents are also
given wide latitude to stop, question and
detain people, not only at the border and at

Other government guidelines are
even more explicit about their racial and
ethnic bias. A 2007 Transportation Safety
Administration (TSA) guideline singled out
Sikh turbans and Muslim head coverings for
additional screening, despite the fact that
they had no evidence that they were being
used to transport forbidden items.5 In late
2007, new screening options that offered
greater privacy were negotiated by the
TSA and Sikh organizations. Despite the
change in policy, Sikhs as well as others with
religious head coverings were still targeted
in airports, as recounted by Amardeep
Singh of the Sikh Coalition:

“I was, sadly, forced to take my [18 month

old] son, Azaad, into the infamous glass box
so that he could [be] patted down. He cried
while I held him. He did not know who that
stranger was who was patting him down.
His bag was also thoroughly searched.
His Elmo [books were] searched…I am not
sure what I am going to tell him when he
is old enough and asks why his father and
grandfather and soon him – Americans all
three – are constantly stopped by the TSA
100 percent of the time…” 6
Such
programs
are
not
only
antithetical to our core values; they are
counterproductive— to the point of making
us all less, not more, safe. Sheldon

Jacobson, an University of Illinois computer
science professor with expertise in aviation
security, states that “more screening can
result in less security when it directs attention
and resources to the 60 to 70 percent of
people who are not a security threat.”7
As he points out, the U.S. government
has limited resources, technologies, and
time to devote to the country’s security,
and it cannot afford to waste them on an
ineffective strategy that consistently prove
to be counterproductive.

EXECUTIVE SUMMARY

checkpoints, but also within 100 miles of an
international border. This puts the residents
of significant numbers of major U.S. cities,
and in some cases, the residents of the
entire states, at the mercy of CBP’s wide
investigative powers.

Racial Profiling and
Counterterrorism Measures

“One of the problems with racial profiling
is that there’s a tendency to believe that
this is the silver bullet to solve the problem.
In other terms, if you’re a Middle Eastern or
if you’re a Muslim, then you must be bad….
But back in 1972, Ben Gurion Airport in Tel
Aviv [Israel] was supposed to be attacked
by a Palestinian… [it] was never attacked
by one. It was attacked by a Japanese
terrorist…. And it was attacked in the mid‘80’s by a German terrorist answering to the
name Miller.”
—Rafi Ron, former chief of security for
Ben Gurion and consultant to Boston’s
Logan International Airport.

As part of the “war on terror,” the FBI
has investigated certain communities,
particularly members of Muslim charities
and religious institutions, mosque attendees
and other Muslim groups. Individuals

4

FACES OF RACIAL PROFILING: A Report from Communities Across America

have been targeted for investigations at
their homes, jobs, schools, and places
of worship. The FBI has also utilized paid
informants to infiltrate mosques and other
religious institutions.
This climate has
made many community members afraid to
go about their daily lives normally; many
have reported that they avoid attending
mosques and community centers and have
forgone donating to charities for fear of
being profiled by the Bureau.

Here again, the government’s own
findings have shown that these tactics are
counterproductive to their aim of keeping
the country safe. A 2006 study by the
DOJ found that Arab Americans were
significantly fearful and suspicious of federal
law enforcement. It also found that both
law enforcement officers and community
members agreed that diminished trust
between the two was the most significant
barrier to much-needed cooperation.12
Indeed, these communities have become
so fearful of law enforcement in the wake
of these policies that they did not request
help in a variety of emergency situations,
including domestic violence, reporting other
crimes, and even, in some cases, failing to
seek medical treatment.13

Racial Profiling in Immigration
Enforcement

“This is not what I was taught the American
The FBI’s 2008 Domestic Investigative
Operative Guidelines (DIOG)8 , which
implements the December 2008 Attorney
General’s Guidelines for Domestic FBI
Operations,9 explicitly allows the use of
race, ethnicity, and religion as a factor
in determining whether to start an FBI
investigation.10 Under the Guidelines, an FBI
agent can start an assessment with little to
no factual predicate,11 creating a scenario
where members of communities singled
out for profiling post-9/11 can be subjected
to broad surveillance and data gathering
based on their race, ethnicity, religion or
national origin.
5

Dream was. The American Dream in my
eyes is everyone having equal rights…. I just
want to let America know that this is not fair,
what they’re doing to us is not fair, because
my dad was stopped for no reason. I don’t
think that wearing landscaper clothes and
having brown skin was a crime.”
—Anna, a high school student whose
father ended up in deportation
proceedings, witness, Burlington,
Washington

Immigration enforcement is yet another
context in which government programs
have opened the door to racial profiling.

The U.S. Congressional Research
Service (CRS) has stated that a “high risk
for civil rights violations may occur if state
and local police do not obtain the requisite
knowledge, training, and experience in
dealing with the enforcement of immigration
laws,”14 and that without this training, those
suspected of immigration violations can
become victims of racial profiling.

have been documented using the program
to target people for minor traffic offenses
as a pretext to check the immigration status
of those who look “foreign.” For example,
officers in Gaston, North Carolina reported
that 95 percent of state charges resulting
from 287(g) were for misdemeanors.
Eighty-three percent of those were for
traffic violations.15 Both the DHS Office
of Inspector General (OIG) and the
Government Accountability Office (GAO)
have identified numerous major flaws in
the program, including a lack of effective
training and protection against racial
profiling and other civil-rights abuses.16

There are numerous programs that
create formal agreements between federal
immigration authorities and local and state
jurisdictions, including 287(g), the Criminal
Alien Program (CAP), and the Secure
Communities Initiative. The 287(g) program
allows the Department of Homeland
Security (DHS) to enter into voluntary,
formal agreements with state and local law
enforcement that gives these agencies
limited powers to enforce immigration
law. The stated purpose of the program
is to pursue noncitizens suspected of
committing serious crimes. However, this
program does not give local authorities
clear guidelines, which can lead to racial
profiling and other abuses.

The Criminal Alien Program (CAP)
has also shown evidence of targeting
individuals through pretextual arrests.
This program is an immigration screening
process that operates in prisons and
jails. Its purpose is to place immigration
detainers on noncitizens, with a high priority
placed on those who pose a threat to
public safety.17 However, a study of Irving,
Texas by the Earl Warren Institute on Race,
Ethnicity and Diversity at the University of
California, Berkeley School of Law found
that, of the ICE detainers issued pursuant
to the program, only two percent were for
felony cases, while the other 98 percent
This
were for misdemeanor cases.18
strongly suggests that CAP incentivized
officers to racially profile people in order
to execute arrests to check individuals’
immigration status.

Moreover, the program does not
conform with its stated goal of targeting
serious criminals. Several jurisdictions

Similar trends are also being
documented in the “Secure Communities”
program, which submits fingerprints for

EXECUTIVE SUMMARY

Until recently, the federal government held
primary responsibility for the enforcement
of federal immigration law.
However,
several programs initiated by the second
Bush Administration and expanded by the
Obama Administration have shifted the
responsibility and cost of enforcing civil
(that is, noncriminal) immigration law to
state and local law enforcement.

6

FACES OF RACIAL PROFILING: A Report from Communities Across America

7

individuals booked into jails—before they
have an opportunity to challenge their
arrest and before any adjudication on their
guilt—to be checked against immigration
databases. This creates an incentive for law
enforcement to conduct pretextual stops,
or to book individuals in jail rather than issue
tickets, in order to check the immigration
status of those who look “foreign.” ICE’s
own data, revealed through a Freedom
of Information Act (FOIA) Request by the
Center for Constitutional Rights and the
National Day Labor Organizing Network,
shows that the vast majority (79 percent)
of individuals deported under the Secure
Communities program were not criminals or
were picked up for low-level offenses.19

individuals for minor offenses and even
drawing in U.S. citizens for enforcement
actions—further evidence that this ICE
initiative is encouraging racial profiling.” 21
All of these programs damage the safety
of the entire community. If community
members fear that reporting crimes or
assisting the police can lead to immigration
investigations, they become unwilling to
work with law enforcement. When people
do not cooperate with the authorities, all
communities are less safe.

ICE’s data also reveals that some
jurisdictions—such as Arizona’s Maricopa
County, which is under a Department of
Justice investigation for patterns and
practices of discriminatory policing, yet still
retains the ability to participate in immigration
enforcement
programs
like
Secure
Communities and 287(g)—have abnormally
high rates (54 percent in Maricopa County)
of non-criminal deportations under Secure
Communities. Other jurisdictions offer even
more troubling statistics. For example, in
Travis, Texas, 82 percent of deportations
under Secure Communities are of noncriminals. In St. Lucie, Florida, that number is
79 percent, 74 percent in Yavapai, Arizona,
68 percent in Suffolk, Massachusetts and 63
percent in San Diego, California.20 This data
demonstrates that the Secure Communities
initiative is not “prioritizing criminal aliens
for enforcement action based on their
threat to public safety” but rather deporting

Constitutional and Federal
Laws and Principles

The Law Regarding Racial
Profiling

The text of the Constitution provides
strong protections against racial profiling.
Unfortunately, as these protections have
been interpreted in a limited, narrow fashion
by U.S. courts, their efficacy has been
eroded. Courts have given wide latitude
to law enforcement, while creating almost
insurmountable obstacles for victims of
racial profiling, such as the requirement
that victims prove that the offending officer
intended to discriminate against them.
The Fourteenth Amendment states: “All
persons born or naturalized in the United
States, and subject to the jurisdiction
thereof, are citizens of the United States and
of the State wherein they reside… nor shall
any State deprive any person of life, liberty,

This 1996 ruling gave a green light to
racial profiling of motorists. Traffic laws
are so numerous and complex that almost
anyone can be caught in a technical
violation. This means that law enforcement
can and often has used traffic laws as a
pretext to investigate other crimes for which
they do not have probable cause.

The Supreme Court has also limited
remedies in the context of immigration
enforcement. In Reno v. American-Arab
Anti-Discrimination Committee (ADC),24
the Supreme Court decided that a group
of immigrants, singled out for deportation
because of their political affiliation, could
not challenge their deportation on the
grounds of selective enforcement as long
as there was a valid immigration violation
with which they were charged. Citing the
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Supreme Court
Justice Antonin Scalia wrote, “[a]s a general
matter—and assuredly in the context of
claims such as those put forward in the

EXECUTIVE SUMMARY

or property, without due process of law; nor
deny to any person within its jurisdiction the
equal protection of the laws.” However, the
U.S. Supreme Court ruled in Whren v. United
States22 (1996) that it is not unconstitutional
for law enforcement to make a pretextual
traffic stop—that is, stopping someone
for a traffic violation because they want
to investigate some other crime, which
they would not be able to do without the
“pretext” of the traffic violation—as long
as the officers had the required amount
of certainty (probable cause) to believe a
traffic violation had occurred.

The Court’s 2009 decision in United
States v. Brignoni Ponce23 went even further
by explicitly sanctioning racial profiling in
the border context. The Court held that
Customs and Border Patrol officers can
consider race and ethnicity when deciding
whether to perform a stop at or near the
border. These and similar limits on the
Constitution’s protections, coupled with
the requirement that racial profiling victims
prove an officer intended to discriminate
against them—which requires a large
amount of resources and complex legal
knowledge to prove— renders meaningless
many of the Constitution’s protections.
8

FACES OF RACIAL PROFILING: A Report from Communities Across America

present case— an alien unlawfully in this
country has no constitutional right to assert
selective enforcement as a defense against
his deportation.” 25
Like constitutional law, federal laws
banning racial profiling appear strong on
the surface, but the requirements for their
utilization, as interpreted by the courts, have
hindered their protections. For example,
§1983 of the Civil Rights Act bans those
acting under color of law (which includes
law enforcement at the local, state and
federal level) from depriving individuals
of their Constitutional and legal rights and
privileges. However, victims are required
to prove that they would not have been
stopped but for their race, ethnicity or
other protected characteristic. As noted
above, it is almost always possible for law
enforcement to catch motorists in technical
violations of traffic laws, rendering this
statute useless for many victims. Another
statute, §14141 of the Violent Crime Control
and Law Enforcement Act, authorizes the
Department of Justice (DOJ) to hold law
enforcement agencies accountable for
violating the rights of persons in the U.S.
by conducting investigations into reported
violations
and
reaching
settlement
agreements, implementing consent decrees
or filing suit. But DOJ works on issues of
systemic discrimination, not individual
cases.

9

International Law Prohibits
Racial Profiling
International law establishes clear
prohibitions against racial profiling. The U.S.
has signed and ratified two international
treaties: The International Convention
on the Elimination of All Forms of Racial
Discrimination (ICERD), which prohibits
distinctions based on race, color, descent,
or national or ethnic origin that have
the purpose or effect of impairing the
equal enjoyment of their rights; and the
International Covenant on Civil and Political
Rights (ICCPR), which requires a signed
party to ensure that “all individuals within its
territory and subject to its jurisdiction [are
able to exercise] the rights recognized in
the present Covenant, without distinction of
any kind, such as race, colour, sex, language,
religion, political, or other opinion, national or
social origin, property, birth or other status.”
The two committees that monitor
compliance with ICERD and ICCPR have
found that the U.S. is in violation of its treaty
obligations. For example, the Human Rights
Committee, which monitors compliance with
the ICCPR, criticized U.S. programs that allow
local and state law enforcement to enforce
federal immigration law, because of the
police officers’ lack of training or expertise
in this complex area of law. The U.S. reports
submitted to treaty monitoring bodies
have been criticized for their omissions,
deficiencies, and mischaracterizations and
have failed to accurately document the
pervasive nature and devastating impact of
racial profiling in the United States.

As with federal law claims, state and
local claims challenging racial profiling are
extremely difficult to prove. Courts require
victims to either show direct, circumstantial
or statistical evidence that the person was
a target of racial profiling, or, absent that,
to show that they were treated differently
from someone else in the same situation,
but who was of a different race. The former
requirement is extremely difficult to prove
without access to data on law enforcement
practices, which many jurisdictions do
not collect.
The latter is effectively
insurmountable, as most people do not
have the time or resources to devote to
seeking out someone who was in the same
situation, but of a different race.
Most states do not have laws that prohibit
racial profiling by law enforcement. Only 29
states even mention racial profiling in their
legislation. Of the 29, only 19 states require
their law enforcement agencies to collect
data on the traffic stops they conduct, and
these reporting requirements vary wildly
from state to state. Further, five of the states
that prohibit racial profiling only ban the use
of race as the sole factor for initiating a stop,
rather than banning its use as any factor in
determining whom to stop.
Some cities and municipalities have
attempted to fill in the gaps in protection
left by federal and state laws by passing
their own laws on racial profiling. For
example, Cincinnati, Ohio passed an
ordinance prohibiting racial profiling by law
enforcement that also requires collection

of data on stops. However, no successful
racial profiling suits have been filed that
were able to overcome the legal obstacles
that were put in place after the ordinance
was passed. Thus, even where honest
efforts are made to introduce effective laws
to combat racial profiling, they are often
undermined and thwarted, leaving victims
with no realistic recourse.

EXECUTIVE SUMMARY

State and Local Laws

Conclusions and
Recommendations
The
testimonies
from
diverse
populations that emerged from the Face
the Truth hearings clearly demonstrate
that racial profiling is a nationwide practice
that has devastated individuals, families
and communities across the US. Further,
numerous national studies and government
investigations and reports all document
the inefficacy of racial profiling as a tool
to combat crime. This practice both instills
fear of law enforcement in communities—
preventing the police-community relations
that are necessary to combat crime—and
diverts precious resources away from
investigating actual crimes and threats to
national security. This practice must be
eradicated in all its forms. To that end, RWG
and our partners in the Racial Profiling:
Face the Truth campaign offer the following
recommendations:

10

FACES OF RACIAL PROFILING: A Report from Communities Across America

Recommendations to
President Obama
• President Obama should urge
Congress to enact the End Racial
Profiling Act of 2010, which prohibits
profiling based on race, religion,
ethnicity and national origin at the
federal, state and local levels.
• President Obama should issue an
executive order prohibiting racial
profiling by federal officers and banning
law enforcement practices that
disproportionately target people for
investigation and enforcement based
on race, ethnicity, religion or national
origin. The executive order should
also require the collection of data by
federal enforcement agencies about
law enforcement actions broken down
by the apparent or perceived race,
ethnicity, national origin and religion of
individuals targeted by enforcement
agents.
• President
Obama
should
state
unequivocally
that
the
federal
government alone has jurisdiction and
authority to enforce immigration laws
and halt ICE programs that engage
state and local police in immigration
enforcement activities.

Recommendations to the
Department of Justice

11

• The Department of Justice (DOJ)
should revise its 2003 “Guidance
on the Use of Race by Federal Law

Enforcement Agencies” to eliminate
loopholes created for national security
and border searches; to include
religion and national origin as protected
classes; to apply the guidance to state
and local law enforcement agencies;
and to make it enforceable.
• The
2008
Attorney
General’s
Guidelines for Domestic FBI Operations
and the FBI’s Domestic Investigative
Operational Guidelines that implement
the 2008 Attorney General’s Guidelines
should be revised to ensure that
they comport with constitutional and
international human rights protections.
• The 2002 DOJ Office of Legal Counsel
(OLC) “inherent authority” opinion
should be immediately rescinded
and OLC should issue a new memo
clarifying that state and local law
enforcement agents may not enforce
federal immigration laws absent formal
authority granted to them by the federal
government.

Recommendations to the
Department of Homeland
Security
• The Department of Homeland Security
(DHS) should terminate the 287(g)
program.
• DHS
should
suspend
the
implementation of CAP, Secure
Communities and similar programs
unless and until safeguards are put
in place whenever collaborating with

• DHS should ensure that the Secure
Communities program and the Criminal
Alien Program only screen people who
are convicted of felony offenses, in
keeping with ICE’s stated priorities of
targeting serious criminals and dangers
to the community.
• DHS should terminate the National
Security
Entry-Exit
Registration
System (NSEERS) and repeal related
regulations. Individuals who did not
comply with NSEERS due to lack of
knowledge or fear should not lose
eligibility for, or be denied, a specific
relief or benefit. Similarly, DHS should
ensure that the federal government
provides relief to individuals who were
deported for lack of compliance with
NSEERS but otherwise had an avenue
for relief.
• DHS should conduct extensive
training for and oversight of ICE agents
implementing enforcement actions.
In particular, increased oversight is
needed to ensure that ICE does not
target individuals on the basis of
race or ethnicity but instead upon
information related to the individual’s
immigration status.

• DHS should reform its complaint
process to ensure that it is clear,
transparent and confidential, including
protections against retaliation. It also
should be made available to the public
in multiple languages.

Recommendations to
Congress

EXECUTIVE SUMMARY

state and local law enforcement
to ensure that racial profiling and
other human rights violations are not
occurring, including collecting data
on the race or ethnicity of the people
arrested, the charges that are lodged
and the ultimate disposition of the
case.

• Congress should enact the End Racial
Profiling Act of 2010, establishing a
federal ban on profiling based on race,
religion, ethnicity and national origin at
the federal, state and local levels.
• Congress should provide oversight to
ensure that the various agencies of
the executive branch are undertaking
the
reforms
identified
in
the
recommendations above. If agencies
do not adopt these reforms, Congress
should adopt legislation mandating the
changes in policy.
• Congress should repeal section 287(g)
of the Immigration and Nationality Act.
• Congress should eliminate funding
for the 287(g) program, the Secure
Communities Initiative, the Criminal
Alien Program and other programs
that utilize state and local law
enforcement agencies to conduct
civil
immigration
enforcement,
incentivize racial profiling and lack
protections for individuals harmed by
these programs.
12

FACES OF RACIAL PROFILING: A Report from Communities Across America

Recommendations to state
and local governments
• State and local governments should
adopt legislation that strongly prohibits
profiling based on race, religion,
ethnicity and national origin. Such
legislation should also mandate that
local police departments collect data
about stops, frisks, searches, arrests
and prosecutions. That data should
be broken down by the apparent or
perceived race, religion, national origin
or ethnicity of those targeted for
enforcement actions and outcomes.

• State and local governments should
refuse to participate in federal
programs expanding responsibility
for immigration enforcement to local
law enforcement, including the 287(g)
program, the Secure Communities
Initiative or the Criminal Alien Program.
• Any state or locality that is participating
in or cooperating with a federal
program delegating responsibility
for immigration enforcement to local
law enforcement should collect data
on the apparent or perceived race,
religion, national origin or ethnicity of
any person arrested, the reason for the
arrest and the ultimate disposition of
the case.

13

EXECUTIVE SUMMARY

Recommendations from Field
Witnesses

“I

think there needs to be enough
training to make sure people understand
the rights of individuals in this country as
well as checks and balances in the system
among the investigators.”

–Joe Morrison, witness, Burlington,
Washington

“…I think this issue is of considerable

concern in the Muslim community… these
officers, law enforcement officers or
government officers, are they being
trained with reliable information on Islam
and Muslims as opposed to some bigoted
information with sources that [are] not
really fully accredited agencies?”

–Jawad Khaki, witness, Burlington,
Washington

“I

think the only way to stop profiling
is to have consequences when profiling
occurs and that’s what I don’t see at any
level…I really believe that we need to do
something to force consequences for bad
behavior.”

–Jolanda Jones, witness, Houston,
Texas

14

INTRODUCTION

“This is not what I was taught what the “When
American Dream was.
The American
Dream in my eyes is everyone having equal
rights and being able to do what they want
to do. I just want to let America know that
this is not fair, what they’re doing to us is
not fair, because my dad was stopped
for no reason. I don’t think that wearing
landscaper clothes and having brown skin
was a crime.”
–Anna, Washington State high
school student whose father was
stopped by local police leaving
work and ended up in deportation
proceedings.26

“They

surround the car [at the border
checkpoint]… there’s nothing—there’s no
event to spark this. It’s just, ‘You’re going
into cuffs. You’re coming out of the car” …
And you’re in front of so many people. You
know, this is like—they’re looking at you like,
‘Oh, what did you guys plan?’ You know?
‘Oh, there goes the Muslims. I wonder what
they’re up to. Who knows what they’re
thinking.’ They’re looking at you crazy.”
–Alex Aravanetes, Washington
State resident who crosses the
border with Canada regularly to see
his wife, a Canadian citizen, while
they wait for her immigration status
to come through

15

you are profiled, it totally takes
away your peace of mind. It totally takes
away how you respond to things in the
future.”
–Jolanda Jones, Houston City
Council Member, discussing the
stories of her own and her sons’
experiences being profiled

“I’m

here today to tell my story and
because I’m interested in making sure
residents of Watts are no longer afraid
to leave our houses without getting
stopped by police just for being outside
in our neighborhood.”
–John Jones, III, Los Angeles
resident

The Bill of Rights states that everyone
in the United States is entitled to equal
treatment and protection under the law; that
everyone in the United States should be safe
from unreasonable searches and seizures;
and that everyone in America should be
afforded the presumption of innocence.
Today, these rights are enshrined not only in
the Constitution but also in other state and
federal laws. Unfortunately, the pervasive
practice of racial profiling denies these
rights to a wide variety of people in the
United States—rights guaranteed them by
the U.S. Constitution, state and federal laws
and international human rights law.

Racial profiling as defined in the End
Racial Profiling Act of 2010 is “the practice
of a law enforcement agent or agency
relying, to any degree, on race, ethnicity,
national origin, or religion in selecting
which individual to subject to routine or
spontaneous investigatory activities or in
deciding upon the scope and substance of
law enforcement activity following the initial
investigatory procedure, except when there
is trustworthy information, relevant to the
locality and timeframe, that links a person
of a particular race, ethnicity, national origin,
or religion to an identified criminal incident
or scheme.”27 Throughout this report, the
phrase “racial profiling” is used to describe
all of the types of racial and religious profiling
that are referenced in this definition.
In other words, racial profiling occurs
when law enforcement agents use race,
ethnicity, religion, or national origin as
a factor in deciding who they should
investigate, arrest or detain—except where
characteristics such as race, ethnicity,
religion or national origin are part of the
description of a specific suspect who
is linked to a specific criminal activity.
Historically, racial profiling has been referred
to as “driving while brown or black.” That is
to say, African American, Native American
and Latino/Hispanic individuals have been
and continue to be stopped and searched
much more often by law enforcement while
driving, walking or otherwise going about
their personal or professional affairs, than
other individuals.

Since Sept. 11, 2001, members of
Arab, Middle Eastern, Muslim, and South
Asian communities have increasingly and
disproportionately been placed under
surveillance,
searched,
interrogated
and detained in the name of “national
security.” Law enforcement has singled
out members of another population—
suspected or perceived migrants—under
the guise of immigration enforcement,
disproportionately harassing, interrogating,
and detaining individuals perceived to be
Latino or Hispanic, including U.S. citizens
and lawful permanent residents.

When law enforcement agents racially
profile, they use race, religion, ethnicity,
national origin or perceived immigration
status as a basis for assuming that
particular communities or religions have a
greater propensity for being involved in a
crime or for being more likely to lack lawful
immigration status. In many cases, racial
profiling is not the fault of direct racism or
xenophobia on the part of an individual law
enforcement agent, but rather is due to
insufficient guidance provided to him or her.

16

FACES OF RACIAL PROFILING: A Report from Communities Across America

In other cases, racial profiling is government
sanctioned; for example, there is federal
guidance that does not prohibit profiling on
the basis of religion or national origin, and
there are state laws that specifically target
those who look or sound “foreign.”

today’s forum is about. By standing up, by
presenting the experiences of people in our
community, for these panelists to receive
and take back, we can hold this problem
up so that lawmakers and policymakers
cannot ignore it any longer.”

Whether it occurs in the name of
the “war on drugs,” or is labeled as “a
counterterrorism measure” or “immigration
enforcement,” racial profiling is unlawful and
counterproductive, stripping individuals of
their rights and making communities less,
not more, safe. To demonstrate this impact,
Rights Working Group joined with local
and national partners to organize hearings
across the country. The racial profiling
hearings served to document and call
attention to the real impact racial profiling
has had on a diverse array of communities.
Many individuals devastated by the lasting
impact of racial profiling bravely shared
their stories before their communities and a
panel of local and national commissioners,
who bore witness to their powerful
testimonies. These voices demonstrate
that racial profiling isn’t a problem for just
one or two communities or in just one or
two cities; it is a nationwide problem that
affects us all.

–Peter Bibring, Staff Attorney, ACLU of
Southern California, testifying on behalf
of several clients in Los Angeles

“The

problem with racial profiling lies
in its pervasiveness. It’s not just about a
few bad actors or a bad policy you can
point to or bad training. It’s a problem that
pervades law enforcement and our criminal
justice system at every level. Problems this
big are hard to fix and they’re hard to get
people to pay attention to and that is what

17

Many of the voices highlighted in this
report clearly show that profiling is still
pervasive at the local, state and federal level.
The hearing testimonies also demonstrate
how racial profiling threatens community
safety by diverting law enforcement
resources toward targeting people who
simply look or sound a certain way, and not
toward those who demonstrate criminal
behavior. The testimonies highlighted in
this report also reflect the insurmountable
hurdles most individual victims of profiling
face when they attempt to challenge
their unlawful treatment through our legal
system. It is no surprise, then, that members
of communities that are disproportionately
subjected to discriminatory profiling
develop a fear of law enforcement
and are not inclined to cooperate with
police investigations, even if they have
been witnesses or victims of crime—an
unintended consequence of racial profiling
that makes all of us less safe.
The United States Constitution appears
to provide adequate protection against
racial profiling in its text. Unfortunately,
constitutional protections against racial
profiling have been interpreted by U.S. courts

rely upon state and local law enforcement
and criminal justice systems to enforce
federal civil immigration laws. In addition
to domestic legislation, the United States
should comply with its obligations under
international law and under international
treaties that it has signed and ratified.

INTRODUCTION

in a limited and narrow fashion. A patchwork
of state laws and the absence of laws in
some states also fail to provide adequate
and consistent measures to protect all
Americans from racial profiling. In many
cases, international law provides stronger
protections against racial profiling than U.S.
law. To date, federal and state efforts to
address racial profiling have proven largely
inadequate to handle the breadth and depth
of this practice. This issue can and should
be addressed domestically by passing
federal legislation banning racial profiling at
the federal, state and local level; by revising
existing federal guidance on racial profiling;
and by eliminating federal programs that

This report seeks to document the
impact of racial profiling and the experiences
of those affected by it. It explains the
current legal context of profiling and its
gaps, and makes recommendations to
eliminate those gaps in order to end the
pervasive, ineffective and unlawful use of
racial profiling in America.

18

VOICES FROM COMMUNITIES ACROSS
AMERICA: THE IMPACT OF RACIAL,
ETHNIC AND RELIGIOUS PROFILING

“It

happens once, it’s okay. You don’t
think about it. The second time, you start
scratching your head; what’s happening
here, you know? You shouldn’t be looked
at by the color of your skin or the accent or
where you’re from… like I have been asked
by officers. For the third time, you gotta
think there is racial profiling in Maine. If you
haven’t done anything wrong, why should
they ask you for immigration status or where
you’re from or anything like that?”
–Xaviar Morales, witness, Portland,
Maine hearing

“First, racially biased policing is at its core

a human rights issue. While some may
view it as merely a public relations problem,
a political issue or an administrative
challenge, in the final analysis, racially
biased policing is antithetical to democratic
policing. Protecting individual rights is not
an inconvenience for modern police; it is
the foundation of policing in a democratic
society… Failure to achieve a balance in
police priorities creates misunderstanding
and misdirection. There are grave dangers
in neglecting to take the issue of biased
policing seriously and respond with effective
initiatives.
Societal division on racial
grounds will leach the vigor from qualityof-life initiatives, regardless of how well
intended and well funded. If a substantial
part of the population comes to view the
justice system as unjust, they are less likely
to be cooperative with police, withholding
participation in community problem-solving
and demonstrating their disaffection in a
variety of ways. The loss of moral authority

19

could do permanent injury to the legal
system, and deprive all of society of the
protection of the law.”
–A 2001 report by the Police Executive
Research Forum and funded by the
Department of Justice’s Community
Oriented Policing Services 28

“[U]sing race . . . as a proxy for potential

criminal behavior is unconstitutional, and it
undermines law enforcement by undermining
the confidence that people can have in law
enforcement.” 29

–Former Attorney General (under George
W. Bush) John Ashcroft

Across the U.S. today, police routinely
single out, stop and search people from
targeted communities at disproportionate
rates while they are walking, driving, flying
or otherwise engaged in the routines of
life. Whether under the guise of the “war
on drugs” or crime suppression sweeps,
traffic stops and “stop and frisks” are often
used as a pretext for determining whether
these individuals are engaged in some sort
of criminal activity. Amnesty International
USA reported in 2004 that approximately
32 million Americans—a number equivalent
to the population of Canada—say that they
have been victims of racial profiling.30 The
Face the Truth hearings found evidence
nationwide of racial and ethnic profiling.
Whether they lived in the Northwest or
Southeast, northern New England or
downtown urban areas across the country,
people who attended the hearings told their
own stories of such experiences.

“The

witnesses represented a number
of races and ethnicities, including African
immigrants, Latino and Native Americans.
They also had differing citizenship status
ranging from native-born Americans to
naturalized citizens, and people with varying
types of non-resident status.
Despite
the differences in their backgrounds,
the witnesses at the hearing described
remarkably similar experiences…
Each
described the experience of being singled
out because of their apparent race or
ethnicity and subjected to either hostile
interrogation or discriminatory treatment.
Particularly striking was the fact that the
witnesses described encounters with
law enforcement personnel which were
not initiated because of any illegal or
questionable conduct by the witnesses but
instead resulted from suspicion by the law
enforcement agent which was aroused by
the fact that the witness was a member
of a particular racial or ethnic group. The
testimony also showed that each witness
shared a feeling of frustration, humiliation
and anger as a result of being targeted for
action by law enforcement, and a sense
that the unfair treatment eroded their
confidence in law enforcement.”
–Dennis Parker, Commissioner,
Portland, Maine hearing

In early 2001, there appeared to be
a national consensus that racial profiling
was widespread and wrong. People of all
backgrounds—in terms of race, ethnicity,
religion and national origin—disapproved of
racial profiling.32 In the wake of the horrific

9/11 attacks, that consensus evaporated,
allowing policies and programs adopted in
the name of “national security” to curb civil
liberties and human rights. The scale and
scope of racial profiling grew dramatically
in certain communities in that context, and
the consensus and momentum for passing
federal legislation banning the practice
vanished.

“

Some of the younger law enforcement
officers out there, they even stop some
of our Indian police officers. We see
each other. Then when they stop us,
they realize it’s us. They don’t recognize us out of uniform.... It’s not done,
I believe, intentionally towards the
individual officer. I believe it’s because
he’s an Indian driving a nice vehicle or
something and he just happened to be
in the wrong place at the wrong time.

”

Woodrow Starr, a tribal police chief
of Standing Rock Sioux Tribe, in
testimony 31 before the Mayor’s Task
Force on Police and Community
Relations in Rapid City, S.D. Starr is
routinely profiled. His fellow tribal
officers are often pulled over by white
officers.

20

FACES OF RACIAL PROFILING: A Report from Communities Across America

Racial Profiling and the
“War on Drugs”
In 1971, President Nixon declared the
“War on Drugs” a national priority, named
drugs “public enemy No. 1” and commenced
a campaign that criminalized drug addiction
and emphasized arrest and prosecution as
the solution to society’s ills.33 The policies
initiated in that era and continuing over
the next 40 years have actually done little
to eradicate drug use or curtail the drug
market,34 and instead have had a disparate
impact on people of color and low-income
communities.
Enforcement methods cultivated in the
war on drugs paved the way for increased
stops and searches of people of color.
While law enforcement practicing racial
profiling may not be using race, ethnicity,
national origin or religion as the sole factor
in guiding their decisions about who to stop,
search or detain, these characteristics are
often the decisive factor.
Los Angeles Hearing Commissioner Tim
Watkins, a community advocate who grew
up in the city, has resided in his neighborhood
for over 50 years. He testified that he was
stopped and questioned by police almost
every time he left or returned home:

“I

have been stopped so many times that
I cannot count. I was stopped six times in
one week, once. I was stopped with my son
in the car and the police asked me if I had
any drugs in the car. They dismantled the
car right in front of us and, of course, there
were no drugs.”
21

The Department of Justice (DOJ)
conducted a national survey in 2002 and
found that blacks and Hispanics were two
to three times more likely to be stopped and
searched than whites, but were less likely
to be found in possession of contraband..35
Searches based on racial profiling are
biased and extremely counterproductive,
resulting in extremely low seizure rates
of contraband. As the data shows, the
argument that certain racial or ethnic
communities commit more drug crimes
cannot be substantiated. Moreover, once
this law enforcement practice becomes
routine in a community, trust begins to break
down between residents and the police.

Stop and Search in Practice
Nationwide
Data from across the country
demonstrates that racial profiling is
ineffective and that when law enforcement
agents revise their enforcement strategy
to prioritize criminal behavior, rather
than racial or ethnic identity, their rate of
contraband seizures goes up. In 2004 to
2005, the Narragansett Police Department
in Rhode Island began basing their decisions
to search on probable cause instead of on
race and requiring supervisory approval to
perform a search. As a result, minorities
went from being three times as likely
to be searched to only one and a half
times as likely. The department’s search
productivity rate jumped to 50 percent,
one of the highest in the state.36 Although
it has been proven that law enforcement
officers are more effective when they base
investigations on relevant indicators of

VOICES

criminal activity rather than on race, data
collected in numerous states shows that
racial profiling still continues in agencies
nationwide.
In Arizona, analysis of data related
to highway stops made between July 1,
2006 and June 30, 2007 found that Native
Americans were more than three times as
likely to be searched as whites by officers
of the Arizona Department of Public Safety.
African Americans and Hispanics were
2.5 times more likely to be searched than
whites. Whites, however, were found to be
more likely to be carrying contraband than
Native Americans or Hispanics; seizure
rates of drugs, weapons or other illegal
materials for whites and African Americans
were similar.37
In Los Angeles, analysis of data by Yale
University38 gathered between July 2003
and June 2004 found that the stop rate of
blacks and Hispanics, respectively, is 3,400
stops and 360 stops higher per 10,000
residents than the stop rate for whites.
Compared to stopped whites, stopped
blacks and Hispanics are, respectively,
127 percent and 43 percent more likely
to be frisked.
Compared to stopped
whites, stopped blacks and Hispanics are,
respectively, 76 percent and 16 percent
more likely to be searched. The analysis
also found that these frisks and searches
were systematically less productive when
conducted on blacks and Hispanics than
when conducted on whites. Frisked blacks
and Hispanics, respectively, are 42.3
percent and 31.8 percent less likely to be
found with a weapon than frisked nonHispanic whites.

In Connecticut, the DOJ initiated
an investigation in 2009 into the East
Haven Police Department (EHPD) for
“discriminatory police practices, unlawful
searches and seizures, and excessive use
of force” after receiving a complaint from
advocates and a faith-based group who
documented allegations of racial profiling.
An analysis conducted by Yale University
found that 56 percent of all traffic tickets
issued by the EHPD between early June

1, 2008 and February 28, 2009 were given
to Hispanic drivers, although the Hispanics
comprise only 5.8 percent of East Haven
residents.
Even more troubling, Yale
University’s analysis also demonstrated
inaccurate reporting by the agents,
showing that EHPD officers regularly
mischaracterized the race of the individual
stopped.39
Several witnesses who testified at the
hearings spoke of inaccurate reporting
of race or ethnicity by law enforcement

22

FACES OF RACIAL PROFILING: A Report from Communities Across America

officers, which makes it more difficult to
track racial profiling. Xaviar Morales spoke
of his encounter with an officer while driving
near Portland, Maine: “I got stopped by a
police officer. He said that I was going five
miles over the speed limit. But then later,
when I looked at the report and it says he
pulled over a Black and an Asian person,
which I’m Hispanic. My friend was Hispanic
also. I guess you could think how can this
be possible? Again, for a second time, we
were asked for the same thing: if you are
legal if you are not. And you have to provide
them all the time with the same type of I.D.
or immigration status.”
In Los Angeles, an attorney testified
that the LAPD reporting form did not include

23

separate categories for Arab, Muslim, South
Asian, or Asian—creating an inability to track
police interactions with those communities
effectively. Likewise, in Troy, Michigan,
a woman communicated her alarm that,
although the city has a significant Asian
and South Asian population, an officer had
marked “Caucasian” on the traffic ticket of
a South Asian friend.
In Maryland, data from 2008 shows
that 70 percent of individuals searched by
Maryland State Police (MSP) on Interstate
95 were people of color (defined in a related
report as African American, Hispanic and
other non-white individuals). This is a
finding very similar to that revealed by
data from 2002, the year prior to a consent
decree where MSP agreed to improve
procedures for motorists to file complaints
of racial profiling and where MSP agreed
to investigate all such complaints. When
the American Civil Liberties Union (ACLU)
and the National Association for the
Advancement of Colored People (NAACP)
filed a public information request for
investigative records related to complaints
of racial profiling after 2003, MSP refused
to turn over these documents and then
appealed the ruling of a judge who stated
that the documents should be disclosed.40
In New York, the Center for
Constitutional Rights (CCR) alleged that
the New York Police Department (NYPD)
engaged in a policy and practice of illegal
racial profiling. In CCR’s lawsuit, Floyd v.
City of New York,41 a court ruling during
the discovery period of this case ordered
the NYPD to release all of its ‘stop-and-

VOICES

frisk’ data from 1998 through the beginning
of 2008 to CCR. This data revealed that
in 2008, a record 575,304 people were
stopped, 87 percent of whom were Black
and Hispanic individuals—although they
comprise approximately 25 percent and 28
percent of New York City’s total population,
respectively. Of the cumulative number of
stops made since 2005, only 2.6 percent
resulted in the discovery of a weapon or
contraband. Though rates of contraband
yield were small across racial groups, stops
made of whites proved to be slightly more
likely to yield contraband.42
In South Dakota, when the mayor of
Rapid City investigated allegations of
police prejudice against Native Americans,
he found that Native Americans, who
comprised only eight percent of the city’s
population, accounted for 51 percent of
adults arrested and 40 percent of juveniles
arrested.43

“Years ago I was driving through south

L.A. around 65th and Normandy. It was dusk.
I had a Chevy Malibu and I had about four
young black men in the car with me and we
were leaving Bible study. Well, we were
pulled over by seven police cars. They had
the shotguns out and demanded that we
get out of the car with our hands up in the
air and lay prostrate on the ground while
they held the shotguns. I was fearful for
these children that I was teaching at Bible
study. We had done nothing wrong except
being in a particular neighborhood, driving
a certain type of car, and having four black
men in a car—young black men. They did let
us go with an apology after the traumatic

experience [saying], ‘it’s somewhere in the
neighborhood there was a crime that was
committed.’ And so that’s what they did.
They apologized and let us go.”
–Rev. Eric Lee, CEO and President,
Southern Christian Leadership
Conference and Commissioner, Los
Angeles hearing

Racial profiling, of course, is not a
new phenomenon. A slew of data-heavy
studies, testimony from law enforcement
experts and public officials, and major
media attention emerging by the late
1990s provided ample evidence that racial
profiling was indeed pervasive across
America—adding academic support to a
widely-recognized reality that communities
of color have faced for generations. As
Rev. Eric Lee said: “As long as we allow
racial profiling to affect one community, it
will continue in all of our communities. So
we must continue to fight it together in
whatever community it strikes.”

Racial Profiling and
Counterterrorism
Measures

“[A]

Few weeks after 9/11 at around
11am I get a knock at my door as I awake
from my sleep. I answer the door only to see
a F.B.I agent waiting to enter with a badge
and folder in hand, a folder containing all
my information and pictures, some pictures
of me going to work and shopping. First
thing he asked me was to see all my ID—
driver license, Social Security, green card,

24

FACES OF RACIAL PROFILING: A Report from Communities Across America

birth certificate, school ID, anything and
everything I had. So it seemed I had been
followed after 9/11. For what crime was I
being targeted? For what reason was I
being made felt so low? How can I, a U.S,
citizen, an American, a person that owes his
life to this country and a lover of this nation,
be accused of the most heinous acts its
ever seen. I knew that the only reason I was
questioned is because of who I am, where
I’m from, and the last name they saw. They
didn’t see the terrified, innocent, senior in
high school student who had not committed
any crime, they only saw a Muslim from
the Middle East and automatically I’m a
terrorist… I guess it’s not rocket science
anymore to find terrorist, just target ONLY
Muslims and you have yourself terrorists.”
–Karwan Abdulkader, witness,
Nashville hearing

“One of the problems with racial profiling

is that there’s a tendency to believe that
this is the silver bullet to solve the problem.
In other terms, if you’re a Middle Eastern or
if you’re a Muslim, then you must be bad.
And if you’re a European and Christian, then
you must be good. But back in 1972, Ben
Gurion Airport in Tel Aviv was supposed
to be attacked by a Palestinian, [it] was
never attacked by one. It was attacked by a
Japanese terrorist killing 24 people. And it
was attacked in the mid-’80s by a German
terrorist answering to the name Miller.”

25

–Rafi Ron, former chief of security
for Israel’s Ben Gurion Airport,
the president of a consulting firm,
New Age Security Solutions, and
a consultant to Boston’s Logan
International Airport in Boston 44

Following the tragic events of Sept. 11,
2001, members of Arab, Middle Eastern,
Muslim and South Asian communities
became automatically suspect as the
government, in the name of national
security, implemented programs and
policies that profiled individuals of these
communities based on their perceived
race, ethnicity, religion or national origin.
Members of these communities were
increasingly and disproportionately placed
under surveillance, stopped, searched,
interrogated,
detained
and
labeled
“terrorism suspects.” The government also
began aggressively using civil immigration
laws, criminal laws and criminal procedures
in a sweeping and discriminatory manner to
target members of these communities.

Customs and Border
Protection (CBP)
In the years that have followed Sept. 11,
2001 Arabs, Middle Easterners, Muslims and
South Asians have been profiled at border
stops and airports; individuals are singled
out for intrusive questioning, invasive
searches and lengthy detentions without
reasonable suspicion of criminal activity.
Customs and Border Protection (CBP)
agents question individuals about their faith,
associations and political opinions.
One witness, a Mexican-American man
who told his story at the hearing in Houston,
was stopped and questioned by airport
security when screeners refused to believe
that he was indeed a U.S. citizen. Said
Francisco Argüelles:

VOICES

“I was returning to Houston from Mexico

City where I traveled to visit my mother who
was having serious medical surgery. When
I passed through customs, I was stopped
by ICE officers who sent me upstairs to be
interrogated, who stated that I ‘looked Arab’
rather than Mexican… I even showed a book
I co-authored on immigrant rights and U.S.
race relations. They said ‘you don’t look
Mexican.’ They asked me about my faith.
I told them I was Catholic and why was
it an issue. They asked me if I had been
considering becoming converted to Islam
and I asked why would I tell them? Why
would that be an issue? Is it illegal now to
be a Muslim?”
Travelers’ personal documents, books,
laptop computers, cell phones and other
electronic devices have been seized and,
some believe, copied by CBP agents.45
At the hearing in Burlington, Washington,
Jawad Khaki, a U.S. citizen and software
engineer, told of a number of experiences
with CBP agents at airports as well as on
the Canadian border, including this one:
“I was traveling back from Snohomish
[Canada]…. As was the norm… my passport
was flagged for secondary inspection. At
least two additional CBP officers came out
to the inspection booth, where my vehicle
was pulled in. The officer in the booth
asked me to pull into the parking area. I go
to the building for immigration and customs
clearance.… They went through all our
wallets, inspected the car, asking us not to
be in the vicinity of the car whilst they did
this, not even to look at the car. Brought in
the vehicle registration document from the
vehicle. Asked us for our driver licenses.

Then, made us wait until 12:50 a.m. …
when we were cleared to enter the United
States.” This unjust treatment is due partly
to a general CBP guidance released in 2008
that allows officers to “review and analyze
information transported by any individual
attempting to enter, reenter, depart, pass
through, or reside in the United States”
without individualized suspicion.

At nearly all of the Face the Truth
hearings, witnesses testified to such
interactions with CBP agents, who are
given wide latitude to stop, question and
detain people not only at borders and
points of entry, but also within 100 miles of
an international border. All spoke of similar
feelings: humiliation, fear, and frustration.
In Maine, where there is a large border
with Canada, in addition to international
waters, the entire state is interpreted as
26

FACES OF RACIAL PROFILING: A Report from Communities Across America

“

I’ve been stopped by the customs officers several times, primarily
at LAX [Los Angeles International Airport], but any international
terminal that I arrive in. I am an Arab. I am a Muslim American,
born in the U.S. And I have about 15 incidents so far that I’ve been
stopped at. During [the] initial time that I got stopped, one of the
officers was particularly racist. At one point, he—you know, when
I’d given him—I was giving him yes or no answers. He said, ‘Listen,
if you don’t wanna cooperate, I can make sure you get stopped every
time.’ Which, you know, on the spot I told him, ‘Are you implying that
you have the power to hold me every time here?’ And that’s when he
backed off a little bit, and he said, ‘No, no, I didn’t say that.’ I said,
‘Well, that’s what you’re implying. You know, don’t play mind games
with me.’
Because every time you’re in that zone, they make sure to remind you
that they have the power and authority beyond which regular cops
have outside, and that we’re in their territory, and while we’re in that
zone, they’re God. I mean, that’s the general message that comes
across. In other incidents that I’ve been stopped, I’ve been asked
which mosque do I belong to. I’ve been asked, do I contribute to any
Muslim organizations? Do I donate? I usually answer those with,
“Sure, you wanna give back to your community?” And that usually
helps diffuse the line of questioning with that. But when—my other
incident, and this was a Canadian land border, [I was detained for]
three and a half hours, and I missed my flight.
And at the end of it, I asked—requested—to file a complaint. The
answer was, ‘We’ll have to take it.’ I said, ‘Why is that? Just give
me the forms and I will file them.’ He said, ‘No, we have to take
your complaint here.’ I told him, ‘If I’m complaining about your
department, why would I give it to you here? I’m guessing it’s
gonna get filtered through you before it goes to the higher ups. I’m
complaining about you.’ He said, ‘No, if you wanna file a complaint,
it’s gonna take an additional 45 minutes and it has to be done here.’
-Anonymous witness, Los Angeles, California hearing

27

”

VOICES

being 100 miles from a border. Abraham
Haile, a college student in the northern part
of the state, rode six hours to the hearing
in the city of Portland to tell his story. Not
only did he have a number of experiences
to share as a young person originally
from Africa and growing up in Portland,
one experience actually occurred with
border patrol on his bus ride to the hearing.
Abraham also spoke about his experience
looking at colleges in Maine:

“I

went to look at the [University of
Maine at Fort Kent] with some friends.
After looking at the school we decided to
go to Canada. On our way leaving town,
I get pulled over by a border patrol. After
pulling over, he stayed in his car for about
10 minutes. While he was waiting, two of
the Fort Kent police officers show up. The
police officers show up to my window. I
pulled down the window and [they] asked
for my license and registration. So I give
them that. He gives it to the other officer to
look at. As he was doing that, I asked him
why I was pulled over. We just had arrived
that morning at Fort Kent. His explanation
was the hotel I stayed at had called and
told him I was coming into town. Not that
I stayed in any hotel. I wasn’t speeding,
so I knew I didn’t do anything wrong. Not
making the situation worse, I just let him do
his thing. I had two friends with me who
were from Somalia. One of them was a U.S.
citizen. So he starts questioning us about
our citizenship and stuff like that. So we
give him our passports and he looks it up
and about an hour later, they give us all our
stuff. He asked to search the car. I had
nothing to hide so I let him search the car.

After searching the car, we put everything
back in the car, he lets us go and we decide
not to go to Canada, we go home. Three
weeks later I get a call from the FBI asking if I
could come in for some questioning. I asked
them for what and they told me for being at
the border—“some things happened” when I
was pulled over at Fort Kent.”

TSA Security Screening
The
Transportation
Security
Administration (TSA) has had ongoing
issues of discriminatory enforcement since
its inception. Members of the Arab, Middle
Eastern, Muslim and South Asian community
report being “randomly selected” for
secondary screenings almost every time
they go to the airport. These searches are
more than a mere inconvenience. Some
missed flights, while others were subjected
to invasive and humiliating searches,
sometimes in full view of the public.
In August 2007, TSA released new
guidelines to serve as standard operating
procedures for airport security screening.
People with Sikh turbans and Muslim head
coverings were singled out for screening
with higher scrutiny, despite a lack of
evidence that these religious head
coverings were being employed to hide
dangerous items. Widespread profiling of
Sikhs occurred as a result, and the Sikh
Coalition, an advocacy group, found that
nearly all turban-wearing Sikh men were
being subjected to additional screening.46
In late 2007, a set of options for screening
Sikhs that allows, for example, greater
privacy, was negotiated by the TSA and
28

FACES OF RACIAL PROFILING: A Report from Communities Across America

Sikh organizations in coordination with
the release of TSA’s October 2007 “bulky
clothing” policy.47 But in practice, this new
policy under which “passengers could be
subjected to additional screening to further
evaluate any item that could hide explosives
or their components”48 has unfortunately
resulted in the continued targeting of this
community as well as others, such as
Muslim women who wear hijab, a religious
head covering traditionally worn by Muslim
women, or other head coverings.
Amardeep Singh of the Sikh Coalition
is well aware that the targeting of Sikhs
at airports continues absent all common
sense, as he and his toddler were both
detained and searched the last time they
traveled. Mr. Singh testified in June 2010
before the House Judiciary Subcommittee
on the Constitution, Civil Rights and Civil
Liberties:

“I

29

was, sadly, forced to take my [18
month-old] son, Azaad, into the infamous
glass box so that he could patted down.
He cried while I held him. He did not know
who that stranger was who was patting
him down. His bag was also thoroughly
searched. His Elmo book number one was
searched. His Elmo book number two was
searched. His mini-mail truck was searched.
The time spent waiting for me to grab him
as he ran through the glass box was wasted
time. The time spent going through his baby
books was wasted time. I am not sure what
I am going to tell him when he is old enough
and asks why his father and grandfather
and soon him—Americans all three—are
constantly stopped by the TSA 100 percent
of the time at some airports.”49

“I

ronically, more screening can result in
less security when it directs attention and
resources to the 60 to 70 percent of people
who are not a security threat. That, in turn,
diverts attention and resources away from
the people who are a legitimate threat….
By lavishing billions of dollars on screening
the wrong passengers, we’re not spending
those dollars on the right passengers. Since
it takes only one successful act of terrorism
for the system to fail, we cannot afford to
allocate our finite amounts of time, money
and technology in the service of a failed
strategy.”
–Sheldon Jacobson, a University of
Illinois computer science professor
with expertise in aviation security 50

NSEERS and Operation
Frontline
One government initiative adopted
after Sept. 11, 2001 was the National
Security Entry-Exit Registration System
(NSEERS), which employed immigration
law as a counterterrorism tool.
This
program required non-immigrant males
aged 16 to 45 from 25 countries to register
for fingerprinting, photographs, and legthy
interrogations. All but one of the countries
were predominantly Muslim; the anomaly
was North Korea. More than 80,000 men
underwent registration, and thousands
were subjected to lengthy interrogations
and detention.
Many individuals were
deported through secret proceedings that
took place without due process of law; but
equally devastating was the effect this
program had on communities throughout

VOICES

At the hearing in Detroit, Lena Masri, an attorney for the Council on American Islamic Relations of Michigan, testified about her own experience being required to remove her hijab in a
public restroom at an airport after she and her sister had passed through security:

“ [W]

e were flying back to the United States through Buenos Aires, in Argentina…
So my sister and I went through the initial security. We were selected at random. I’ve
been traveling—I’m probably one of the most well-traveled people, and every time I
travel somewhere, I got accustomed to being pulled aside for the random check. It
happens every single time. We did the whole pat down, everything. We had our carryons searched. They let us through. We went up to the gate. We had already presented
our boarding pass and once we entered into the gate, there were a couple TSA agents
that approached my sister and I and they said, “You would not be allowed to board this
flight until you remove the head covering off of your head here in the gate and allow us
to do a pat down on you.” I explained to them that we had already been subjected to a
pat down and that I had no problem, I’m not opposed to being subjected to another pat
down, but I would not be able to remove my head covering because it’s a religiouslymandated head covering.
I asked to speak with a supervisor. A supervisor came over and explained that there
was a new policy that was passed that mandated them to require us to remove our head
covering, otherwise, we would not be able to board the flight. So after a whole back
and forth for a while, what ended up happening, I requested that we be searched in a
private area, at least by a woman, and they agreed to this, but they had to take us all the
way out through the initial security to the general area of the airport. We were taken
into a public bathroom, crowded bathroom…. There was another woman there that was
putting her head covering back on and she had a TSA agent that had patted her down
and she was shaking and her face was red. She was humiliated.
My sister and I both removed our headscarves. The bathroom was packed and I
remember, people started to hear that we were being searched in the bathroom, so they
started to come in.
I’ve heard these stories happening so many times. It has happened so many times
to myself, but what made this incident different is it was the first time I was actually
required to remove my head covering. But it seems that after the December 25th
incident, there seems to be some sort of pattern where Muslim women, who wear hijab,
were reporting that this was happening to them as well.

”

30

FACES OF RACIAL PROFILING: A Report from Communities Across America

the United States. As men and teenagers
began disappearing through detention
or deportation, entire neighborhoods
appeared boarded up, as family-run
businesses were forced to close their doors
because those left behind were unable to
keep up with the demands of a business on
their own. An investigation by the National
Commission on Terrorist Attacks upon the
United States determined that programs
like NSEERS did not demonstrate clear
counterterrorism benefits.51 They instead
instilled fear in families and communities,
creating a distrust of law enforcement and
the government, isolating Arab, Muslim,
Middle Eastern and South Asian residents
from their larger community.

of worship.54 Targeted individuals have
been investigated at their places of
employment, their homes, their mosques
and their schools and universities, and have
had their families, friends, classmates and
co-workers questioned and harassed.55 FBI
agents have even gone so far as to use paid
informants to infiltrate mosques, religious
institutions that, like churches, temples and
synagogues, have broad family participation
and attendance. These activities have
instilled fear and further isolated Arab,
Middle Eastern, Muslim and South Asian
individuals and communities. Many are
afraid to attend their local mosques or get
involved with Islamic organizations and
events.56

Additional government programs such
as “Operation Frontline,” a DHS program
initiated just prior to the 2004 election
cycle and designed to “detect, deter and
disrupt terrorist operations,” utilized the
NSEERS database to identify targets.52
Data from DHS revealed that 79 percent of
individuals investigated were from Muslimmajority countries.53 The timing of this
program further fueled community distrust
in government authorities and had a chilling
effect on Arab, Middle Eastern, Muslim and
South Asian voters.

For example, in February 2009, it was
reported that the FBI had infiltrated several
mosques in California, using cameras and
other surveillance equipment to record
hours of conversations not only in those
mosques, but in restaurants and homes
of mosque members as well. 57 Local
residents report that the surveillance
caused them to avoid the mosques and
pray at home, to avoid making charitable
contributions—which is a fundamental
tenet of the Muslim faith—and to refrain
from having conversations about political
issues such as U.S. foreign policy. 58
People who attend mosques in Michigan
became concerned when agents began
to use the fear of law enforcement
against community members.
Imam
Dawud Walid testified in Detroit: “In spring
of 2009, our Imams Committee wrote
Attorney General Eric Holder in regards
to a number of complaints we got from a

FBI Investigations

31

As part of its counter-terrorism measures,
the Federal Bureau of Investigations (FBI)
has continued to undertake inquiries and
investigations of members of Muslim
charities, Muslim communities, and even
Muslim religious organizations and places

VOICES

mosque in Macomb County and Wayne
County about FBI agents trying to ask
people to become informants on the
mosque. Some of them described this as
coercion; people with immigration issues
or perhaps some type of petty criminal
offense.”

FBI Guidelines and Profiling
in the Arab, Middle Eastern,
Muslim and South Asian
Communities

war on terror, creating a scenario where
Arab, Middle Eastern, Muslim and South
Asian communities can be targeted for
broad surveillance and data gathering. Such
activity not only undermines the DOJ’s own
racial profiling guidance,64 it also isolates
those families and communities who are
subjected to such scrutiny and sends a
message that they are not welcome in the

The creation of a “suspect community”
appears to have been codified in both the
Attorney General Guidelines for the FBI,59
which went into effect Dec. 1, 2008, and the
FBI’s Domestic Investigative Operational
Guidelines (DIOG), dated Dec. 16, 2008.60
Each of these documents has significant
problems and they have not been amended
or modified by the Obama administration,
despite the statements of Attorney General
Holder, who said that ending racial profiling
was a “priority” for the Administration and
that profiling was “simply not good law
enforcement.”61
The Attorney General’s Guidelines
give the FBI wide latitude to target the
Arab, Middle Eastern, Muslim and South
Asian communities. They explicitly allow
the use of race, ethnicity and religion as a
factor in starting investigations, and relax
the rules so that individual FBI agents can
start an assessment with little to no factual
predicate.62 The DIOG allows agents to
gather information on ethnic or cultural
factors.63 This is the “stop and frisk” of the

United States, that they are perhaps “less
American” than people of other religions.
Yet another practice that strikes fear
into local communities is the analysis and
mapping of certain geographical areas
for the race, ethnicity, characteristics
and behaviors of its residents in order to
32

FACES OF RACIAL PROFILING: A Report from Communities Across America

track and target them for enforcement, a
tactic65 that the FBI has been using since
2008. Authorized by the DIOG, the “domain
assessment investigations” are currently
the subject of Freedom of Information Act
requests by Muslim Advocates, the ACLU
and ACLU affiliates nationwide, who are
concerned about the broad opportunities of
abuse left open by this project. All of these
invasive practices result in a chilling effect
on communities’ willingness to engage in
constitutionally protected political activity
and religious practice.
A 2006 study commissioned by the
DOJ found that Arab Americans were
significantly fearful and suspicious of
federal law enforcement due to government
policies.
It also determined that both
community members and law enforcement
officers defined diminished trust as the
most important barrier to cooperation.66
Community groups have also reported that
members of these targeted communities
became so afraid of having any contact
with officials after post-9/11 “national
security” or “counterterrorism” policies
were introduced that they did not report
emergency situations, such as domestic
violence and other crimes—and, in some
cases, did not seek medical treatment67.

33

Following the attempted bomb attack
on board a flight bound for Detroit on
Christmas Day 2009, the TSA issued new
screening standards. In early 2010, TSA,
encouraging profiling based on national
origin, began subjecting airline passengers
holding passports from, originating from
or passing through “nations that are state
sponsors of terrorism or other countries of

interest” to heavy screening, including patdown searches and physical inspections of
carry-on items, absent any individualized
suspicion. In early April 2010, the Obama
Administration rescinded this policy
and stated that it would instead select
passengers for screening based on “realtime, threat-based” intelligence information.
It is commendable that the Administration
took this action after meeting with
advocates and affected communities who
highlighted the discriminatory nature of
this policy. However, the risk of ongoing,
de facto profiling by TSA and CBP agents,
who have broad discretion to search and
question without individualized suspicion,
remains a concern for civil and human
rights advocates. As Badr Sharif, a witness
in Maine, stated:

“My friend and I went to Canada… they

actually stopped us [at the border] and we
were in a room for like an hour. And they
asked us like so many questions.… We had
Islamic names. My name is Badr Sharif. My
friend was Mohammed. That’s an Islamic
name and it’s obvious everybody else was
going through. And I asked her, ’Why are
you stopping us? Is it because we have
Islamic names?’ And she said, ‘No.’ And
I said, ‘Of course you would not admit it.’
Because it’s true. Most people don’t admit
it. Muslims are 1.79 billion people. If 1.79
billion people were terrorists do you think
we would be safe here? No, it doesn’t
really make sense and it’s happening every
single day. And the person who speaks out
against it is—is being labeled as—as, you
know, like it’s—it’s ridiculous really. It just
messes up my emotion. I can’t even say
the things I want because it’s—it’s wrong. It

VOICES

says it right there. Face the truth. But many
people don’t really face the truth.”
Former Homeland Security Secretary
Michael
Chertoff
highlighted
the
ineffectiveness of profiling based on
national origin in the days after the 2009
Christmas Day bomb attempt on board for
the Detroit-bound flight. He said:

“Well,

the problem is that the profile
many people think they have of what a
terrorist is doesn’t fit the reality. Actually,
this individual probably does not fit the
profile that most people assume is the
terrorist who comes from either South Asia
or an Arab country. Richard Reid didn’t fit
that profile. Some of the bombers or wouldbe bombers in the plots that were foiled
in Great Britain don’t fit the profile. And
in fact, one of the things the enemy does
it to deliberately recruit people who are
Western in background or in appearance,
so that they can slip by people who might
be stereotyping. So, I think the danger is,
we get lulled into a false sense of security,
if we profile based on appearance. What I
do think is important is to look at behavior.
And that’s something that we are doing
and should continue to do more of.”68
At a time when Americans may have felt
most vulnerable, these “national security”
efforts may have created an illusion of
safety, but they actually have the opposite
effect. Racial profiling in the name of
national security diverts precious law
enforcement resources away from smart,
targeted investigations toward dragnet
techniques that stripped many people of
their constitutional and human rights. Most

of the individuals targeted during broad
post-9/11 sweeps and other actions were
never charged of any crime, and if they
were charged with anything at all, many
were only charged with misdemeanors
or minor immigration violations. These
actions alienated members of these
communities, precluding cooperation from
many people who may have provided
valuable intelligence to law enforcement in
the investigation of actual crimes.69

Racial Profiling and
Immigration Enforcement

“T

hey had me sign a rapid deportation
form, even though I hadn’t had any
problems with the police. Then, I told
them, you know, I’m not gonna sign any
paper, any deportation papers, not until I
have a hearing before a judge. They told
me, well, these papers don’t have anything
to do with seeing a judge and you need to
sign them.”
–Manual Valencia, speaking
through an interpreter about his
experience after being assaulted and
wrongfully detained by Immigration
officials in plain clothes while waiting
for his son at the bus stop in Mount
Vernon, Washington.

State and local police agents do
not possess the requisite training and
experience to enforce a complex and
ever-changing body of federal immigration
laws effectively and fairly.
The U.S.
Congressional Research Service has noted
that a “high risk for civil rights violations

34

FACES OF RACIAL PROFILING: A Report from Communities Across America

may occur if state and local police do not
obtain the requisite knowledge, training, and
experience in dealing with the enforcement
of immigration laws. Moreover, suspects of
immigration violations may become victims
of “racial profiling.”70

Local Law Enforcement of
Immigration Laws: Formal
Agreements
Since the mid-1980s, the Department
of Homeland Security (DHS), and before

Illegal Immigration Reform and Immigrant
Responsibility Act expanded partnerships
with state and local law enforcement
agencies to enforce civil immigration laws
through formal and informal programs,
such as the 287(g) program. The Secure
Communities Initiative was established
later. The Obama Administration, instead of
ending this troubling trend, has expanded
the initiatives and sought more funding
for such programs.
These programs
result in sweeping and indiscriminate
arrests that divert limited law enforcement
resources away from their primary mission
of preventing and solving dangerous or
violent crimes; they have instead resulted
in racial profiling, violating people’s human
and civil rights.

The 287(g) Program

them Immigration and Nationality Service
(INS), has been combing through the
populations of jails and prisons to identify
people who were deportable.
The
program has had many incarnations over
time and culminated in what is now known
as the “Criminal Alien Program,” (CAP).71
Until 1996, the federal government held
sole responsibility for enforcing federal
immigration laws. The passage of the
35

The 287(g) program is a voluntary
partnership, so named for its statutory
source, Section 287(g) of the Immigration
and Nationality Act,72 that allows the DHS
Secretary to enter into agreements with
state and local law enforcement agencies
to perform limited immigration enforcement
duties under the supervision and training of
ICE. The stated purpose of this program is to
pursue noncitizens suspected of committing
serious crimes, “giving law enforcement the
tools to identify and remove dangerous
criminal aliens”.73
State and local immigration enforcement
capabilities are defined somewhat in
287(g) agreements, but clear and sufficient
guidelines or adequate supervision and
training are lacking, leading to abuse by

VOICES

many state and local law enforcement
agencies. Reports by universities, think tanks
and advocacy groups have documented
allegations of racial profiling and have also
found that several jurisdictions have mostly
employed their 287(g) authority to process
individuals brought in for traffic violations
and minor offenses, like speeding. ICEdeputized officers in Gaston, N.C., for
example, reported that 95 percent of state
charges resulting from arrests of individuals
under the 287(g) program were for
misdemeanors; 83 percent were charged
with traffic violations.74
Tennessee State Highway Patrol has
had a 287(g) agreement since June 2008,
and Davidson County, which includes the
city of Nashville, has had the program since
February 2007.
Additionally, Davidson
County recently activated the “Secure
Communities” program.
The DHS’s own Office of Inspector
General (OIG) and the Government
Accountability Office (GAO) have found
that the 287(g) program has not been
consistently
implemented;
that
law
enforcement agencies are not in compliance
with the terms of the agreements; that
it lacks effective training; that it does
not provide adequate communications
between law enforcement agents and
supervisors; that it lacks oversight; and
that it is missing protections against racial
profiling and other civil rights abuses.75 Of
the 33 recommendations OIG made, ICE
rejected only one: the recommendation
for data collection that would allow ICE to
identify whether racial profiling is occurring.
Despite the lack of adequate parameters

and protections, in July 2009, the Obama
Administration announced expansion of the
program into eleven new jurisdictions.
“To address concerns regarding
arrests of individuals for minor offenses
being used as a guise to initiate removal
proceedings, DHS officials said that the
MOA [Memorandum of Agreement] requires
participating LEAs [Law Enforcement
Agencies] to pursue all criminal charges
that originally caused an individual’s arrest.
However, ICE does not require LEAs to
collect and report on the prosecutorial
or judicial disposition of the initial arrests
that led to aliens’ subsequent immigration
processing under the 287(g) program. This
information could help to establish how
local prosecutors and judges regarded an
officer’s original basis for arresting aliens.
Without this type of information, ICE cannot
be assured that law enforcement officers
are not making inappropriate arrests to
subject suspected aliens to vetting by 287(g)
officers for possible removal. In one facility
that screens all individuals detained, an ICE
supervisor described a situation in which
a state highway patrol officer transported
an accident victim to a participating county
jail to determine the victim’s immigration
status. The ICE supervisor explained that
the accident victim was not brought to the
jail to be charged with an offense, but to
have a 287(g) officer determine the victim’s
deportability. The victim was detained until
a 287(g) officer could respond.”76

–U.S. Department of Homeland
Security Inspector General Report on
the Performance of 287(g) Agreements
36

FACES OF RACIAL PROFILING: A Report from Communities Across America

Rachel Jackson, who testified at the hearing in Nashville, TN, was shocked in 2008
when her husband, originally from Mexico and now a lawful permanent resident of
the U.S., was detained when riding in someone else’s car.

“

[I]n 2008 he was picked up by Nashville police for being a passenger in
a car driven by someone who did not have documentation to be in the U.S.
He was subsequently sent to Oakdale the day before his Bond Hearing with
the Immigration Judge in Memphis. I drove to Oakdale to bond him out
and after we returned to Tennessee, just a few miles from home we pulled
in to get gas. Two police cars pulled in and blocked my car because they
saw my husband pumping the gas. At the time, my husband did not drive
because he did not have a license. When I noticed the officers, I ran out
and told my husband to shut the door. The officers then looked at me and
left.
I was so surprised that these police officers would have pulled up to harass
my husband just because of the color of his skin. Had I been pumping gas,
they never would have looked twice at us. This was obvious when they
pulled off when they realized that I was with my husband.
I was born and raised in Tennessee and we own a small farm in Christiana
along with my mother, grandfather, husband, and two children. I have
always been proud to be from Tennessee—not any more. It is no different
than the pre-Civil Rights era where the color of your skin will dictate what
type of treatment someone will receive…. I am terrified of [my husband]
driving back and forth to work, even though he has a valid license and
Green Card. I have always known that he will be subjected to harassment
from Metro-Davidson County police; but now, I will have to worry about
the entire state of Tennessee.
We are even considering selling the farm and all of us moving north where
a brother resides to escape the discrimination my husband has suffered and
will continue to suffer if we stay in Tennessee and this new law passes.

”

37

VOICES

The Criminal Alien Program
The Criminal Alien Program (CAP) is an
immigration screening process within
federal, state and local correctional
facilities designed to identify and
place immigration holds or ‘detainers’
on “criminal aliens to process them
for removal before they are released
to the general public.”77 CAP is intended
to place “a high priority on combating
illegal immigration, including targeting
illegal aliens with criminal records who
A
pose a threat to public safety.”78
recent study by the Earl Warren Institute
on Race, Ethnicity and Diversity at the
University of California, Berkeley School
of Law examining the CAP program in
Irving, Texas, found that felony charges
accounted for only two percent of the ICE
detainers issued, while 98 percent of ICE
detainers were issued for misdemeanor
offenses.79 This study strongly suggests
that the program was not effective in
prioritizing the arrest and removal of
individuals who committed dangerous
or violent crimes and instead swept up a
great majority of individuals who posed
no threat to public safety.

The “Secure Communities”
Initiative
Much less is known about Secure
Communities (SC), a program that enables
correctional officers to submit fingerprints
of all individuals arrested for alleged

criminal conduct for comparison against
DHS immigration databases, as well as
state and FBI criminal databases. Like CAP,
Secure Communities has been criticized
for incentivizing arrests based on racial or
ethnic profiling and for pretextual reasons
so that immigration status can be checked.
ICE states that SC utilizes a “threat-based
approach” designed to “prioritize criminal
aliens for enforcement action based on
their threat to public safety.”80 However,
early data from the initiative indicated that
it was flagging a high number of individuals
charged with lesser offenses. Between the
program’s inception in October 2008 and
the time of a joint announcement by the
Secretary of the Department of Homeland
Security and the Assistant Secretary for
ICE in November 2009, Secure Communities
had identified only 11,000 individuals
charged with or convicted of Level 1
crimes, while more than 100,000 individuals
were charged with or convicted of lesser
Level 2 and Level 3 crimes.81 The “criminal
aliens” cited in ICE’s numbers even included
U.S. citizens, since naturalized U.S. citizens
have records in immigration databases. A
recent Freedom of Information Act (FOIA)
Request revealed that over 5,800 U.S.
citizens were incorrectly identified for
additional questioning through the Secure
Communities program.82 ICE’s own data, as
gleaned through this FOIA Request, further
reveal that the vast majority (79 percent)
of individuals deported under the Secure
Communities program are not criminals, or
were picked up for low-level offenses. ICE’s
data also shows that some jurisdictions.
such as Arizona’s Maricopa County, under a
DOJ investigation for patterns and practices
38

FACES OF RACIAL PROFILING: A Report from Communities Across America

of discriminatory policing—yet still retains
the ability to participate in immigration
enforcement
programs
like
Secure
Communities and 287(g)—have abnormally
high rates (54 percent in Maricopa County)
of non-criminal deportations under Secure
Communities. Other jurisdictions offer even
more troubling statistics. For example, in
Travis, Texas, 82 percent of deportations
under Secure Communities are of noncriminals. In St. Lucie, Florida, 79 percent;
74 percent in Yavapai, Arizona, 68 percent
in Suffolk, Massachusetts and 63 percent
in San Diego, California.83
This data
demonstrates that the Secure Communities
initiative is not “prioritizing criminal aliens
for enforcement action based on their
threat to public safety” but rather deporting
individuals for minor offenses and even
drawing in U.S. citizens for enforcement
actions—further evidence that this ICE
initiative is encouraging racial profiling.84
One witness at the Houston hearing
became part of the fabric of local immigration
enforcement one day in May 2010, when she
was called by law enforcement to care for
her best friend’s child after her friend was
arrested for not making a complete stop
at a stop sign. Lucia Dubon testified about
her own experience and the arrest as told
to her by her friend:

her identification in his computer in his
patrol car. She saw he was coming back
toward her. He then asked her to get out
and turn around her and handcuffed her.
When she was handcuffed, she was then
informed that it was because of a visa
immigration violation. She had an expired
visa of employment authorization.… My
friend was particularly hurt and still cries
when she talks about how her son cried and
asked her to pick him up when she sat there
handcuffed. To this day, I have witnessed
when the child sees a police officer, he says:
‘police took mommy away?’ And ‘where
is mommy?’ and ‘when will she be back?’
and ‘are the police going to take my daddy
away?’ I have seen him cry constantly.
After a week in the county jail, I visited my
friend in the immigration detention center
in Houston. She was desperate and she
wanted to be free and to be with her child.
She was subsequently deported and her
child stayed behind…. She had been in the
United States for 18 years. She had studied
bookkeeping in the community college.
She owned her own home and she had no
criminal record. Now her effort to lead a
good life in this country is lost. I hope that
all is done to rectify these abuses…. I hope
that my friend’s case is not forgotten and
that she and her family and other families
like hers are given justice.”

“O

n May 19, 2010, I visited my friend
at the Fort Bend County Jail. She told me
she was stopped and she was told that
the Sheriff had initially told her that he was
giving her a warning. He took her driver’s
license and insurance and went to check
39

Lucia’s story highlights an important
problem communities face with local
enforcement of immigration law: confusion
between formal and informal programs and
between neighboring jurisdictions that have

VOICES

different agreements in place. Lucia’s friend
was stopped in Fort Bend County, which is
located in the Houston metropolitan area
and has the Secure Communities program,
which is only supposed to operate in the
detention facility, not by law enforcement
working in the field. Neighboring Harris
County, where Houston itself is located, has
had a “jail model” 287(g) program since July
2008, meaning only officers in a jail facility
may be authorized to enforce immigration
laws (as opposed to the alternative “task
force” model in which officers are deputized
to inquire about immigration status on
the streets), and the Secure Communities
program since October 2008. The question
remains: on what authority did the local
police officer act when he arrested Lucia’s
friend on immigration charges as the officer
told Lucia?
The Secure Communities program has
profoundly affected communities because
of the lack of information about the workings
of the program and confusion over whether
it is still safe to call law enforcement if
one needs help. The muddled information
about programs like Secure Communities
raises fear among community members
and reduces their willingness to work with
the police, significantly affecting officers’
ability to do the police work that protects
not just some areas and populations,
but all of our communities. A recent
unpublished study from Salt Lake City
analyzing the effect of laws that deputize
state and local police officers to engage
in immigration enforcement found that
all residents, not just Latino citizens or
those who may be undocumented, would

be less likely to report crimes if their
local police department engaged in civil
immigration enforcement. Specifically, the
study found that when white and Latino
respondents considered a future with such
an immigration law, their willingness to
report drug crimes was drastically reduced,
by approximately 30 percent for both white
and Latino respondents. White respondents
were also 11 percent less likely to report
violent crimes and the unwillingness of
Latino respondents to report violent crimes
was higher than 25 percent.85
Community security suffers when
community members perceive state and
local police to be acting as or cooperating
with federal immigration agents. They
lose trust in the officers who are meant to
protect them and become less willing to
cooperate with police or to report crimes or
serve as witnesses. This leads to unsolved
and undeterred crimes in immigrant-heavy
areas, especially problematic considering
that the undocumented population is
particularly vulnerable to victimization.

“T

o demonstrate the fragility of the
relationship between the police and
immigrants, one mid-western police
chief recounted an incident where an
unauthorized immigrant was a witness to
a crime and agreed to testify in a criminal
case. The witness’s name appeared on a
witness list in preparation for the trial. As the
court began to vet the background of this
witness, defense attorneys revealed that
he was an undocumented alien. A few days
after the witness testified in the court case,
ICE arrested him and initiated deportation

40

FACES OF RACIAL PROFILING: A Report from Communities Across America

proceedings.
Word of this incident
rapidly spread throughout the immigrant
community and, as a result, the police have
had difficulty securing the cooperation of
other immigrant witnesses. Even residents
who had been victimized and exploited
feared approaching the police because
trust between the immigrant community
and the police had been destroyed…. In
communities where people fear the police,
very little information is shared with officers,
undermining the police capacity for crime
control and quality service delivery. As
a result, these areas become breeding
grounds for drug trafficking, human
smuggling, terrorist activity, and other
serious crimes. As a police chief in one of
our focus groups asked, ‘How do you police
a community that will not talk to you?’”
–From a 2009 Report by the Police
Foundation, an independent body
that provides research, technical
assistance and communications
regarding police organizations86

41

Police have reported increased difficulty
in securing the cooperation of immigrant
witnesses and a troubling decrease in
reports of domestic violence.87 On this
point the Major Cities Chiefs Association
released recommendations stating: “Local
agencies have a clear need to foster trust
and cooperation with everyone in these
immigrant communities. Assistance and
cooperation from immigrant communities
is especially important when an immigrant,
whether documented or undocumented, is
the victim of or witness to a crime. These
persons must be encouraged to file reports

and come forward with information. Their
cooperation is needed to prevent and solve
crimes and maintain public order, safety and
security in the whole community.”88

Local Immigration
Enforcement: Informal
Programs
Even without formal immigration
enforcement authority, many state and
local agents have taken on immigration
enforcement activities. Many are operating
on what they believe is their “inherent
authority” to enforce federal immigration
law, taking cues from a 2002 DOJ Office of
Legal Counsel (OLC) memo reversing a 1996
OLC opinion that concluded that “state and
local police lack recognized legal authority
to stop and detain an alien solely on
suspicion of civil deportability.”89 The 2002
OLC opinion has been interpreted by some
state and local law enforcement agents as
granting them the ability to arrest individuals
they suspect of lacking legal immigration
status. State and local agents exercising
“inherent authority” act without oversight by
the federal government and without training
in immigration law enforcement.
An example of an individual targeted
solely for a civil immigration violation by
local law enforcement lacking formal
immigration enforcement authority is the
case of Rita Cote. Cote’s sister was a victim
of domestic violence, and law enforcement
responded to a call for help. However, the
police in Tavares, Florida—who had no formal

VOICES

authority to check immigration status—
ignored the domestic violence victim and
instead arrested her sister, Cote, who was
there to translate for the police. Police then
left her sister with the accused batterer
and took Cote to jail when she could not
prove U.S. citizenship. The police blatantly
disregarded their duty to protect the victim
and curtailed any potential to investigate
a reported crime of violence. Cote was
held in detention and separated from her
husband and three children for nearly three
weeks.90 Cote’s case signaled to immigrant
survivors of domestic violence and other
crimes—both in Florida and around the
country—that a 911 call would lead not to
police protection, but instead to detention,
deportation and permanent separation with
U.S. citizen family members.
Even where no inherent authority
is claimed, and no formal immigration
enforcement program exists, the line
between local government officials and ICE
agents has become blurred. An attorney
was just one of the witnesses who testified
about ICE agents being called in otherwise
non-immigration matters to provide
“interpreter services,” even though none
knew Spanish fluently. Joe Morrison’s client
in Mattawa, Washington was targeted by a
team of local law enforcement agents and
ICE agents, who “divided up into teams of
two and three men and fanned out through
the town, and began banging on the doors of
Latina childcare providers and demanding
immediate entry into their homes.

Once inside the homes, the first
questions out of their mouths were ‘are you
a citizen of the United States? If so, we want
immediate proof of that. Not only proof that
you’re a citizen, but we want proof that your
children are citizens. And we want proof
that your husbands, who are off…in the
fields, are citizens as well.’ Only two of 30
childcare providers were charged, but all
charges against them were later dropped.
Morrison asked, “The question is why did
this raid happen in Mattawa? And why were
they targeting Latina childcare providers?”
He provided a clue to an answer: “One of the
police officers in Mattawa, prior to this raid
was interviewed by the newspaper and was
quoted as saying that ‘Mattawa will be lost
in five years. I don’t want to raise my kids
here anymore. There’s a takeover going
on in this community and people choose
not to see it.’” Later, during an investigation
related to his clients’ lawsuit, Morrison found
out more about the cooperation between
the local officers and ICE: “ICE’s role was
very limited. They got brought in toward
the end. What allegedly was said in the
paper by the [State Department of Social
and Health Services (DSHS)] officials is
that they needed some interpreters. And
so, they contacted the ICE agents. Well,
we took the depositions of the ICE agents.
And of the six that were involved, five said
that they couldn’t possibly have interpreted
at all, and that they weren’t there to
interpret…. And I think it’s because…[DSHS]
also thought that a lot of [the women] were
going to be undocumented. They were
gonna then convict them of fraud, and then,
deport them all, and, of course, none of that
happened.”
42

FACES OF RACIAL PROFILING: A Report from Communities Across America

At the hearing in Burlington, Washington—a state without any formal partnerships
between ICE and local law enforcement—Marco Sanchez, a practicing psychologist
who manages two community health clinics, testified about his experienced being
stopped by police near one of the clinics:

“

I didn’t know the reasons why this police officer decided to stop me.
Of course, I was very surprised, anxious, tried to understand what I did
wrong. And the first thing the police officer asked me was, ‘Do you have
legal documents?’ Sure, I’ll give you my driver’s license, my registration and
my insurance. And he asked me, again, did you have legal documents? I
thought that he meant my insurance documents were expired. We received
these insurance documents, periodically, and I’m not always on top of the
newest one in the wallet compartment. So, I’m, again, looking for those
documents. He asked me directly, are you legally in the country? That got
me by surprise and I started asking him why did you stop me?.... He didn’t
say anything. Walked to the patrol car with my driver’s license. Came back.
He then asked me to leave.

”

”

About a month later, when Sanchez heard about a community meeting with police, he
attended, “because I thought it was important for them to hear what happened to me
and what was going on:

“

The Chief of Police began by saying they were not working in conjunction
with ICE… that they were just rumors and that never happened… I have to
tell and stand up and say, please, I’m sorry, but what you said is not truth.
Your police officer stopped me and was asking for legal documents. He was
asking me if I was legally in this country. He continued denying that that’s a
normal practice in the Lynnwood community, that none of what the community
was saying at this particular meeting was true, that they do not share those
values, and that they were there to protect the community. In other words,
that never happened. These type of incidents never happen in Lynnwood.
The ladies and families that were separated—and we’re having difficulties
dealing with that—that were at the clinic, where I work, never happened. The
fact that this police officer stopped me and asked me if I was legal, never
happened. I’m a U.S. citizen. And this is happening. This is truly happening.

”

43

VOICES

Law enforcement officials at the state
and local level have themselves declared
that their agencies are ill equipped to handle
immigration enforcement responsibilities.91
When state and local law enforcement
agents do not have requisite training or
experience in immigration law enforcement,
they rely on what is easily perceivable—an
individual’s appearance or accent. When
state and local police attempt to wear the
second hat of civil immigration enforcement,
they become far less effective at fulfilling
their primary mission: fighting crime and
ensuring public safety.

State Law
The steady expansion of authority from
ICE to state and local law enforcement has
paved the way for laws such as Arizona’s
Senate Bill (SB) 1070, perhaps the most
well-known of a number of state laws
intended to allow local and state officers
to enforce immigration laws. SB 1070
would have criminalized unlawful presence
in the United States and would have
required police to demand papers proving
citizenships or immigration status from
people they stop, based on an undefined
“reasonable suspicion” that they are in the
United States unlawfully. The law would
also give private citizens the right to sue
law enforcement agencies if they believed
that agents were not fully enforcing the
law. In late July, a federal judge considered
a lawsuit filed by the DOJ which argued
that the Arizona initiative undermines the
federal government’s authority to enforce
immigration laws. Other lawsuits were filed
by several immigrants’ rights and civil rights
groups, and just one day before SB 1070

was to go into effect, the judge blocked
some of its most controversial sections.92
U.S. District Judge Susan Bolton ruled that,
although the bill would still go into effect on
July 29, many of the bill’s sections would be
blocked until the disputed issues are heard
and resolved by the court.
Among the critics of state and
local law enforcement’s involvement in
the federal government’s immigration
enforcement responsibilities, numerous
representatives of law enforcement
agencies and associations have flagged
local immigration enforcement as a
troubling trend. When SB 1070 passed,
the Arizona Association of the Chiefs of
Police released a statement in opposition
to the bill: “The provisions of the bill remain
problematic and will negatively affect the
ability of law enforcement agencies across
the state to fulfill their many responsibilities
in a timely manner.”93 Chief Jack Harris,
President of the Arizona Associations of
Chiefs of Police emphatically stated, “You
have one side saying that we’re going to do
racial profiling. You have another side saying
we’re not doing enough.... It makes it very
difficult for us to police our communities.”
Echoes of this statement were heard across
the country from law enforcement leaders,
including the Los Angeles Police Chief
Charlie Beck, who stated that under such
laws, “we will be unable to do our jobs…
laws like this will actually increase crime,
not decrease crime.”94

44

THE LAW REGARDING RACIAL PROFILING

This
section
analyzes
current
Constitutional,
national,
international,
and state and local laws to assess their
relevance to combating racial profiling.

Constitutional Law
Racial profiling is prohibited by the
Equal Protection Clause of the Fourteenth
Amendment of the U.S. Constitution, which
states, “All persons born or naturalized in the
United States, and subject to the jurisdiction
thereof, are citizens of the United States and
of the State wherein they reside… nor shall
any State deprive any person of life, liberty,
or property, without due process of law; nor
deny to any person within its jurisdiction the
equal protection of the laws.”95

Stops, Searches and the Legal
Difficulties of Bringing a Case
to Court
Over the course of constitutional history,
the Supreme Court has clarified the
meaning of the Fourteenth Amendment
in the context of racially-based law
enforcement. In Whren v. United States,96
decided by the Supreme Court in 1996, the
police stopped a car driven by two African
American men in a “high drug” area. They
cited a traffic violation as the reason to stop
the car and arrested the men—who were
not otherwise suspected of committing a
crime—on drug charges. The Court held
that such a stop, where police may have
actually been investigating violations of
other laws,—known as a “pretextual stop”—
45

is not unconstitutional, as long as police
have probable cause to believe a traffic
violation occurred. In reference to the claim
that the stop was racially motivated, the
Court stated, “We of course agree with
petitioners that the Constitution prohibits
selective enforcement of the law based
on considerations such as race.” 97
While the Fourteenth Amendment
provides some protections for individuals
faced with racial profiling, the burdens
of proving an equal protection case are
almost insurmountable. First, such a case
is extremely difficult to prove because it is
not sufficient merely to demonstrate that an
officer’s actions were discriminatory. In order
to succeed, a plaintiff must establish the
offending officer’s intent to discriminate—
something that requires complex legal
knowledge and strategy.
Even if one is
able to overcome the legal hurdles, there is
the matter of accessing statistics and data
that could help prove the case. Access
to data about law enforcement stops is
not universally available; many states do
not mandate data collection and without
such mandates, local agencies have little
motivation to track this information on their
own. Even in states where there is a local
or state law mandating data collection,
the information is sometimes still difficult
for the public to access. As of yet, there
is no federal law mandating the collection
of information on the race, ethnicity, religion
or national origin of those who are stopped
or searched by federal law enforcement
agents.
Another case that fundamentally
defined constitutional protections in the

context of a police stop and search of
individuals without a search warrant was
the case of Terry v. Ohio.98 In that case,
an officer stopped and “frisked”—patted
down the outside clothing of—Mr. Terry
and two other African American men
without a warrant after observing the men.
Terry countered that this was a violation
of the Fourth Amendment prohibition of
unreasonable search and seizure. In its
decision, the Supreme Court expanded law
enforcement’s power to stop and search
individuals without probable cause, while
clarifying the limitations to that authority.
The Court made a distinction between
a “full search”, which requires probable
cause, and a “stop and frisk”—which is a
search conducted after observation of an
individual and the reasonable belief that he
has a dangerous weapon.99
The Terry case, which gave police
expansive power to stop and frisk
individuals, along with the Whren case,
which gave police the power to conduct
pretextual stops, has created confusion
for individuals interacting with police. It
has caused individuals to have difficulty
understanding their rights or proving that
they have been violated. Subsequent
cases such as Arizona v. Gant,100 decided
by the Supreme Court in 2009, have
further clarified which searches by law
enforcement are and are not constitutional.
In the Gant case, police arrested Rodney
Gant after waiting for him to park his car
and walk away from it, yet his car was still
searched. The Court found that an officer
may conduct a search of a vehicle the
arrestee was recently in, but only if the
officer reasonably believes the arrestee

might still be able to access the vehicle
and put the officer in danger or destroy
evidence related to his arrest.

Constitutional Interpretations
of Racial Profiling in the
Immigration Context
Complications
in
constitutional
interpretation further arise due to
problematic guidance from the Supreme
Court regarding racial profiling by Customs
and Border Patrol officers. In U.S. v. Brignoni
Ponce101, border patrol officers near, but not
at, the U.S. border with Mexico stopped and
searched a vehicle, despite having neither a
warrant nor probable cause of any violation.
The officers questioned the driver and
passengers about their immigration status
though they had no suspicion that the
individuals were in the country unlawfully—
except that they looked like they were of
Mexican descent. The Court found that
stop unconstitutional, because looking
Mexican was an unlawful basis to stop and
question drivers and passengers about
their immigration status. But it also said that
immigration officers can consider some
race and ethnicity-based factors in their
decision to perform a stop. For example,
Mexican appearance and “mode of dress
and haircut,”102 were listed as two possible
factors in the reasonable suspicion that an
individual is an undocumented noncitizen.103
Also relevant to constitutional rights in
the immigration arena is Reno v. AmericanArab Anti-Discrimination Committee (ADC),104
a case in which the Supreme Court decided
that a group of immigrants who were

46

FACES OF RACIAL PROFILING: A Report from Communities Across America

singled out for deportation because of their
political affiliation could not challenge their
deportation on the grounds of selective
enforcement. In this case, the individuals
were accused of being part of the Popular
Front for the Liberation of Palestine
(PFLP). They were denied the ability to
seek redress for selective deportation
because the Court said that as long as
an individual was held for a valid reason in
the immigration system (for example, if the
individual was out of immigration status),
immigration law did not allow federal
courts jurisdiction to review whether or not
selective enforcement had occurred in the
case. Citing the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996,
Supreme Court Justice Scalia wrote, “[a]
s a general matter—and assuredly in the
context of claims such as those put forward
47

in the present case—an alien unlawfully in
this country has no constitutional right to
assert selective enforcement as a defense
against his deportation.”105 The Court did,
however, leave open the possibility that
a case “so outrageous” in its allegation
of discrimination might be considered an
exception to the rule.106 This is a somewhat
confusing guideline in the already muddled
world of immigration regulations and
standards.

Constitutional Interpretations
of Racial Profiling in the
National Security Context
Case law also provides precedent
for allowing racial profiling in the national
security context. Some might be surprised

A Problem of Resources:
Practical Obstacles to Bringing
a Case to Court
The last and possibly most difficult
barrier to taking legal action in the instance
of profiling is the amount of resources a
victim must have in order to hire an attorney.
Realistically, a victim requires a legal team
to conduct research, gather information,
question witnesses, request and analyze
data, if any exists, and communicate
with attorneys from the law enforcement
agency who are often well versed in such
complaints. In short, an individual cannot
just file suit in a case of alleged racial
profiling but must mount a case against an
entire institution, a proposition that curtails
many people from seeking relief through
the judicial system.

Federal Law

THE LAW

that a case sustaining Japanese-American
internment is still law today. In Korematsu
v. U.S.,107 Mr. Korematsu refused to join the
over 100,000 people of Japanese descent
ordered to move from their homes into
internment camps during World War II. The
Court held that while “all legal restrictions
which curtail the civil rights of a single
racial group are immediately suspect,”108
the internment of Japanese-Americans
was nevertheless deemed constitutional
because it was judged by the military to
be the proper action in light of “military
urgency.”109

Addressing Racial Profiling by
Statute: Section 1983
As an alternative to citing Constitutional
protections, an individual who believes he
or she has been unlawfully profiled can
attempt to use a federal statute, section
1983 of the Civil Rights Act of 1871,110
(§1983) to bring a lawsuit to court. The
Act was passed in 1871 to give individuals
a legal remedy when federal laws were
violated. It was passed in large part
because of ongoing Klu Klux Klan activities
that terrorized Southerners in the United
States and went unpunished in the existing
state or local judicial systems.111 Section
1983 states:
Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District
of Columbia, subjects, or causes to be
subjected, any citizen of the United States or
other person within the jurisdiction thereof
to the deprivation of any rights, privileges,
or immunities secured by the Constitution
and laws, shall be liable to the party injured
in an action at law, suit in equity, or other
proper proceeding for redress, except that
in any action brought against a judicial
officer for an act or omission taken in such
officer’s judicial capacity, injunctive relief
shall not be granted unless a declaratory
decree was violated or declaratory relief
was unavailable.112

48

FACES OF RACIAL PROFILING: A Report from Communities Across America

This statute provides that a person
can sue a state official for depriving
them of a constitutional right, even if the
person depriving them of that right acted
under color of state or territorial law.
“Color of law”113 means a person is using
authority given to them by a state or
territorial agency, which can include law
enforcement personnel performing their
law enforcement duties.114 To use this law
in a racial profiling claim, the victim must
prove that the stated reasons for the
stop were a pretext to cover up the true
race-based—and therefore illegitimate—
reason for the stop.115 The victim also has
the responsibility to prove that he or she
would not have been stopped but for his
or her race116, an extremely difficult task.
As the petitioners in the Whren case
noted, “…the use of automobiles is so
heavily and minutely regulated that total
compliance with traffic and safety rules
is nearly impossible, a police officer will
almost invariably be able to catch any
given motorist in a technical violation. This
creates the temptation to use traffic stops
as a means of investigating other law
violations, as to which no probable cause
or even articulable suspicion exists.”117

49

Unfortunately, it is almost impossible for
a victim of racial profiling to acquire direct
evidence to prove an inappropriate use
of race. As the Supreme Court stated in
Washington v. Davis in 1976, “Necessarily,
an invidious discriminatory purpose may
often be inferred from the totality of the
relevant facts, including the fact, if it is
true, that the law bears more heavily on
one race than another […or] in various
circumstances the discrimination is very

Addressing Racial Profiling
through the Department of
Justice:
Section 14141
While it is difficult for one person to
pursue relief after an incident of profiling,
Section 14141 of the Violent Crime Control
and Law Enforcement Act of 1994120
attempts to provide an avenue for systemic

change that can have a larger impact on
communities rather than individual cases.
Section 14141 states:

THE LAW

difficult to explain on nonracial grounds.”
118
This case was brought by two African
Americans whose applications to work for
the Washington, D.C., police department
were turned down. Citing evidence that
African American applicants failed certain
application tests at a disproportionate
rate, the applicants claimed the
department had racially discriminatory
hiring practices. The case demonstrates
that inferring an intent to discriminate from
all the relevant facts involves a significant
amount of judicial discretion and thus can
be a matter of chance whether the facts
are decided on behalf of the plaintiff or the
defendant. Even if an individual attempted
to produce “direct, circumstantial, or
statistical evidence that he was a target of
racial profiling,”119 such evidence is difficult
and expensive to acquire. Individual victims
rarely have the resources to requisition a
study, and currently fewer than half of all
states require law enforcement to collect
demographic data on any stops they
initiate. The information that victims need
to prove their racial profiling claims in a
court is largely unavailable to them.

(a) Unlawful conduct
It shall be unlawful for any governmental
authority, or any agent thereof, or any
person acting on behalf of a governmental
authority, to engage in a pattern or
practice of conduct by law enforcement
officers or by officials or employees of any
governmental agency with responsibility
for the administration of juvenile justice or
the incarceration of juveniles that deprives
persons of rights, privileges, or immunities
secured or protected by the Constitution or
laws of the United States.
(b) Civil action by Attorney General
Whenever the Attorney General has
reasonable cause to believe that a violation
of paragraph (1)121 has occurred, the
Attorney General, for or in the name of the
United States, may in a civil action obtain
appropriate equitable and declaratory relief
to eliminate the pattern or practice.
Section 14141 empowers the DOJ
to hold law enforcement agencies
accountable for violating the rights of
persons in the United States. The DOJ
does this by conducting investigations
into reported violations and reaching
settlement agreements or implementing
consent decrees—non-litigated agreements
between local law enforcement and the
DOJ—to reform offending agencies. This
avenue of law enforcement accountability
does not address individual cases, but
rather seeks to address the larger problem.

50

FACES OF RACIAL PROFILING: A Report from Communities Across America

When an investigation determines that
police misconduct, which includes racially
discriminatory behavior such as racial
profiling, has occurred or is occurring as
a pattern or practice within a department,
the DOJ works with the law enforcement
agency to make policy and practice
changes, or may file a lawsuit if the agency
is uncooperative.122
DOJ litigates a pattern or practice
claim only if it is unable to negotiate a
consensual resolution to the problems
identified. The Department emphasizes
its preference for providing technical
assistance to local government and law
enforcement by identifying deficient
policies and management practices
and suggesting a variety of possible
solutions. Since 1997, there have been
approximately 20 public investigations
conducted by the DOJ pertaining to the
conduct of law enforcement agencies.
These investigations ranged from Portland,
Maine to the U.S. Virgin Islands to the
Los Angeles Police Department. These
investigations have provided insight into
improving the use of force by police
officers and have underscored the need
for consistent and explicit policy and
training of law enforcement. Most recently,
the DOJ has launched investigations of
the Maricopa County Sheriff’s Office
in Arizona, and the East Haven Police
Department in Connecticut. Though a
DOJ investigation can have a significant
impact on a law enforcement agency and
the community being affected by profiling,
the DOJ Civil Rights Division has limited
capacity to respond to complaints and
51

initiate investigations. This is due in part
to funding and time allocation, but also
because the office can only respond to
issues it knows about; complaints must be
filed in order for the division to become
aware of the problem.

International Law
International Instruments
Prohibiting Racial
Discrimination
In many cases, international law
provides stronger prohibitions against
racial profiling than U.S. law.
For
example, the International Convention
on the Elimination of All Forms of Racial
Discrimination (ICERD), which the U.S.
ratified in 1994, defines racial discrimination
as “any distinction, exclusion, restriction or
preference based on race, colour, descent,
or national or ethnic origin which has the
purpose or effect of nullifying or impairing
the recognition, enjoyment or exercise,
on an equal footing, of human rights and
fundamental freedoms in the political,
economic, social, cultural or any other field
of public life.”123 Under this international
human rights instrument, binding on
the United States, a government is
responsible for stopping both intentional
and effective discrimination.
Actions
that effectively result in discrimination
are seen as violations of the law, even if
one can’t prove what a particular agent
intended.124

Part I of Article 1 states, “In this
convention, the term ‘racial discrimination’
shall mean any distinction, exclusion,
restriction or preference based on race,
colour, descent, or national or ethnic origin
which has the purpose or effect of nullifying
or impairing the recognition, enjoyment or
exercise, on an equal footing, of human
rights and fundamental freedoms in the
political, economic, social, cultural or any
other field of public life.”
Part I of Article 2 says, “States Parties
condemn
racial
discrimination
and
undertake to pursue by all appropriate
means and without delay a policy of
eliminating racial discrimination in all its
forms.”
The International Covenant on Civil and
Political Rights (ICCPR, ratified by the U.S. in
1992) binds all levels of the U.S. government
(federal, state and local) to comply with the
requirements of the treaty:
Part II, Article 1: “Each State Party to the
present Covenant undertakes to respect
and to ensure to all individuals within its
territory and subject to its jurisdiction the
rights recognized in the present Covenant,
without distinction of any kind, such as race,
colour, sex, language, religion, political,
or other opinion, national or social origin,
property, birth or other status.”

Because the U.S. has signed and ratified
ICERD and the ICCPR, both international
human rights treaties, U.S. officials
report periodically to the human rights
treaty bodies that monitor compliance
with these laws. U.S. advocates have
appealed to the treaty monitoring bodies
as an additional avenue through which
to hold U.S. federal, state and local law
enforcement accountable to the principles
of equality and non-discrimination. U.S.
advocates have sought to demonstrate
the pervasiveness of racial profiling in the
United States and, indeed, a number of
these bodies have found that the U.S. has
failed to comply with its international human
rights obligations to honor the principles of
equality and non-discrimination.

THE LAW

The International Convention on
the Elimination of All Forms of Racial
Discrimination (ICERD, ratified by the U.S. in
1994) binds all levels of the U.S. government
(federal, state and local) to comply with
the requirements of the treaty.

International Bodies Call for
an End to Racial Profiling
Two United Nations (UN) human rights
treaty bodies have explicitly called upon
the U.S. government to take action to end
racial profiling in order to meet its treaty
obligations: the Human Rights Committee,
which monitors compliance with the ICCPR,
and the Committee on the Elimination
of Racial Discrimination, which monitors
compliance with the ICERD. In paragraph
24 of its 2006 Concluding Observations
of U.S. compliance with the ICCPR,125 the
Human Rights Committee called upon the
U.S. government to “continue and intensify
its efforts to put an end to racial profiling
used by federal as well as state law
enforcement officials,” particularly in state
police stops and searches. In paragraph
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FACES OF RACIAL PROFILING: A Report from Communities Across America

27, the Committee recommended that
“agents who have received adequate
training on immigration issues enforce
immigration laws,” criticizing U.S. programs
and policies that delegate immigration
enforcement authority to agents who do
not have the requisite training to enforce
this complicated body of law and that result
in allegations of racial profiling.126
In paragraph 14 of its 2008 Concluding
Observations of U.S. compliance with the
ICERD,127 the Committee on the Elimination of
Racial Discrimination (CERD) recommended
that the United States “strengthen its efforts
to combat racial profiling at the federal and
state levels.” In both 2008 and 2009, the
CERD urged the United States to review the
National Security Entry-Exit Registration
System (NSEERS) and to stop this and
other programs promoted as counterterrorism measures that have encouraged
racial profiling of Muslims, Arabs and South
Asians since September 11, 2001. In 2009,
the CERD raised concerns about the use
of racial profiling in migration policies and
urged the U.S. government to reconsider
its policy under section 287(g) of the
Immigration and Nationality Act. In 2009,
the CERD additionally urged the United
States to eliminate loopholes in the 2003
Department of Justice (DOJ) Guidance
Regarding the Use of Race by Federal Law
Enforcement Agencies. To date, the Obama
Administration has fallen short of meeting
the CERD’s recommendations, although the
DOJ Guidance is currently under review.

53

Government Inaction on
International Agreements
The United States helped create and
shape the universal human rights framework
and participated heavily in the drafting of
the international agreements cited above.
However, it has failed to meaningfully
respond to many of the observations and
recommendations made by the bodies that
monitor compliance with universal human
rights law. Moreover, in the case of ratification
of ICERD and the ICCPR, the United States
attached a “non-self-executing” provision to
both documents. Essentially, this provision
denies private citizens the ability to use
these international laws as a legal basis
for seeking protection and redress in U.S.
courts for violations of rights recognized
by these documents. Even so, under the
Vienna Convention on the Law of Treaties,
a government that signs a treaty “is obliged
to refrain from acts which would defeat the
object and purpose” of that treaty.128
The U.S. government has complied
with its treaty reporting obligations by filing
mandatory status reports with the treaty
monitoring bodies—although not always in a
timely fashion—in the recent past. However,
the government’s reports on the state of
racial profiling in America and the programs
and policies that enable this unlawful
practice have been marked by omissions,
deficiencies and mischaracterizations.
The United States has an opportunity
to be a global human rights leader on the
issue of racial profiling. By doing so, the
U.S. could regain moral standing in the

The Obama Administration has publicly
committed to promoting and protecting
human rights around the world. Clear
evidence exists that federal, state and
local law enforcement agencies continue
to racially profile individuals and groups,
and the U.S. government has taken some
action to investigate, prosecute or combat
these practices.
However, because
it has not adequately addressed and
eradicated those policies and programs
that encourage racial profiling, the United
States is in violation of its treaty obligations
requiring state parties to condemn racial
discrimination and to undertake policies to
eliminate the practice in all its forms.
In
August
2010,
the
Obama
Administration submitted its first formal
report to a U.N. human rights body in
conjunction with the Universal Periodic
Review procedure. In the sections of the
government’s report that address racial
profiling and immigration enforcement, the
Administration acknowledged that racial
profiling is not consistent with the United
States’ commitment to fairness in the justice
system. It noted that the government is in
the process of evaluating programs and
policies that have resulted in racial profiling.
However, the government’s report does

not offer any new, improved or expedited
measures to combat the practice. The
failure of the U.S. government to respond
to the specific criticisms raised by the U.N.
human rights treaty bodies will likely be
highlighted in the U.N. review scheduled for
Nov. 2010.

THE LAW

broader international community, a standing
severely harmed by post-9/11 policies and
programs that curbed civil liberties and
human rights. The U.S. appears eager to
criticize human rights violations everywhere
but within its own borders. This perceived
“U.S. exceptionalism” undermines U.S. moral
authority abroad, posing a national security
risk.

State and Local Laws
Because racial profiling cases have
proven difficult to file under federal law, a
number of individuals have sought relief
through state law, but they, too, have largely
been disappointed. Similar to the challenges
faced by federal claims, state and local
claims against racial profiling are difficult
to prove without access to data on law
enforcement practices in stops, searches
and detentions. Without this information, it is
difficult to produce “direct, circumstantial, or
statistical evidence that [an individual] was
a target of racial profiling.”129 Without such
evidence, a person bringing a claim must
show that they were, “similarly situated yet
received disparate treatment by identifying
individuals who were treated differently.”130
There are few individuals with the time or
financial resources available to them to
identify other individuals like themselves,
but of a different race, who were treated
differently in a similar situation by law
enforcement. This requirement is effectively
insurmountable. Furthermore, not all people
with a viable claim of racial profiling have
access to adequate counsel; they might
attempt to represent themselves or hire
an inexpensive lawyer focused more on
the immediate matter and less on systemic

54

FACES OF RACIAL PROFILING: A Report from Communities Across America

racial profiling. In the case of noncitizens,
many are deported before they can file a
complaint, much less a court claim. While
cases can be appealed, lack of access to
legal representation is yet another hurdle to
preserving issues so that higher courts will
even consider them.131
A review of reported decisions in state
courts suggests that plaintiffs typically find
it difficult to meet the required standards
with claims of racial profiling. Most states
do not have prohibitions in place to protect
motorists and pedestrians against racial
profiling. The laws in existence vary in
their intent, prohibitions and effectiveness.
Only 29 states address racial profiling in
legislation at all. Some states have passed
legislation prohibiting racial profiling, while
55

others focus just on a requirement that law
enforcement agencies collect data on the
race of individuals at traffic stops. Data
collection allows the problem to be made
known to a wider community and can reveal
patterns that are invisible to all but those
who experience the problem. While data
collection can be useful in monitoring law
enforcement’s use of discretionary stops,
it is not the only measure needed to curb
unlawful profiling.

Data Collection
In the 29 states that do have racial
profiling legislation, such legislation is often
ineffective at preventing abusive practices.
Currently, only nineteen states require data
collection by law enforcement for traffic
stops.132 Without the data collected from
such stops, it is impossible to know exactly
how prevalent racial profiling is. The Racial
Profiling Data Collection Resource Center
at Northeastern University clarifies: “These
data collection efforts are an attempt to
provide the tangible numbers that will enable
police and community leaders to better
understand their policing activities. With
this understanding, departments will be able
to examine and revamp policing strategies
based on effectiveness, reconfigure
deployment of police resources, or take
other measures.”133
Not all data collection requirements
are equal.
For example, in Louisiana
police officers are required to keep data
on all vehicle stops unless the agency or
department has a written policy against
racial profiling.134 It is not then surprising
that cases that claim racial profiling in
the state are seldom brought before the
courts. Although, on paper, the law seems
to address racial profiling, it actually
becomes a policy that effectively shields
law enforcement from liability for profiling
in practice. An agency need only establish

a written policy against racial profiling to
excuse itself from keeping data that might
provide clues as to whether or not patterns
of profiling exist.

THE LAW

Provisions of Racial Profiling
Statutes: Prohibitions, Bans,
Data Collection and Training
Mandates

Data collection is not only beneficial
to individuals with a legal claim; it can be
helpful to law enforcement agencies as
well. As Sgt. Michael Snyders, former Illinois
State Coordinator of Operation Valkyrie,
a drug interdiction program and a named
defendant in Chavez v. Illinois, stated:
“One reason for collecting such data was
to respond to potential questions about
whether officers were targeting motorists
because of their race.”135 Chavez was a
case brought by Peso Chavez and Gregory
Lee, two drivers who were stopped in
Illinois. They alleged that program agents,
or “Valkyrie officers,” routinely stopped
and searched African American and Latino
drivers without probable cause, on the
belief that they were involved in criminal
behavior. The plaintiffs were assisted by
an academic research center to analyze
forms filled out by Valkyrie officers after
enforcement actions and found “a systemic
overrepresentation of African-Americans
and individuals of Hispanic origin in Valkyrie
police activity.”136 But because Illinois did
not have a comprehensive, standardized
format for collecting data, the court would
not accept the forms Valkyrie officers
used in stops to draw a conclusion about
the potential discriminatory effect of their
practices.137
There are few individuals with the time
or financial resources available to produce
the type of statistical data collection and
56

FACES OF RACIAL PROFILING: A Report from Communities Across America

analysis that was required of the plaintiffs
in Chavez and similar cases. Few cases
successfully allege racial profiling at
the state level. Although social science
research, reports by advocates and
anecdotal evidence by victims of profiling
express a prevalence of racial profiling, the
court system is stacked so heavily against
potential plaintiffs that virtually no cases
make it through the system, and an even
smaller percentage resolve in the plaintiff’s
favor.

The “Sole Factor” Definition

57

Five states that prohibit racial profiling—
Connecticut, Kentucky, Montana, Oklahoma,
and Tennessee—ban the use of race as the
sole factor for initiating a stop.138
While
these laws seem to address the issue,
in order to be effective, a statute or other
measure should ban the use of race as any
factor. Race should only be used as part of
a specific description of a suspect. Under
a law in which race is not allowed to be the
sole factor for initiating a stop, as long as
officers can point to one other reason for
the stop, they can use race to decide whom
to stop. As discussed earlier, the heavily
regulated nature of traffic laws means that a
minor violation can almost always be named
as an additional factor other than race—
used in the decision to stop someone.139
In addition, most definitions exclude law
enforcement surveillance or monitoring of
individuals or locations as a potential basis
for racial profiling, a practice often used
to target Arab, Middle Eastern, Muslim and
South Asian communities, who are then
precluded from seeking potential legal
protection in that area of enforcement.

The code in Texas is less explicit
than others, but appears to prevent stops
that are based solely on race. The Texas
code states: “‘Racial profiling’ means a law
enforcement-initiated action based on an
individual’s race, ethnicity, or national origin
rather than on the individual’s behavior or
on information identifying the individual as
having engaged in criminal activity.”140 This
definition also excludes religion as a basis
of profiling. Unsurprisingly, claims in these
states are rarely filed, and those do bring
a claim are largely unsuccessful when a
claimant must prove that race was the sole
factor in initiating a stop.
Connecticut was one of the few states
where statewide racial profiling legislation
covered not just state troopers but all law
enforcement, but this law is set to change
soon. The statute prohibits any member of
the Division of State Police or any other law
enforcement agency from racial profiling.141
The law only prohibits disparate treatment
that relies solely on the basis of race,142
but this law is currently being amended to
make it less effective at preventing racial
profiling. The pending revision removes
the prohibition against racial profiling and
instead calls for local police departments
to adopt written policies against profiling.143
This change seems to be the result of
budgetary considerations.144 There is just
one successful case alleging racial profiling
in Connecticut.145
Oklahoma also has a statute prohibiting
racial profiling by any municipal, county or
state law enforcement agency, and it makes
profiling a misdemeanor.146 However, there

Wisconsin requires law enforcement
and tribal officers to be trained on the
prevention of racial profiling.147 However,
training that leads an officer to follow laws
that are incomplete or ineffective does little
good.

“Any Use of Race”: Statutes with a
Broader Definition
States that prohibit relying on race to
any degree offer much greater protection
to persons.148 They are not hamstrung by
the requirement of proving an officer’s
motivations or the necessity of paying for
data collection and statistical analysis.
Arkansas’ law, which prohibits “relying to
any degree on race, ethnicity, national origin,
or religion in selecting which individuals to
subject to routine investigatory activities or
in deciding upon the scope and substance
of law enforcement activity following the
initial routine investigatory activity,” is one
of the few in the country that has resulted in
a case wherein the plaintiff received relief.149
In Giron v. City of Alexander,150 a group of
Latino motorists alleged racial profiling by
an officer who routinely stopped Latinos
for having rosary beads or air fresheners
hanging from rearview mirrors because
of the supposed “windshield obstruction”
violation. This officer, to the common
knowledge of the entire police department
and the local towing service, created a
game of targeting Latinos which he called
“Tow My S--t.” The city was apparently in the
midst of a budget crisis and received money
every time an officer had a car towed. The

officer was not held completely, personally
liable for his profiling but was still required
to pay punitive damages, in part because he
would not ticket non-Latinos when he pulled
them over for the same violation. Punitive
damages are a form of punishment and not
intended to correct the actual loss suffered
because of the defendant’s conduct; they
are appropriate where a defendant acted
with recklessness, malice or deceit. In one
instance, this officer pulled over a French
citizen and, upon realizing he was not
Latino, chose not to make an arrest or write
a ticket. The chief was also found liable
for the officer’s equal protection violation,
as was the city for failing to supervise him
adequately.

THE LAW

have been no cases alleging racial profiling
based on this statute.

While California has a broader racial
profiling definition, which is “the practice of
detaining a suspect based on a broad set of
criteria which casts suspicion on an entire
class of people without any individualized
suspicion of the particular person being
stopped”,151 there have been no cases
successfully proving racial profiling.152
A Massachusetts court in the case
Commonwealth of Massachusetts v.
Lora was particularly concerned about
statistics and the appropriate population
benchmarking (how to determine the racial
composition of the people in cars on a
particular stretch of road). The Court found
that “statistical evidence demonstrating
disparate treatment of persons based
on their race may be offered to meet the
defendant’s burden to present sufficient
evidence of impermissible discrimination so
as to shift the burden to the Commonwealth
58

FACES OF RACIAL PROFILING: A Report from Communities Across America

to provide a race-neutral explanation for
such a stop.”153 In that case, where Andres
Lora was pulled over for traveling in the
left lane when he was not passing other
cars (there were no other cars on the
road)—the court ruled that Lora did not
present credible evidence establishing a
reasonable inference of racial discrimination
in violation of equal protection sufficient to
rebut the presumption that the stop of his
vehicle by the law enforcement officer was
undertaken in good faith, without an intent
to discriminate.
In Evertson v. City of Kimball, two
residents of Kimball, Nebraska, sued to
access the findings of an investigation
ordered by the city’s mayor after allegations
surfaced that police officers were racially
profiling Latinos—allegations that the city
did not want to disclose to the public. The
court ruled that the report was a public
record, but also ruled that the city was
exempted from having to release them to
the public.154 Interestingly, the court used
a “law enforcement” exemption to rule
the records exempt from release, holding
that, because the mayor ordered the
investigation to “enforce” Nebraska’s racial
profiling law, citizens could not have access
to the records.

Racial Profiling As a Criminal Offense
Some states go so far as to criminalize
racial profiling. In New Jersey, a violation
of the state’s racial profiling law is a thirddegree offense that can result in three to

59

five years’ imprisonment.155 In one case,
New Jersey v. Lee, the court found Calvin
Lee was entitled to another trial because
the lower court judge did not allow him
access to discovery to effectively present a
racial profiling claim.156 Lee’s case fell under
a general management order issued by a
New Jersey judge on September 12, 2000
which provided that defendants “perceived
to be African-American, Black or Hispanic”
from cases that arose between 1988 and
1999 were “entitled to discovery for motor
vehicle stops that originated as a result of
observations made by State Troopers on
the New Jersey Turnpike” and several other
New Jersey roadways.157 Calvin Lee’s case
ends here. There are no other citations to
say whether his claim of racial profiling was
found to be valid.
In a similar New Jersey case, the
defendant, Kermit Ball, was also allowed,
post-conviction, to “obtain discovery
relevant to his racial profiling claim.”158 Like
Calvin Lee’s case, Mr. Ball’s case ends here
in the record, and there have been no other
cases in New Jersey since that state signed
a consent decree with DOJ to end racial
profiling practices,159 wherein racial profiling
was actually found to have occurred. This
is alarming considering the previous finding
that there was a ten-year period in which
the courts presumed that racial profiling
occurred.

Cities and other municipalities have
attempted to address racial profiling by
filling in the gaps in federal and state law.
Initiatives in Cincinnati and Columbus,
Ohio are representative examples of how
cities are trying to handle this problem.
Cincinnati’s ordinance prohibits all racial
profiling by law enforcement and includes
the possibility of disciplinary action up
to dismissal for violating the prohibition
against profiling.160 The Cincinnati Police
Department is also required to collect data
on stops to be evaluated by independent
analysts.161 Columbus successfully passed
a racial profiling ordinance specifying that
“[t]he use of race or ethnicity as a factor for
determining the existence of reasonable
suspicion and/or probable cause in the
absence of actual physical evidence or
observations linking that individual to a crime
constitutes a violation of Section 2331.07 of
this chapter.”162 However, in neither of these
cities has a successful racial profiling suit
surmounted the legal obstacles in place
after these ordinances were passed.

such measures do not exist in a vacuum;
elected officials must have the cooperation
of law enforcement for these ordinances to
work. One example comes from Durham,
North Carolina where local community
members and advocates were confident
that a city ordinance banning the inquiry by
government officials into immigration status
would preclude the city from enforcing
immigration law. Yet they were unhappily
surprised when the police chief entered his
department into a 287(g) agreement with
ICE, utilizing one definition of a clause in the
ordinance that allowed the entire measure
to be sidestepped when federal laws were
involved. The 287(g) program became the
avenue for local officials to partner with
ICE.

THE LAW

Local Initiatives and Ordinances

In the context of immigration, several
municipalities across the United States
have passed ordinances that discourage
local law enforcement from entering into
agreements with ICE to enforce immigration
law. Other jurisdictions have passed more
general ordinances or proclamations that
emphasize treating all residents equally and
banning local officials from inquiring about
an individual’s immigration status. However,

60

CONCLUSIONS AND RECOMMENDATIONS

“And I think, to all of the people that have

spoken today, certainly about their personal
experience just with law enforcement—but
what’s troubling to me is that we saw we’re
afraid to lean on law enforcement, or call
upon law enforcement, when we are the
very people that they’re there to serve and
protect us. And so there appears to be a
level of dysfunction, if you will, and I think
as a community, as a state, as a country,
we have a fundamental responsibility to fix
that. Because certainly, our objectives, or
the goal is certainly not to be against law
enforcement, but we need to work with
law enforcement so that these types of
practices don’t occur anymore.”
–Dolores Escobar, witness, Los
Angeles

“W

e can all certainly agree that racial
profiling is unlawful and cannot and should
not be tolerated. However, I think we also
need to agree that racial profiling does
exist, and that we need the community, the
police, and the local advocates to work
together to stop this illegal activity. When
you harm an individual who has committed
no crime, you harm the entire community,
and I look forward to hearing the testimony
tonight.”
–Ricardo Meza, Midwest Regional
Counsel, MALDEF, Detroit Hearing
Commissioner

Racial profiling in every form and in
every context is unjust, ineffective and
counterproductive.
It is a degrading
practice and the humiliation experienced by
61

the person targeted cannot be overstated.
It is pervasive across the United States,
affecting people of many diverse races,
ethnicities, religions and national origins. It
also continues largely unchecked, violating
constitutional and international human
rights. The discriminatory law enforcement
practices described in the sections above
all constitute racial profiling, because they
all rely on race, ethnicity, religion or national
background as a proxy for suspicion of
engaging in criminal activity. Racial profiling
presupposes a correlation between an
individual’s race or ethnicity and his/her
likelihood of being a criminal163 when no
such correlation exists.164
To combat racial profiling in all of its forms,
the RWG coalition and our partners in the
Racial Profiling: Face the Truth campaign
offer the following recommendations:

Recommendations to
President Obama
• President Obama should urge Congress
to enact the End Racial Profiling Act of
2010, which prohibits profiling based
on race, religion, ethnicity and national
origin at the federal, state and local
levels.
• President Obama should issue an
executive order prohibiting racial
profiling by federal officers and banning
law enforcement practices that
disproportionately target people for
investigation and enforcement based

on race, ethnicity, religion or national
origin. The executive order should
also require the collection of data by
federal enforcement agencies about
law enforcement actions broken down
by the apparent or perceived race,
ethnicity, national origin and religion of
individuals targeted by enforcement
agents.
• President
Obama
should
state
unequivocally
that
the
federal
government alone has jurisdiction and
authority to enforce immigration laws
and halt ICE programs that engage
state and local police in immigration
enforcement activities.

Recommendations to the
Department of Justice
• The DOJ should revise its 2003
Guidance on the Use of Race by
Federal Law Enforcement Agencies
to eliminate the loopholes created for
national security and border searches
to include religion and national origin
as protected classes; to apply the
guidance to state and local law
enforcement agencies; and to make it
enforceable.
• The
2008
Attorney
General’s
Guidelines
for
Domestic
FBI
Operations and the FBI’s Domestic
Investigative Operational Guidelines
that implement the 2008 Attorney
General’s Guidelines should be
revised to ensure that they comport

with constitutional and international
human rights protections.
• The 2002 DOJ OLC “inherent authority”
opinion should be immediately
rescinded and OLC should issue a
new memo clarifying that state and
local law enforcement agents may
not enforce federal immigration laws
absent formal authority granted to
them by the federal government.

Recommendations to the
Department of Homeland
Security
• DHS should terminate the 287(g)
program.
• DHS
should
suspend
the
implementation of CAP, Secure
Communities and similar programs
unless and until safeguards are put
in place whenever collaborating
with state and local law enforcement
to ensure that racial profiling and
other human rights violations are not
occurring, including collecting data
on the race or ethnicity of the people
arrested, the charges that are lodged
and the ultimate disposition of the
case.
• DHS should ensure that the Secure
Communities program and the Criminal
Alien Program only screen people who
are convicted of felony offenses, in
keeping with ICE’s stated priorities of
targeting serious criminals and dangers
to the community.

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FACES OF RACIAL PROFILING: A Report from Communities Across America

• DHS should terminate the National
Security
Entry-Exit
Registration
System (NSEERS) and repeal related
regulations. Individuals who did not
comply with NSEERS due to lack of
knowledge or fear should not lose
eligibility for or be denied a specific
relief or benefit. Similarly, DHS should
ensure that the federal government
provides relief to individuals who were
deported for lack of compliance with
NSEERS but otherwise had an avenue
for relief.
• DHS should conduct extensive training
for and oversight of ICE agents
implementing enforcement actions.
In particular, increased oversight is
needed to ensure that ICE does not
target individuals on the basis of race or
ethnicity but instead upon information
related to the individual’s immigration
status.
• DHS should reform its complaint
process to ensure that it is clear,
transparent, confidential, including
protections against retaliation, and
that it is made available to the public in
multiple languages.

63

Recommendations to
Congress
• Congress should enact the End Racial
Profiling Act of 2010, establishing a
federal ban on profiling based on race,
religion, ethnicity and national origin at
the federal, state and local levels.
• Congress should provide oversight to
ensure that the various agencies of
the executive branch are undertaking
the
reforms
identified
in
the
recommendations above. If agencies
are not adopting these reforms,
Congress should adopt legislation
mandating the changes in policy.
• Congress should repeal section 287(g)
of the Immigration and Nationality Act.
• Congress should eliminate funding
for the Secure Communities Initiative,
the Criminal Alien Program and other
programs that utilize state and local
law enforcement agencies to conduct
civil immigration enforcement, unless
and until safeguards are put in place
whenever collaborating with state and
local law enforcement to ensure that
racial profiling and other human rights
violations are not occurring, including
collecting data on the race or ethnicity
of the people arrested, the charges that
are lodged and the ultimate disposition
of the case.

• State and local governments should
adopt legislation that strongly prohibits
profiling based on race, religion,
ethnicity and national origin. Such
legislation should also mandate that
local police departments collect data
about stops, frisks, searches, arrests,
and prosecutions, broken down by the
apparent or perceived race, religion,
national origin, or ethnicity of those
targeted for enforcement actions and
outcomes.
• State and local governments should
refuse to participate in federal
programs expanding responsibility
for immigration enforcement to local
law enforcement, including the 287(g)
program, the Secure Communities
Initiative or the Criminal Alien Program.
• Any state or locality that is participating
in or cooperating with a federal
program delegating responsibility
for immigration enforcement to local
law enforcement should collect data
on the apparent or perceived race,
religion, national origin or ethnicity of
any person arrested, the reason for the
arrest and the ultimate disposition of
the case.

“I think the only way to stop profiling is to

have consequences when profiling occurs
and that’s what I don’t see at any level…I
really believe that we need to do something
to force consequences for bad behavior...
If you go and file [Internal Affairs] reports,
it’s dangerous for a lot of reasons. The
police know you, they have the ability…to
chck your record, they know who your
family members are because the police
databases, they could share. So they can
harass your family, it’s been done…So that
puts a chilling effect on citizens and we
share our experiences.”

CONCLUSIONS AND RECOMMENDATIONS

Recommendations to state Recommendations
and local governments
from the field hearing
witnesses

–Jolanda Jones, witness, Houston, TX

“In the Muslim community, there’s been

a lot of consternation about insensitive
material that have been used by some
of the law enforcement agencies with
regards to Muslims and Islam. And I think
this issue is of considerable concern in the
Muslim community that are these officers,
law enforcement officers or government
officers, are they being trained with reliable
information on Islam and Muslims as
opposed to some bigoted information with
sources that [are] not really fully accredited
agencies.”
–Jawad Khaki, witness, Burlington,
Washington

64

FACES OF RACIAL PROFILING: A Report from Communities Across America

“I

think there needs to be enough training
to make sure people understand the rights
of individuals in this country as well as
checks and balances in the system among
the investigators.”

–Peter Bibring, ACLU Attorney, witness,
Los Angeles, California

Whether it is terrorism, war, the drug trade
or illegal immigration, any crisis situation has
the potential to test our nation’s commitment
to equality for all under the law. History has
taught us to regret the unfortunate World
War II internment of Japanese Americans,
which was justified by rationale similar to
that used today in the form of phrases such
as “national security” or “counterterrorism
measures.” Whether taken in the so-called
war on drugs, war on terror or war on illegal
immigration, government policies driven
by fear should never allow the erosion of
fundamental constitutional and international
human rights.

“I tend to see from a position of being a

police officer for 28 years, being a sergeant
for 11 years, and I, in no way, would want to
give the police those extra kind of powers to
do anything [immigration related] because
obviously they haven’t been able to do
it well and I just – I believe that we have
constitutional protections that we should
abide by.”
–Shelby Stewart, retired police officer,
witness, Houston, Texas

65

“I

f LAPD is refusing to analyze data
and refusing to implement straightforward
systems to identify outlying officers, the
dozens of other police agencies in Southern
California that are less in this stream
have done nothing at all to address the
problem. That just underscores the need
for a national mandate to embrace some of
these reforms.”

–Joe Morrison, witness, Burlington,
Washington

66

ENDNOTES

67

1.

U.S. House of Representatives. End Racial Profiling Act of 2010, 111th Congress,
2nd Sess. 2010 H.R. 5748.

2.

U.S. Department of Justice, Bureau of Justice Statistics. “Contacts between Police
and the Public: Findings from the 2002 National Survey”, <http://bjs.ojp.usdoj.gov/
content/pub/pdf/cpp02.pdf>.

3.

American Civil Liberties Union of Rhode Island. “The Persistence of Racial Profiling in
Rhode Island: An Update”, April 2005, <http://www.aclu.org/FilesPDFs/profiling_ri_
update.pdf>.

4.

U.S. Customs and Border Protection, Department of Homeland Security. “Policy
Regarding Border Search of Information”, July 16, 2008, <http://www.customs.gov/
linkhandler/cgov/travel/admissibility/search_authority.ctt/search_authority.pdf>.

5.

The Sikh Coalition. “The TSA Report Card: A Quarterly Review of Security
Screenings of Sikh Travelers in U.S. Airports”, August 2009.

6.

Amardeep Singh, testimony before the House Judiciary Committee Subcommittee
on the Constitution, Civil Rights and Civil Liberties, <http://judiciary.house.gov/
hearings/pdf/Singh100617.pdf>.

7.

Sheldon Jacobson, interviewed by Phil Ciciora. News Bureau, Jan. 7, 2010, <http://
illinois.edu/lb/article/72/33799>.

8.

The DIOG, giving guidance to the implementation of the guidelines, was only made
available in a heavily redacted version through FOIA suits—there is currently a suit to
disclose all of the DIOG, unredacted. < <http://www.muslimadvocates.org/DIOGs_
pt1.pdf>.

9.

U.S. Department of Justice. “The Attorney General’s Guide for Domestic FBI
Operations”, December 2008, <http://www.justice.gov/ag/readingroom/guidelines.
pdf>.

10.

Federal Bureau of Investigation. “Domestic Investigation and Operations Guide”,
December 2008, pp. 27, 32, <http://www.muslimadvocates.org/DIOGs_Chapter4.
pdf>.

11.

“Attorney General’s Guide for Domestic FBI Operations”, §11A., December 2008,
<http://www.justice.gov/ag/readingroom/guidelines.pdf>.

12.

Vera Institute of Justice. “Law Enforcement and Arab-American Community Relations
after September 11, 2001: Engagement in a Time of Uncertainty”; 2006, pp 13, 21,
<http://www.vera.org/download?file=147/Arab%2BAmerican%2Bcommunity%2Br
elations.pdf>.

13.

Immigration Policy Center, “Targets of Suspicion: The Impact of Post-9/11 Policies
on Muslims, Arabs and South Asians in the United States”, 2004, <http://ispu.org/
reports/articledetailpb-63.html>.

14.

Lisa M. Seghetti, Karma Ester and Michael John Garcia. “Enforcing Immigration Law:
The Role of State and Local Law Enforcement”, Congressional Research Service,
2009, <http://www.au.af.mil/au/awc/awcgate/crs/rl32270.pdf>.

15.

University of North Carolina Immigration and Human Rights Policy Clinic and the
American Civil Liberties Union of North Carolina Foundation. “The Policies and Politics
of Local Immigration Enforcement Laws”, February 2009 <http://www.law.unc.edu/
documents/clinicalprograms/287gpolicyreview.pdf>.

16.

Government Accountability Office, Immigration. “Enforcement: Better Controls
Needed over Program Authorizing State and Local Enforcement of Federal
Immigration Laws,” January 2009, <http://www.gao.gov/new.items/d09109.pdf>

17.

U.S. Department of Homeland Security, Immigration and Customs Enforcement.
“Criminal Alien Program”, Fact Sheet, (Nov. 19, 2008), <http://www.ice.gov/pi/
news/factsheets/criminal_alien_program.htm>.

18.

Trevor Gardner II and Aarti Kohli, The Chief Justice Earl Warren Institute on Race,
Ethnicity, and Diversity, University of California Berkeley, Berkeley Law School. “The
C.A.P. Effect: Racial Profiling in the ICE Criminal Alien Program”, 2009, <http://www.
law.berkeley.edu/files/policybrief_irving_FINAL.pdf>.

19.

U.S. Immigration and Customs Enforcement. “Secure Communities; IDENT/IAFIS
Interoperability Monthly Statistics through October 31, 2009”, <http://www.
ccrjustice.org/secure-communities/files2. IDENT Interoperability Statistics.pdf.

20.

Id.

21.

To view the documents released by DHS, ICE, and the FBI in response to this FOIA
request in their entirety, see <http://www.ccrjustice.org/secure-communities>.

22.

Whren v. United States, 517 U.S. 806 (1996).

23.

U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975).

24.

Reno v. American-Arab Anti-Discrimination Committee (ADC), 525 U.S. 471 (1999).

25.

Reno at 488.

26.

The testimonies quoted in this report were received by a panel of local and national
commissioners at a series of hearings held in the summer of 2010 by Rights Working
Group and local and national partners. Some of these testimonies were given
anonymously. All of the testimonies are on file with the authors of this report.

27.

End Racial Profiling Act of 2010, H.R. 5748, 111th Cong. (2nd Sess. 2010).

28.

Police Executive Research Forum, ”Racially Biased Policing: A Principled Response”,
2001, <http://www.cops.usdoj.gov/html/cd_rom/resources_law_enf/pubs/
MiamiPoliceDepartmentCitizenContactCard.pdf>.

68

FACES OF RACIAL PROFILING: A Report from Communities Across America

69

29.

U.S. Department of Justice. “Racial Profiling”, Fact Sheet, 2003, <http://www.justice.
gov/opa/pr/2003/June/racial_profiling_fact_sheet.pdf.

30.

Amnesty International USA. “Threat and Humiliation: Racial Profiling, National Security,
and Human Rights in the United States”, October 2004, <http://www.amnestyusa.
org/racial_profiling/report/rp_report.pdf>.

31.

South Dakota Advisory Committee to the United States. ”Commission on Civil Rights,
Native Americans in South Dakota: An Erosion of Confidence in the Justice System”,
Ch. 2, 2000, <http://www.usccr.gov/pubs/sac/sd0300/main.htm>.

32.

Frank Newport. “Racial Profiling is Seen as Widespread, Particularly Among
Young Black Men”, Gallup News Service, Dec. 9, 1999, <http://www.gallup.com/
poll/3421/Racial-Profiling-Seen-Widespread-Particularly-Among-Young-Black-Men.
aspx>.

33.

“Timeline: America’s War on Drugs”, National Public Radio, Apr. 2, 2007, <http://
www.npr.org/templates/story/story.php?storyId=9252490>.

34.

Tracy Wilkinson. “War on Drugs Called a Failure”, Los Angeles Times, Nov. 27,
2008, http://articles.latimes.com/2008/nov/27/world/fg-mexdrugs27>. See
also: Fernando Henrique Cardoso, Cesar Gaviria and Ernesto Zedillo, “The War
on Drugs is a Failure”, The Wall Street Journal, Feb. 23, 2009, http://online.wsj.
com/article/NA_WSJ_PUB:SB123535114271444981.html>. And Editorial. “The
War on Drugs is Lost”, The National Review, July 1, 1996, http://old.nationalreview.
com/12feb96/drug.html. And Bruce Mirken. “Spinning a Failed War on Drugs”, San
Francisco Chronicle, Sept. 24, 2007, <http://articles.sfgate.com/2007-09-24/
opinion/17260203_1_teen-drug-drug-czar-john-walters-illicit-drugs>.

35.

U.S. Department of Justice, Bureau of Justice Statistics. Contacts between Police
and the Public: Findings from the 2002 National Survey”, <http://bjs.ojp.usdoj.gov/
content/pub/pdf/cpp02.pdf>.

36.

American Civil Liberties Union of Rhode Island. “The Persistence of Racial Profiling
in Rhode Island: An Update”, 2005, <http://www.aclu.org/FilesPDFs/profiling_ri_
update.pdf>.

37.

American Civil Liberties Union of Arizona, “Driving While Black or Brown:
An Analysis of Racial Profiling in Arizona”, 2008, <http://www.acluaz.org/
DrivingWhileBlackorBrown.pdf>.

38.

Ayres, Ian and Jonathan Borwsky. “A Study of Racially Disparate Outcomes in the
Los Angeles Police Department”, Yale Law School, 200), <http://www.aclu-sc.org/
contents/view/3>.

The Jerome N. Frank Legal Services Organization. “Pattern and Practice: Preliminary
Findings on Race, Record-Keeping, and Selective Enforcement within the East
Haven Police Department”, Yale Law School, <http://graphics8.nytimes.com/
packages/pdf/nyregion/20100423HAVEN_pdfs/PatternandPractice_Report.pdf>.

40.

ACLU of Maryland. “Key Appellate Hearing Monday in Lawsuit by NAACP and ACLU
Over Maryland State Police Documents in “Driving While Black” Case”, May 11, 2009,
<http://www.aclu-md.org/aPress/Press2009/051109_NAACP_MPIA.html>.

41.

The Center for Constitutional Rights is currently involved in class-action litigation
against the New York City Police Department (NYPD) challenging the stop-and-frisk
practice, Floyd, et al. v. City of New York, et al. More information: <http://ccrjustice.
org/ourcases/current-cases/floyd-et-al.

42.

The Center for Constitutional Rights. “Racial Disparity in NYPD Stops-and-Frisks:
The Center for Constitutional Rights Preliminary Report on UF-250 Data from 2008
through June 2008”, 2009, <http://ccrjustice.org/files/Report_CCR_NYPD_Stop_
and_Frisk_0.pdf>.

43.

South Dakota Advisory Committee to the United States Commission on Civil
Rights. “Native Americans in South Dakota: An Erosion of Confidence in the Justice
System”, Chs. 1-3, 2000, <http://www.usccr.gov/pubs/sac/sd0300/main.htm.

44.

Deborah Amos. “Challenge: Airport Screening Without Discrimination”, National
Public Radio, Jan. 14, 2010, <http://www.npr.org/templates/story/story.
php?storyId=122556071>.

45.

Asian Law Caucus & Stanford Law School Immigrants’ Rights Clinic. “Returning
Home: How U.S. Government Practices Undermine Civil Rights at Our
Nation’s Doorstep”, 2009, <http://www.asianlawcaucus.org/wp-content/
uploads/2009/04/Returning%20Home.pdf>. See also: Muslim Advocates.
“Unreasonable Intrusions: Investigating the Politics, Faith & Finances of Americans
Returning Home”, 2009, <http://www.muslimadvocates.org/documents/
Unreasonable_Intrusions_2009.pdf>.

46.

The Sikh Coalition. “The TSA Report Card: A Quarterly Review of Security
Screenings of Sikh Travelers in U.S. Airports”, Aug. 2009.

47.

The Sikh Coalition. “TSA Develops New Procedure for Screening Turbans
at U.S. Airports”, Oct. 17, 2007, <http://www.sikhcoalition.org/advisories/
TSADevelopsNewProcedure.htm>.

48.

Transportation & Security Administration. TSA’s Head-to-Toe Screening Policies, Oct.
15, 2007, <http://www.tsa.gov/press/happenings/sop_facts.shtm>.

ENDNOTES

39.

70

FACES OF RACIAL PROFILING: A Report from Communities Across America

49.

Amardeep Singh, testimony before the House Judiciary Committee Subcommittee
on the Constitution, Civil Rights and Civil Liberties, <http://judiciary.house.gov/
hearings/pdf/Singh100617.pdf>.

50.

Sheldon Jacobson, interviewed by Phil Ciciora. News Bureau, Jan. 7, 2010, . <http://
illinois.edu/lb/article/72/33799>.

51.

Thomas R. Eldridge et al. ‘9/11 and Terrorist Travel: A Staff Report of the National
Commission on Terrorist Attacks upon the United States”, 2004.

52.

Amerian–Arab Anti-Discrmination Committtee and Yale Law School. “ICE Targets
Immigrants from Muslim Majority Countries Prior to 2004 Presidential Election”,
October 20, 2008

53.

Eric Lichtblau, “Inquiry Targeted 2,000 Foreign Muslims in 2004”, N.Y. Times, Oct. 30,
2008, at A17, available at http://www.nytimes.com/2008/10/31/us/31inquire.html.

54.

Jennifer Turner. “Blocking Faith, Freezing Charity: Chilling Muslim Charitable Giving in
the ‘War on Terrorism Financing’”, American Civil Liberties Union, 2009 (hereinafter,
“Blocking Faith, Freezing Charity”), <http://www.aclu.org/human-rights/reportblocking-faith-freezing-charity>. See also: Laleh Ispahani. “Race & Ethnicity in
America: Turning a Blind Eye to Injustice”, American Civil Liberties Union, 2007,
<http://www.aclu.org/files/pdfs/humanrights/cerd_full_report.pdf>.

55.

“Blocking Faith, Freezing Charity”, p. 14.

56.

Id.

57.

Shelby Grad. “FBI Plans to Continue Mosque Monitoring Despite Concerns in Orange
County, L.A. Times, June 9, 2009, http://latimesblogs.latimes.com/lanow/2009/06/
fbi-plans-to-continue-mosque-monitoring-despite-concerns-in-orange-county.html
Scott Glover. “FBI Monitored Members of O.C. Mosques at Gyms, Alleged Informant
Says”, L.A. Times, Apr. 28, 2009, <http://articles.latimes.com/2009/apr/28/local/
me-surveillance28>.

71

58.

Teresa Watanabe & Paloma Esquivel. “L.A. Area Muslims Say FBI Surveillance Has a
Chilling Effect on their Free Speech and Religious Practices”, L.A. Times, Mar. 1, 2009,
<http://articles.latimes.com/2009/mar/01/local/me-muslim1>.

59.

U.S. Dept. of Justice. “The Attorney General’s Guide for Domestic FBI Operations”,
December 2008, <http://www.justice.gov/ag/readingroom/guidelines.pdf>.

60.

The DIOG, giving guidance to the implementation of the guidelines, was only made
available in a heavily redacted version through FOIA suits—there is currently a
suit to disclose all of the DIOG, unredacted. More information is <http://www.
muslimadvocates.org/DIOGs_pt1.pdf>.

Hearing to Review Funding and Oversight of the Dep’t of Justice: Hearing Before the
Senate Appropriations Subcomm. on Commerce, Justice and Science, and Related
Agencies, 111th Cong., 2009 see statement of Eric Holder, Attorney General.

62.

“Attorney General’s Guide for Domestic FBI Operations”, §11A, December 2008,
<http://www.justice.gov/ag/readingroom/guidelines.pdf>.

63.

Federal Bureau of Investigation. “Domestic Investigation and Operations Guide”, pp.
27, 32 December 2008, <http://www.muslimadvocates.org/DIOGs_Chapter4.pdf>.

64.

Contrast the DIOG language defining when race or ethnicity may be considered in
assessment and investigative activities: “investigative and intelligence collection
activities must not be based solely on race ethnicity, national origin, or religious
affiliation.” with the more restrictive language in the DOJ Guidance: “In making
routine or spontaneous law enforcement decisions…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,” [emphasis added]
U.S. Department of Justice. “Guidance Regarding the Use of Race by Federal Law
Enforcement Agencies”, 2003, <http://www.fletc.gov/training/programs/legaldivision/the-informer/research-by-subject/department-of-justice-guidance/
useofrace.pdf/view>.

65.

American Civil Liberties Union. “FBI’s Claimed Authority to Track and Map ‘Behaviors’
and ‘Lifestyle Characteristics’ of American Communities Invites Racial Profiling”, July
7, 2010, <http://www.aclu.org/national-security/aclu-seeks-records-about-fbicollection-racial-and-ethnic-data-29-states-and-dc>.

66.

Vera Institute of Justice. “Law Enforcement and Arab-American Community
Relations after September 11, 2001: Engagement in a Time of Uncertainty”, pp. 13,
21, 2006, <http://www.vera.org/download?file=147/Arab%2BAmerican%2Bcomm
unity%2Brelations.pdf>.

67.

Immigration Policy Center. “Targets of Suspicion: The Impact of Post-9/11 Policies
on Muslims, Arabs and South Asians in the United States”, 2004, <http://ispu.org/
reports/articledetailpb-63.html>.

68.

Campbell Brown. “Investigating the Christmas Day Terror Attack: Obama
Administration Downplaying War on Terror?”, CNN, Dec. 30, 2009, <http://transcripts.
cnn.com/TRANSCRIPTS/0912/30/ec.01.html>.

69.

David A. Harris. Law Enforcement and Intelligence Gathering in Muslim and Immigrant
Communities After 9/11, University of Pittsburgh School of Law (2009).

70.

Lisa M. Seghetti, Karma Ester and Michael John Garcia. “Enforcing Immigration Law:
The Role of State and Local Law Enforcement”, Congressional Research Service,
(2009), <http://www.au.af.mil/au/awc/awcgate/crs/rl32270.pdf>.

ENDNOTES

61.

72

FACES OF RACIAL PROFILING: A Report from Communities Across America

73

71.

Andrea Guttin, Esq. “The Criminal Alien Program: Immigration Enforcement in Travis
County, Texas”, Feb 17, 2010, <http://www.immigrationpolicy.org/special-reports/
criminal-alien-program-immigration-enforcement-travis-county-texas>.

72.

As amended by the Illegal Immigration Reform and Responsibility Act, which went
into effect September 30, 1996. 8 U.S.C. §1357 (g) (1996).

73.

Department of Homeland Security. “Secretary Napolitano Announces New
Agreement for State and Local Immigration Enforcement Partnerships and
Adds 11 New Agreements”, July 10, 2009, <http://www.ice.gov/pi/nr/0907/
090710washington.htm>.

74.

American Civil Liberties Union of Georgia, Terror and Isolation in Cobb: How
Unchecked Police Power under 287(g) Has Torn Families Apart and Threatened
Public Safety (Oct. 2009), http://www.acluga.org/287gReport.pdf; Government
Accountability Office, Immigration Enforcement: Better Controls Needed over
Program Authorizing State and Local Enforcement of Federal Immigration Laws
(Jan. 2009), available at www.gao.gov/new.items/d09109.pdf <http://www.
gao.gov/new.items/d09109.pdf> ; University of North Carolina Immigration and
Human Rights Policy Clinic and the American Civil Liberties Union of North Carolina
Foundation, The Policies and Politics of Local Immigration Enforcement Laws (Feb.
2009); American Civil Liberties Union of Georgia, The Persistence of Racial Profiling in
Gwinnett: Time for Transparency, Accountability, and an End to 287(g) (March 2010),
available at www.acluga.org/GwinnettRacialReportFinal.pdf <http://www.acluga.
org/GwinnettRacialReportFinal.pdf> ; Mai Thi Nguyen and Hannah Gill, The 287(g)
Program: The Costs and Consequences of Local Immigration Enforcement in North
Carolina Communities (The University of North Carolina at Chapel Hill, Feb. 2010)
available at http://isa.unc.edu/migration/287g_report_final.pdf (last visited April 5,
2010).

75.

See generally, American Civil Liberties Union of Georgia, Terror and Isolation in
Cobb: How Unchecked Police Power under 287(g) Has Torn Families Apart and
Threatened Public Safety (2009), <http://www.acluga.org/287gReport.pdf;
Government Accountability Office, Immigration Enforcement: Better Controls Needed
over Program Authorizing State and Local Enforcement of Federal Immigration
Laws (2009), www.gao.gov/new.items/d09109.pdf; University of North Carolina
Immigration and Human Rights Policy Clinic and the American Civil Liberties Union
of North Carolina Foundation. “The Policies and Politics of Local Immigration
Enforcement Laws”, 2009; American Civil Liberties Union of Georgia. “The
Persistence of Racial Profiling in Gwinnett: Time for Transparency, Accountability, and
an End to 287(g)”, 2010, <http://www.acluga.org/GwinnettRacialReportFinal.pdf>;
Mai Thi Nguyen and Hannah Gill. The 287(g) Program: “The Costs and Consequences

76.

U.S. Department of Homeland Security Office of Inspector General. “The
Performance of 287(g) Agreements”, 2010, <http://trac.syr.edu/immigration/
library/P4485.pdf>.

77.

U.S. Department of Homeland Security Immigration and Customs Enforcement.
“Criminal Alien Program”, Fact Sheet, (Nov. 19, 2008), <http://www.ice.gov/pi/
news/factsheets/criminal_alien_program.htm>.

78.

Id.

79.

Trevor Gardner II and Aarti Kohli, The Chief Justice Earl Warren Institute on Race,
Ethnicity, and Diversity, University of California Berkeley, Berkeley Law School, “The
C.A.P. Effect: Racial Profiling in the ICE Criminal Alien Program”, 2009, <http://www.
law.berkeley.edu/files/policybrief_irving_FINAL.pdf>.

80.

Department of Homeland Security, Immigration and Customs Enforcement. “Secure
Communities”, fact sheet, Sept. 1, 2009, <http://www.ice.gov/doclib/pi/news/
factsheets/secure_communities.pdf>.

81.

Immigration and Customs Enforcement. “Secretary Napolitano and ICE Assistant
Secretary John Morton Announce that the Secure Communities Initiative Identified
More than 111,000 Aliens Charged with Or Convicted of Crimes in its First Year”,
Nov.12, 2009, <http://www.ice.gov/pi/nr/0911/091112washington.htm>.

82.

Center for Constitutional Rights. “Rights Groups Release Documents from U.S.
Immigration and Customs Enforcement (ICE) Agency FOIA Lawsuit”, Aug. 10,
2010, <http://ccrjustice.org/newsroom/press-releases/rights-groups-releasedocuments-u.s.-immigration-and-customs-enforcement-%28ice%29-agency-foialawsuit>.

83.

U.S. Immigration and Customs Enforcement. “Secure Communities; IDENT/IAFIS
Interoperability Monthly Statistics through October 31, 2009” , <http://www.
ccrjustice.org/secure-communities/files2. IDENT Interoperability Statistics.pdf>.

84.

To view the documents released by DHS, ICE, and the FBI in response to this FOIA
request in their entirety, see <http://www.ccrjustice.org/secure-communities>.

85.

Phillip Atiba Goff, Liana Maris Epstein, et al. “Deputizing Discrimination? Causes &
Effects of Cross-Deputization in Salt Lake City, Utah”, <http://www.policingequity.
org>.

86.

Anita Khashu. “The Role of Local Police: Striking a Balance between Immigration
Enforcement, Police Foundation”, (2009), <http://www.policefoundation.org/pdf/
strikingabalance/Role%20of%20Local%20Police.pdf>.

ENDNOTES

of Local Immigration Enforcement in North Carolina Communities”, University of North
Carolina at Chapel Hill, (2010), <http://isa.unc.edu/migration/287g_report_final.pdf..

74

FACES OF RACIAL PROFILING: A Report from Communities Across America

87.

Id.

88.

Major Cities Chiefs Association, Immigration Committee, et al. “Recommendations for
Enforcement of Immigration Laws By Local Police Agencies” June 2006, <http://
www.majorcitieschiefs.org/pdfpublic/mcc_position_statement_revised_cef.pdf>.

89.

U.S. Dept. of Justice. “Assistance by State and Local Police in Apprehending
Illegal Aliens,” Feb. 5, 1996, <http://www.justice.gov/olc/immstopo1a.htm>. For
more information and a discussion on the reversal of this memo, see Leah Nylen,
“Arizona Immigration Law Cited 2002 OLC Memo,” Washington Post, May 18,
2010, <http://www.washingtonpost.com/wp-dyn/content/article/2010/05/17/
AR2010051702175.html?hpid=topnews>.

90.

ACLU of Florida. “Lake County Mother of Three to Be Reunited with Family After
Nearly Three Weeks of Unlawful Detainment”, Mar. 5, 2009, <http://www.aclu.org/
immigrants/detention/38988prs20090305.html>.

91.

Major Cities Chiefs, “Immigration Committee Recommendations for Enforcement of
Immigration Laws by Local Police Agencies, M.C.C. Nine (9) Point Position Statement:
Enforcement Of Immigration Laws by Local Police Agencies”, June 2006, <http://
www.majorcitieschiefs.org/pdfpublic/mcc_position_statement_revised_cef.pdf>.

92.

Randal C. Archibold. “Judge Blocks Arizona’s Immigration Law”, N.Y. Times, July 28,
2010, <http://www.nytimes.com/2010/07/29/us/29arizona.html>.

93.

Arizona Association of Chiefs of Police. “Statement on Senate Bill 1070”, <http://
www.leei.us/main/media/AACOP_STATEMENT_ON_SENATE_BILL_1070.pdf>.

94.

Pete Yost. “Police Chiefs Voice Concerns to AG About Ariz. Law”, Associated
Press, May 27, 2010, <http://www.google.com/hostednews/ap/article/
ALeqM5jKVfYxH4wbJdoijU3S9P1SqlCQ8QD9FUPM485>.

95.

U.S. Const. Amend. 14, §1.

96.

Whren v. United States, 517 U.S. 806 (1996).

97.

Whren at 813.

98.

Terry v. Ohio, 392 U.S. 1 (1968).

99.

Terry, 20-27.

100. Arizona v. Gant, 556 U.S. __ (2009).
101. U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975).
102. Brignoni-Ponce at 885.
75

103. Brignoni-Ponce, 886-7.

ENDNOTES

104. Reno v. American-Arab Anti-Discrimination Committee (ADC), 525 U.S. 471 (1999).
105. Reno at 488.
106. Reno at 491.
107. Korematsu v. U.S., 323 U.S. 214 (1944).
108. Korematsu at 214.
109. Korematsu at 223.
110. 42 U.S.C. §1983.
111. Wilson v. Garcia, 471 U.S. 261 (1985).
112. 42 U.S.C. § 1983 (1871).
113. Black’s Law Dictionary. 8th ed. 2004: “The appearance or semblance, without
the substance, of a legal right. The term usually implies a misuse of power made
possible because the wrongdoer is clothed with the authority of the state.”
114. City of Los Angeles v. Heller, 475 U.S. 796 (1986).
115. Washington v. Vogel, 880 F. Supp. 1542, 1544 (1995).
116. Vogel, at 1543.
117. Whren, at 811.
118. Washington v. Davis, 426 U.S. 229, 242 (1976).
119. United States v. Avery, 137 F.3d 343, 355-58 (6th Cir. 1997).
120. 42 U.S.C. 14141 (1994).
121. So in original. Probably should be “subsection (a) of this section.”
122. United States Department of Justice Civil Rights Division – Special Litigation
Section. “Frequently Asked Questions”, <http://www.justice.gov/crt/split/faq.
php#howmanyPorP>.
123. International Convention on the Elimination of Racial Discrimination, G.A. Res. 2106
(XX), at art. 1, U.N. Doc. A/6014 (Jan. 4, 1969).
124. See U.S. Constitution, Art. VI, which states in part “This Constitution, and the Laws
of the United States which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the United States, shall be the
supreme Law of the Land; and the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

76

FACES OF RACIAL PROFILING: A Report from Communities Across America

125. U.N. Human Rights Committee, Consideration of Reports Submitted by States
Parties Under Article 40 of the International Covenant on Civil and Political Rights:
Concluding Observations of the Human Rights Committee: United States of America,
¶ 24, U.N. Doc. CCPR/C/USA/CO/3/ Rev.1 (December 2006).
126. Id. ¶ 27.
127. U.N. Committee on the Elimination of Racial Discrimination [CERD], Consideration of
Reports Submitted by States Parties Under Article 9 of the Convention: Concluding
observations of the Committee on the Elimination of Racial Discrimination: United
States of America, ¶ 14, U.N. Doc. CERD/C/USA/CO/6 (May 2008).
128. Vienna Convention on the Law of Treaties, UN Doc. A/Conf.39/27; 1155 UNTS 331;
8 ILM 679 (1969); 63 AJIL 875 (1969).
129. United States v. Avery, 137 F.3d 343, 355-58 (6th Cir. 1997).
130. State v. Palacio, Not Reported in So.3d, 2009 WL 3453930, 6 (La.App. 1 Cir., 2009)
(citing Chavez v. Illinois State Police, 251 F.3d 612, 636 (7th Cir. 2001). Chavez, 251
F.3d at 638 (“When statistics are introduced, they must address the crucial question
of whether one class is being treated differently from another class that is otherwise
similarly situated.”). See Chavez, 251 F.3d at 637-41 (“Supreme Court precedent also
suggests that minority motorists alleging that a pretextual traffic stop constituted
a denial of equal protection should, in presenting statistical evidence, show that
similarly situated motorists, of races other than that of the claimant, could have been
prosecuted, but were not.”).
131. Issues cannot procedurally be raised for the first time in an appeal. See Puckett v.
U.S., 129 S.Ct. 1423, 1429 (2009) (“If a litigant believes that an error has occurred
(to his detriment) during a federal judicial proceeding, he must object in order to
preserve the issue. If he fails to do so in a timely manner, his claim for relief from the
error is forfeited.”).

77

132. Alabama (Ala. Code § 32-6-7.3 (2002)); California (Cal. Penal Code Ann. § 13519.4);
Connecticut (Conn. Gen. Stat. § 54-1m); Florida (only applies to stops based on
seatbelt law) (Fla. Stat.§ 316.614(d)(9)); Illinois (20 Ill. Comp. Stat. § 2715/40); Kansas
(K.S.A. 22-4604 (in preliminary stages, and is requesting proposals for instituting
data collection)); Louisiana (only required of departments which don’t adopt a
written policy against racial profiling) (LSA R.S. 32:398.10); Maryland (Md. Code
Transp. § 25-113); Missouri (Mo. Rev. Stat. § 590.650); Nebraska (Neb. Rev. Stat. NE
ST § 20-504 (updated by 2010 Nebraska Laws L.B. 746 to extend the deadline by 4
years)); North Carolina (N.C.G.S.A. § 114-10.01 (2002)); Oregon (Or. Rev. Stat. § 14131-5 to 11 (2001) (authorizing the creation of a Law Enforcement Contacts Policy
and Data Review Committee that may receive and analyze data “if resources are
available”)), 131.906 Law Enforcement Contacts Policy and Data Review Committee;

133.

ENDNOTES

Rhode Island (RI ST § 31-21.1-6); South Carolina (Code 1976 § 56-5-6560);
Tennessee (a one-year pilot program) (Tenn. Code Ann. § 4-7-119); Texas (Vernon’s
Ann. Texas C.C.P. Art. 2.134); Utah (U.C.A. 1953 § 53-1-106); Washington (data
collection “within fiscal constraints”) (West’s RCWA 43.101.410); and West Virginia
(WV ST § 17G-1-2).
Racial Profiling Data Collection Resource Center at Northeastern University,
<http://www.racialprofilinganalysis.neu.edu/background/>.

134. LSA R.S. 32:398.10 (All law enforcement officers defined as a peace officer in
R.S. 40:2402, which reads R.S. 40:2402 (3)(a) “Peace officer” means any full-time
employee of the state, a municipality, a sheriff, or other public agency, whose
permanent duties actually include the making of arrests, the performing of searches
and seizures, or the execution of criminal warrants, and is responsible for the
prevention or detection of crime or for the enforcement of the penal, traffic, or
highway laws of this state, but not including any elected or appointed head of a
law enforcement department. (b) “Peace officer” shall also include those sheriff’s
deputies whose duties include the care, custody, and control of inmates. (c)
“Peace officer” shall also include full-time military police officers within the Military
Department, State of Louisiana. (d) “Peace officer” shall also include full-time
security personnel employed by the Supreme Court of the state of Louisiana.).
135. Chavez v. Illinois State Police, 251 F.3d 612, 623 (2001).
136. Chavez at 46.
137. Chavez at 643
138. C.G.S.A. § 54-1l [Connecticut]; KRS § 15A.195 [Kentucky]; MCA 44-2-117 [Montana];
Okl. St. Ann. tit. 22 § 34.3 [Oklahoma]; TN ST § 38-1-501 [Tennessee].
139. Whren at 811.
140. Vernon’s Ann.Texas C.C.P. Art. 3.05.
141. Conn. Gen. Stat. § 54-1m (2001).
142. C.G.S.A. § 54-1b.
143. 2010 CT S.B. 28 (NS).
144. 2010 CT S.B. 28 (NS)(the summary of the amended bill reads simply, “To implement
the Governor’s budget recommendations.”).
145. Jones v. Town of East Haven, 493 F.Supp.2d 302 (D.Conn. 2007) (The town had
a history of racially discriminatory policing, including the use of excessive force
against African-Americans including an African-American man shot to death by
police with inadequate investigation by the department, a diabetic woman dragged
around by police, and many other incidents).

78

FACES OF RACIAL PROFILING: A Report from Communities Across America

146. 22 Okl. St. Ann. § 34.3 (2002).
147. W.S.A. 165.85 (4)(f) (proposed amendments to this legislation changes the
numbering only for this section).
148. A.C.A § 12-12-1401 (a) [Arkansas]; Cal.Penal Code § 13519.4 [California]; Kan. Stat.
Ann. § 22-4606 (amended by 2009 KS S.B. 179 (NS)) [Kansas]; Chapter 228 of the
Acts of 2000 [Massachusetts]; Mo. Rev. Stat. § 590.650 [Missouri]; NE ST § 20-502
[Nebraska]; Nev. Rev. Stat. § 289.820 [Nevada]; NM ST § 29-21-1 [New Mexico]; Gen.
Laws 1956, § 31-21.2-3 [Rhode Island]; and WV ST § 30-29-10 amended by H.B. No.
4188 [West Virginia].
149. A.C.A § 12-12-1401 (a).
150. Giron v. City of Alexander, F.Supp.2d, 2010 WL 779320, E.D.Ark. 2010 (Mar. 05, 2010).
151. Cal.Penal Code § 13519.4 (e).
152. See Jackson v. City of Pittsburg, 2009 WL 1684701, *3+ (N.D.Cal. Jun 12, 2009) (NO.
C 09-01016 WHA).
153. Commonwealth of Massachusetts v. Lora, 451 Mass. 425, 886 N.E. 2d 688 (2008).
154. Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (Neb., 2009).
155. NJ ST 2C:30-6b.
156. State v. Lee, 190 N.J. 270, 920 A.2d 80 (N.J., 2007).
157. Lee at 275-6.
158. State v. Ball, 887 A.2d 174,174 (App. Div. 2005).
159. U.S. v. New Jersey Joint Application for Entry of Consent Decree and Consent
Decree, <http://www.justice.gov/crt/split/documents/jerseysa.php.
160. Cincinnati, Ohio, Municipal Code, art. IV, § 4-A (2004).
161. Cincinnati, Ohio, Municipal Code, art. IV, § 4-A-d (2004).
162. See Columbus Ohio, Code § 2331.01(A)(13) (2004).
163. Charu A. Chandrasekhar. Note & Comment, “Flying While Brown: Federal Civil Rights
Remedies to Post-9/11 Airline Racial Profiling of South Asians”, 10 Asian L.J. 215,
224, 2003.

79

ENDNOTES

164. NYU School of Law, Center for Human Rights and Global Justice. “Irreversible
Consequences: Racial Profiling and Lethal Force in the ‘War on Terror’”, 2006,
<http://www.chrgj.org/docs/CHRGJ%20Irreversible%20Consequences.pdf>.
“Profiling is based on the faulty premise that race, religion, ethnicity and/or
national origin correlate with terrorism,” citing to various authors who have shown
that “profiling is based on a tenuous factual premise that race, religion, ethnicity
and/or national origin correlate with terrorism.”). See, Kevin Lapp. “Pressing Public
Necessity: The Unconstitutionality of the Absconder Apprehension Initiative 29”,
N.Y.U. REV. L. & SOC. CHANGE 573, 575N11, 2005; David Cole. “Enemy Aliens:
Double Standards and Constitutional Freedoms in the War on Terrorism”, pp. 18397, 2003; Christopher Edley, Jr. “The New American Dilemma: Racial Profiling Post9/11”, in The War on Our Freedoms: Civil Liberties in an Age of Terrorism, p. 170,
Richard C. Leone & Greg Anrig, Jr. eds., 2003; and Tanya E. Coke. “Racial Profiling
Post-9/11: Old Story, New Debate”, Lost Liberties: Ashcroft and the Assault on
Personal Freedom, p. 91, Cynthia Brown ed., 2003. Together, these analyses
demonstrate that profiling is (1) based on a tenuous factual premise that race,
religion, ethnicity and/or national origin correlate with terrorism, (2) ineffective as
compared to other strategies, such as carefully watching behavior at increasing hit
rates, (3) counterproductive in that it alienates members of the overbroadly targeted
community of people, and (4) an institutionalization of prejudice. See also, William J.
Stuntz, “Local Policing After the Terror”, 111 Yale L.J. 2137, 2142 (2002) (“[T]here is
nothing new about, and nothing wrong with, the claim that after September 11 law
enforcement authority should increase.”). See also, Chandrasekhar at 225. (“Airline
racial profiling treats passengers as “criminals in the absence of specific evidence
of individual criminality, and [treats] passengers unequally” on the basis of an
immutable characteristic that has “no causal relationship to terrorist activity (citing
Gregory T. Nojeim, Aviation Security Profiling and Passengers’ Civil Liberties, 13 Air
& Space Law. 3, 6 (1998).”). See also, David A. Harris. “Racial Profiling Revisited: ‘Just
Common Sense’ in the Fight Against Terror?”, p. 17, Crim. Just. 36, 2002 (discussing
post-9/11 racial profiling), and Samuel R. Gross & Debra Livingston. “Racial Profiling
Under Attack” 102 Colum. L. Rev. 1413, 2002 (discussing post-9/11 racial profiling).

80

PHOTO CREDITS

FRONT COVER IMAGES:
Portraits, top left, RWG
Images, from top right:
Top: Photo courtesy of Mike_tn via Flickr (Creative Commons licensing; October
2008)
Center: Photo courtesy of cyanocorax via Flickr (Creative Commons licensing;
August 2006)
Right: Photo courtesy of Pabitra Benjamin
REPORT IMAGES:

Page 5
Page 8
Page 13
Page 14
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Page 18
Page 22
Page 23
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All Portraits, RWG
Photo courtesy of JacobRuff via Flickr (Creative Commons licensing)
courtesy RWG
Texas State Capitol Building, courtesy of Fusionpanda via Flickr
(Creative Commons licensing)
courtesy of Pabitra Benjamin
courtesy of Pabitra Benjamin
courtesy of Pabitra Benjamin
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