Civil Rights Groups Send Concerns about Department of Justice’s 2023 Racial Profiling Guidance

Per the letter, the groups appreciate that the Guidance expands the covered protected characteristics to include disability, though the exclusion of nationality and sex characteristics continues to cause concern. We also believe that to the extent the Guidance’s anti-bias prohibitions explicitly cover a greater range of law enforcement and intelligence personnel and activities than the previous 2014 guidance, it is a step forward. However, while the Guidance’s preface correctly recognizes that “biased practices are unfair; negatively impact privacy, civil rights, and civil liberties; engender mistrust; and perpetuate negative and harmful stereotypes,” the discretionary and vague standard it sets forth will not prevent these harms, as demonstrated by several of the examples of application in the Guidance itself.

Moreover, the Guidance should not purport to reflect bare-minimum constitutional requirements but should seek to exceed them so that violations of the policy do not automatically constitute an infringement on individuals’ constitutional rights. The Guidance will likely be cited as authoritative by state and local law enforcement who may adopt it explicitly or implicitly. Relatedly, although it is promising that this Guidance applies to joint task forces with state and local officers, its significant flaws risk undermining stronger anti-bias provisions that may be applicable under state and local law.