The following is excerpted from a new report by The Leadership Conference on Civil and Human Rights entitled Restoring a National Consensus: The Need to End Racial Profiling in America (March 2011).
“Racial profiling” refers to the targeting of particular individuals by law enforcement authorities based not on their behavior, but rather their personal characteristics. It is generally used to encompass more than simply an individual’s race. As used in this report, it encompasses race, ethnicity, national origin, and religion—and means the impermissible use by law enforcement authorities of these personal characteristics, to any degree, in determining which individuals to stop, detain, question, or subject to other law enforcement activities. Two points should be emphasized in connection with this definition.
As the qualifying term “impermissible use” indicates, the definition does not prohibit reliance by law enforcement authorities on race, ethnicity, national origin, or religion in all circumstances. Rather, it is aimed at law enforcement activities that are premised on the erroneous assumption that individuals of a particular race, ethnicity, national origin, or religion are more likely to engage in certain types of unlawful conduct than are individuals of another race, ethnicity, national origin, or religion. Thus, it is not racial profiling when law enforcement authorities rely on these personal characteristics as part of a subject description or in connection with an investigation if there is reliable information that links a person of a particular race, ethnicity, national origin, or religion to a specific incident, scheme, or organization.
It also should be noted that under this definition, race18 need not be the sole factor used by law enforcement authorities in deciding who to subject to investigative procedures. Even if individuals are not targeted by law enforcement authorities solely because of their race, race is often a factor—and, indeed, the decisive factor— in guiding law enforcement decisions about who to stop, detain, question, or subject to other investigative procedures. Selective law enforcement based in part on race is no less pernicious or offensive to the principle of equal justice than is enforcement based solely on race.
In order to demonstrate how the foregoing definition would apply in practice, we set forth below several hypothetical examples to illustrate what would and would not constitute racial profiling under that definition:
1. A police officer who is parked on the side of a highway notices that nearly all vehicles are exceeding the posted speed limit. Since the driver of each such vehicle is committing a traffic violation that would legally justify a stop, the officer may not use the race of the driver as a factor in deciding who to pull over or subject to further investigative procedures. If, however, a police officer receives an “all points bulletin” to be on the look-out for a fleeing robbery suspect, who is described as a man of a particular race in his thirties driving a certain model automobile, the officer may use this description—including the suspect’s race—in deciding which drivers to pull over.
2. While investigating a drug trafficking operation, law enforcement authorities receive reliable information that the distribution ring plans to pick up shipments of illegal drugs at a railroad station, and that elderly couples of a particular race are being used as couriers. Law enforcement authorities may properly target elderly couples of that race at the railroad station in connection with this investigation. Assume, however, that the information provided to law enforcement authorities indicates that elderly couples are being used as couriers, but there is no reference to race. Law enforcement authorities may properly target elderly couples, but may not selectively investigate elderly couples of a particular race.
3. In connection with an initiative to prevent terrorist activity, law enforcement authorities may not target members of any particular race or religion as suspects based on a generalized assumption that members of that race or religion are more likely than non-members to be involved in such activity. On the other hand, if law enforcement authorities receive a reliable tip that persons of a particular race or religion living in a specific apartment building are plotting terrorist acts, they may focus their investigation on persons of that race or religion who live in the building.
4. In an effort to identify undocumented immigrants, border agents may not—even in areas near the Mexican border in which a substantial part of the population is Hispanic—take Hispanic origin into account in deciding which individuals to stop, detain, and question. Border agents may take Hispanic origin into account, however, in attempting to identify undocumented immigrants at a particular worksite if they have reliable information that undocumented immigrants of Hispanic origin are employed at that worksite.
To see notes and read the full report, visit www.civilrights.org/publications/reports/racial-profiling2011/