Racial Profiling: Legal and Constitutional Issues
Released: 2012-04-16T00:00:00

Racial profiling is the practice of targeting individuals for police or security detention based on their race or ethnicity in the belief that certain minority groups are more likely to engage in unlawful behavior. Examples of racial profiling by federal, state, and local law enforcement agencies are illustrated in recent legal settlements and data collected by governmental agencies and private groups, suggesting that minorities are disproportionately the subject of routine traffic stops. The terrorist attacks by the Arab Muslim hijackers on September 11, and the resultant focus on persons of Middle Eastern and South Asian descent, further underscore the tension between demands of national security and the need for even-handed law enforcement. Some argue that racial profiling is a rational and efficient method of allocating investigatory resources to safeguard the security of all. Others counter, however, that the practice is not a legitimate security measure, but diverts investigatory scrutiny from real sources of potential threat, and that where discrimination is concerned, liberty and security do not conflict. The issue has periodically attracted congressional interest, particularly with regard to existing and proposed legislative safeguards, which include the proposed End Racial Profiling Act of 2011 ( H.R. 3618 / S. 1670 ) in the 112 th Congress. Several courts have also considered constitutional ramifications of the practice as an "unreasonable search and seizure" under the Fourth Amendment and, more recently, as a denial of the Fourteenth Amendment's equal protection guarantee. Furthermore, many states have laws that address racial profiling, and several major state and county law enforcement agencies, like the New Jersey State police, have resolved charges of racial profiling by its officers by agreeing to extensive reform efforts and reporting requirements.

Constitutional Background

Racial profiling, or consideration of race by police and law enforcement, is a subject that the courts have reviewed on several constitutional grounds, including whether such profiling constitutes a violation of the Fourth Amendment's prohibition against unreasonable search and seizure or the equal protection guarantee of the Fourteenth Amendment. Both of these grounds are discussed in greater detail below.

The Fourth Amendment: Unreasonable Search and Seizure

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." In its 1968 Fourth Amendment ruling, Terry v. Ohio , the Supreme Court found that reasonable, articulable suspicion was sufficient grounds for a police officer to briefly stop and question a citizen. Such suspicion must not be based on the officer's "inchoate and unparticularized suspicion or 'hunch,' but on the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." Terry employed a "totality of circumstances" test to determine the reasonableness of police investigatory stops.

United States v. Brignoni-Ponce addressed the issue of race as a factor giving rise to reasonable suspicion of criminal activity. "In this case the officers relied on a single factor to justify stopping respondent's car: the apparent Mexican ancestry of the occupants." Neither this single factor nor the police officer's belief that the occupants were illegal aliens satisfied the constitutional minimum for an investigatory stop. The Court conceded "[t]he likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor." By itself, however, that factor did not support reasonable suspicion necessary for a roving stop. The Court proposed a multi-factored analysis: "Officers may consider the characteristics of the area ... ; usual patterns of traffic on the particular road, and previous experience with alien traffic." Additionally, erratic behavior and evasive acts by those under the observation of the police officer, as well as aspects of the motor vehicle, may support the reasonable suspicion necessary for an investigatory stop.

Subsequent courts, however, have upheld stops of persons that were partially based on race. Border patrol agents in United States v. Martin-Fuerte referred motorists selectively to a secondary inspection area on the basis of several factors, including Mexican ancestry. Of 820 vehicles referred for secondary inspection over the period in question, roughly 20% included illegal aliens. On this basis, the Court determined that "to the extent that the Border Patrol relies on apparent Mexican ancestry at this checkpoint, ... that reliance clearly is relevant to the law enforcement need to be served." Indeed, according to the majority, "even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry, we perceive no constitutional problem." But the Court cautioned against extending the logic of border enforcement cases to situations remote from the border, where the government interest in immigration policing may be less compelling. Thus, a different conclusion might pertain "if, for example, reliance were put on apparent Mexican ancestry at a checkpoint operated near the Canadian border." Another Fourth Amendment case, United States v. Weaver , likewise affirmed the conviction of a black drug courier suspect who was stopped at the Kansas City Airport based, in part, on information that "a number of young roughly dressed black males from street gangs in Los Angeles frequently brought cocaine into the Kansas City area." The court ruled that federal drug enforcement agents can rely on racial characteristics if objective crime trend analysis validates use of these characteristics as "risk factors" in predicting criminal behavior.

The U.S. Court of Appeals for the Ninth Circuit, however, has determined that it is impermissible to take Hispanic origin into account in stops in Southern California. In United States v. Montero-Camargo , the appeals court noted both significant "demographic changes" and "changes in the law restricting the use of race as a criterion in government decision-making" as reasons for precluding any consideration of race.

The likelihood that in an area in which the majority—or even a substantial part—of the population is Hispanic, any given person of Hispanic ancestry is in fact an alien, let alone an illegal alien, is not high enough to make Hispanic appearance a relevant factor in the reasonable suspicion calculus.... [F]actors that have such a low probative value that no reasonable officer would have relied on them to make an investigative stop must be disregarded as a matter of law.

The Supreme Court's contrary dicta in Brignoni-Ponce that ethnic appearance could be relevant was distinguished as relying "on now-outdated demographic information."

A frequently criticized form of racial profiling involves the "pretextual" traffic stop—that is, detaining minority group members for routine traffic violations in order to conduct a more generalized criminal investigation. The Court directly addressed the constitutionality of the practice in 1996. Defendants in Whren v. United States were two motorists who were charged with drug offenses based on evidence discovered after they were pulled over for pausing at a stop sign for an unusually long time, turning without signaling, and taking off at an unreasonable speed. The Whren Court held that the Fourth Amendment is not violated when a minor traffic infraction is a pretext rather than the actual motivation for a stop by law enforcement officers. In other words, the fact that suspects were stopped for pretextual reasons did not, without more, constitutionally taint the police action or evidence of drug crimes discovered as a consequence. Whren , however, did not hold that the officers' motivation is entirely irrelevant when probable cause for a stop is based on a traffic violation. As explained by the Court, "[t]he Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis."

In Atwater v. City of Lago Vista , the Court appeared to reinforce Whren by ruling that the Fourth Amendment did not prohibit the warrantless arrest and custodial detention of a motorist for misdemeanor traffic offenses, including failure to wear a seatbelt, punishable only by a fine. Citing the "recent debate over racial profiling," Justice O'Connor dissented, arguing for a Fourth Amendment principle that would require "officers' poststop action" in such cases to be reasonable and "proportional" to the offense committed.

The Fourteenth Amendment: Equal Protection

Under the Fourteenth Amendment, "[n]o state shall ... deny to any person within its jurisdiction the equal protection of the laws." In the wake of the Whren decision, racial profiling may be susceptible to two different kinds of equal protection challenges. First, claimants may argue that the conduct of an individual officer was racially motivated—that the officer stopped the suspect because of race. "If law enforcement adopts a policy, employs a practice, or in a given situation takes steps to initiate an investigation of a citizen based solely upon that citizen's race, without more, then a violation of the Equal Protection Clause has occurred." Alternatively, the defendant may argue that he was the victim of selective enforcement. Selective enforcement equal protection claims frequently focus on the policies of departments, beyond the impact of particular enforcement actions on individual defendants.

Racial Motivation

Proof of discriminatory intent is an essential element of any equal protection claim. "Determining whether invidious discriminatory purpose was a motivating factor" behind a law enforcement officer's actions "demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." The task is complicated after Whren because there may be an objective, nonracially motivated basis for the stop or detention . In the case of a pretextual stop, the court must take the inquiry into illicit intent to the next level by addressing the officer's reason for taking enforcement action. But if racially motivated decision-making is shown, or an agency policy employs explicit racial criteria, the claimant need not demonstrate statistically that members of his racial or ethnic group were disproportionately targeted for enforcement. "[I]t is not necessary to plead the existence of a similarly situated non-minority group when challenging a law or policy that contains an express racial classification." Rather, because the policy itself establishes a direct connection between the racial classification and the defendant's enforcement action, the policy is subject to strict scrutiny under the Equal Protection Clause.

A challenge to the specific acts of a particular police officer is not unlike a claim of racial discrimination in the use of peremptory jury challenges, which also involves the acts of a single state actor—the prosecutor—in the course of a single transaction—the selection of a jury. The Supreme Court has instructed that "all relevant circumstances" be considered in the constitutional analysis of such cases, including the prosecutor's "'pattern' of strikes against black jurors," and the prosecutor's questions and statements, which may "support or refute an inference of discriminatory purpose." Similarly, a police officer's pattern of traffic stops and arrests, his questions and statements to the person involved, and other relevant circumstances may support an inference of discriminatory purpose in this context. But, usually, statistical evidence of disparate racial impact will not alone suffice to establish an illegal racial profiling operation.

Direct evidence of discriminatory intent was sufficient to avoid summary judgment on a Section 1983 claim of selective enforcement in the Tenth Circuit decision, Marshall v. Columbia Lea Regional Hospital . There the claimant was able to present evidence of the officer's behavior during the events in question as well as his alleged record of racially selective stops and arrests in drug cases under similar circumstances. Further evidence was offered that the claimant did not commit the alleged traffic violation and that the officer made eye contact with him prior to activating his emergency lights. As soon as the officer approached the claimant, he accused him of being on crack, an accusation the officer repeated several times during the encounter. When the officer filled out the citation form, he noted the claimant's race, although the form called for no such designation. Most compellingly, it was shown that the officer had an extensive recorded history—or "modus operandi"—of similar misconduct during his prior employment as a police officer in another jurisdiction.

However, if race or ethnicity is "but one factor" and not the "sole basis" for a stop detention, there may be no Fourteenth Amendment violation. In United States v. Valenzuela , a Hispanic motorist traveling from Tucson to Denver was stopped for weaving in traffic by a Colorado trooper. The officer then became "suspicious" that plaintiff may be a drug courier because of his "stiff and uncomfortable" behavior, a "fabricated" story about visiting a sister in a Denver hospital, a vehicle registration showing salvage title, and because Tucson was a known source of illegal drugs, among other things. The driver ultimately consented to a search of his vehicle which uncovered large amounts of cocaine under the carpet and rocker panels. At trial, the trooper testified that beyond noted factors, he sometimes considered race or ethnicity in making probable cause determinations, in part because of information from the Drug Enforcement Administration (DEA) that the majority of area drug smugglers are Hispanic. Affidavit evidence in the case revealed a "large number of Hispanic arrestees," but failed to reveal "any stops made by [the trooper] in which no search was conducted or no drugs were found" or that any stops were made for pretextual reasons. As a consequence, the district court denied motions to suppress, there being "no persuasive evidence that the Trooper targeted any of these suspects solely because of their race."

Similarly, the Second Circuit, in Brown v. City of Oneonta , concluded that there was no violation of the Equal Protection Clause where plaintiffs charged that they were questioned solely on the basis of their race, where the physical description of the suspect provided by the victim of the crime included race among other factors. The policy of the department, which included obtaining a description of the assailant and seeking out persons matching that description, was found to be race-neutral on its face. Thus, only when race-based law enforcement decisions are a product of racial stereotyping by police officials, as opposed to government's response to evidence developed from other sources, may constitutional issues arise.

Selective Enforcement

Absent an overtly discriminatory policy, or direct evidence of police motivation, racial profiling claimants face additional evidentiary burdens. A claimant alleging selective enforcement of facially neutral criminal laws must demonstrate that the challenged law enforcement practice "had a discriminatory effect and that it was motivated by a discriminatory purpose." In United States v. Armstrong , criminal defendants sought to attack their federal firearms and drugs charges for crack cocaine as selective prosecution based on race. The Supreme Court rejected the contention because there was no showing that similarly situated defendants of another race were treated differently by criminal prosecutors. "To establish discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted." A claimant can satisfy this requirement by naming an individual who was not investigated in similar circumstances or through the use of statistical or other evidence "address[ing] the crucial question of whether one class is being treated differently from another class that is otherwise similarly situated." This latter recourse calls for a reliable measure of the demographics of the relevant population, a standard for determining whether the data represents similarly situated individuals, and relevant comparisons to the actual incidence of crime among different racial and ethnic segments of the population.

This framework has been applied in a number of proceedings involving allegations of discriminatory police enforcement practices. Armstrong was relied upon by the Fourth Circuit in affirming the dismissal of a racial profiling action against Virginia Beach police. The district judge in Harris v. City of Virginia Beach , rejected statistical evidence of a "pattern, practice, or custom of racial profiling" offered by a black driver who alleged that he was stopped for driving under the influence without probable cause. Without evidence that the officer was aware of plaintiff's identity and race before stopping his vehicle, there was no proof of illicit motivation. Moreover, even if plaintiffs could show that a disproportionate number of minorities were stopped for traffic violations, they could not prove their claim of discriminatory treatment absent a showing that similarly situated non-minority drivers were treated differently. Since no record was kept concerning stops where no citations were issued or searches conducted, the court found that plaintiffs could not meet their burden. "Statistical evidence is generally not sufficient to show that similarly situated persons of different races were treated unequally."

Other courts have disagreed, however, and refused to apply the "similarly situated requirement" in Armstrong to racial profiling by law enforcement officers because the police "never have been afforded the same presumption of regularity extended to prosecutors" and because "in the civil context, ... such a requirement might well be impossible to meet." In United States v. Duque-Nava , the court concurred that application of the Armstrong standard to racial profiling cases would require a Section 1983 claimant to make an "impossible" showing "that a similarly situated individual was not stopped by the law enforcement." For this reason, in the Marshall decision, the Tenth Circuit found that discriminatory effect could be demonstrated either by showing a similarly situated individual, or by relying on statistical evidence. And in Chavez v. Illinois State Police , the Seventh Circuit similarly held that statistical evidence of discriminatory effect should be accepted as proof of a selective enforcement claim based on a traffic stop.

While dispensing with Armstrong 's "similarly situated" requirement, however, Chavez illustrates the difficulty of proving racial profiling claims based on statistical evidence. The Seventh Circuit affirmed dismissal of a class action lawsuit challenging Operation Valkyrie , a state police program to fight illegal drug trade by focusing on traffic enforcement. After stopping a vehicle for a legitimate traffic offense, Valkyrie officers were trained to request permission to search if any of 28 indicators of illegal drug trade unrelated to race were noted. Chavez was stopped for failing to signal a lane change—after which he was questioned, his car searched, and he was released with a warning—while a white female companion (from the public defender's office) driving in identical fashion immediately behind him was not stopped. A second class member, Lee, claimed that he violated no traffic laws but was nonetheless stopped, patted down, and subjected to a search of his car three times in 1993. In their bid for class certification, the plaintiffs proffered statistics, which they argued showed a disproportionate number of Blacks and Hispanics being stopped and searched. The district court granted the state's motion for summary judgment on the equal protection claims, and the Seventh Circuit affirmed.

The appeals court found that Chavez did identify a similarly situated white motorist who was treated differently, but that the Armstrong requirement was neither necessary nor sufficient to satisfy the plaintiff's burden of proving discriminatory purpose and effect in an equal protection case. The Armstrong rule governing selective prosecutions did not apply in racial profiling cases, first, because it would be impossible to prove. "[P]laintiffs who allege that they were stopped due to racial profiling would not, barring some type of test operation, be able to provide the names of other similarly situated motorists who were not stopped." Second, racial profiling involves police conduct, not prosecutorial discretion, and is in a civil, not criminal, context.

Despite its decision to permit statistical proof that minority class members were treated differently than other motorists, the court concluded that the numbers presented failed to support an inference of racial profiling. First, plaintiffs relied on a "random sample" of Valkyrie field reports, without indication of the total number of stops made during the relevant period. Secondly, the "benchmarks" for the presence of various racial groups on Illinois roads was the 1990 census, which is "widely acknowledged" to undercount certain groups, particularly Blacks and Hispanics. Thus, without reliable data on whom Valkyrie officers stop, detain, and search, or of a proper demographic benchmark for the motoring public on the Illinois roads in question, the court "[could] not find that the statistics prove that the Valkyrie officer's action had a discriminatory effect on the plaintiffs." Nor did "isolated instances" of "racially insensitive remarks" made by troopers during stops provide sufficient evidence of racial motivation in a racial profiling case.

In contrast, in Ortega-Melendres v. Arpaio , a federal district court recently certified a class action on behalf of Latino individuals in Maricopa County, AZ, finding that the plaintiffs had presented sufficient evidence that the Maricopa County Sheriff's Office had engaged in intentional racial profiling when conducting traffic stops. Among the evidence cited by the court were statements by the sheriff indicating that his officers are both authorized and encouraged to detain people based on their appearance, with specific references to racial characteristics that he asserts are hallmarks of individuals who have the "'look of the Mexican illegal.'" As a result, the court allowed the plaintiffs' Fourth and Fourteenth Amendment claims to proceed and granted a preliminary injunction enjoining the department "from detaining any person based only on knowledge or reasonable belief, without more, that the person is unlawfully present within the United States."

Apart from problems of proof, established equal protection doctrine instructs that where race or ethnicity is the sole or "predominant" factor behind the decision to stop or arrest, "strict scrutiny" requires that government demonstrate a "compelling" justification served by "narrowly tailored" means. "Strict scrutiny" is not, however, a per se rule of invalidity—"strict in theory is [not] fatal in fact" —but instead describes an analytical framework requiring the government to demonstrate a "close fit" between any distinction in treatment of its citizens on the basis of race and a "compelling" law enforcement or national security interest. The government's burden of justification for focusing upon race as a predominate factor in the law enforcement process is undoubtedly a weighty one, unlikely to be met in most circumstances. Nonetheless, much might depend on the "totality" of circumstances, not the least of which may be the magnitude of any public safety or national security interests at stake. "In the end, ... even when formally strict, judicial scrutiny under the Equal Protection Clause must be ever sensitive to the circumstances in which government seeks to act and to the methods by which it seeks to achieve even its legitimate ends."

The Equitable Standing Doctrine

Besides substantive proof requirements, major procedural obstacles may limit the efficacy of private actions to end racial profiling practices. First, there is the "equitable standing doctrine" that has been applied by courts to deny an individual plaintiff the legal standing to seek injunctive relief against unconstitutional police practices unless he can show a "substantial certainty" that he will suffer similar injury in the future. In City of Los Angeles v. Lyons , the Supreme Court reversed the grant of injunctive relief to a black motorist permanently injured by a police chokehold applied during a routine traffic stop. Notwithstanding his allegation that numerous other individuals had been injured or killed as a result of the same practice, the plaintiff had not shown that he himself was "realistically threatened by a repetition of his experience" with the LAPD. Although he had standing to assert a damages claim, said the Court, the plaintiff could not obtain an injunction because it was unlikely that he again would be subject to a chokehold. Moreover, in order to show actual threat of future injury, Lyons "would have had not only to allege that he would have another encounter with the police but also to make the credible assertion ... that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter."

The Lyons principle has been applied to racial profiling cases by the lower courts, which have, with some exceptions, generally denied standing for plaintiffs who seek injunctions against future police abuse while permitting claims for damages to go forward. "[I]t is important to keep in mind that these are two distinct inquiries, and that it is possible to have standing to assert a claim for damages to redress past injury, while, at the same time, not having standing to enjoin the practice that gave rise to those damages." It could be argued, however, that a damages remedy is a less effective deterrent to constitutional misconduct because individual officers are cloaked by qualified "good faith" immunity in most cases, or may be indemnified against personal liability by their public employer.

Federal Statutes

In addition to the U.S. Constitution, several federal statutes provide a basis for racial profiling lawsuits.

42 U.S.C. Section 1983

Judicial decisions reflect the crucial role that racial recordkeeping and statistics may play in mounting a successful legal challenge to racial profiling. This is because the plaintiff must prove both racial motivation and "discriminatory effect" of law enforcement practices in federal lawsuits under 42 U.S.C. Section 1983. Section 1983 provides a monetary damages remedy for harm caused by deprivation of federal constitutional rights—including equal protection of the laws—by state or local governmental officials or those acting in concert with them, that is, under "color of law." Claims against federal defendants—usually in the context of border, customs, or airport searches—may be maintained directly under the Constitution as a Bivens action, or under the Federal Tort Claims Act. Not every violation of a Fourth or Fourteenth Amendment right is entitled to a damage remedy, however. The qualified immunity doctrine broadly protects against individual liability for damages where the right asserted was not "clearly established," or where a reasonably well-trained officer would not have known that his conduct violates the Constitution. Similarly, with some exceptions, the Eleventh Amendment generally prohibits suit against a state or state law enforcement agency for damages, and controlling Section 1983 precedent makes municipal employers liable only for constitutional violations caused by municipal "law, policy, practice, or custom."

The Violent Crime Control and Law Enforcement Act of 1994

This act includes a provision, 42 U.S.C. Section 14141, authorizing the Department of Justice (DOJ)—but not private victims—to bring civil actions for equitable and declaratory relief against any police agency engaged in unconstitutional "patterns or practices." DOJ's Civil Rights Division has moved against state and local law enforcement agencies engaged in a "pattern or practice" of police abuse under 42 U.S.C. Section 14141, again relying on statistical evidence of discriminatory enforcement patterns.

For example, DOJ filed a federal lawsuit against the State of New Jersey claiming that officers patrolling the New Jersey Turnpike intended to discriminate on the basis of race and that state police "criteria and methods of administration" had a racially discriminatory effect. By failing to implement policies to properly discipline officers for racially discriminatory conduct, the government's complaint alleged, the New Jersey State Police were responsible for the pattern of racial profiling. The suit was brought under Section 14141, authorizing civil action by the Attorney General to "obtain appropriate equitable and declaratory relief to eliminate the pattern or practices" of racial discrimination by law enforcement agencies, and a settlement was reached in 2000.

Ultimately, the statute has been employed by DOJ to combat racial profiling by major law enforcement organizations around the country, and the agency has reached multiple settlements requiring law enforcement agencies to implement comprehensive plans and programs to address patterns and practices of police abuse, including racial profiling. While the law provides the federal government with an important tool for dealing with police abuse, its efficacy may be limited because it lacks a private right of action, which would allow individuals to sue in federal court.

Omnibus Crime Control and Safe Streets Act of 1968

The Crime Control Act was enacted to "aid State and local governments in strengthening and improving their systems of criminal justice by providing financial and technical assistance." State and local governments receiving assistance are prohibited from discriminating in programs or activities funded in whole or in part by the federal largess. The Civil Rights Division of DOJ is responsible for enforcing the statute, which authorizes civil actions by the federal government, allows individuals to pursue a private right of action, and authorizes DOJ to terminate assistance to fund recipients found guilty of discrimination.

Title VI of the 1964 Civil Rights Act

Title VI prohibits discrimination because of race or ethnicity in all federally assisted programs or activities. Thus, law enforcement agencies that receive federal funds must comply with Title VI. Racial profiling cases have only infrequently included Title VI claims. While this avenue remains largely untested, courts have held that Title VI permits a private right of action for individuals to seek injunctions against recipients of federal funding, including police, for a policy or practice that discriminates on account of race. Moreover, local police departments that receive DOJ assistance are subject to agency regulations providing that recipients may not "utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination ... or have the effect of defeating or substantially impairing" program objectives because of race. After the Supreme Court decision in Alexander v. Sandoval , however, private parties no longer have a right to sue for damages to enforce Title VI "disparate impact" regulations, and may have to rely on administrative enforcement by federal agencies.

Guidance Regarding the Use of Race by Federal Law Enforcement Agencies

In February 2001—notably, before the events of September 11—President Bush directed the Attorney General to review the use of race by federal enforcement agencies and "to develop specific recommendations to end racial profiling." Subsequently, DOJ undertook a study of policies and practices of federal law enforcement agencies to determine the nature and extent of racial profiling. Two years later, the Bush Administration issued a ban on the practice by federal law enforcement agencies—including the Federal Bureau of Investigation, the Secret Service, the DEA, and the Department of Homeland Security—but permitted exceptions for the use of race and ethnicity to combat potential terrorist threats.

The policy prohibits the use of "generalized stereotypes" based on race or ethnicity, and allows officers to consider racial factors in "traditional law enforcement" activities only as part of a specific description or tip from an informant. However, the guidance "do[es] not affect current Federal policy with respect to law enforcement activities and other efforts to defend and safeguard against threats to national security or the integrity of the Nation's borders." When federal law enforcement officers are "investigating or preventing threats to national security or other catastrophic events (including the performance of duties related to air transportation security), or enforcing laws protecting the integrity of the Nation's borders," they may consider both race and ethnicity "to the extent permitted by the Constitution and laws of the United States."

The impact of the guidance may be limited by several factors. First, it applies only to federal agents, whereas the bulk of national law enforcement remains a state and local matter. In addition, the guidance is largely advisory, since it imposes no penalties and otherwise appears to lack legal force. Second, its numerous exceptions, particularly for national security investigations, invite broad circumvention, such as where individuals of Middle Eastern appearance are concerned. Similarly, profiling of Latinos to preserve "border integrity" with Mexico would arguably be permitted by the current policy.