This standard is more stringent than the limits imposed by
federal courts in such situations. Federal courts typically allow
law enforcement officers to consider race or ethnicity as one of
several factors in deciding whom to stop. 16 However, the DOJ
Guidance wisely raises the bar for federal law enforcement officers: “IT]his guidance in many cases imposes more restric-
tions on the consideration of race and ethnicity in Federal law
enforcement than the Constitution requires.”‘ 7
However, the Guidance does not preclude the use of race in
conjunction with suspect descriptions. Witnesses often describe
a suspect according to his or her apparent race or ethnicity (e.g.,
“the bank was robbed by a white male, driving a blue corvette”).
The Guidance properly explains:
In conducting activities in connection with a specific inves- tigation, Federal law enforcement officers may consider race and ethnicity only to the extent that there is trustwor- thy information, relevant to the locality or time frame, that
links persons of a particular race or ethnicity to an identi-
fied criminal incident, scheme, or organization. This stan-
dard applies even where the use of race or ethnicity might otherwise be lawful.”8
This must not be read too broadly. The Guidance points to a Ninth Circuit Court of Appeals decision: “We must be particu-
larly careful to ensure that a ‘high crime’ area factor is not used
16. See, e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975)
(describing that officers may stop vehicles only if they are aware of specific facts,
along with rational inferences therefrom, which would reasonably warrant sus-
picion that the vehicles are occupied by aliens who may be illegally in the
United States; and stating that an officer whose observations lead him reasona-
bly to suspect that a particular vehicle might contain illegal aliens is entitled to
stop the vehicles briefly, question the occupants about their citizenship and
immigration status, and ask them to explain suspicious circumstances).
17. United States v. Avery, 137 F.3d 343, 353 (6th Cir. 1997) (holding
police may not stop individuals for investigative scrutiny solely on the basis of
race, but a stop based on “many reasons” which include race as one factor “may
not violate equal protection principles”); United States v. Rush, 673 F. Supp.
1097 (D.D.C. 1987) (approving investigative stop based on a drug courier pro-
file resulting in arrest, where one of the profile’s elements included race); cf
United States v. Mendenhall, 446 U.S. 544 (1980) (approving generally of the
use of profiles to build reasonable suspicion justifying an investigative stop,
although not addressing the use of race as a factor generally); Brignoni-Ponce,
422 U.S. at 886-87 (holding that a brief investigative stop at a fixed roadside
immigration checkpoint relying in part on race or ethnicity could be justified, if
several specific articulable facts-one of which could be race or ethnicity-
could reasonably support an inference that the vehicle occupants were illegal
aliens). 18. GUIDANCE, supra note 10, at 2.
2005]
296 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 19
with respect to entire neighborhoods or communities in which members of minority groups regularly go about their daily busi- ness, but is limited to specific, circumscribed locations where par- ticular crimes occur with unusual regularity.”19 Therefore, in the arena of traditional law enforcement activities, the federal policy is that race or ethnicity may never be used as a factor unless there is specific credible information relating to an identified criminal incident or scheme.
Most commentators would be satisfied to leave the discus- sion at this point. However, this analysis would not be complete in a post 9/11 world. The Guidance therefore lays out a paradigm for implementing the prohibition of racial profiling in the con- text of national security and border integrity. While commenta- tors usually avoid this context because it is complex and because the stakes are so high, the Guidance issued by the Department of Justice addresses the issue innovatively and effectively.
The Guidance begins by laying the constitutional frame- work-whenever a government official makes a decision based in any part on racial or ethnic considerations, strict scrutiny applies.20 That is, for a federal law enforcement officer to con- sider the race or ethnicity of an individual before deciding to stop or question that individual, he or she must be able to iden- tify a compelling governmental interest and must ensure that the decision is narrowly tailored to advance that interest.
Clearly, a threat to national security is a compelling govern- mental interest. The Supreme Court has held, “It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.” l However, the Guidance rein- forces the prohibition on actions based on stereotype or invidi- ous bias:
In absolutely no event . . . may Federal officials assert a national security or border integrity rationale as a mere pretext for invidious discrimination. Indeed, the very pur- pose of the strict scrutiny test is to “smoke out” illegitimate use of race, Adarand, 515 U.S. at 226 (quoting Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989)), and law enforcement strategies not actually premised on bona fide
19. United States v. Montero-Camargo, 208 F.3d 1122, 1138 (9th Cir. 2000).
20. See, e.g., Adarand Constructors v. Pena, 515 U.S. 200, 224-25 (1995) (citing various Supreme Court cases that develop the strict scrutiny application).
21. See, e.g., Haig v. Agee, 453 U.S. 280, 307 (1981) (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964)).
HOMFLAND SECURITY AND CIVIL LIBERTIES
national security or border integrity interests therefore will not stand.
22
To help explain how these principles should be applied, the Gui-
dance includes hypothetical fact patterns. One describes a
national security threat that is sufficiently specific to qualify as a
compelling governmental interest:
Example: U.S. intelligence sources report that terrorists
from a particular ethnic group are planning to use com-
mercial jetliners as weapons by hijacking them at an air-
port in California during the next week. Before allowing
men of that ethnic group to board commercial airplanes in
California airports during the next week, Transportation
Security Administration personnel, and other federal and
state authorities, may subject them to heightened scrutiny.2 3
By contrast, reliance on generalized stereotypes with no specific
threat warning, even in a national security context, is forbidden:
Example: At the security entrance to a Federal courthouse,
a man who appears to be of a particular ethnicity properly
submits his briefcase for x-ray screening and passes
through the metal detector. The inspection of the brief-
case reveals nothing amiss, the man does not activate the
metal detector, and there is nothing suspicious about his
activities or appearance. In the absence of any threat warn-
ing, the federal security screener may not order the man to
undergo a further inspection solely because he appears to
be of a particular ethnicity. 2 4
In sum, the “national security” section of the Guidance strikes
the difficult but essential balance between using all available
tools to protect our country while also honoring the rule of law
and principles of non-discrimination. The intention is to allow
the executive branch the full flexibility the Constitution allows in
order to protect the country while minimizing to the greatest
extent possible the use of race or ethnicity in law enforcement
activities. Practically, this means that on a daily basis law enforce-
ment personnel should not be using race as a factor in their
activities. However, there could be certain national security con-
texts in which all options must be available to the Executive to
protect the country. The Guidance concludes: “The Constitution
22. GUIDANCE, supra note 11, at 9-10. 23. Id. at 10.
24. Id.
2005]
298 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 19
prohibits consideration of race or ethnicity in law enforcement decisions in all but the most exceptional circumstances. ’25
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