ACLU Acknowledges Improvements to DOJ Racial Profiling Policy, But Says Far More is Needed

WASHINGTON — Two years after the murder of George Floyd at the hands of police, President Biden issued an executive order on policing, pledging to make his administration “part of a larger effort to strengthen our democracy and advance the principles of equality and dignity.” Today, on the third anniversary of George Floyd’s murder, the Biden administration has publicly released more than 20 policies, guidelines, and reports implementing this executive order.

As part of the release, the administration announced progress on incentivizing local law enforcement to adopt federal use of force policies that strictly limit dangerous and deadly practices through grant making and accreditation. The administration announced steps agencies have taken to limit the transfer of military equipment to local law enforcement, but more implementation is necessary.

The Department of Justice also revised its racial profiling guidance for federal law enforcement. For decades, communities of color and rights groups like the ACLU have called on the U.S. government to fully ban discriminatory profiling. Unlike previous rules, the new DOJ policy applies to all of the department’s personnel, as well as joint DOJ operations with state and local law enforcement. The policy also:

• Expands anti-bias protections to include disability, but still excludes nationality and sex characteristics.
• Narrows but does not eliminate loopholes treating national security and intelligence operations as zones where discriminatory profiling can occur.
• Gets rid of language from the prior policy that could be read to permit pretextual stops.

Despite improvements, the new policy does not fully ban bias across all national security activities and programs — such as watchlisting, law enforcement pressuring people to become informants, or immigration enforcement — contexts in which the ACLU has repeatedly seen the most harm occur. The ACLU has also called for the Department of Homeland Security to issue a comprehensive and meaningful anti-discrimination policy.

“We welcome the improvements the Justice Department has made, but are disappointed that after so much work and communities’ calls for change, this policy falls short of a full and effective ban on discrimination by federal agencies,” said Hina Shamsi, director of the ACLU’s National Security Project. “We will closely monitor the policy’s implementation as we work to support and defend communities of color and immigrants harmed by pervasive government discrimination. Federal agencies must not treat anyone as suspicious or a threat to any degree based on the religion they practice or the color of their skin.”

Federal use of force policies mandated by the executive order strictly limit the use of chokeholds and deadly force, and create an affirmative duty for officers to intervene and render aid. Because the executive order applies to federal law enforcement, the administration announced the use of federal grant making and accreditation to incentivize law enforcement at all levels to adopt the federal standards.

“We are cautiously optimistic, and are closely watching implementation to make sure the promises made on paper are actualized at all levels of policing — using the carrot and stick of federal power,” said Cynthia W. Roseberry, acting director for the Justice Division at ACLU. “We see room for improvement in implementation, for example, recalling the military equipment already in local law enforcements’ possession and clarifying that grants will be withheld from law enforcement agencies that do not have federal accreditation. Robust alternative responses — separate and apart from police — must be the priority. We hope in the next year there will be more movement to end discriminatory pretextual stops, particularly in traffic enforcement, which the executive order rightly recognizes as a wedge between communities of color and police. The mandate remains to transform policing by reimagining public safety.”