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, Geneva October 14 – November 1, 2013 United States Compliance with the International Covenant on Civil and Political Rights The Persistence of Discriminatory Profiling Based on Race, Ethnicity, Religion, National Origin, Gender Identity and Sexual Orientation in the United States
Authors: Rights Working Group The Creating Law Enforcement Accountability & Responsibility Project at the City University of New York School of Law Rights for All People Streetwise and Safe Contributors: The Beloved Community Center The Black Alliance for Just Immigration BreakOut! The Center for Constitutional Rights The Center for Intercultural Organizing The Minority Executive Directors Coalition The Muslim American Society Immigrant Justice Center OneAmerica The Providence Youth Student Movement Somos Un Pueblo Unido South Asian Americans Leading Together
Table of Contents
I. II. Reporting Organizations………………………………………………………………4 Issue Summary………………………………………………………………………...4 a. Profiling and Surveillance of Muslims, Arabs, Middle Easterners, and South Asians……………………………………………………………………………...5 i. United States Department of Justice Guidance Regarding the Use of Race by Federal Law Enforcement Agencies Permits Religious and National Origin Profiling and Has Not Yet Been Reformed………………………..5 ii. Surveillance and Profiling of Muslims by Federal, State, and Local Law Enforcement Agencies in the United States……………………………….5 1. Federal Bureau of Investigations………………………………….5 2. New York Police Department……………………………………..6 3. Transportation Security Administration Profiling………………...8 4. Customs and Border Protection Profiling at the U.S. Border……..8 iii. Discrimination against immigrants seeking naturalization………………..9 b. Racial Profiling by Federal, State, and Local Law Enforcement Agencies Engaging in Immigration Enforcement………………………………………….10 i. Federal Immigration Enforcement Programs that Partner with State and Local Law Enforcement………………………………………………….10 ii. Customs and Border Protection………………………………………….13 iii. State Anti-Immigrant Laws………………………………………………14 c. Profiling on the Basis of Race and Sexual Orientation/Gender Identity in Stop and Frisk and Other Local Policing Contexts………………………………………...15 i. New York Police Department Stop and Frisk………...………………….15 ii. Seattle Police Department………………………………………………..18 iii. New Orleans Police Department…………………………………………19 iv. Providence Police Department…………………………………………...20 Legal Framework…………………………………………………………………….21 Other UN Body and IACHR Recommendations…………………………………….21 Recommended Questions…………………………………………………………….22 Suggested Recommendations………………………………………………………..22 Appendix I: Contributing Rights Working Group Coalition Members……………...25 Appendix II: Rights Working Group Coalition Member Submissions……………...26 The Black Alliance for Just Immigration (BAJI)………………………..26 The Beloved Community Center (BCC)…………………………………28 BreakOut!...................................................................................................30 The Center for Constitutional Rights (CCR)…………………………….32
III. IV. V. VI.
The Center for Intercultural Organizing (CIO)…………………………..33 The Creating Law Enforcement Accountability & Responsibility Project of the City University of New York Law School (CLEAR)……………..35 The Minority Executive Directors’ Coalition (MEDC)………………….39 The Muslim American Society Immigration Justice Center (MAS-IJC)...41 OneAmerica……………………………………………………………...47 The Providence Youth Student Movement (PrYSM)……………………50 Rights for All People (RAP)……………………………………………..52 Somos Un Pueblo Unido…………………………………………………54 South Asian Americans Leading Together (SAALT)…………………….57 Streetwise and Safe (SAS)……………………………………………….62
Rights Working Group (RWG) formed in the aftermath of September 11th to promote and protect the human rights of all people in the United States. A coalition of more than 350 local, state, and national organizations, RWG works collaboratively to advocate for the civil liberties and human rights of everyone regardless of race, ethnicity, religion, national origin, citizenship, gender identity, sexual orientation or immigration status. This report has been created collaboratively with member organizations of the RWG coalition. Coauthors include: the Creating Law Enforcement Accountability & Responsibility (CLEAR) Project at the City University of New York School of Law; Rights for All People (RAP); and Streetwise and Safe (SAS). Contributors include: the Beloved Community Center (BCC); the Black Alliance for Just Immigration (BAJI); BreakOut!; the Center for Constitutional Rights (CCR); the Center for Intercultural Organizing (CIO); the Minority Executive Directors Coalition (MEDC); the Muslim American Society Immigrant Justice Center (MAS-IJC); OneAmerica; the Providence Youth Student Movement (PrYSM); South Asian Americans Leading Together (SAALT); and Somos Un Pueblo Unido. II. Issue Summary
This report is provided in response to Question 5 in the List of issues in relation to the fourth periodic report of the United States of America, adopted by the Human Rights Committee at its 107th Session. As such it addresses three broad issues: racial profiling and surveillance of Arabs, Muslims and South Asians, and steps taken to combat such profiling; racial profiling within immigration enforcement, including ICE ACCESS programs, and steps taken to review its effect; and discriminatory policing practices, such as those used in the New York Police Department’s Stop and Frisk program, used throughout the United States, as well as steps taken to address discriminatory policing. The report provides an update to Rights Working Group’s most recent submission to the Committee, submitted in December 2012 in preparation for the 107th Session. Racial profiling is defined as the use of race, ethnicity, religion, national origin, gender identity and/or sexual orientation by law enforcement agents in deciding whom to investigate, arrest or detain, in the absence of specific suspect description. Discriminatory law enforcement has a long history in the United States. State and local police have disproportionately targeted African Americans since the early days of slavery. Diverse groups, including Mexican-Americans, Chinese-Americans, and Japanese-Americans, have been discriminated against, incarcerated, and/or deported under the pretexts of immigration enforcement and national security throughout the 19th and 20th centuries.1 Today, African Americans and other people of color, including Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) people of color, are unfairly targeted by local police through programs like the New York Police Department’s “Stop and Frisk” program. Since the tragic events of September 11th, 2001, people of Arab, Middle Eastern, Muslim, and South Asian backgrounds have experienced discriminatory stops, searches, and surveillance at the hands of federal, state, and local law enforcement programs related to counterterrorism and national security. And immigration enforcement, which has been escalating since the 1990s and has expanded with unprecedented intensity since September 11th, has driven up profiling of Latina/os and others perceived to be undocumented.
Rights Working Group, “Criminalizing People of Color: A Historical Legacy,” available at http://www.rightsworkinggroup.org/sites/default/files/FactSheetHistoryFinal.pdf.
As a State Party to the International Covenant on Civil and Political Rights (ICCPR), the United States is obligated to ensure the non-derogable right of all people under its jurisdiction to be free from discrimination. By implementing and expanding policies and programs that allow for or incentivize the use of racial profiling, the U.S. government has failed to comply with the obligation to honor the principle of equality and non-discrimination. A. Profiling and Surveillance of Muslims, Arabs, Middle Easterners, and South Asians 1. United States Department of Justice Guidance Regarding the Use of Race by Federal Law Enforcement Agencies Permits Religious and National Origin Profiling and Has Not Yet Been Reformed As the U.S. government has acknowledged, the Department of Justice (DOJ) Guidance Regarding the Use of Race by Federal Law Enforcement Agencies addresses only the use of race or ethnicity in law enforcement decisions, effectively allowing profiling on the basis of religion, religious appearance, and national origin.2 Moreover, the Guidance contains loopholes for law enforcement in the cases of national security and border security, allowing the broad use of discriminatory profiling performed under those pretexts.3 Though DOJ has created a working group to review the Guidance, that review has been ongoing since 2008, with no result. During 2013, the flawed Guidance has been used as a model for antidiscrimination language in both legislation and administrative policy, including Section 3305 of the immigration reform bill, the “Border Security, Economic Opportunity, and Immigration Modernization Act,” which passed the U.S. Senate in June, and a recent Department of Homeland Security (DHS) memo titled “The Department of Homeland Security’s Commitment to Nondiscriminatory Law Enforcement and Screening Activities,” released in April of 2013.4 The misguided standard set by the Department of Justice has allowed profiling on the basis of religion and national origin to remain an accepted practice across law enforcement and government sectors. 2. Surveillance and Profiling of Muslims by Federal, State, and Local Law Enforcement Agencies in the United States i. Federal Bureau of Investigations The Federal Bureau of Investigations (FBI) has engaged in profiling and surveillance of American Muslims, using informants to infiltrate mosques and Muslim community organizations, mapping Muslim neighborhoods and institutions, creating biased and inaccurate training materials for law enforcement officers, and engaging in what many view as entrapment of vulnerable Muslim individuals to achieve terrorism convictions.5 In July 2013, James Comey was confirmed by the Senate as the new director of
U.S. Department of Justice, Civil Rights Division, “Guidance Regarding the Use of Race by Federal Law Enforcement Agencies,” June 2003, available at http://www.justice.gov/crt/about/spl/documents/guidance_on_race.pdf. 3 Rights Working Group, “Full of Holes: The 2003 Department of Justice Guidance Regarding the Use of Race by Federal Law Enforcement Agencies,” available at http://www.rightsworkinggroup.org/sites/default/files/DOJGuidance_IssueBrief_0.pdf. 4 Rights Working Group, “Analysis of the Profiling Section of the Senate Immigration Bill,” available at http://rightsworkinggroup.org/sites/default/files/RWG%20Analysis%20of%20the%20Profiling%20Section%20of%20the%20Sen ate%20Immigration%20Bill.pdf; Department of Homeland Security, Memorandum for Component Heads, “The Department of Homeland Security’s Commitment to Nondiscriminatory Law Enforcement and Screening Activities,” April 26 , 2013, available at http://www.dhs.gov/sites/default/files/publications/secretary-memo-race-neutrality-2013_0.pdf. 5 Shan Li, “Lawsuit contends FBI violated rights of hundreds of Muslim Americans,” Los Angeles Times, February 22, 2011, available at http://latimesblogs.latimes.com/lanow/2011/02/fbi-muslim-communities-lawsuit-aclu.html?lanow; Charlie Savage, “F.B.I. Scrutinized for Amassing Data on American Communities,” New York Times, October 20, 2011, available at
the FBI. In Comey’s confirmation hearing he made troubling comments which suggest he does not plan to reform the FBI’s discriminatory approach to the Muslim community in the United States.6 ii. New York Police Department Local law enforcement agencies, most notably the New York Police Department (NYPD), also engage in blanket surveillance of Muslims. According to Creating Law Enforcement Accountability & Responsibility (CLEAR), a project of the City University of New York School of Law which addresses the underserved legal needs of Muslim, Arab, South Asian, and other communities whose civil liberties and human rights have been impacted by post-9/11 law enforcement policies and practices, Since 2001, the NYPD has established a secret surveillance program that has mapped, monitored and analyzed American Muslim daily life throughout New York City, and even its surrounding states. The full extent of this program was first revealed by documents that were leaked to the Associated Press and published in 2011. The documents detailed how the NYPD has collected intelligence on at least 250 mosques, 12 Islamic schools, 31 Muslims student organizations, 10 non-profit organizations, and 256 “ethnic hotspots.” The NYPD has sent undercover officers and paid informants to spy on neighborhood cafes and places of worship, infiltrate student whitewater-rafting trips, and record mosque sermons. Underlying this program is a deeply flawed, but also deeply held belief among the NYPD leadership that American Muslims are prone to radicalization – a theory that is laid out in detail in a widely-circulated report called Radicalization in the West: The Homegrown Threat.7 Yet despite implementing this expansive program, the NYPD’s own Commanding Officer of the NYPD Intelligence Division, Lt. Paul Galati, has admitted during sworn testimony that in six years of his tenure, the unit tasked with monitoring American Muslim life has not yielded a single criminal lead.8 In August 2013, the Associated Press revealed that in addition to mapping and monitoring Muslim institutions, the NYPD has designated entire mosques and Muslim community organizations as “terrorism organizations.”9 Such designations are frequently imposed without specific evidence of criminal behavior, and allow the NYPD to spy on and investigate any individual associated with the institutions. NYPD surveillance has had a chilling effect on Muslim New Yorkers’ religious and spiritual life, civic and political engagement, and relationship with law enforcement. Contrary to the NYPD’s claim that surveillance is a harmless activity, a 2013 report by CLEAR and other organizations found that “surveillance has curtailed religious practice, censored speech and stunted political organizing,” while eroding Muslims’ trust in their colleagues, neighbors, fellow congregants, and classmates—as well as in
http://www.nytimes.com/2011/10/21/us/aclu-releases-fbi-documents-on-american-communities.html?_r=1&; Dina TempleRaston, “How Did Anti-Muslim Bias Seep Into FBI Training?” National Public Radio, September 29 2011, available at http://www.npr.org/2011/09/29/140902739/units-autonomy-may-be-why-fbi-missed-bias; Rachel Roberts, “FBI Entrapment Harms Vulnerable Muslims,” Council on American Islamic Relations blog, available at http://cair.com/cair-blog/entry/fbientrapment-harms-vulnerable-muslims.html. 6 Alissa Escarce, “An Uncomfortable Silence: James Comey, the FBI and Racial Profiling,” Huffington Post, July 24, 2013, available at http://www.huffingtonpost.com/alissa-escarce/comey-fbi-profiling_b_3645114.html. 7 Mitchell Silber & Arvin Bhatt, NYPD Intelligence Div., Radicalization in the West: The Homegrown Threat (2007). 8 See CLEAR report on page 35 of the Appendix. 9 The Associated Press, “NYPD designates some mosques as terrorism organizations,” Portland Press Herald, August 28, 2013, available at http://www.pressherald.com/news/NYPD-designates-some-mosques-as-terrorism-organizations-.html.
the very police department to which they turn for protection.10 These findings echo those of a 2012 documentary project by South Asian Americans Leading Together (SAALT) and Desis Rising Up and Moving (DRUM), which describes the harmful impacts of profiling on the basis or religion and national origin upon South Asian New Yorkers’ civil liberties, human rights, and sense of self-worth and identity.11 The NYPD has defended the legality of its surveillance program, downplayed its scope, and refused to acknowledge its harmful effects on impacted communities.12 Moreover, according to CLEAR, While attorney general Eric Holder called the news item “disturbing” and noted that it was “under review” by the department, to date, the Department of Justice has not issued any reports, announced any investigations or made any formal statements despite repeated calls to do so by public officials.13 Statements by officials from within both the FBI and the Central Intelligence Agency (CIA) have been critical of the program,14 which is currently being challenged in federal courts. According to the Center for Constitutional Rights (CCR), a non-profit legal and educational organization based in New York, CCR, along with co-counsel Muslim Advocates, is litigating a First and Fourteenth Amendment challenge to the NYPD’s unlawful spying program on Muslims in New Jersey, Hassan v. City of New York. Brought by a broad range of New Jersey individuals, businesses, student organizations and mosques, the case alleges that the NYPD’s surveillance program chooses targets based on their Muslim faith or association alone. In the decade the program has been in existence, the program has yielded no leads at all. The case is pending before the United States District Court in the District of New Jersey. 15 Another case, Raza v. City of New York, was filed in June 2013 in the U.S. District Court for the Eastern District of New York. Raza challenges the suspicionless surveillance of several Muslim individuals, mosques, and charities within New York City.16 For more information, please see the full CLEAR submission on page 35 of the Appendix; the full CCR submission on page 32; and the full SAALT submission on page 57.
Diala Shamas & Nermeen Arastu, Mapping Muslims: NYPD Spying and Its Impact on American Muslims, Creating Law Enforcement Accountability & Responsibility (CLEAR), the Muslim American Civil Liberties Coalition (MACLC), and the Asian American Legal Defense and Education Fund (AALDEF) (March 2013), available at http://www.law.cuny.edu/academics/clinics/immigration/clear/Mapping-Muslims.pdf. 11 South Asian Americans Leading Together (SAALT), In Our Own Words: Narratives of South Asian New Yorkers Affected by Racial and Religious Profiling (March 2012), available at http://saalt.org/wp-content/uploads/2012/09/In-Our-Own-WordsNarratives-of-South-Asian-New-Yorkers-Affected-by-Racial-and-Religious-Profiling.pdf. 12 Matt Apuzzo and Adam Goldman, “With CIA help, NYPD moves covertly in Muslim areas,” Associated Press, August 23, 2011, available at http://www.ap.org/Content/AP-in-the-News/2011/With-CIA-help-NYPD-moves-covertly-in-Muslim-areas; Matt Sledge, “Ray Kelly Won’t Say If He’ll Read ‘Mapping Muslims’ NYPD Surveillance Report,” Huffington Post, March 12, 2013, available at http://www.huffingtonpost.com/2013/03/12/nypd-muslim-surveillance-report_n_2861880.html. 13 See CLEAR submission, p. 35 of the Appendix; WNYC Newsroom, “US Attorney General Eric Holder: NYPD’s Muslim Surveillance in NJ is ‘Disturbing’,” WNYC, March 8th 2012, available at http://www.wnyc.org/articles/new-jerseynews/2012/mar/08/us-attorney-general-eric-holder-nypds-muslim-surveillance-nj-disturbing/. 14 Jason Grant, FBI says NYPD Muslim Surveillance is Breaking the Islamic Community’s Trust,” Huffington Post, March 7 2012, available at http://www.huffingtonpost.com/2012/03/07/fbi-nypd-muslim-surveillance_n_1327444.html. 15 More information is available at: http://www.ccrjustice.org/hassan. In addition, Raza v. City of New York, challenging the NYPD’s unlawful surveillance of Muslims in New York City, was brought by Creating Law Enforcement Accountability and Responsibility (CLEAR) and other groups, and is pending in the Eastern District of New York. 16 Read about Raza v. City of New York (filed June 2013), here: http://www.aclu.org/national-security/raza-v-city-new-yorklegal-challenge-nypd-muslim-surveillance-program
iii. Transportation Security Administration Profiling Profiling by the Transportation Security Administration (TSA) in U.S. airports has been an ongoing problem for Muslims, Arabs, South Asians, Latina/os, African-Americans, and other people of color. TSA’s Screening Passengers by Observation Techniques (SPOT) program has raised particular concerns following allegations of racial profiling at the Newark, Honolulu, and Boston Logan airports.17 Under the SPOT program, TSA Behavior Detection Officers are given the authority to subjectively identify “persons who pose or may pose potential transportation security risks by focusing on behaviors indicative of high levels of stress, fear, or deception,” and to require extra screening of those individuals.18 The Department of Homeland Security’s Office of Inspector General (OIG), which oversees TSA, released a report on the SPOT program in June, 2013. The report determined that the program has resulted in no counterterrorismrelated arrests, that TSA has no strategic plan for its implementation, and that the data collected on the program is incomplete and inaccurate.19 Unfortunately, the report fails to address concerns about profiling and does not recommend dismantling the program. For more information, see the full SAALT submission on page 57 of the Appendix. iv. Customs and Border Protection Profiling at the U.S. Border In addition to profiling Latina/os and others perceived to be undocumented immigrants, Customs and Border Protection (CBP) regularly profiles Muslims and people perceived to be Muslim at points of entry, especially along U.S.-Canada border.20 This problem has been documented by OneAmerica, a Washington state-based organization committed to advancing principles of democracy and justice by building power in immigrant communities.21 Its 2012 report The Growing Human Rights Crisis Along the Northern Border draws on interviews with hundreds of people, including Akin, a Muslim college student. According to OneAmerica, Akin, a Somali college student at Western Washington University, likes to drive to Vancouver on the weekends. When he crosses back into the U.S. at Blaine, [Washington,] his car is often searched and he has to wait for hours. One weekend, he and another East African friend were driving from Vancouver back to Bellingham. His car was searched, his cell phone was held, and he was fingerprinted. He waited 6-7 hours. Akin, like many others in the Muslim community, would like to know if he is on a watchlist and if there is any way to get removed instead of going through the same process every time he travels. He feels singled out because of his religion. He told us: “I’m Somali, have my beard and was wearing my religious hat. I remembered and thought about how hard it was for me to get my citizenship, how much I wanted to be a U.S. Citizen and how
Michael Schmidt and Eric Lightblau, “Racial Profiling Rife at Airport, U.S. Officers Say,” New York Times, August 11, 2012, available at http://www.nytimes.com/2012/08/12/us/racial-profiling-at-boston-airport-officials-say.html?pagewanted=all&_r=0. 18 U.S. Department of Homeland Security, “Privacy Impact Assessment for the Screening Passengers by Observation Techniques (SPOT) Program,” August 5, 2008, available at http://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_tsa_spot.pdf. 19 Office of Inspector General, Department of Homeland Security, “Transportation Security Administration’s Screening of Passengers by Observation Techniques,” May 29, 2013, available at http://www.oig.dhs.gov/assets/Mgmt/2013/OIG_1391_May13.pdf. 20 Todd Miller, “U.S. Quietly Ramps Up Security Along the Canadian Border,” Mother Jones, February 7, 2013, available at http://www.motherjones.com/politics/2013/02/US-canada-border-constitution-free-zone?page=1. 21 OneAmerica homepage: http://weareoneamerica.org/.
proud I am to be one. I thought about how I waited six years to become a U.S. Citizen so that I wouldn’t have to go through this. It just isn’t right. If this is how we treat our citizens, maybe these papers aren’t for me—the system, the people, they don’t care to know about my culture and who we are. I felt harassed, discriminated, and excluded. If my name was Johansson and my skin color was different I don’t think I would have had to go through this every time I cross the border. People cross this border every day. Thousands of people. Why can’t I go like everyone else without fear of being stopped and harassed for hours?”22 For more information, please see the full OneAmerica submission on page 47 of the Appendix. 3. Discrimination against immigrants seeking naturalization Immigrants from countries the United States considers a national security concern—primarily Muslim countries—frequently face profiling on the basis of religion and national origin when seeking to naturalize and become U.S. citizens.23 Litigation and Freedom of Information Act (FOIA) requests by the ACLU of Southern California have revealed that U.S. Citizenship and Immigration Services (USCIS), the federal agency that oversees applications for naturalization, lawful permanent residence, asylum, and visas, has delayed or denied immigration benefits to individuals due solely to their religion and/or national origin. This discrimination occurs due to the “Controlled Application Review and Resolution Program” (CARRP), a secret USCIS policy about which much remains unknown. According to the Muslim American Society Immigrant Justice Center (MAS-IJC), a North Carolina-based organization that provides legal services to low-income immigrants, refugees, and asylum seekers, In the last four years [MAS-IJC] has received more than 200 complaints from Muslim petitioners, whose cases have been delayed or denied due to allegations of fraud or willful misrepresentation. The majority of the cases involve Muslims who donated to legal charitable non-profits prior to terrorism designation by the Department of Treasury. Despite FBI clearances for many of these petitioners, USCIS has failed to grant favorable dispositions in these cases. […] Hamid, a 45-year-old Palestinian man born in Kuwait, has lived in the United States since he was a teenager. Over the last three decades, he has lived what many would consider to be the American dream, marrying his American-born wife and raising three sons, all U.S. citizens. He has a successful career as a computer engineer, has never been arrested or charged with a crime, and is a man of faith. As a practicing Muslim, Hamid has stayed involved in his religious community and in accordance with the religious principle, zakat, regularly donates money to support humanitarian causes, both Muslim and secular, for orphans in need… Despite the fact that he bears all of the qualifications for citizenship, having fully established that he is of "good moral character," our government treats him as suspect because of his religion practices, just like they have apparently treated the 68 other naturalization applicants who are Muslim or from Muslim countries, since the beginning of 2013.24
See full OneAmerica submission on p. 47 of the Appendix; Sarah Curry, Kendra Anderson, Angelina Snodgrass Godoy, and Carolyn Pinedo Turnovsky, “The Growing Human Rights Crisis Along Washington’s Northern Border,” OneAmerica, April 2012, available at https://www.weareoneamerica.org/sites/weareoneamerica.org/files/REPORT_northernborder-FINAL.pdf, p. 20. 23 American Civil Liberties Union, Lawyers’ Committee for Civil Rights, and Mayer Brown, “Muslims Need Not Apply: How USCIS Secretly Mandates the Discriminatory Delay and Denial of Citizenship and Immigration Benefits to Aspiring Americans,” available at http://www.aclusocal.org/CARRP/. c 24 See full MAS-IJC submission on p. 41 of the Appendix.
If passed into law, the Senate immigration reform bill S. 744: the “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013” would codify this type of discrimination by requiring extra screenings for immigrants with origins in countries deemed national security threats who seek to legalize their status.25 For more information, please see the full MAS-IJC submission on page 41 of the Appendix. B. Racial Profiling by Federal, State, and Local Law Enforcement Agencies Engaging in Immigration Enforcement 1. Federal Immigration Enforcement Programs that Partner with State and Local Law Enforcement Immigration and Customs Enforcement’s Agreements of Cooperation in Communities to Enhance Safety and Security (ICE ACCESS) programs, which include the Criminal Alien Program (CAP), Secure Communities (S-Comm), and 287(g), have all been found to incentivize racial profiling against Latina/os and others perceived to be undocumented immigrants.26 As explained by Somos Un Pueblo Unido (Somos), a New Mexico immigrants’ rights organization, Through CAP, agents identify and screen inmates at local jails to initiate removal proceedings while they are still in criminal custody. The Secure Communities Program checks a person’s fingerprints against both immigration and criminal databases at the time of arrest or booking. And the 287 (g) jail program trains and deputizes jail officials to interview and place immigration detainers on inmates.27 The Department of Homeland Security (DHS) argues that ICE ACCESS programs are intended to target undocumented immigrants “who present the most significant threats to public safety” for arrest and deportation.28 However, the three programs have added to a broad deportation dragnet that for the most part traps immigrants with minor misdemeanors or civil infractions.29 The programs have driven up the frequency of pre-textual stops and arrests of people perceived as undocumented immigrants.30 Somos has documented a number of complaints of discriminatory arrests, including several that were filed with DHS’s Office of Civil Rights and Civil Liberties in July 2012, and that are currently under investigat ion. According to Somos,
Yasmine Taeb, “What the Senate Immigration Bill Means for the Arab American Community,” Arab American Institute Blog, June 28, 2013, available at http://www.aaiusa.org/blog/entry/immigration-bill/. 26 Trevor Gardner and Aarti Kohli, “The C.A.P. Effect: Racial Profiling in the ICE Criminal Alien Program,” The Chief Justice Earl Warren Institute on Race, Ethnicity & Diversity, University of California, Berkeley Law School, September 2009, available at http://www.law.berkeley.edu/files/policybrief_irving_FINAL.pdf; Aarti Kohli, Peter L. Markowitz and Lisa Chavez, “Secure Communities by the Numbers: An Analysis of Demographics and Due Process,” Warren Institute, October 2011, available at http://www.law.berkeley.edu/files/Secure_Communities_by_the_Numbers.pdf; Azadeh Shashahani, “The Persistence of Racial Profiling in Gwinnet: Time for Accountability, Transparency, and an End to 287(g),” ACLU of Georgia, March 2010, available at http://www.acluga.org/download_file/view_inline/1504/392/. 27 See Somos submission, page 54 of the Appendix. 28 U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security, “Secure Communities,” available at http://www.ice.gov/secure_communities/. 29 Aarti Kohli and Deepa Varma, “Borders, Jails, and Jobsites: an Overview of Federal Immigration Enforcement Programs in the U.S.,” The Chief Justice Earl Warren Institute on Race, Ethnicity & Diversity, February 20 11, available at http://www.wilsoncenter.org/sites/default/files/WI_Enforcement_Paper_final_web.pdf, p. 24. 30 Gartner and Kohli, “The C.A.P. Effect”; Kohli, Markowitz and Chavez, “Secure Communities by the Numbers.”
In [an] instance of racial profiling, a gentleman was arrested on July 6th for being undocumented after being detained by a San Juan Sheriff Deputy for not making a complete stop. He at no time discussed his national origin or status with the deputy. Soon after the deputy processed his New Mexico license, registration and insurance, two ICE agents in a dark grey Expedition stopped in front of his vehicle, conferred with the deputy and began to question the driver about his immigration status. He was arrested by the ICE agents, taken to the Sheriff’s office and booked into the jail solely on an ICE Detainer. He was held there until July 9th without bond and then taken to the Albuquerque immigration processing center.31 In addition to Latina/os, ICE ACCESS programs have led to discriminatory arrests and due process violations for South Asian Americans, Black immigrants, and others perceived to be undocumented. South Asian Americans Leading Together (SAALT) and the Black Alliance for Just Immigration (BAJI) have documented these programs’ impact on their communities.32 As of early 2013, Secure Communities (S-Comm) has been implemented in 100% of jurisdictions across the United States. DHS originally led states and localities to believe S-Comm was voluntary, but later reversed itself and claimed the program to be mandatory in all law enforcement jurisdictions.33 This mandate comes at the behest of the Federal Bureau of Investigations (FBI), which, according to documents uncovered by Freedom of Information Act (FOIA) litigation by the Center for Constitutional Rights and National Day Laborer Organizing Network, views the program as valuable to its Next Generation Identification program, which aims to collect an unprecedented quantity of individuals’ biometric data.34 While the Department of Homeland Security’s Office of Civil Rights and Civil Liberties committed in 2011 to creating a statistical monitoring tool to identify problematic jurisdictions involved in S-Comm, its researchers have yet to make conclusive information publicly available or to produce a useful tool for identifying racial profiling. Meanwhile some cities and states, including New Orleans, New York City, San Francisco, California, and Connecticut, have taken steps to limit their participation in S-Comm through local policies and state legislation.35 Following widespread criticism, including by DHS’s Office of the Inspector General, the 287(g) program has been scaled back.36 Task Force Models, which allowed state and local police to interrogate anyone they stopped regarding immigration status, have been phased out. ICE continues to hold Jail Enforcement
See Somos submission. See the full SAALT submission on p. 57 of the Appendix, and the full BAJI submission on p. 26. 33 Kohli and Varma, “Borders, Jails, and Jobsites,” p. 23; U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security, “Secure Communities: Get the Facts,” available at http://www.ice.gov/secure_communities/get-thefacts.htm. “FACT: State and local jurisdictions cannot opt out of Secure Communities. Unfortunately, some of ICE’s past public statements led to confusion about whether state and local jurisdictions can opt out of the program.” 34 National Day Laborers Organizing Network and the Center for Constitutional Rights, “Press Release: New Documents Show Secure Communities Fuels FBI’s Rapidly Expanding Surveillance System While Ignoring States’ Concerns,” available at http://uncoverthetruth.org/media/press-releases/press-release-new-documents-show-secure-communities-fuels-fbis-rapidlyexpanding-surveillance-system-while-ignoring-states-concerns/. 35 http://www.nytimes.com/2013/08/18/opinion/sunday/a-brighter-line-on-immigration-policing.html 36 Department of Homeland Security Office of Inspector Genera, “The Performance of 287(g) Agreements Report Update,” September 2010, available at http://www.oig.dhs.gov/assets/Mgmt/OIG_10-124_Sep10.pdf; Azadeh Shashahani, “Defunding 287(g) Cannot Come Soon Enough,” June 5th 2013, available at http://www.huffingtonpost.com/azadeh-shahshahani/defunding287g-can-not-co_b_3390897.html.
Model agreements with 39 law enforcement agencies in 19 states.37 Jail Enforcement Models allow 287(g) officers to interview people regarding their immigration status as they are booked into local jails.38 ICE maintains that 287(g) Jail Enforcement Models do not incentivize racial profiling because “officers encounter aliens only after state and local law enforcement officers have made an independent decision to arrest an individual for a criminal violation of state or local law.”39 However, as both CAP and S-Comm, which run immigration checks on people already booked into jails, have been shown to result in discriminatory arrests (especially for minor infractions, like driving without a license), there is no reason to believe that 287(g) Jail Enforcement Models are an exception. This is especially true given that a third of the 39 existing agreements are with law enforcement agencies in states that have passed anti-immigrant legislation, including Alabama, Arizona, Georgia, South Carolina, in Utah.40 Race, not crime, has long directed the geographical spread of 287(g) agreements; in 2010, 61% of ICE-deputized localities had lower-than-average rates of violent and property crime, while 87% had higher-than-average rates of Latino population growth.41 287(g) trainings provided by ICE have sometimes reinforced local biases, as discussed by U.S. District Judge G. Murray Snow, who in May 2013 ruled against Arizona’s Sheriff Joe Arpaio in Ortega Melendres et al. v. Arpaio after finding that Arpaio and his deputies had engaged in racial profiling. In his opinion, Snow revealed that ICE 287(g) trainings used by the Maricopa County Sheriff’s Office instructed deputies that they could consider race or “Mexican ancestry” as a factor in making law enforcement decisions during immigration enforcement operations, without violating the law.42 In addition to promoting discriminatory arrests and funneling immigrants with no criminal record into deportation proceedings, ICE ACCESS programs regularly infringe upon the due process rights of immigrants and people of color. According to SOMOS, The success of these ICE ACCESS jail programs relies heavily on immi gration detainers (“ICE Detainers” or “ICE Holds”), non-mandatory requests of local jail administrators to hold persons suspected of being deportable non-citizens days beyond their official release date. This prolonged detention affords ICE extra time to travel to the jail, interview and arrest inmates on civil immigration violations, and initiate deportation proceedings. […] Because an ICE Detainer is not an arrest warrant (it does not meet the threshold of probable cause) and because it is often triggered by mere suspicion of undocumented status, several
U.S. Department of Homeland Security Immigration and Customs Enforcement, “Fact Sheet: Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act,” available at http://www.ice.gov/news/library/factsheets/287g.htm#signed-moa. 38 For more detailed information, see: Randy Capps, Marc R. Rosenblum, Cristina Rodriguez, and Muzaffar Chishti, “Delegation and Divergence: A study of 287(g) State and Local Immigration Enforcement,” January 2011, p. 16, available at http://www.migrationpolicy.org/pubs/287g-divergence.pdf. 39 Letter from Thomas Homan, Executive Associate Director of Immigration and Customs Enforcement, to Sameera Hafiz, Policy Director at Rights Working Group, July 31, 2013. 40 For a full list of signed 287(g) Memoranda of Agreement, see “Fact Sheet: Delegation of Immigration Authori ty Section 287(g) Immigration and Nationality Act,” available at http://www.ice.gov/news/library/factsheets/287g.htm#signed-moa. 41 Aarti Shahani and Judith Greene, “Local Democracy on ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement,” a Justice Strategies report, February 2009, available at http://www.justicestrategies.org/sites/default/files/JS-Democracy-On-Ice.pdf 42 Seth Freed Wessler, “Federal Judge Rules Sheriff Arpaio Guilty of Racial Profiling,” Colorlines.com, May 28, 2013, available at http://colorlines.com/archives/2013/05/federal_judge_rules_arpaio_engaged_in_widespread_racial_profiling.html; U.S. District Judge G. Murray Snow, Opinion in Ortega Melendres, et al. v. Arpaio, filed May 24 2013, available at http://media.phoenixnewtimes.com/8826674.0.pdf.
organizations across the country contend that the use of ICE Detainers is a violation of immigrants’ civil rights and leads to unlawful detention by local jails. Problems documented as a result of unfettered and sometimes illegal use of ICE Detainers are manifold: While they have no authority to arrest people based on civil immigration status, local police often misuse ICE Detainers as arrest warrants. […] Inmates with ICE Detainers are often prohibited from posting bond, even for minor misdemeanors, and they are not allowed to participate in jail diversion programs. And because immigrants with ICE Detainers cannot post bond, they are subject to unnecessary prolonged detention in the local jail while dealing with their criminal violations prior to deportation.43
ICE detainer practices have been challenged through litigation and community-based campaigns, and several counties have either stopped honoring detainers or chosen to honor them selectively.44 For more information, please see the full Somos submission on page 54 of the Appendix, the full SAALT submission on page 57, and the full BAJI submission on page 26. 2. Customs and Border Protection On both the northern and southern borders of the United States, Customs and Border Protection (CBP) agents have profiled Latina/os and others perceived to be undocumented, and Muslims, Arabs, South Asians, and others perceived to be potential “terrorists.” In addition to profiling at ports of entry, Border Patrol agents target people of color within the 100-mile region they are charged with patrolling.45 They have used ethically and legally questionable tactics, including raids on sensitive locations such as schools and churches, inspections of trains and buses that cross no international border, and the deployment of bilingual Border Patrol agents to serve as “interpreters” for local police when serving non-Englishspeaking individuals.46 OneAmerica has gathered many stories of CBP profiling and its destructive outcomes, including the following: Laura Ventura works in the blueberry fields in Sumas and lives in Lynden with her seven-yearold daughter. During May 2011, Laura was leaving the field for the day with a friend. As she pulled out, a CBP vehicle pulled out behind her, it had been waiting on the edge of the field. Laura drove to her friend’s house several miles away. The CBP vehicle continued to follow her and waited for her to leave her friend’s driveway. CBP did not make any further contact nor did the officers attempt to approach Laura beyond following her and watching. Laura then drove into Lynden. After this extended interaction, it was not until then that CBP turned on their lights and began honking. Laura immediately pulled her car over and parked. When CBP approached, she asked in Spanish, “Why are you honking at me?” He did not answer her question or give her any indication that she was being targeted for any other reason than her appearance or place of work. Instead, he asked if
See Somos submission. National Immigration Forum, “Community and Courtroom Responses to Immigration Detainers,” January 2012, available at http://www.immigrationforum.org/images/uploads/2012/Detainers_Bonds_Litigation.pdf. 45 45 Todd Miller, “U.S. Quietly Ramps Up Security Along the Canadian Border,” Mother Jones, February 7, 2013, available at http://www.motherjones.com/politics/2013/02/US-canada-border-constitution-free-zone?page=1. 46 OneAmerica, “The Growing Human Rights Threat.”
she had papers to live in the United States. He then questioned her about drugs and weapons and searched her car. He found nothing. He then asked if she had a child or a husband living in the U.S. She did not tell him about her daughter. He then said, “Do you have family members or a friend that can pick up your car? Make sure that the person has papers, because if they don’t I’m obligated to ask them and detain them as well.” Her boss from Sumas came to pick up her car. She was detained and taken to the Tacoma Detention Center. After some time, she was able to pay $5,000 in bail and was released. The stress Laura endured inside the detention center has resulted in chronic headaches, stress and anxiety, and pain and paralysis in the right side of her face.47 Following pressure from advocates, CBP has released its policies regarding transportation checks, interpreting assistance to state and local law enforcement agents, and enforcement actions at sensitive locations. In a memorandum released in August, 2010, CBP defended agents’ practice of boarding trains and buses that cross no international border and interrogating or demanding identification from those suspected of being undocumented.48 This practice frequently results in racial profiling, including of lawfully present individuals.49 In November, 2012, a memorandum from CBP’s Deputy Commissioner clarified that “[i]f a Federal, state, or local law enforcement organization… requests CBP assistance solely on a need for language translation, absent any other circumstances, those requests should be referred to a list of available local and national translation services”—not fulfilled by CBP agents themselves, who have sometimes used interpretation as a pretext to check the immigration status of nonnative English speakers.50 Another memo, released in January, 2013, suggested that Border Patrol agents ought to seek guidance from supervisors when deciding whether to raid “sensitive locations” such as schools, places of worship, community centers, and hospitals, but established no limits or accountability measures to ensure that racial profiling and other abuses of immigrants’ rights did not occur.51 For more information, please see the full OneAmerica submission on page 47 of the Appendix. 3. State Anti-Immigrant Laws Many states have responded to the federal government’s failure to reform immigration law by enacting state-level laws addressing immigration, contravening the fundamental Constitutional principle that immigration law and policy is governed by federal and not state law.52 Perhaps the most infamous of
OneAmerica, “The Growing Human Rights Threat,” p. 19. U.S. Customs and Border Protection, Memorandum for all Chief Patrol Agents and Division Chiefs from Michael J. Fisher, Chief of U.S. Border Patrol, regarding Transportation Check Operations, August 17, 2010. “In broad form, the authority grante d by these sections permits boarding and searching conveyances, including common car riers, for aliens… If persons believed to be aliens are encountered during such inspections, they may be questioned regarding their right to be or to remain in the United States.” 49 Families for Freedom and the New York University School of Law Immigrant R ights Clinic, “Uncovering USBP: Bonus Programs for United States Border Patrol Agents and the Arrest of Lawfully Present Individuals,” January 2013, available at http://familiesforfreedom.org/sites/default/files/resources/Uncovering%20USBP-FFF%20Report%202013.pdf. 50 U.S. Customs and Border Protection, Memorandum from David V. Aguilar, Deputy Commissioner, regarding “Guidance on Providing Language Assistance to Other Law Enforcement Organizations,” November 21 2012, available at http://foiarr.cbp.gov/streamingWord.asp?i=1233; OneAmerica, “The Growing Human Rights Crisis.” 51 U.S. Customs and Border Protection, Memorandum from David V. Aguilar, Deputy Commissioner, regarding “U.S. Customs and Border Protection Enforcement Actions at or Near Certain Community Locations,” available at http://foiarr.cbp.gov/streamingWord.asp?i=1251. 52 Rights Working Group, “Arizona’s SB1070 and its Copycats,” available at http://www.rightsworkinggroup.org/sites/default/files/AntiImmigrant%20State%20Bills_IssueBrief%20,%20October%202012.pdf.
these laws, Arizona SB 1070, was ruled in large part unconstitutional by the Supreme Court in 2012.53 In its decision, the Supreme Court emphasized the important proposition that immigration law and policy is a federal function. Similar laws in other states continue to be contested. Among these is the first-ever state anti-immigrant law, Colorado SB 90, which required local police to report people they suspected of being undocumented to Immigration and Customs Enforcement (ICE). According to Rights for All People (RAP), an immigrant-led Colorado community organization, Since 2007, after SB 90 was implemented, a number of stories surfaced, all with relating factors: individuals were being stopped for small traffic violations (having a broken tail light, no light on their license plate, dark windshield tint, not using their blinker, obstruction of vision, speeding, failure to yield, etc…) or no traffic violation whatsoever. After the stop they were than questioned about their immigration status, arrested for driving without a license and entered into the process of deportation after receiving an ICE detainer. The stories surfaced as a direct result from over 107 Know Your Rights workshops conducted in Aurora from 2007 to 2008… SB 90 did not achieve the effects that were promised to the public by elected officials to sell the legislation; it did not put “criminals” in jail, but rather it separated families and terrified the entire immigrant community in Colorado. SB 90 opened a floodgate of discrimination and an uncontrollable wave of Police/ICE collaboration; it all lead to fear and mistrust of police from immigrant community members.54 Following six years of organizing by affected community members and grassroots organization, SB 90 was repealed by the Community and Law Enforcement Trust Act, which was signed into law in Colorado in April 2013. In the same month, the U.S. Supreme Court declined to consider a case concerning Alabama HB 56, an especially harsh anti-immigrant law which fuels racial profiling, criminalizes undocumented immigrants, and curtails immigrants’ ability to work, travel, and go to school.55 The Supreme Court’s decision left in place a lower court’s ruling that HB56 was unconstitutional.56 In May of 2013, U.S. District Judge G. Murray Snow ruled in a class action law suit against Sheriff Joe Arpaio of Maricopa County, Arizona, and found that Arpaio and his deputies engage in racial profiling against Latina/os. The decision prohibits racial profiling in traffic stops, and bars Arpaio from referring suspects to ICE on the basis of immigration violations alone. These changes represent important victories against racial profiling and the persecution of immigrants under state immigration laws. DOJ litigation against both Arizona SB 1070 and Alabama HB 56, in combination with grassroots mobilization and independent legal advocacy and litigation, have been hugely important to these gains. For more information, see the full RAP submission on page 52 of the Appendix. C. Profiling on the Basis of Race and Sexual Orientation/Gender Identity in Stop and Frisk and Other Local Policing Contexts 1. New York Police Department (NYPD) Stop and Frisk
Adam Liptak, “Blocking Parts of Arizona Law, Justices Allow Its Centerpiece,” New York Times, June 25, 2012, available at http://www.nytimes.com/2012/06/26/us/supreme-court-rejects-part-of-arizona-immigration-law.html?pagewanted=all&_r=0. 54 See RAP submission, p. 52 of the Appendix. 55 Southern Poverty Law Center, “Alabama’s Shame: HB56 and the War on Immigrants,” February 2012, available at http://www.splcenter.org/alabamas-shame-hb56-and-the-war-on-immigrants. 56 Adam Liptak, “Justices Decline to Take Case on Alabama Immigration Law,” The New York Times, April 29, 2013, available at http://www.nytimes.com/2013/04/30/us/supreme-court-declines-case-on-alabama-immigration-law.html?_r=0.
“Stop and Frisk” is a practice employed by policing agencies such as the New York Police Department (NYPD), in which agents stop, question, and frisk pedestrians, ostensibly to check for weapons. In New York City the program has been largely ineffective at stopping people engaged in criminal activity or at seizing contraband. In 2011, there were grounds for arrest in only 6% of stops and frisks, only 2% of stops resulted in the discovery of contraband, and weapons were found in less than 2% of stops.57 Meanwhile, Blacks and Latina/os have been stopped in highly disproportionate numbers, often for vague reasons such as “furtive movements,” making Stop and Frisk a driver of racial profiling in New York City.58 For more information on human rights violations in NYPD’s Stop and Frisk program, please see the shadow report submitted to the Committee by the Center for Constitutional Rights (CCR), which is titled Stopped, Seized and Under Siege. Stop and Frisk has an often under-recognized additional impact on women and LGBT people of color. Rates of racial disparity among stops of women are similar to those in stops of men.59 Additionally, women and LGBT people of color are frequently stopped, searched, and detained as a result of being profiled for drug, prostitution-related, and lewd conduct offences.60 According to Streetwise and Safe (SAS), an initiative working to build leadership, skills, knowledge, and community among LGBTQ youth of color who experience criminalization, Researchers at the City University of New York Graduate Center… found that LGB youth more likely to experience negative verbal, physical, and legal contact with the police, and more than twice as likely to experience negative sexual contact in preceding six months.61 As Mitchyll Mora, an LGBTQ youth of color leader and researcher at Streetwise and Safe recently testified before New York City Council, “The policing of Brown and Black people begins with the color of our skin, our race, our ethnicity, and our youth, but it does not end there. What is hidden in the official numbers is how the [New York City Police Department] NYPD profiles us and discriminates against us based on our sexual orientation, and gender identity and expression. When an officer demands that LGBTQ youth empty their pockets or open their bag or purse and they find condoms, we are assumed to be engaged in prostitution or lewd conduct. When a friend of mine, a trans-identified woman, is standing on a New York City corner, she is told to unzip her pants to reveal her genitals to satisfy the curiosity of a police officer. When young women of color are stopped they experience sexual harassment and assault by police, or are told by officers that they wouldn’t get stopped if they didn’t dress ‘like a boy.’”62 For more information, please see the full Streetwise and Safe submission on page 62 of the Appendix.
Center for Constitutional Rights, 2011 NYPD Stop and Frisk Statistics, available at http://ccrjustice.org/files/CCR-Stop-andFrisk-Fact-Sheet-2011.pdf. 58 John Cassidy, “The Statistical Debate Behind the Stop-and-Frisk Verdict,” The New Yorker (August 13, 2013), available at http://www.newyorker.com/online/blogs/johncassidy/2013/08/scheindlin-stop-and-frisk-verdict-new-york-statistical-debate.html. 59 NYCLU Press Release/Gregg Morris, “Women Demand End to Discriminatory NYPD Stop-And-Frisk,” The Word, available at http://hunterword.com/articles/2045. 60 Emily Gogolak, “Profiled by NYPD, Transgendered People in New York Fear Carrying Condoms,” The Village Voice, March 7th 2013, available at http://blogs.villagevoice.com/runninscared/2013/03/transgendered_condoms.php. 61 Brett G. Stoudt, Michelle Fine, and Madeline Fox, Growing Up Policed in the Age of Aggressive Policing Policies, New York School Law Review 56:1331 (2012) 62 See SAS submission, p. 62 of the Appendix.
Undocumented immigrants of color are also impacted by Stop and Frisk on multiple levels. Discrimination in pedestrian stops places immigrants of color, and particularly black immigrants, at a disproportionate risk of being caught in Immigration and Custom Enforcement’s deportation dragnet.63 According to the Black Alliance for Just Immigration (BAJI), an education and advocacy group comprised of African Americans and black immigrants from Africa, Latin America and the Caribbean, New York City is home to the largest share of the USA’s black immigrant population.64 Racial profiling here is rampant and has been institutionalized with programs such as Stop and Frisk and has serious consequences when coupled with the Immigration and Customs Enforcement’s Secure Communities Program. These programs allow for easier apprehension and detention of Black immigrants. Racial profiling leads to higher levels of detention and deportation for black immigrant communities.65 In New York, Jamaicans, Dominicans and Haitians have the highest deportation rates.66 For more information, please see the full BAJI submission on page 26 of the Appendix. Following years of organizing and litigation against the program, 2013 has seen several important challenges to Stop and Frisk’s widespread use. These developments include: Community Safety Act. The Community Safety Act is a package of four bills introduced in the New York City Council in 2012, which aim to end discriminatory policing in New York City and bring accountability to the NYPD. Two of those bills passed the City Council in June, 2013, with large majorities supporting. The first, the End Discriminatory Profiling Act, establishes a strong and enforceable ban on profiling by the NYPD; expands protected categories to include not just race, ethnicity, religion, and national origin, but also age, gender, gender identity or expression, sexual orientation, immigration status, disability, and housing status; and creates a private right of action for individuals who believe they have been profiled. The second, the NYPD Oversight Act, assigns responsibility for NYPD oversight to the Commissioner of the Department of Investigation. In July, 2013, New York City Mayor Michael Bloomberg vetoed both bills.67 However, the City Council voted on August 22nd to override the veto and to pass both bills into law.68 Floyd, et al. v. City of New York ruling. Floyd is a federal class action lawsuit that challenges the constitutionality of the NYPD’s Stop and Frisk program. On August 12, 2013, Judge Shira Scheindlin of the U.S. District Court of the Southern District of New York ruled the program unconstitutional, in
Philip Kretsedemas, “The Immigration Crucible: Transforming Race, Nation and the Limits of the Law,” Columbia University Press, February 7, 2012, p. 94. “The only national study of local law enforcement practices has shown that Mexican nationals constitute 70 percent of all immigration violators apprehended by local police between 2002-2004, despite the fact that Mexicans comprise only 56 percent of the unauthorized migrant population. Apprehension rates for Caribbean and African immigrant violators were even more skewed. Members of this population were apprehended at a rate that was more than five times the size of their presence in the unauthorized migrant population.” 64 Kristen McCabe, Migration Policy Institute, “African Immigrants in the United States,” July 2011, available at http://www.migrationinformation.org/USfocus/display.cfm?ID=847#5; Kristen McCabe, Migration Policy Institute, “Caribbean Immigrants in the United States,” April 2011, available at http://www.migrationinformation.org/USfocus/display.cfm?ID=834#4. 65 Kretsedemas, “The Immigration Crucible.” 66 See BAJI submission, p. 26 of the Appendix 67 Communities United for Police Reform, “About the Community Safety Act,” available at http://changethenypd.org/aboutcommunity-safety-act. 68 Francis Reynolds, “New York City Council Overrides Bloomberg’s Veto of the Community Safety Act,” Huffington Post, August 22 2013, available at http://www.thenation.com/blog/175874/new-york-city-council-overrides-bloombergs-vetocommunity-safety-act#.
violation of New Yorkers’ Fourth Amendment right against unreasonable search and seizure, and of their Fourteenth Amendment right to equal treatment before the law. The judge ordered reforms to the program, to be overseen by a court-appointed monitor, as well as a Joint Remedial Process which will solicit input from affected communities and other stakeholders.69 Mayor Michael Bloomberg has said that he plans to appeal the decision.70 Discriminatory policing, including discriminatory stops and searches like those performed by the NYPD, is not limited to New York. Across the country, people of color and members of the LGBTQ community are routinely subjected to discriminatory stops, searches, and arrests, as well as excessive use of force. In some cases the U.S. government has taken positive steps to rein in this discrimination, particularly through Department of Justice pattern or practice investigations and consent decrees. There remains much work to do, however, throughout the country. For a few examples from Rights Working Group members of problematic jurisdictions, see below. 2. Seattle Police Department The Seattle Police Department (SPD) came under DOJ scrutiny in March, 2011, following incidents of excessive use of force against people of color. The Minority Executive Directors Coalition (MEDC), a coalition of Native, African American, Latina/o, and Asian Pacific Islander communities in South Seattle committed to collective change, had organized around these incidents to create the Multiracial Task Force on Police Accountability (MRTFPA). According to MEDC, The MRTFPA was a community development that came about after a series of community incidents with the Seattle Police and communities of color that resulted in excessive use of force and, in one case, death. As delineated in a letter written by the ACLU to the Department of Justice requesting an investigation of the Seattle police department as a result of some of these incidents: April 2010, a Latina/o man was wrongly accused of robbery and beat as an officer kicked and said he was going to “kick the Mexican piss” out of him, June 2010 a SPD police office punched a African-American teen girl in the face after jaywalking in front of Franklin high school, and August 2010, a police officer shoots and kills a Native man who was holding a plank of wood and a carving knife whom the officer perceived as threatening.
Because of these events and some more that were not listed a community meeting was held and the MRTFPA developed as the next action step for change.71 Following its investigation of SPD, DOJ concluded that SPD stops and searches, as well as incidents of excessive use of force, were likely to disproportionately target people of color.72 In 2012 DOJ issued a Consent Decree to the City of Seattle, and a Memorandum of Agreement (MOA) was signed with SPD,
Center for Constitutional Rights, Press Release: “Landmark Decision: Judge Rules NYPD Stop and Frisk Practices Unconstitutional, Racially Discriminatory,” available at http://ccrjustice.org/newsroom/press-releases/judge-rules-floyd-case. 70 Christopher Mathias, “Bloomberg Decries ‘Dangerous’ Stop-And-Frisk Ruling, Promises Appeal,” Huffington Post (8/12/2013), http://www.huffingtonpost.com/2013/08/12/bloomberg-stop-and-frisk_n_3744102.html. 71 See MEDC submission, p. 39 of the Appendix. 72 Department of Justice, Investigation of the Seattle Police Department, Complaint (7/27/12), available at http://www.justice.gov/crt/about/spl/documents/spd_complaint_7-27-12.pdf, p. 27. “A critical area of concern is SPD’s policies and practices regarding pedestrian stops. SPD’s policy does not clearly distinguish a casual, social contact from an investig atory stop. Many in the community perceive that pedestrian stops are over-used and target minorities.”
requiring SPD to create policies and trainings to promote “Bias-Free Policing.”73 It also establishes the creation of a Monitor and Compliance Coordinator, to oversee the implementation of anti-bias and use-offorce policies by SPD. For more information, please see the full MEDC submission on page 39 of the Appendix. 3. New Orleans Police Department Discriminatory policing of LGBTQ youth, particularly youth of color, is a nationwide problem.74 LGBTQ profiling has been particularly acute in New Orleans at the hands of the New Orleans Police Department (NOPD). According to BreakOUT!, a community organization that seeks to end the criminalization of LGBTQ youth who are directly impacted by the criminal or juvenile justice system in New Orleans, In New Orleans, Louisiana, [profiling and violence against LGBTQ youth] has been true for generations, with transgender people, specifically Black transgender women, reporting being stopped for no reason, being assumed by police officers to be criminal for walking down the street, being accused of falsely identifying themselves when presenting I.D.’s inconsistent with their gender expression, being arrested after calling the police for help, being called names and verbally harassed, being approached for sexual favors by members of the NOPD, being sexually assaulted by the NOPD, or having their legal rights abused or undermined in other ways. In fact, several transgender women who live here in New Orleans have told BreakOUT! that they are afraid to leave their houses for fear of being stopped unlawfully by the NOPD. In preliminary results from a peer-survey conducted by BreakOUT! members in the summer of 2011, BreakOUT! found that the vast majority of young Black transgender women surveyed reported experiencing police abuse, harassment, or misconduct by a NOPD officer on the basis of their gender identity, gender expression, or sexual orientation. Further, 100% reported being approached for sex by an NOPD officer.75 In 2010-2011, the Department of Justice (DOJ) completed an investigation of the NOPD, and found that NOPD officers regularly violate the Constitutional and civil rights of the people of New Orleans. DOJ found that NOPD unfairly targets African Americans, ethnic minorities, and members of the LGBT community—with particular emphasis on African American youth under the age of 17, and African American transgender women—for stops, searches, and arrests.76 As a result, in January 2013 DOJ entered a consent decree with NOPD, which states among other things that “NOPD agrees to develop and implement a specific policy to guide officer interactions with members of the LGBT community,” and that “NOPD agrees that officers shall not construe sexual orientation, gender identity, or gender expression as reasonable suspicion or probable cause that an individual is or has engaged in any crime, and that officers shall not request identification from or otherwise initiate a contact solely on the basis of sexual orientation or gender identity/expression.”77 Unfortunately, though NOPD has issued a new
Department of Justice, Investigation of the Seattle Police Department, Settlement Agreement (7/27/12), available at http://www.justice.gov/crt/about/spl/documents/spd_consentdecree_7-27-12.pdf, p. 45 74 Hammelstein and Brückner, “Criminal-Justice and School Sanctions Against Nonheterosexual Youth: A National Longitudinal Study” Pediatrics, 2010 and Amnesty International, Stonewalled: Still Demanding Respect. Police Abuses Against Lesbian, Gay, Bisexual And Transgender People In The USA Amnesty international, 2006. 75 See BreakOut! submission, p. 30 of the Appendix. 76 Department of Justice investigation of the New Orleans Police Department, Findings Executive Summary (2011), available at http://www.justice.gov/crt/about/spl/nopd_exec_summary.pdf. 77 See BreakOut! Submission
internal policy to combat LGBTQ profiling, the City of New Orleans is currently stalling the implementation of the Consent Decree.78 For more information, please see the full BreakOUT! submission on page 30 of the Appendix. 4. Providence Police Department In Providence, Rhode Island, Stop-and-Frisk-style tactics are heavily targeted at Southeast Asian youth. According to the Providence Youth Student Movement (PrYSM), a local Southeast Asian youth organization, On a daily basis, Southeast Asian (Cambodian, Lao, Hmong, and Vietnamese) youth are followed, stopped, and questioned for no reason. Police invade people’s homes indiscriminately, without evidence linking people to specific crimes. Southeast Asian community members who do call the police get treated as the criminals, themselves. The relationship between the police and the community is fraught with conflict. The 2006 Southeast Asian Youth Survey revealed that 71% of young Southeast Asian men have been racially-profiled and accused of being in a gang. The law enforcement crack-down on Southeast Asian youth includes the use of illegal detainment, un-warranted searches, unnecessary force, intelligence gathering through a “gang database”, and racial profiling.79 PrYSM’s 2010 report, “The Quality of Life for Southeast Asian Youth,” based on 365 interviews, found that 31.5% of Southeast Asian youth and 45.8% of male youth had interacted with the gang unit of their local police department.80 Those who had interacted with the Gang Unit frequently reported experiencing officer misconduct, such as offensive language, discriminatory stops, and excessive use of force. Rhode Island’s General Assembly passed the Racial Profiling Prevention Act of 2004 almost a decade ago, making it illegal for law enforcement officers to target individuals on the basis of race or ethnicity; prohibiting “consent searches” without probable cause; creating civil remedies for violations; and requiring data collection and analysis. Unfortunately the law has been weakly enforced, with many police departments insisting that they do not engage in racial profiling despite data that illustrates the opposite.81 According to PrYSM, the Comprehensive Racial Profiling Prevention Act of 2013 would strengthen the prohibition by raising the standard of reasonable suspicion for searches, making inquiries into immigration status a matter of public record, and restricting the use of “consent searches” on juveniles.82 The bill has been reintroduced but has not yet passed. For more information, please see the full PrYSM submission on page 50 of the Appendix. For a compelling personal testimony about racial profiling by local police in Greensboro, North Carolina, please see the Beloved Community Center submission on page 28 of the Appendix. For information about
Claire Galofaro, “Feds say city stalling on consent decree,” The Advocate, June 5, 2013, available at http://theadvocate.com/news/6152882-123/feds-say-city-is-stalling. 79 See PrYSM submission, p. 50 of the Appendix. 80 Kohei Ishihara, Paul Pasaba, Davide Gnoato, Reza Clifton and Jane Want, “For Justice and Love: The Quality of Life for Southeast Asian Youth,” A Report by the Providence Youth Student Movement, May 15 th, 2010 (ISBN: 978-0-615-36914-3). 81 Rhode Island Affiliate, American Civil Liberties Union, “The Persistence of Racial Profiling in Rhode Island: A Call for Action,” January 2007, available at http://riaclu.org/issues/issue/current-campaign-racial-profiling/. 82 See PRYSM submission.
racial profiling and a DOJ settlement agreement in Portland, Oregon, see the Center for Intercultural Organizing (CIO) submission on page 33. III. Legal Framework
Articles 2 (right to non-discrimination), 9 (right to protection from arbitrary arrest and detention), 17 (right to privacy), 18 (freedom of religion), 21 (right to peaceful assembly), and 26 (right to equal protection) of the ICCPR are most relevant to the issues of racial profiling and surveillance discussed in this report. IV. Other UN Body and IACHR Recommendations
In his January 2007 report, the Special Rapporteur on the Promotion and Protection of Human Rights While Countering Terrorism noted that U.S. policies designed to counter terrorism singled out immigrants from Arab and/or Muslim populations and expressed grave concern with the use of terrorist profiles based on race, ethnicity, religion or national origin. In paragraph 14 of its 2008 Concluding Observations of U.S. compliance with the ICERD (CERD/C/USA/CO/6), the Committee on the Elimination of Racial Discrimination (CERD) recommended that the U.S. “strengthen its efforts to combat racial profiling at the federal and state levels.” In paragraph 25 of its 2008 Concluding Observations of U.S. compliance with the ICERD (CERD/C/USA/CO/6), the CERD Committee expressed concern regarding use of excessive or deadly force against “racial, ethnic or national minorities,” which included “undocumented migrants crossing the U.S.-Mexico border,” and called for adequate oversight mechanisms, further training and assurance that reports and “independently, promptly and thoroughly investigated.” In September 2009, the CERD sent a follow-up letter to the Obama Administration. The CERD raised concerns about the use of racial profiling in migration policies and urged the U.S. government to reconsider the 287(g) program. The CERD additionally urged the U.S. to eliminate loopholes in the 2003 Department of Justice (DOJ) Guidance Regarding the Use of Race by Federal Law Enforcement Agencies and the adoption of federal legislation prohibiting racial profiling. In his 2009 report on his country visit to the U.S., the UN Special Rapporteur on Racism criticized the persistent use of racial profiling by law enforcement officials, particularly in stops and searches of members of African American and Hispanic communities. He also noted concerns with profiling practices that target people of Arab, Muslim, South Asian or Middle Eastern descent, particularly in air travel and border control. The Special Rapporteur urged the U.S. government to adopt federal legislation prohibiting racial profiling and called for action by state governments to do the same. Racial profiling was one of the top issues raised during the 2010 Universal Periodic Review of the United States, with countries making strong and specific recommendations to the United States to take affirmative steps to end the practice. The Inter-American Commission on Human Rights (IACHR) in its 2010 report on immigration in the United States expressed concern about the 287(g), Secure Communities, and Criminal Alien Programs 21
and recommended the elimination of 287(g). IACHR also recommended that state and local partners only be allowed to participate in immigration enforcement after an individual has been criminally convicted or a criminal proceeding has been fully adjudicated. V. Recommended Questions 1. Following the verdict in George Zimmerman’s trial over the killing of Trayvon Martin, President Obama spoke publicly about racial profiling and the need for legislation to address the problem. However, the administration has taken no further affirmative steps in that direction. Why has the administration failed to support congressional efforts to pass the End Racial Profiling Act of 2013? 2. We understand that the 2003 Department of Justice Guidance on the Use of Race by Federal Law Enforcement Agencies is in the final stages of review. When will the new guidance be complete? Will the review result in guidance that is enforceable, that applies to state and local law enforcement agencies, and that closes existing loopholes—such as including religion and national security as protected classes and prohibiting racial profiling in all contexts, including national security, border security and surveillance activities? 3. The administration has said that the 287(g) program is redundant now that Secure Communities has been universally implemented. Why does the administration continue to maintain 287(g) Jail Enforcement Models, given that the program is inefficient and has been widely criticized by both the Department of Homeland Security’s Office of the Inspector General and civil society? 4. What steps will the administration take in response to revelations that the New York Police Department has engaged in blanket surveillance of mosques and Muslim community organizations, and has labeled whole mosques and non-profits “terrorism organizations”? What steps does the administration plan to take in response to recent revelations that U.S. Citizenship and Immigration Services (USCIS) has engaged in profiling against Muslim applicants for naturalization? VI. Suggested Recommendations a. The United States Congress should pass the End Racial Profiling Act of 2013 (ERPA), reintroduced by Representative John Conyers in July 2013 and by Senator Benjamin Cardin in May 2013. Among other things, ERPA prohibits profiling on the basis of race, religion, ethnicity, and national origin (as well as gender, in the House of Representatives’ version) by federal, state, and local law enforcement; establishes requirements for law enforcement data collection; provides anti-profiling trainings for law enforcement; develops a complaint mechanism for affected individuals; 22
allows the Department of Justice to withhold grants to law enforcement entities that engage in profiling and provides funding to those who seek to eliminate profiling; and allows affected individuals to seek redress through the court system.
Additionally, ERPA should be amended to explicitly prohibit profiling on the basis of gender identity and sexual orientation. b. The Department of Justice should reform the 2003 Guidance Regarding the Use of Race by Federal Law Enforcement Agencies. The Guidance reforms must: Prohibit profiling in the basis of religion and national origin, in addition to race and ethnicity; Eliminate loopholes for border and national security;. Expand the ban on profiling to cover law enforcement surveillance activities; Apply to state and local law enforcement agents that work in partnership with federal agents or receive federal funding; and Include mechanisms for enforceability. These changes should be applied to legislation and administrative policies that are based on the 2003 Guidance. c. The Department of Homeland Security should terminate all 287(g) agreements, including the Jail Models currently in place, and sign no new agreements. The Department should end Secure Communities and the Criminal Alien Program in communities that seek to limit local compliance with immigration programs; where there is a documented history of racial profiling or a Department of Justice pattern or practice investigation; or where state anti-immigrant laws are in place. d. With respect to the ongoing immigration reform effort, any immigration reform bill passed into law should: Explicitly prohibit racial profiling, including profiling on the basis of religion and national origin; End harsh border and interior enforcement programs and policies that result in racial profiling and other human rights abuses; Ensure all applicants for immigration benefits, such as legalization, are treated equally so that additional requirements are not created for immigrants from certain regions deemed to be national security threats. e. The Obama administration should take steps to address the rampant profiling and surveillance of Muslims, including mosques and Muslim community organizations, by investigating the NYPD’s surveillance program and holding accountable anyone who has violated civil liberties and human rights.
Customs and Border Protection (CBP) should implement a policy that restricts border patrol enforcement at sensitive locations, such as schools, places of worship, hospitals, and public ceremonies. CBP should also localize 911 dispatching and restrict CBP from responding to routine law enforcement calls to serve as interpreters.
Appendix I: Contributing Rights Working Group Coalition Members The Black Alliance for Just Immigration (National) The Beloved Community Center (Greensboro, North Carolina) BreakOut! (New Orleans, Louisiana) The Center for Constitutional Rights (New York, New York) The Center for Intercultural Organizing (Portland, Oregon) The Creating Law Enforcement Accountability & Responsibility Project of the City University of New York Law School (New York, New York) The Minority Executive Directors’ Coalition (Seattle, Washington) The Muslim American Society Immigration Justice Center (Raleigh, North Carolina) OneAmerica (Seattle, Washington) The Providence Youth Student Movement (Providence, Rhode Island) Rights for All People (Denver, Colorado) Somos Un Pueblo Unido (Santa Fe, New Mexico) South Asian Americans Leading Together (National) Streetwise and Safe (New York, New York)
Appendix II: Rights Working Group Coalition Member Submissions 1) Black Alliance for Just Immigration (BAJI) It’s no secret that racial profiling in the United States of America most acutely impacts the Black community. Race in many ways is the starting point for any sort of profiling, and thus despite ethnic background or nationality, those who are Black are at a disadvantage due to systemic racism that devalues and criminalizes Black communities. However, the consequence of racial profiling on Black immigrant communities is immense and it is important to account for the ways in which the connection among the criminal justice system, immigration enforcement and institutional racism is impacting black immigrant communities. Black immigrants, when profiled by the unjust law enforcement practice of Racial Profiling, are doubly impacted by both race and immigration status. Regardless of whether documented or undocumented, black immigrants are visible targets due to their features such as skin color, accent and at times religious or traditional attire. The legalization of Racial Profiling in the name of immigration enforcement through laws like SB 1070 (Arizona) and HB 87 (Georgia) have impact on already profiled Black communities. BAJI’s Arizona Organizer and a Volunteer Organizing Committee members have noted that with the passing of SB 1070, Black immigrants who are encountered are increasingly more concerned about interactions with law enforcement because local police departments are now able to inquire about one’s immigration status. Prior to SB 1070 in Arizona, racial profiling in black communities was already happening at a high rate. One black immigrant male reported that “Driving While Black” (DWB) was something he frequently experienced. He cited being frequently stopped by Phoenix Police Department because he was a black man driving a luxury car. He eventually sold his car to avoid repeatedly being stopped by law enforcement for no apparent reason. It’s important to pay attention to places that have changing immigration laws, locally, but it’s also important to account for cities and states with high foreign born black populations such as New York City. New York City is home to the large share of the USA’s black immigrant population. Racial profiling here is rampant and has been institutionalized with programs such as Stop and Frisk and has serious consequences coupled with the Immigration and Customs Enforcement’s Secure Communities Program. These programs allow for easier apprehension and detention of Black immigrants. Racial profiling leads to higher levels of detention and deportation for black immigrant communities. In New York, Jamaicans, Dominicans and Haitians have the highest deportation rates. A notable incident that took place in Brooklyn, New York during the vigil for Kimani Gray (an unarmed teenager who was killed by NYPD), was the presence of ICE vehicles coupled with a heavy presence of NYPD. This took place in heavily Caribbean neighborhood in Brooklyn, and proved to be a deterrent for the assembling of black immigrants and African-Americans who were outraged at the killing of this young person from their community. This was a moment of institutional racial profiling. An additional issue of note is the searches or “pat downs”, which include searching the head wraps of foreign and native born Blacks. This includes both Black women’s and men’s hair, particularly those who 26
wear their hair in braids, dreadlocks, afros, etc. These styles have been the source of increased attention at airports and other government building. Changing practices of Department of Homeland Security and increasing presence and involvement in various parts of public life is of particular note and should be further examined. The consequences of racial profiling in the black immigrant community are palpable. Due to racial profiling and the criminalization of immigrants, Black immigrants are now over represented in the detention centers and deportation proceedings, despite only being 10% of the immigrant population. Their percentage in detention are five times their representation in the undocumented population. BAJI will continue to work to uplift the End Racial Profiling Act of 2013 and fight for racial justice and immigrant rights. Additional information: Opal Tometi, Black Alliance for Just Immigration, email@example.com or visit us online www.blackalliance.org
2) Beloved Community Center (BCC) When Things Fall Apart By Wesley Morris As I sit here in Greensboro, fresh off of a week in Detroit, I can’t help but reflect on the burgeoning, parallel movements for social change in both cities. In Detroit, I attended both the Allied Media Conference and the 50th anniversary of the Martin Luther King Jr. march that thundered through that city’s heart in 1963. Detroit has been described as a fallen city, caught in the throes of a terminal economic crisis. But in my time there I was deeply moved by the spirit of its residents. Detroiters are not despairing, but creating a new world in the midst of uncertainty. They are practicing creative, alternative ways of living and supporting the common good. I think we are doing something similar in Greensboro. I have lived in Greensboro for 10 years and am a proud graduate of N.C. A&T. I work as a community organizer at the Beloved Community Center. I have been an active participant in the North Carolina NAACP’s “Moral Mondays” movement. I sat on the board of the local leadership program, IMPACT Greensboro, and am regularly involved in community discussions. At this stage in my life, the most rewarding and satisfying work I engage in continues to be the building of a “Beloved Community,” as envisioned by Dr. King. A major part of my work has focused on what the Beloved Community Center has termed its “Police Accountability and Professionalism” campaign. I see this work as not only a struggle to heal historical wounds, but also as an urgently needed community discussion about current injustices in Greensboro. As we conduct interviews of individuals violated or discriminated against by the Greensboro Police Department, I am constantly reminded that this is a struggle for human dignity, worth and value. Encounters with police officers are the most direct and enduring contact that citizens will have with a city’s practice of social justice. Such cases as those in April involving Bennett College and A&T students frighten me. The city and its police department do not seem able or willing to fully confront, own and apologize for their misconduct in these cases. The need for a civilian review board for oversight is real. I personally have had five unpleasant experiences with Greensboro police since my graduation from A&T. In January, I was stopped on Gorrell Street by an officer asking me if I had used my signal when turning off Martin Luther King Jr. Drive. When I answered that I had, he proceeded to ask for my license and registration. As the officer stood at my window, a young woman drove up beside my vehicle and asked, “Are you OK? I saw you get pulled over and I didn’t want you to be alone.” She added, “I see young black men being pulled over a lot for no reason over here and I’m going to stay with you until this is over.” 28
I didn’t receive a ticket or further harassment and I am forever grateful for that young woman stopping to make sure I was all right. The newly imposed teen curfew and recent fights downtown made me reflect on another experience. While riding with my pastor and another friend we saw a fight on the side of the road between a man and a woman. We pulled over and broke up the scuffle. As my friend and I were helping the young woman find her keys, which had been lost during the fight, a police officer arrived on the scene. My pastor greeted the officer and explained what my friend and I were doing, then left to make an appointment. As the officer approached my friend and me, he did not greet us with “Hello,” or “How can I be of assistance?” Instead, he immediately asked to search us. The experience made me numb and at a loss for words. These incidents are but a sample of what happens on an everyday basis in communities desperate for relief and justice. The firing of one officer and the disciplining of another following one of the cases involving the Bennett students does not address the department’s lack of accountability to the community it serves. These cases have led me to think in sync with Ralph Ellison’s novel, “Invisible Man”: “Life is to be lived, not controlled; and humanity is won by continuing to play in face of certain defeat.” With that said, I am ever optimistic and maintain a strong conviction that the “stones of hope carved out of mountains of despair” by community members will build a city that is more just, democratic and whole. As both Detroit and Greensboro are modeling, when things fall apart, communities are responsible for putting them back together. Search YouTube by typing in “Wesley Morris Trayvon Martin” for Morris’ video storytelling of a police encounter.
3) BreakOut! National data has consistently shown that LGBTQ youth are disproportionately targeted by law enforcement, more likely to be arrested, and report being frequently profiled and treated unfairly by the police and other officials.83 Transgender women of color are more at risk for physical violence in their lives; and at the same time, transgender people are more likely to experience barriers to reporting to law enforcement, not report to law enforcement altogether, and more likely to experience police violence.84 In New Orleans, Louisiana, this has been true for generations, with transgender people, specifically Black transgender women, reporting being stopped for no reason, being assumed by police officers to be criminal for walking down the street, being accused of falsely identifying themselves when presenting I.D.’s inconsistent with their gender expression, being arrested after calling the police for help, being called names and verbally harassed, being approached for sexual favors by members of the NOPD, being sexually assaulted by the NOPD, or having their legal rights abused or undermined in other ways. In fact, several transgender women who live here in New Orleans have told BreakOUT! that they are afraid to leave their houses for fear of being stopped unlawfully by the NOPD. In preliminary results from a peer-survey conducted by BreakOUT! members in the summer of 2011, BreakOUT! found that the vast majority of young Black transgender women surveyed reported experiencing police abuse, harassment, or misconduct by a NOPD officer on the basis of their gender identity, gender expression, or sexual orientation. Further, 100% reported being approached for sex by an NOPD officer. From 2010 until the conclusion of the United States Department of Justice’s (DOJ) investigation of the NOPD, BreakOUT! organized hearings with other community organizations for community members to share some of these personal stories of discriminatory and illegal treatment by NOPD officers. Our members met with DOJ investigators and attorneys several times over the course of the investigation, both concerning the police department as well as conditions inside Orleans Parish Prison. During this time, BreakOUT! also developed a video called “We Deserve Better” which can be viewed at: http://www.youthbreakout.org/content/we-deserve-better-nopd-campaign The stories our communities relayed via in-person meetings, electronic communication, and video testimony contributed to DOJ’s finding that NOPD practices lead to discriminatory treatment of LGBTQ individuals, in particular young African-American transgender women. Our work also resulted in groundbreaking language in the proposed Consent Decree between the NOPD and the DOJ that specifically states the “NOPD agrees to develop and implement a specific policy to guide officer interactions with members of the LGBT community.”85 The Consent Decree goes on to state, “NOPD agrees that officers shall not construe sexual orientation gender identity or gender expression as
Multiple sources, most recently discussed in Hammelstein and Brückner, “Criminal-Justice and School Sanctions Against Nonheterosexual Youth: A National Longitudinal Study” Pediatrics, 2010 and Amnesty International, Stonewalled: Still Demanding Respect. Police Abuses Against Lesbian, Gay, Bisexual And Transgender People In The USA Amnesty international, 2006. 84 National Coalition of Anti-Violence Programs, “Hate Violence Against Lesbian, Gay, Bisexual, Transgender, Queer, and HIV Affected Communities in the United States in 2011: A Report from the National Coalition of Anti-Violence Programs,” 2012. 85 See Proposed Consent Decree, p. 50, Section VIII, Bias Free Policing, Section B., Provision 184.
reasonable suspicion or probable cause that an individual is or has engaged in any crime , and that officers shall not request identification from or otherwise initiate a contact solely on the basis of sexual orientation or gender identity/ expression.”86 On the 44th Anniversary of the historic Stonewall Riots against police brutality, the NOPD finally issued an LGBTQ policy that includes protocols for stopping and searching transgender individuals and mandates that officers be trained on issues pertaining to the LGBTQ community. Most importantly, the policy specifically mandates that, “Officers shall not use an individual's actual or perceived gender identity, or sexual orientation as reasonable suspicion or probable cause that an individual is or has engaged in any crime.”87 However, much more work needs to be done. The NOPD continues to suffer from a lack of oversight as the City of New Orleans has filed numerous motions in federal court in order to stall the implementation of the Consent Decree. Further, BreakOUT! and the Independent Police Monitor continue to hear stories of Black people in New Orleans being stopped by police officers and asked for their social security numbers, then let go; members from the Congress of Day Laborers at the New Orleans Workers Center for Racial Justice tell us that police continue to collaborate with immigration and use interpreters from Border Patrol as translators during anything from criminal investigations to traffic stops; police commanders have issued directives to stop people on bicycles88; two recent reports documented a lack of data regarding Stop & Frisk practices in New Orleans89; and recent data shows that, not surprisingly, 93% of youth arrested on juvenile curfew violations are Black.90
See p. 50, Section VIII, Bias-Free Policing, Article B., Provision 186. See NOPD Policy 402.4. 88 See articles here: http://www.fox8live.com/story/19355993/nopd-memo-orders-officers-to-pull-over-one-bicyclist-a-day and here: http://www.wdsu.com/news/local-news/new-orleans/NOPD-lieutenant-orders-officers-to-stop-bicyclists//9853400/16249664/-/tbxf75z/-/index.html 89 See Independent Police Monitor’s “Review of the New Orleans Police Department's Field Interview Policies, Practices, and Data” located here: http://modiphy.dnsconnect.net/~nolaipm/main/uploads/File/Reports/%20FINAL%20STOP%20AND%20FRISK.pdf and the New Orleans Inspector General Office’s “Inspection of the New Orleans Police Department Field Interview Data Reported from January to June 2011” located here: http://www.nolaoig.org/uploads/File/OIG%20Inspection%20of%20NOPD%20Field%20Interview%20Data%20Final%20Report %20031213.pdf 90 See article here: http://www.nola.com/crime/index.ssf/2013/03/new_orleans_curfew_data_93_per.html
4) Center for Constitutional Rights (CCR) Discriminatory policing practices by the New York City Police Department (NYPD) demonstrate the impact of racial, ethnic and religious profiling on a local level. New Yorkers have been organizing en masse in opposition to such practices, including supporting critical legislation that would curb discriminatory policing practices, testifying before elected officials and engaging diverse communities across the city about their experiences being illegally stopped, profiled and surveilled by the NYPD.91 Recently, Floyd et al. v. the City of New York92, a federal class action lawsuit filed in the Southern District of New York by the Center for Constitutional Rights (CCR), concluded after a nine-week trial in which dozens of witnesses, including whistleblowing police officers, provided powerful evidence of a widespread pattern and practice of discriminatory and unreasonable stops and frisks by the NYPD. The case was brought on behalf of New Yorkers, including millions of Black and Latino individuals, who have been or will be illegally detained and searched without reasonable suspicion since 2005. The rates of seizure of weapons and contraband are minuscule. From January 2010 to June 2012, only .12% of stops yield gun seizures and only 1.8% contraband. A CCR shadow report entitled, Stopped, Seized and Under Siege, which discusses the human rights violations of the NYPD’s stop-and-frisk practices is before the Committee for review. The NYPD also engages in openly discriminatory surveillance and profiling of Muslims because of their religious affiliation. CCR, along with co-counsel Muslim Advocates, is litigating a First and Fourteenth Amendment challenge to the NYPD’s unlawful spying program on Muslims in New Jersey, Hassan v. City of New York. Brought by a broad range of New Jersey individuals, businesses, student organizations and mosques, the case alleges that the NYPD’s surveillance program chooses targets based on their Muslim faith or association alone. In the decade the program has been in existence, the program has yielded no leads at all. The case is pending before the United States District Court in the District of New Jersey. 93
See Center for Constitutional Rights, Stop and Frisk, the Human Impact, July 2012, available: http://www.stopandfrisk.org/ Floyd was filed in 2008 and was the first class-action lawsuit challenging the NYPD’s stop-and-frisk practice to be tried in federal court. The case history and developments are maintained at: http://www.ccrjustice.org/floyd 93 More information is available at: http://www.ccrjustice.org/hassan. In addition, Raza v. City of New York, challenging the NYPD’s unlawful surveillance of Muslims in New York City, was brought by Creating Law Enforcement Accountability and Responsibility (CLEAR) and other groups, and is pending in the Eastern District of New York.
5) Center for Intercultural Organizing (CIO) The Center for Intercultural Organizing (CIO), based in Portland, Oregon, works to build a multiracial and multi-ethnic movement for immigrant & refugee rights. The organization's members come from over 70 countries of origin, and speak over 100 different languages. As an organization which does not work with any ethnic-specific group, CIO's members experience profiling in multiple, often intersecting ways, including on the basis of race, ethnicity, national origin, religion, immigration status, sexual orientation, gender identity, income, and perceived homelessness, to name just a few. National authorities have recently begun to pay attention to issues of profiling in Portland, specifically, after a series of high-profile officer-involved shootings and in-custody deaths. The United States Department of Justice has worked with local stakeholders to develop a settlement agreement to improve law enforcement in Portland, focusing primarily on use-of-force regulations and customs. At a state level, CIO led a diverse coalition of stakeholders to pass legislation, the "End Profiling Act," giving communities more tools to hold law enforcement accountable when profiling - on any basis - happens. Although the bill failed to gain support in the 2013 session of the Oregon Legislative Assembly, advocates plan to raise the issue again in future years. The End Profiling Act contains most of CIO's policy goals related to profiling. First, the proposed law defines and bans profiling in the state of Oregon; although certainly discouraged, profiling itself is not statutorily proscribed in the state. Second, recognizing that profiling is often driven by unconscious biases and psychological schema, the bill would require local law enforcement to regularly train their officers on how to avoid bias-based policing and profiling. Third, given Oregon's lack of a standardized complaint mechanism for victims of profiling, the bill would give the state's Attorney General oversight to investigate complaints and work with local law enforcement departments to end profiling. Over the course of its work to stop profiling, CIO has heard hundreds of stories of individuals who are singled out by police because of who they are, not because of any perceived or actual misconduct. Two cases stand out as representative examples of the kind of profiling CIO's members regularly experience. In the first, a woman named Lisa was stopped by police in the course of a burglary investigation. Lisa, an African-American woman of about 4'10" (1.5m) in height, was waiting for a bus to attend a community service commitment. Two officers walked up to her and immediately began questioning her aggressively, asking for her name, her destination, and to see her identification. Feeling profoundly uncomfortable, Lisa began to collect her things and walk away, at which point the officers involved handcuffed her, threw her to the ground, and searched her person and property (despite her request that a female officer be brought to the scene to conduct the "pat-down" search). At the end of the incident, Lisa was finally given the burglary suspect's description: a 5'10" (1.7m) Latino man of an entirely different physical build. It was clear: Lisa had been targeted by Portland Police on the basis of her race, even as the officers involved tried to invoke an unrelated investigation. For more information about Lisa's case, please see the Oregonian's local coverage of her appeal (http://www.oregonlive.com/portland/index.ssf/2013/06/portland_police_order_up_new_i.html). The second case involves a young Somali woman named Muna. Muna regularly wears a head-scarf, and depends on public transit to get around the region. On one occasion in 2010, as a sophomore in high school, she'd boarded a light-rail train (known locally as the "MAX") to return home after studying at a 33
local library. A group of inspectors boarded the train a little later, a special law enforcement unit designed ostensibly to check individuals' fares and tickets. After looking at Muna's ticket, the officer involved asked her to produce her school identification. After examining it closely, he claimed that it couldn't be Muna, and asked her for her state-issued identification. He scrutinized it closely and then justified his request by indicating that "[her] people all look alike." He then went on to suggest that she might be lying to him and to continue questioning her, as he didn't believe that young Somali women wore hijabs in public. He ignored scores of other passengers on the train to focus on Muna due to her race, religion, and age.
6) Creating Law Enforcement Accountability & Responsibility (CLEAR) Project, City University of New York Law School The Creating Law Enforcement Accountability & Responsibility (CLEAR) project is based out of the clinical arm of the City University of New York School of Law. Rooted in its relationship with community-based organizations whose members wish to shape and respond to aggressive post-9/11 law enforcement practices implemented in the name of “national security” and “counterterrorism,” CLEAR addresses the underserved legal needs of Muslim, Arab, South Asian, and other communities in New York City and beyond whose civil liberties and human rights are potentially affected by those policies and practices. CLEAR provides direct legal representation, rights awareness, and support for community organizing around these issues. The NYPD’s surveillance of American Muslim communities Since the attacks of September 11, 2001, the U.S. Government, federal and local law enforcement agencies have engaged in suspicionless surveillance and targeting of Muslim, Arab, and other communities in the United States, both citizens and non-citizens. The New York City Police Department (NYPD) has presented itself at the forefront of this trend among local law enforcement agencies, and purports to be a model to be emulated elsewhere. Since 2001, the NYPD has established a secret surveillance program that has mapped, monitored and analyzed American Muslim daily life throughout New York City, and even its surrounding states. The full extent of this program was first revealed by documents that were leaked to the Associated Press and published in 2011. The documents detailed how the NYPD has collected intelligence on at least 250 mosques, 12 Islamic schools, 31 Muslims student organizations, 10 non-profit organizations, and 256 “ethnic hotspots.” The NYPD has sent undercover officers and paid informants to spy on neighborhood cafes and places of worship, infiltrate student whitewater-rafting trips, and record mosque sermons. Underlying this program is a deeply flawed, but also deeply held belief among the NYPD leadership that American Muslims are prone to radicalization – a theory that is laid out in detail in a widely-circulated report called Radicalization in the West: The Homegrown Threat.94 Yet despite implementing this expansive program, the NYPD’s own Commanding Officer of the NYPD Intelligence Division, Lt. Paul Galati, has admitted during sworn testimony that in six years of his tenure, the unit tasked with monitoring American Muslim life has not yielded a single criminal lead. The NYPD has defended their program as lawful and downplayed the scope of the program by claiming that the NYPD does not conduct general surveillance but only follows leads. However, in a sworn legal document the NYPD’s own David Cohen stated quite clearly that NYPD operatives went into New York mosques not to investigate specific individuals, but to monitor services in order to assess whether anyone was espousing harmful views. Moreover, the NYPD has failed to account for the deeply harmful nature of its surveillance program. The harmful impacts of Surveillance on Muslim Communities
Mitchell Silber & Arvin Bhatt, NYPD Intelligence Div., Radicalization in the West: The Homegrown Threat (2007).
The NYPD’s surveillance of American Muslim communities is just as harmful as it is ineffective. In March of 2013, the Creating Law Enforcement Accountability & Responsibility (CLEAR) project at CUNY School of Law, in conjunction with the Asian American Legal Defense and Education Fund (AALDEF) and the Muslim American Civil Liberties Coalition (MACLC) published a report entitled Mapping Muslims: NYPD Spying and its Impact on American Muslims95. The report responds to NYPD’s defense that surveillance is a harmless policy. The report’s in-depth interviews with a cross-section of American Muslim communities revealed that fear of surveillance has had devastating impacts that raise serious concerns under the United States Constitution, and international human rights law. Findings underscore that the monitoring of Muslims’ quotidian activities has created a pervasive climate of fear and suspicion, encroaching upon every aspect of individual and community life. Surveillance has curtailed religious practice, censored speech and stunted political organizing. It has also deeply damaged the NYPD’s relationship with American Muslim communities that it is tasked with protecting. Religious and spiritual life. Religious life and expression have been among the most strongly affected areas. Many American Muslims noted avoiding attending mosques because of the likelihood of NYPD surveillance, and associate new faces at their mosque with potential undercover informants. Religious leaders hesitate when advising their congregants. Suspicion of informants and undercover officers became widespread among Muslims that they have become suspicious of people, whether Muslims non-Muslims, who talk passionately about Islam or express interest in learning about it. One administrator at a mosque described the atmosphere of mistrust at his mosque: We have to be suspicious of people coming in . . . Sometimes, we start asking people ‘where are you from, what are you doing?’ we’ve even asked ‘what masjid [mosque] did you attend before?’ That’s not a good thing for the masjid. So naturally, members are uncomfortable. 96 Mapping Muslims also highlights another aspect of the NYPD surveillance’s curtailment of Muslim Americans’ freedom of religion. Several interviewees expressed their concern over how appearing to be a certain type of Muslim invites unwanted attention and surveillance from law enforcement. They noted how they or their peers hesitate to grow their beard out, or to wear a veil, out of fear of appearing “radical” according to the NYPD, and thus triggering further scrutiny. As one interviewee explained: “Now the veil thing has become more than just about being different. It has become charged with suspicion.”97 Political life and civic expression have also been chilled. Interviewees for the report stressed that surveillance restricts their speech whether they are engaging in political debate, commenting on current events, encouraging community mobilization or even joking around with friends. One Muslim student
Diala Shamas & Nermeen Arastu, Mapping Muslims: NYPD Spying and Its Impact on American Muslims, Creating Law Enforcement Accountability & Responsibility (CLEAR), the Muslim American Civil Liberties Coalition (MACLC), and the Asian American Legal Defense and Education Fund (AALDEF) (March 2013). 96 Id. at 18. 97 Id. at 15.
group even put up a sign in their club room which urged their students: “Please refrain from having political [conversations].”98 The NYPD’s “radicalization theory” NYPD considers a spectrum of political and religious speech as potential indicators of radical activity. As a result, many American Muslims have curbed their political organizing, civic engagement and activism – including on purely domestic civil liberties matters that affect their communities. One community organizer described the atmosphere: Almost every rally and public forum I’ve attended in the last year begins with some type of disclaimer or call-out of informants and undercovers who might be in attendance and recording the conversation… The reality of surveillance is now always on our minds, when we organize, when we speak, when we meet, when we plan.99 American-Muslim relationships with the NYPD: The general sense of suspicion has affected community ties, and traditional networks of solidarity. Many interviewees admitted to shunning individuals who behaved differently, awkwardly, or even those who showed interest in political topics or in exploring Islam, because they suspected that they might be informants. Others expressed concern about being stigmatized in the eyes of their colleagues, neighbors and classmates who come to see them as potentially radical because the NYPD has branded them a population “of concern.” Work or school relationships have suffered as a result, and American Muslims’ political marginalization has been compounded. NYPD’s relationship with Muslim New Yorkers: Finally, the report also demonstrates that the NYPD surveillance program has severed the essential relationship of trust that should exist between law enforcement agencies and the communities they are charged with protecting, which is particularly devastating as American Muslims feel increasingly vulnerable to hate crimes. Interviewees noted a deep apprehension of the NYPD’s intentions and practices towards them. This has trickled down to day-to-day interactions with beat-police officers, as interviewees noted hesitating to report stolen phones, or to even ask an officer for directions.100 The U.S. Government’s lack of response to NYPD surveillance To date, there has not been a formal review or effective oversight of the NYPD’s surveillance policies. While legal challenges have been brought in United States Federal Courts,101 the United States federal government has failed to review or intervene on the matter. The United States Department of Justice has yet to formally review or address the NYPD’s policies. While attorney general Eric Holder called the news item “disturbing” and noted that it was “under review” by the department, to date, the Department of Justice has not issued any reports, announced any investigations or made any formal statements despite repeated calls to do so by public officials. The FBI has also commented that the NYPD’s intelligence gathering practices since 9/11 are “not only a waste of
Id. at 25. Id. at 23. 100 Id. at 34-35. 101 Read about Raza v. City of New York (filed June 2013), here: http://www.aclu.org/national-security/raza-v-city-new-yorklegal-challenge-nypd-muslim-surveillance-program; and Hassan v. City of New York, (filed June 2012) http://ccrjustice.org/hassan.
money but a violation of American rights.”102 The Central Intelligence Agency (CIA) has issued a report investigating the propriety of the relationship, and found that the relationship was “irregular”, and that there was “inadequate direction and control” of the relationship.103 Recommendations and Questions Recommendations 1. Enact federal, state, and local legislation to ensure federal and local law enforcement agencies’ compliance with the Convention’s prohibition against arbitrary and unlawful interference with individuals’ right to privacy under Article 17, their right to freedom of association with others under Article 21, their right of peaceful assembly under Article 22, their right to freedom of thought and religion under Article 18, and their right to hold opinions without government interference. 2. Conduct more concrete, routine reviews of the NYPD as well as other law enforcement agencies’ surveillance activities to ensure the eradication of any unconstitutional interference with Muslim Americans rights under the U.S. Constitution and human rights law. 3. Take affirmative steps to terminate the NYPD Intelligence Division’s surveillance activities. 4. Promote affirmative measures and policies to ensure the full enjoyment of human rights by members of Muslim Communities in the United States. 5. Effectively plan and create strategies and mechanisms to restore Muslim Americans’ trust in law enforcement agencies. Questions 1. What measures is the United States taking to eradicate suspicionless surveillance of Muslim Americans on the basis of religion? 2. What effective measures is the United States taking to ensure that federal and local law enforcement agencies, including the NYPD, do not engage in surveillance policies that are violative of American-Muslims’ rights? 3. What federal, state and local legislation is the United States considering or adopting to protect Muslim Americans’ rights to free speech, association, assembly, and privacy? 4. What effective strategies and mechanisms is the United States considering or adopting to more actively review law enforcement agencies’ surveillance activities?
Rocca Parascandola & Joseph Straw, New FBI slap at NYPD spying, N.Y. Daily News, August 1, 2012, available at http://www.nydailynews.com/new‐york/new‐fbi‐slap‐nypd‐spying‐article‐1.1126312 103 https://www.documentcloud.org/documents/717864-cia-nypd-ig.html
7) Minority Executive Directors Coalition (MEDC) The Minority Executive Directors Coalition (MEDC) is a long-standing coalition that was founded in 1981 by Bernie Whitebear, Larry Gossett, Roberto Maestas, and Bob Santos. These four men worked collaboratively and brought the Native, African American, Latino and, Asian Pacific Islander communities of South Seattle together for collective change. MEDC is made up of Executive Directors and Program Directors of color in the King county area that work in private and non-profit sector organizations that support community. (http://www.medcofkc.org/about/history/). As an organization MEDC members work towards a common legislative agenda to address racial, political, economic and social inequities. Through it’s time in existence MEDC has been instrumental in community action. MEDC was a key in securing federal funding for culturally appropriate early childhood education for families of color. Both head start programs are still around and serve communities of color, Denise Louie Education Center Head Start in Beacon Hill and the United Indians of All Tribes Head Start Program located in Sandpoint. Through work with the community and targeted advocacy the community was successful in their efforts. MEDC also organizes its members to unify on common state and legislative agenda that advocates for immigrants, refugees and communities of color. MEDC serves as an identity based organization described in the beginning of the reading titled “Insider/Outsider Upsides and Downsides” by Staples (2002) in the ways in which organizing occurs. Staples describes that organizing happens in three different forums or a combination of the three, turf (organize by physical location), issue (organize around a particular issue) or identity (people organize around identity groups). Members of color say that they appreciate MEDC as a space where they don’t have to explain themselves and their experience and if they are corrected they know they will be corrected with love. Members are able to connect and relate to each other because of their multi-ethnic identities and common struggle as people of color. Though MEDC is an identity based organization it also does work around specific issues as they relate to communities of color and immigrant and refugee populations. One of MEDC’s most recent actions has been through the MEDC Multiracial Task Force on Police Accountability (MRTFPA or the Task Force). The creation of the Task Force The MRTFPA was a community development that came about after a series of community incidents with the Seattle Police and communities of color that resulted in excessive use of force and in one case death. As delineated in a letter written by the ACLU to the Department of Justice requesting an investigation of the Seattle police department as a result of some of these incidents: April 2010, a Latino man was wrongly accused of robbery and beat as an officer kicked and said he was going to “kick the Mexican piss” out of him, June 2010 a SPD police office punched a African-American teen girl in the face after jaywalking in front of Franklin high school, and August 2010, a police office shoots and kills a Native man who was holding a plank of wood and a carving knife whom the officer perceived as threatening.
Because of these events and some more that were not listed a community meeting was held and the MRTFPA is what developed as the next action step for change. The current task force is made up of communities of color and legal advocates who joined in support of the investigation of the Seattle Police 39
Department on behalf of the DOJ. Through the investigation processes on behalf of the DOJ a consent decree was issued to the city on behalf of the DOJ. As a result of the Consent Decree, the task force created a list of 94 recommendations that would ensure accountability to the community, transparency, and cultural competence within the Seattle Police Department. Following the 94 recommendations the Office of the Mayor developed the SPD 20/20 plan that offers twenty strategies within twenty months that would help improve city policing. One of the recommendations of the Task Force was the development of the Community Police Commission, which was one of the elements included in the 20/20 plan of the Mayors office. The 94 recommendations from the task force we developed in collaboration with community members and legal advocates of the Task Force. Task Force members bring issues and concerns from their respective communities to the table and collectively strategies on recommendations that would best suite communities of color, immigrant and refugee communities affected. Through this common issue of police use of force community was able to come together and partake in multi-ethnic organizing. Task force members came together with a multicultural approach to organizing as described by Gutiérrez et. al in the reading titled “Multicultural Community Organizing: A Strategy for Change” (1996). The focus of multicultural organizing keeps a lens of social justice and social location at the forefront of the work done which the Task Force made sure to always keep present in their conversations and planning for next steps.
8) Muslim American Society Immigrant Justice Center (MAS-IJC) Issue: Adjudicators Impose Additional Screening Requirement for Muslims Aliens Seeking Adjustments. Summary: Religious profiling allows the invidious use of religion and race as criteria in conducting immigration interviews, investigative procedures and granting benefits. Bias and lack of understanding contribute to inadequate customer care and processing. The U.S. Supreme Court has held that racial profiling violates the constitutional requirement that all persons be accorded equal protection of the law, prohibiting discrimination against individuals based on their citizenship or immigration status, or based on their national origin. Government must be among the first to uphold this standard of conduct. Yet, the United States Citizenship and Immigration Services (USCIS) has failed to develop, implement and enforce anti-discrimination policies, practices and procedures. Adjudicators continue to impose an additional screening requirement for aliens seeking adjustments. These applicants are typically from countries with national security concerns, resulting in discrimination and profiling of individuals who are Muslim. Immigration laws are increasingly more complex as agents misinterpret the law as a means to codify discrimination. Agents act to impede whole classes of peoples, when their actions deprive individuals of discretionary decisions that have long been a part of the immigration system. These actions have comes with a heavy price for individuals, their families and our country. "Racial profiling" at its core allows the invidious use of race or ethnicity as a criterion in conducting immigration interviews, investigative procedures and granting benefits, including multiple security checks. As a result, the decisions of USCIS adjudicators snare not only the prohibition on racial profiling in immigration practices, but due process which is inherent to democracy. With increasing frequency, we are seeing Muslim individuals attempting to claim a right, delayed a decision based on religious beliefs. Discriminatory processing practices push these potential legal residents out of the jurisdiction of USCIS into immigration court where they face removal. Delayed processing is exceedingly costly and by exposing applicants to unfair and discriminatory treatment, it portrays the worst of America. Immigrants unfairly face a situation where persistent obstruction of immigration justice results in unreasonably tearing apart families, waste of taxpayer dollars and no clear gains to public safety. The use of racial profiling has increased at an alarming rate over the past decade. Resources devoted to immigration and border enforcement have skyrocketed without establishing meaningful protections against racial profiling and other human rights abuses. Immigration agents continue to cross the line and behave not as neutral proponents of immigration law, but as political actors.
Muslim American Society Immigration Justice Center is accredited by the US Department of Justice to represent immigrants in immigration court and before USCIS. In the last four years the center has received more than 200 complaints from Muslim petitioners, whose cases have been delayed or denied due to allegations of fraud or willful misrepresentation. The majority of the cases involve Muslims who donated to legal charitable non-profits prior to terrorism designation by the Department of Treasury. Despite FBI clearances for many of these petitioners, USCIS has failed to grant favorable dispositions in these cases. Failure to list charitable contributions on applications were often inadvertent and careless. Mistaken omissions are not, however, a basis to conclude that applicants acted with the deliberate intent to deceive in order to obtain an immigration benefit. Hamid, a 45-year-old Palestinian man born in Kuwait, has lived in the United States since he was a teenager. Over the last three decades, he has lived what many would consider to be the American dream, marrying his American-born wife and raising three sons, all U.S. citizens. He has a successful career as a computer engineer, has never been arrested or charged with a crime, and is a man of faith. As a practicing Muslim, Hamid has stayed involved in his religious community and in accordance with the religious principle, zakat, regularly donates money to support humanitarian causes, both Muslim and secular, for orphans in need. In support of his petition, Hamid has provided letters of support from a number of individuals who attest to his impeccable character and reputation for honesty and truthfulness. Despite the fact that he bears all of the qualifications for citizenship, having fully established that he is of "good moral character," our government treats him as suspect because of his religion practices, just like they have apparently treated the 68 other naturalization applicants who are Muslim or from Muslim countries, since the beginning of 2013. The task of an agent is to apply the law as written, not to pick and choose the laws they will enforce. Immigration laws are now being inverted to promote and enshrine intolerance to Muslims who seek legal status and aspire to be American. Agents need to possess specific knowledge about the client groups they work with, including the range of historical experiences, resettlement patterns and specific cultural customs and practices. It is morally reckless to essentialize Middle Eastern Muslim applicants as “potential dangers to national security,” as if national origin or religious beliefs accurately determine the potential to commit acts of terrorism. Religion is one of many identities within a person and hardly ever the sole motivator for armed violence. Praying five times a day, regular attendance at a community mosque and charitable donations are not markers of violent extremism, yet Muslim petitioners continue to complain about being asked about their religious practices, religious affiliations and charitable donations to legal non-profit organizations. Proponents of racial profiling argue that it is a reasonable response to patterns of unlawful behavior that jeopardizes national security. This argument rests on the assumption that minorities—used in this context to refer to Arabs and Muslims—commit most terrorism-related crimes, and that many, or most, terrorist are in turn Arabs and Muslim. Thus, the argument continues, it is a sensible use of immigration resources 42
to target Arabs and Muslim in this context. This assumption is false. Targeting is costly. It has resulted in no known counter-terrorism benefit and becomes burdensome to the agency as well as the applicant. There are many factors that deserve an adjudicator’s attention: is the applicant law abiding; has he obeyed tax regulations; does he support democratic ideas or American core values. This is the only way to undertake the challenging task of enforcing the immigration laws as they have been written. Cultural bias and lack of understanding contribute to inadequate customer care and processing. The cultural and racial blinders of an agent may prevent identifying important case issues and fair disposition. An officer must possess basic qualities that will maximize the chances of obtaining the information needed. Questions often deal with topics of great sensitivity to the subject. The format can become such a grilling interrogation, that applicants appear to be non-compliant. Agents believe that the petitioner is being dishonest, and both end up frustrated or angry. Although cultural barriers lead to lack of understanding, heighten skepticism increase the likelihood of the denial of applications. New techniques for conducting effective interviews of applicants will increase the integrity and value of the narrative being given at a USCIS interview. Specialized experience will equip agents with the skills needed to perform their job duties with more accuracy and avoid racial and religious profiling. Americans recognize that USCIS has many missions. Besides determining the eligibility of aliens, as a member of the Department of Homeland Security, it also has a mission to help secure American from criminal elements and those who do not meet legal qualifications. USCIS has historically been challenged to do this on many levels. Still, agents need to know the limitations and strengths of current theories, processes and practice models, and which have specific applicability and relevance to the service needs of culturally diverse client groups. An agent of the United States has no right to challenge an applicant’s protected liberties and no government should tolerate this flouting of legislative will and executive authority. Recently, The ACLU of Southern California released a report about a newly-discovered national security program that grants the FBI and another law enforcement agencies the authority to exclude Arab, Middle Eastern, Muslim and South Asian communities from citizenship. The Controlled Application Review and Resolution Program (CARRP) was implemented in 2008 to prevent applicants seen as "national security concerns" from receiving immigration benefits. The ACLU argues that the policy overwhelmingly affecting Muslim applicants. The report states, The program relies on deeply flawed mechanisms to identify “national security concerns,” including error-ridden and over broad watch-list systems and security checks; and religious, national origin, and associational profiling. Predictably, the CARRP program not only catches far too many harmless applicants in its net, but it has overwhelmingly affected applicants who are Muslim or perceived-to-be Muslim.104
“Muslims Need Not Apply: How USCIS Secretly Mandates the Discriminatory Delay and Denial of Citizenship and Immigration Benefits to Aspiring Americans,” American Civil Liberties Union of Southern California, 2013, <http://www.aclusocal.org/CARRP/> (12 August 2013).
Congress should insist that agencies provide anti-bias education and diversity training programs and resources. Training should seek to help participants recognize bias and the harm it inflicts on individuals and society; explore the value of diversity; improve intergroup relations; and combat racism, anti-Semitism and all forms of prejudice and bigotry. Agents must function in accordance with the values, ethics, and standards of the profession, recognizing how personal and professional values may conflict with or accommodate the needs of diverse clients. Muslim applicants have been particularly vulnerable to the breakdown in professional standards. Adjustments in status, including children, should not be subject to unfair and discriminatory targeting based on stereotypes. Agents must seek to develop an understanding of their own personal, cultural values and beliefs as one way of appreciating the importance of multicultural identities in the lives of people. In addition, they should have and continue to develop specialized knowledge and understanding about the history, traditions, values, family systems, and perceptions of major client groups that they serve. USCIS administrators should support and advocate for recruitment, admissions and hiring, and retention of the kinds of agent that ensure diversity within the organization, as well as participate in educational and training programs that help advance cultural competence within the profession. The lack of immigration reform, as well as the recent surge in the immigrant population residing in the United States, make it critical that agencies possess some knowledge of key indigenous cultural values and the need for Immigrant advocates and Adjudications Officers– to work together more effectively. They should also require immigrant rights advocates to play a more significant role in shaping U.S. immigration policy. However, USCIS is not yet responded to the importance of that role. They are not appropriately organized or sufficiently resourced; they lack not only a strong tradition of tying their operations to long-term strategic planning with advocates, but also the organizational structures and cultural awareness necessary to adapt quickly to changing circumstances. As a result USCIS repeatedly fails to fully utilize the annual allotment of immigrant visas, thereby causing hundreds of thousands of green card opportunities to be lost due to bureaucratic delays at the close of successive fiscal years. Cultural competence may be defined as set of congruent behaviors, attitudes, and policies that come together in a system, agency, or among professionals and enable that system, agency, or those professionals to work effectively in cross-cultural situations.” Culture connotes “the integrated pattern of human behavior that includes thoughts, communications, actions, customs, beliefs, values, and institutions of a racial, ethnic, religious, or social group,” while competence implies “having the capacity to function effectively.” An officer conducting an interview will sometimes find that the facts revealed in that interview will lead to the conclusion that a more detailed inquiry is required. This type of inquiry frequently involves considering information in the light of within-group variations among ethnic groups. Generally, it is 44
presumed that the administrative decision makers are honest, act in good faith and are impartial. Similarly, administrators serving as adjudicators are presumed to be unbiased. Still, agencies continue to receive complaints from applicants that they are threatened, denied the right to fully explain case issues and treated as criminals and subjected to additional interviews on the basis of race and/or religion. The director of immigration services in the United States expressed his concerned that immigration adjudicators might be prejudiced against applicants who have undergone extra checks for ties to terrorism. U.S. Citizenship and Immigration Services (USCIS) Director Andrew Mayorkas, spoke at a public forum at The New School in Manhattan, almost three years ago, on October 13, 2010. He affirmed. “It may be hard for adjudicators to stop thinking of an applicant as a potential terrorist.” 105 Mayorkas' statement came at a time when Arab Americans and Muslims across the United States complained of discrimination in the immigration process. The lives of Muslim are studied, and their personalities examined and dissected, often with a good deal of self-confidence, by adjudicators who do not know them but rely on data generated by researchers to come up with various conclusions that are used to justify decisions. This is seemingly inevitable. Societies and governments need to rely on generalities to organize their understandings and establish policies. For Muslim petitioners, these generalities have become much too big, too confident, and too relentless. It seems at times as if the world of agent expertise is taking hundred-pound cement blocks, labeled “certitude” and significance,” and lowering them down onto the shoulders of specific immigrants seeking a homeland. Sometimes the size and weight of all of this signification make it hard to see the human beings underneath. It’s easy to forget how much of the existence of the overwhelming majority of Muslims has to do with things that are not big at all and do not lend themselves to generalities and are, indeed, so small and so specific they would seldom earn a mention in a government report or national security study. The life of a Muslim, after all, is made up not of social “constructs” like extremism but of much smaller things like work authorization. A narrow lens is often better than a wide one in discerning what a Muslim applicant’s intention really is and what distinguishes one immigrant’s personality and inner world from those of twenty other immigrants who may live in the same community and go to the same school, from the vantage point of someone at a think tank or government agency who has to think in terms of categories. Congressional leaders must ask, what measures has USCIS adopted to sanction Immigration Officers who flout agency policy? And why has the USCIS Office of the Ombudsman not established representative offices in each of the 50 states as authorized by law? Is Congress doing what it can to eliminate the conflicting missions that originated with the legacy agency (Immigration and Naturalization Service [INS]) and still persists between benefits adjudication (the work of district and regional offices) and law enforcement (the activities of its Fraud Detection and National Security Directorate [FDNS])?
“USCIS vulnerable to bias, says Chief,” New York Community Media Alliance, 2010, <http://nycma.fcny.org/nycma/voices/447/news/news_10/> (22 August 2013).
The objectives, then, must be threefold: (1) to provide a basic foundation of knowledge of immigrant’s sociocultural contexts (e.g., immigration history, cultural values, family processes, and community institutions); (2) to offer illustrative examples of applying this knowledge to investigatory contexts; and (3) to discuss some general principles, as well as the complexities and challenges involved in acquiring cultural competence with this population at the individual, family, and community levels. Racial profiling is ineffective, makes us less safe and it is dehumanizing. Racial profiling goes against the United States’ founding principles of fairness, equal protection and non-discrimination. We must all stand together to ensure that racial profiling has no place in law enforcement and urge Congress to include a strong, inclusive and enforceable prohibition against profiling within immigration reform. The primary mission of adjudication is to help meet the basic immigration needs of all people, with particular attention to the needs and empowerment of people who are vulnerable, oppressed, and living out of status. To accomplish this task, they must be more sensitive to cultural and ethnic diversity and strive to end discrimination, oppression and other forms of social injustice within their domain. Adjudicators begin by respecting the inherent dignity and worth of the petitioner. This value states that social adjudicators treat each person in a caring and respectful fashion, mindful of individual differences and cultural and ethnic diversity Remember, the process of multiculturalism involves constantly adjusting established policies and inventing new ones. Cultural competency is essential to designing any successful strategy leading to fairness and equal opportunity. Analysis of USCIS policy with regards to Arabs and Muslim policy, speaks to a systemic bias which constitutes a conspiracy of effect. Whether consciously or not, the immigration system is ignoring its mandate, which is to grant the benefit whenever the eligibility requirements are met through a preponderance of the evidence standard. USCIS does everything an inanimate object can do to keep Muslim immigrants from being approved as legal residents in this country.
9) OneAmerica Source: The Growing Human Rights Crisis Along Washington’s Northern Border OneAmerica and University of Washington Center for Human Rights April 2012 Authors: Sarah Curry; Kendra Anderson; Angelina Snodgrass Godoy; Carolyn Pinedo Turnovsky, Edited by: Pramila Jayapal and Sarah Curry Public Transportation: Questioned in the Midst of a Medical Emergency Luz Aguilar’s car was stopped as her family was boarding the Anacortes ferry. Luz’s husband’s hand had been severely cut and Luz and her family were in a desperate rush to catch the next ferry and seek emergency medical attention at a hospital; they had been told to do this by the doctor they’d consulted moments before. At the ferry, CBP stopped them to ask the whole family, including her U.S. citizen son Luis, for their papers. “My husband was not well because he had a cut on the hand and I was taking him to the hospital. They [CBP] did not let us go fast even though we were carrying a note from the doctor. ‘How is it that you are stopping us? You are seeing our work permit. We brought the immigration papers from our lawyer, the case number that we have been waiting for residency’ and still they told us no. They made themselves seem crazy. Soon one more [Border Patrol agent] came and I got out of the car. I was very upset and I told him, ‘You know that this is illegal. Right now I’m calling my lawyer.’ I called my lawyer and I turned on the speaker of my cell phone and she told him, ‘In this moment, let my clients go, because my clients are legal to be here in this country.’ And that was the only way that they would let us leave—having the papers, and talking with my lawyer.” Luz has since adjusted her immigration status. Despite the fact that U.S. citizens are not required by law to carry proof of citizenship, she carries her son’s birth certificate with her at all times. ( OneAmerica report, p. 18) Followed from Work Laura Ventura works in the blueberry fields in Sumas and lives in Lynden with her seven-year-old daughter. During May 2011, Laura was leaving the field for the day with a friend. As she pulled out, a CBP vehicle pulled out behind her, it had been waiting on the edge of the field. Laura drove to her friend’s house several miles away. The CBP vehicle continued to follow her and waited for her to leave her friend’s driveway. CBP did not make any further contact nor did the officers attempt to approach Laura beyond following her and watching. Laura then drove into Lynden. After this extended interaction, it was not until then that CBP turned on their lights and began honking. Laura immediately pulled her car over and parked. When CBP approached, she asked in Spanish, “Why are you honking at me?” He did not answer her question or give her any indication that she was being targeted for any other reason than her appearance or place of work. Instead, he asked if she had papers to live in the United States. He then questioned her about drugs and weapons and searched her car. He found 47
nothing. He then asked if she had a child or a husband living in the U.S. She did not tell him about her daughter. He then said, “Do you have family members or a friend that can pick up your car? Make sure that the person has papers, because if they don’t I’m obligated to ask them and detain them as well.” Her boss from Sumas came to pick up her car. She was detained and taken to the Tacoma Detention Center. After some time, she was able to pay $5,000 in bail and was released. The stress Laura endured inside the detention center has resulted in chronic headaches, stress and anxiety, and pain and paralysis in the right side of her face. (OneAmerica report, p. 19) Muslim College Student Experiences Religious Profiling at Border Crossing Akin, A Somali college student at Western Washington University, likes to drive to Vancouver on the weekends. When he crosses back into the U.S. at Blaine, his car is often searched and he has to wait for hours. One weekend, he and another East African friend were driving from Vancouver back to Bellingham. His car was searched, his cell phone was held, and he was fingerprinted. He waited 6-7 hours. Akin, like many others in the Muslim community, would like to know if he is on a watchlist and if there is any way to get removed instead of going through the same process every time he travels. He feels singled out because of his religion. He told us: “I’m Somali, have my beard and was wearing my religious hat. I remembered and thought about how hard it was for me to get my citizenship, how much I wanted to be a U.S. Citizen and how proud I am to be one. I thought about how I waited six years to become a U.S. Citizen so that I wouldn’t have to go through this. It just isn’t right. If this is how we treat our citizens, maybe these papers aren’t for me—the system, the people, they don’t care to know about my culture and who we are. I felt harassed, discriminated, and excluded. If my name was Johansson and my skin color was different I don’t think I would have had to go through this every time I cross the border. People cross this border every day. Thousands of people. Why can’t I go like everyone else without fear of being stopped and harassed for hours?” (OneAmerica report, p. 20) Border Patrol “Interprets”- Father and Son Deported for Noisy Muffler Sira was on her way to the grocery store with her husband and youngest son when they were pulled over by local law enforcement for a noisy muffler. “The Sheriff told us we were free to go as long as the owner of the car came to pick up the car. We called our son to come pick us up, but five minutes after calling him the Border Patrol arrived to the scene to interpret. Realizing that we were in danger I started having a panic attack. My husband attempted to get help for me, but when he tried to get out of the car to ask for help they would threaten to arrest him by force if he didn’t stay still. I started panicking even more, which caused me to get even sicker until I couldn’t breathe. The CBP agents slammed their fists on the top of the car. After, they [finally] called the paramedics to assist me.
While the medics took care of me in the ambulance, my husband and oldest son were arrested by immigration officials. Even worse they did it in front of my youngest son Miguel who is 12 years old. To make matters worse, while the medics were assisting me, the Border Patrol kept on asking me where I lived and where my family could be located. They repeatedly asked if I had more family here and where they lived. They demanded an address. I refused to answer because I knew they would only harm my family more. What really upsets me that the three Border Patrol agents gave my [other] son Ramon a choice—either he could be arrested or I.” Sira’s oldest son, Ramon, only came to the scene to pick up the car. He was questioned and deported along with his father. (OneAmerica report, p. 21) Fear Realized: Family Separation Sandra Morales works at a migrant day care center in Lynden. The summer program is run out of a local church each summer and provides a quality early learning environment for about 70 children under the age of five while their parents work in the fields. Many of the children are U.S. citizens who move state to state according to the season. Sandra, who grew up in Lynden, works closely with the families. She told us that many immigrant families are frightened to drive because they know if they are pulled over immigration will be called. Last summer Sandra saw this practice of collaboration between the police and Border Patrol play out before her eyes when she called parents to come pick up their feverish toddler Sara. “I work with immigrant families in Lynden and I know that they are afraid to go out. Last year we h ad an incident where parents were called to the Center because their child got sick and had a fever. So, they were on their way and they were pulled over. They called me at the Center and told me that they had been pulled over. They started panicking because they saw another car coming. I went to the spot and saw tons of cars – the police officers’, Border Patrols’ and some other. I was trying to explain to the officials that these parents are on their way to get their sick child and if they are taken away I will be responsible to take care of this child. The police officers didn’t care. I was explaining to the officers that the child is in a difficult situation and needs attention.” Sara’s father was deported, but her mother was allowed to stay. She struggled to adjust to life as a single parent. Sandra does not know what happened to Sara or how she is faring. (OneAmerica report, p. 26) Policy Recommendations: Border patrol enforcement activities should be limited to 25 miles from the border. The current “100 mile rule” provides an unreasonable span of territory for patrols and permits CBP activities to take place in small towns, neighborhoods, and communities that are low priorities for border security issues. Implement a policy that restricts border patrol enforcement at sensitive locations, such as schools, places of worship, hospitals, and public ceremonies. Localize 911 dispatching and restrict CBP from responding to routine law enforcement calls to serve as interpreters.
10) Providence Youth Student Movement (PrYSM) On a daily basis, Southeast Asian (Cambodian, Lao, Hmong, and Vietnamese) youth are followed, stopped, and questioned for no reason. Police invade people’s homes indiscriminately, without evidence linking people to specific crimes. Southeast Asian community members who do call the police get treated as the criminals, themselves. The relationship between the police and the community is fraught with conflict. The 2006 Southeast Asian Youth Survey revealed that 71% of young Southeast Asian men have been racially-profiled and accused of being in a gang. The law enforcement crack-down on Southeast Asian youth includes the use of illegal detainment, un-warranted searches, unnecessary force, intelligence gathering through a “gang database”, and racial profiling. As a community response, youth conducted research (including a power-analysis), brainstormed policy solutions, and framed demands around the issue of racial-profiling and abuse by the Gang Unit of the Providence Police Department (2009). In 2010, we published “The Quality of Life for Southeast Asian Youth” report and our policy change agenda. We were able to ask questions of 365 Southeast Asian youth, approximately 15% of Providence’s SEA youth community. We uncovered some of the following statistics: 31.5% of all youth said they had interacted with the gang unit; 45.8% of male youth said they had interacted with the gang unit Of the 115 people who had interacted with the gang unit, the most frequent answer for the number of their interactions was “more than 10” at 37.4%; a full 58.3% said that they had interacted with the gang unit at least 4 times There is a statistically significant correlation between interacting with the Gang Unit, and choosing “Poor experiences” when asked to characterize their experiences with the police:
90.0% 80.0% 70.0% 60.0% 50.0% 40.0% 30.0% 20.0% 10.0% 0.0% "Good" experiences "Average" experiences "Poor" experiences Has interacted Has not interacted No Response
People who have interacted with the gang unit are far more likely than those who have not to report experiencing misconduct on the part of police such as: The officer(s) using offensive language or swear words. The officer(s) stopping, pulled them over, or targeting them because of their race or ethnicity. The officer(s) using force and violence that was not necessary.
The survey demonstrated, scientifically, that the individual, personal stories of youth connect up with a larger picture of police misconduct. With this data and the increase criminalization of communities of color, our young people launched the Racial Profiling Campaign and join the statewide coalition in hopes of passing state legislature that will curve patterned practice of racial and gang-profiling. The “Comprehensive Racial Profiling Prevention Act” has three main provisions: 1) Bars police from asking drivers for further documentation of identification beyond driver’s license, vehicle registration, and/or proof of insurance during a routine traffic stop in the absence of reasonable suspicion of criminal activity 2) Requires that any policies and procedures regarding inquiries of immigration status to ICE or federal government to be a matter of public record 3) Restricts the use of so-called “consent searches” on juveniles (a consent search is a search permitted only because the individual has given their consent). This legislation bars the practice of searching young people and prohibits the practice of the gang unit in targeting Southeast Asian youth through gang profiling. Overtime, we have been able to build awareness, education workshops, a method of testimony collection, and a website about racial profiling in Rhode Island. Our local work caught the eye of Rights Working Group (RWG), a racial and immigrant justice national organization based in Washington, D.C. The organization works nationally on an “End Racial Profiling Bill”, we have been able to hold a statewide strategic planning this September 2012. Rights Working Group has been a great assistance in maintain the connection of local work to national work. Links: RI Stop Racial Profiling Website: http://ristopracialprofiling.com/ Youth Video by Youth In Action & Providence Youth Student Movement: http://vimeo.com/35659546 Petition: http://www.change.org/petitions/rhode-island-it-is-time-to-stop-police-racial-profiling-ofminorities-in-our-state Testimonies: http://ristopracialprofiling.com/share-your-story/ 51
11) Rights for All People (RAP) SB 90-It’s Negative Effects on the Immigrant Community In 2006, Colorado’s state legislature passed the nations first statewide anti-immigrant legislation with bipartisan support. SB 90 required local police to report people they suspected to be undocumented to Immigration and Customs Enforcement (ICE) at the time of arrest. Since 2007, after SB 90 was implemented, a number of stories surfaced, all with relating factors: individuals were being stopped for small traffic violations (having a broken tail light, no light on their license plate dark windshield tint, not using their blinker, obstruction of vision, speeding, failure to yield, etc…) or no traffic violation whatsoever. After the stop they were than questioned about their immigration status, arrested for driving without a license and entered into the process of deportation after receiving an ICE detainer. The stories surfaced as a direct result from over 107 Know Your Rights workshops conducted in Aurora from 2007 to 2008 by members of Rights for All People (RAP), an immigrant-led organization in Colorado. SB 90 did not achieve the effects that were promised to the public by elected officials to sell the legislation; it did not put “criminals” in jail, but rather it separated families and terrified the entire immigrant community in Colorado. SB 90 opened a floodgate of discrimination and an uncontrollable wave of Police/ICE collaboration; it all lead to fear and mistrust of police from immigrant community members. Many Colorado families were forever destroyed because of a simple traffic stop, something that could have been solved with a ticket or by appearing in court, instead, because SB90 was in place and the officers had discretion to make an arrest or not, many without a state ID would be booked into jail and their lives were destroyed. According to a report released by The Colorado Fiscal Institute in 2012; there were 53,199 SB 90 related arrests from 2010-2011 and 41% of those arrestees were transferred to Immigration and Customs Enforcement. (The Colorado Fiscal Institute, “Misplaced Priorities: SB90 & the Costs to Local Communities”, Dec. 1, 2012, pg. 14). On April 26, 2013, the Community and Law Enforcement Trust Act was signed into law in Colorado, repealing SB90 and moving us one step closer to win the fight against racial profiling and gaining equality for all members of our community. The campaign to win this critical legislative repeal was led by affected members of the community and grassroots organizations who had been organizing since 2007 to educate the community of its rights, document testimonies, and build legislative relationships based on grassroots voices. Examples of these stories follow: Gerardo is a RAP member who was pulled over in 2011 by police because the light bulb above his license plate was burned out. Gerardo was racially profiled, he was questioned about his status, and because he did not have a valid Colorado driver’s license he was arrested and hours later was under an ICE Hold. At 19 years of age, with no criminal record, Gerardo was put into process of deportation. Maria is a mother of 3, who was pulled over because the windshield tint in her car was too dark, she was questioned about her immigration status, taken to jail, transferred to the immigration Detention Center in
Aurora, CO, and was placed in the process of deportation. Maria is still fighting her deportation case and could be separated from her 3 children just because of a small traffic violation. The above stories are just two examples representing a widespread pattern of Aurora and Colorado residents being stopped for minor traffic violations, arrested instead of simply receiving a ticket, and then being at risk of deportation due to the link between local law enforcement and immigration. Many police officers across the state lost sight of their goals to serve and protect and decided to take immigration matters into their own hands, wasting resources and gaining nothing but mistrust and fear from community members.
12) Somos Un Pueblo Unido (Somos) Somos Un Pueblo Unido, a statewide immigrants’ rights organization in New Mexico, has documented an increase of racial profiling based on race, national origin, and language as a result of greater collaboration between local police, county jails and federal immigration officials. This collaboration occurs formally and informally through the Department of Homeland Security’s ICE ACCESS jail programs such as the Criminal Alien Program (CAP), Secure Communities, and 287 (g) agreements. Through CAP, agents identify and screen inmates at local jails to initiate removal proceedings while they are still in criminal custody. The Secure Communities Program checks a person’s fingerprints against both immigration and criminal databases at the time of arrest or booking. And the 287 (g) jail program trains and deputizes jail officials to interview and place immigration detainers on inmates. The success of these ICE ACCESS jail programs relies heavily on immigration detainers (“ICE Detainers” or “ICE Holds”), non-mandatory requests of local jail administrators to hold persons suspected of being deportable non-citizens days beyond their official release date. This prolonged detention affords ICE extra time to travel to the jail, interview and arrest inmates on civil immigration violations, and initiate deportation proceedings. Although DHS argues that this type of collaboration is meant to facilitate the targeting of undocumented immigrants who have criminal convictions, the vast majority of those apprehended and deported through these programs are arrested by local police for minor misdemeanors. And as Somos has documented in New Mexico, many are arrested despite having no criminal charges or convictions at all. Because an ICE Detainer is not an arrest warrant (it does not meet the threshold of probable cause) and because it is often triggered by mere suspicion of undocumented status, several organizations across the country contend that the use of ICE Detainers is a violation of immigrants’ civil rights and leads to unlawful detention by local jails. Problems documented as a result of unfettered and sometimes illegal use of ICE Detainers are manifold: While they have no authority to arrest people based on civil immigration status, local police often misuse ICE Detainers as arrest warrants. Community members report being targeted for pre-textual arrests. Routine traffic stops and citations do not usually end in arrest for non-immigrants. Yet several residents of New Mexico have reported being arrested for minor misdemeanors, such as concealing identification, while being taunted by arresting officers that they will end up deported the next day. ICE Detainers have been lodged against citizens and noncitizens alike because of a hyphenated Latino last name, language skills, or the use of foreign identity documents such as the Mexican Consular ID card—none sufficient proof of unauthorized status. Inmates with ICE Detainers are often prohibited from posting bond, even for minor misdemeanors, and they are not allowed to participate in jail diversion programs.
And because immigrants with ICE Detainers cannot post bond, they are subject to unnecessary prolonged detention in the local jail while dealing with their criminal violations prior to deportation.
One example of immigrants being targeted based on national origin, race and language recently sparked protests in San Juan County, New Mexico. Somos documented several complaints by residents who were asked about national origin by Sheriff Deputies, Farmington police officers, and the New Mexico State Police at DWI checkpoints. Officers asked those who appeared to be Latino/Hispanic, spoke Spanish, or showed a Mexican Consular ID card. When it was determined that the drivers or the passengers were not born in the US, they were told to pull over at which point ICE agents would question them about their immigration status. In some cases, the immigration checks resulted in individuals being arrested by ICE, not for a crime but for a civil immigration violation, and they were incarcerated at the local jail under an ICE Detainer. The following is an excerpt from a complaint filed in July, 2012 by Somos Un Pueblo Unido that is currently being investigated by the DHS’s Office of Civil Rights and Civil Liberties. The complaint shows how an unregulated tripartite collaboration among local police officers, jail administrators, and immigration enforcement officials can lead to racial profiling in the field, unauthorized detention of immigrants at a local jail, and eventually deportation. “On Friday, May 18, 2012 there was a DWI checkpoint on US 550 conducted by the San Juan County Sheriff, the Bloomfield Police Department and the New Mexico State Police. Mr. Estrada was stopped and questioned about his national origin immigration status by a state police officer. After Mr. Estrada said he was from Mexico, the police officer asked him to pull over to the side of the road to be questioned by an ICE agent. The ICE agent arrested him, not for drinking and driving, but for being undocumented. He was taken to the San Juan County Adult Detention Facility and held for two days, not for a crime, but on an ICE Detainer. Because there was no official criminal arrest, he was unable to post bond. Eventually he was put into deportation proceedings. Another vehicle with five Latino individuals was also stopped at the May 18th DWI checkpoint. A State Police officer asked the driver, who has resided in the United States for 18 years, for his license. Based on what cannot be anything other than appearance, the officer proceeded to ask all four passengers for their identifications and for their immigration status. An ICE agent appeared and arrested four of the individuals. They were taken to the San Juan County jail and unofficially booked on an ICE Detainer for several days until they were picked up by ICE and taken to the Otero County Immigration Processing Center. It is our understanding that ICE should not be conducting immigration checkpoints beyond 100 miles from the border. And local law enforcement officials should not be routinely questioning individuals regarding their civil immigration status at a DWI checkpoint, the sole purpose of which is to prevent and apprehend drunk drivers. These individuals had no criminal record and showed no signs of intoxication. They believe that they were targeted for further questioning and detention solely based on their race, national origin, and 55
language, a clear violation of their constitutional rights. We also believe this is a violation of New Mexico’s Prohibition of Bias-based Profiling Practices Act of 2009 which prohibits local law enforcement from changing the scope of an investigation and its line of questioning based on race, ethnicity, national origin or language. In another instance of racial profiling, a gentleman was arrested on July 6th for being undocumented after being detained by a San Juan Sheriff Deputy for not making a complete stop. He at no time discussed his national origin or status with the deputy. Soon after the deputy processed his New Mexico license, registration and insurance, two ICE agents in a dark grey Expedition stopped in front of his vehicle, conferred with the deputy and began to question the driver about his immigration status. He was arrested by the ICE agents, taken to the Sheriff’s office and booked into the jail solely on an ICE Detainer. He was held there until July 9th without bond and then taken to the Albuquerque immigration processing center. It is evident from these incidents that the standard practice of ICE agents is to collude with local area law enforcement and county jail officials to racially profile individuals, use ICE Holds to detain them, and violate their civil rights” Somos and many other civil rights and immigrants’ rights organizations across the country have challenged the use of ICE Detainers through litigation and community-based campaigns which has led to changes in a few jail policies. About a half dozen high profile counties have stopped honoring ICE Detainers. Others have decided to honor them selectively, assuming the liability associated with civil rights abuses. Ultimately, until the federal government stops “requesting” that local jails ignore judges’ release orders and not incarcerate people based on mere suspicion of a civil immigration violation, problems with profiling in the field will persist.
13) South Asian Americans Leading Together (SAALT) South Asian Americans Leading Together (SAALT) is a national, nonpartisan non-profit organization that elevates the voices and perspectives of South Asian individuals and organizations to build a more just and inclusive society in the United States. SAALT’s strategies include conducting public policy analysis and advocacy; building partnerships with South Asian organizations and allies; mobilizing communities to take action; and, developing leadership for social change. SAALT works with a base of individual members and advocates, and a network of 40 organizations that provide direct services, organize and advocate on behalf of South Asians in the United States. SAALT denounces the use of profiling based on race, ethnicity, national origin, religion, immigration status, and gender identity. We recognize that African American and Latino communities have experienced the brunt of profiling in the context of stop and frisk actions and the criminal justice system. Unfortunately, the utilization of profiling techniques has expanded in our country especially since September 11th. In the post-9/11 environment, South Asian, Sikh, Muslim, and Arab Americans have been subjected to policies that use race, ethnicity, national origin, and religion as a basis for profiling by federal, state and local law enforcement activities. Additionally, many communities encounter profiling through immigration enforcement as well. Introduction and Issue Summary In recent years, profiling has been institutionalized and implemented as policy in the United States under the guise of national security and immigration enforcement - in direct violation of the International Covenant on Civil and Political Rights (ICCPR). Discrimination on the grounds of race, color, and national or social origin is prohibited by Articles 2 and 26 of the ICCPR, to which the United States is a party.106 The ICCPR further dictates that the right to non-discrimination “on the ground of race, colour, sex, language, religion or social origin” is non-derogable, even in times of officially proclaimed public emergencies or issues of national security where a party may permissibly limit other ICCPR rights.107 As the experiences of South Asian, Muslim, Sikh and Arab Americans demonstrate, it is important that the United States put in place policies that will address the rise of racial and religious profiling in law enforcement contexts. Federal Immigration Policies Enforced at the State and Local Level Enforcement-only immigration policies that target minority and immigrant communities through profiling not only violate human rights, but are also ineffective methods that divert government resources. By
Article 2(1) of the ICCPR provides that “Each State Party to the present Covenant under takes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” and general discrimination that is unrelated to these rights. Article 26 states that “All persons are equal before t he law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” 107 Article 4(1) of the ICCPR states that, “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”
placing immigration authority and enforcement in the hands of state and local officials, communities of color have been repeatedly profiled, frequently based on physical appearance alone, which has proven ineffective and detrimental to relationships with community members. Enforcement-specific programs like 287(g) and Secure Communities, for example, have allowed local law enforcement agents to enforce federal immigration laws or check fingerprints of individuals against immigration databases with the Department of Homeland Security, respectively. It has been found that practices like that of 287(g) have led to substantial profiling as well as unlawful detention.108 Additionally, the 287(g) program has received widespread criticism, including that of the Office of the Inspector General, finding that the program has inadequate protections against profiling as well as insufficient training and oversight, sometimes resulting in the deportation of U.S. citizens and legal permanent residents.109 As a direct result of these discriminatory programs, in 2010, 27,871 individuals were deported through 287(g)110 and, in 2011, 78,246 people were deported through Secure Communities.111 Additionally, local and state laws like Arizona S.B. 1070 and similar copycat laws allow law enforcement to ask individuals about their status where there is “reasonable suspicion” that the individual is undocumented. Similarly, these programs have also resulted in the profiling of communities of color and the unlawful detention of individuals as well. These programs and the deportations that occur are frequently the result of profiling. Individuals in the South Asian community are likely to be stopped or asked about their status at a disproportionate frequency based on stereotypes regarding those that are “foreign” or “un-American.” Already, stories have emerged of those who are profiled and stopped for minor violations which are later dismissed, but only after removal proceedings are commenced, sometimes separating families for over a year. Targeted National Security-Based Profiling Post-9/11 The South Asian community has also suffered many years of targeted enforcement, particularly post-9/11, which has furthered stereotypes about South Asians and pushed community members into the shadows. For example, following 9/11, the National Security Exit-Entry Registration System (NSEERS) required certain male nationals from predominantly Muslim countries to report to immigration authorities for
See Garner, Trevor, II and Kolhi, Aarti, The C.A.P. Effect: Racial Profiling in the ICE Criminal Alien Program, The Warren Institute (September 2009) available at http://www.law.berkeley.edu/files/policybrief_irving_FINAL.pdf; see e.g. Department of Justice, Justice Department Releases Investigative Findings on Alamance Country, N.C., Sheriff’s Office, (September 18, 2012) available at http://justice.gov/opa/pr/2012/September/12-crt-1125.html 109 Rights Working Group, Racial Profiling and Immigration Enforcement by State and Local Police, Issue Brief, available at http://www.rightsworkinggroup.org/sites/default/files/ImmigrationEnforcement_IssueBrief.pdf 110 U.S. Department of Homeland Security, 287(g) Identified Aliens for Removal, U.S. Immigration and Customs Enforcement (2010) available at http://www.ice.gov/doclib/foia/reports/287g-masterstats2010oct31.pdf 111 U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security, Secure Communities: IDENT/IAFIS Interoperability, Monthly Statistics through September 20, 2011(October 14, 2011) available at http://www.ice.gov/doclib/foia/sc-stats/nationwide_interoperability_stats-fy2011-to-date.pdf.
interviews and processing.112 As a result, approximately 13,000 men were placed in removal proceedings, though not one was ever prosecuted for a terrorism-related crime.113 History has shown that law enforcement is less effective when focused on race, ethnicity, religion, national origin, or gender in deciding who to stop or investigate, rather than focusing on criminal activity.114 These types of enforcement programs that ultimately result in profiling have proven ineffective in the past, divert our limited governmental resources, and threaten the basic human rights of all Americans. Government policies such as profiling and surveillance of South Asian, Sikh, Muslim, and Arab American individuals and communities also send the message to the public that individuals from these communities are a threat or danger to society.115 Furthermore, these programs deter South Asian Americans from reporting crimes, sharing information, or serving as witnesses based on their valid fears of being profiled and deported. They destroy the South Asian community’s relationship with law enforcement and government generally, thereby, preventing individuals from reporting hate crimes and incidents of domestic violence. During interactions with government officials and law enforcement South Asian community members have been stopped and searched on pretense as well as questioned about their immigration status, national origin, religious affiliation, or political beliefs.116 Individuals have also been asked to spy on their own communities, sometimes under the threat of adverse immigration consequences.117 Similarly, South Asian community members have been selectively targeted by U.S. Customs and Border Protection and the Transportation Security Administration under the Department of Homeland Security. Not only are these methods of profiling and questioning based on appearance discriminatory in nature and a violation of universally protected human rights, but they are also ineffective and divert limited law enforcement resources as well as damaging community relations.118 Profiling and Surveillance by Local Law Enforcement Over the last few years, an alarming amount of data has come to light regarding the profiling and surveillance of individuals by the New York City Policy Department (NYPD), which included a specific focus on Muslim communities. Activities included infiltration of Muslim student groups throughout
In April 2011, the Department of Homeland Security (DHS) delisted the countries under the NSEERS programs and nonimmigrants from those countries no longer had to comply with the program. Though DHS claimed that this “ended” NSEERS, the program was not terminated and the underlying structure remains. Individuals also continue to face harsh immigration consequences as a result of NSEERS, such as deportation and denial of immigration benefits. Additionally, this program has created fear for immigrant communities, particularly South Asians and Muslims, which destroys government relationships with communities and makes individuals reluctant to assist government or access the benefits to which they are entitled. 113 Id. 114 Rushing, Keith, Rights Working Group Advocacy Efforts Defeat Racial Profiling Amendments in Mark up; Problematic Graham Amendment Passes (May 21, 2013) available at http://www.rightsworkinggroup.org/content/advocacy-efforts-defeatracial-profiling-amendmentsmark-problematic-graham-amendment-passes. 115 For example, these perceptions are fostered by actions such as th e Transportation Security Administration’s profiling of these individuals in airports, the Department of Homeland Security’s discriminatory practice towards these individuals, and the New York City Police Department’s surveillance of local communities. See South Asian Americans Leading Together (SAALT), In Our Own Words: Narratives of South Asian New Yorkers Affected by Racial and Religious Profiling (March 2012) available at http://saalt.org/wp-content/uploads/2012/09/In-Our-Own-Words-Narratives-of-South-Asian-New-Yorkers-Affected-by-Racialand-Religious-Profiling.pdf. 116 Id. at p. 13. 117 Id. at p. 15-16. 118 Id. at p. 3, 9.
universities in the Northeast; monitoring of Shia mosques; continuous and widespread screenings during police trainings of the film, The Third Jihad, which proclaimed that Muslims want to “infiltrate and dominate” the United States; and, with the help of the Central Intelligence Agency (CIA), spying and demographic mapping of Muslims in the city. As startling as these revelations were, it was hardly news for many South Asians, Arabs, Muslims, and Sikhs in New York City. Rather, they confirmed what community members have already known and experienced for over a decade. Sadly, communities continue to be subjected to these unjust practices, which do not come without a cost. Profiling has affected virtually every facet of the daily lives of community members – from how to dress, how to travel, how to practice one’s faith, how to express one’s identity, and how to interact with family members, neighbors, and the government. SAALT conducted a documentation project in collaboration with several other organizations entitled In Our Own Words which focused on the impact of these actions. Both personally and collectively, profiling has included impermissible inquiries about individuals’ faith and background; being viewed as suspects by the broader community; and becoming hesitant to reach out to law enforcement for assistance.119 Perhaps even more concerning is that profiling has affected “everyday people” as they go about their daily lives and undermined their sense of self-worth and identity in the process.120 The result is often that community members become second-class citizens and question their sense of belonging in the United States.121 Moreover, when government agencies couple community outreach with national security operations, it diminishes the sense of trust and safety that individuals feel within their own communities.122 As the South Asian population continues to grow and establish deeper roots in this country, it is imperative that this community is seen as part of this nation, not as suspects who threaten it. Recommended Questions 1. The Department of Justice (DOJ) is responsible for implementing the current federal guidance that prohibits profiling by law enforcement. However, the guidance is deeply flawed due to its limitations in scope and impact. For example, it does not include profiling based on country of origin and religion, which implicitly permits law enforcement to continue using these methods of profiling. Additionally, guidance contains a large exception for national security and border integrity that swallows the rule. For the last decade, SAALT and numerous other civil rights organizations have advocated for a modification of this guidance, so that (1) the profiling prohibition includes religion, race, ethnicity, national origin, and immigration status; and, (2) the exception for national security and border integrity is closed. What are the barriers to prohibiting profiling in its entirety consistent with the ICCPR? If the DOJ plans to modify this guidance, when will that take place? 2. How, if at all, does the government track incidents of profiling? 3. What is the current purpose of the NSEERS program and how is it being used? If it is not being used, why has it not yet been terminated? Suggested Recommendations
South Asian Americans Leading Together (SAALT), In Our Own Words: Narratives of South Asian New Yorkers Affected by Racial and Religious Profiling (March 2012) available at http://saalt.org/wpcontent/uploads/2012/09/In-Our-Own-WordsNarratives-of-South-Asian-New-Yorkers-Affected-by-Racial-andReligious-Profiling.pdf at 23. 120 Id. at 4. 121 Id. 122 Id.
In compliance with its duties and obligations under the ICCPR, the United States should enact antiprofiling legislation in the context of travel, surveillance, and immigration enforcement at federal, state, and local levels, including that of the End Racial Profiling Act, which (1) prohibits profiling based on race, religion, ethnicity, gender, or national origin by federal, state, and local law enforcement; (2) establishes requirements for law enforcement data collection; (3) provides anti-profiling trainings; (4) develops a complaint mechanism for affected individuals; (5) allows the Department of Justice to withhold grants to entities that fail to comply with the law and provides funding to those who seek to eliminate profiling; and, (6) allows affected individuals to seek redress in the court system. Additionally, the U.S. Department of Justice should amend its 2003 Guidance Regarding the Use of Race by Federal Law Enforcement Agencies to (1) prohibit profiling based on religion and national origin; (2) remove national and boarder security loopholes; (3) include law enforcement surveillance activities; (4) apply to state and local law enforcement agencies working in partnership with federal agencies or receiving federal funds; and, (5) create provisions for enforceability. It is only with clear prohibitions on profiling, an understanding of their repercussions, and government accountability for actions to the contrary that universal human rights can be effectively protected and ensured.
14) Streetwise and Safe Profiling of Women and LGBT people of color The U.S. government maintains that racially discriminatory actions by law enforcement agents are prohibited by domestic law.123 However, in reality, no federal legislation binding on federal, state and local law enforcement officers monitors or prohibits racial profiling by law enforcement agents.124 The federal guidelines cited by the U.S. government are neither mandatory nor applicable to the vast majority of law enforcement agents in the country. Moreover, remedies for racial discrimination by law enforcement under existing legislation cited by the U.S. require proof of intent to discriminate, and, for the most part, do not prevent or redress law enforcement practices with racially discriminatory effects. As noted by the UN Human Rights Committee during its 2006 review of the U.S. government’s compliance with the ICCPR, 125 the U.S. government does not monitor or collect comprehensive data concerning the racial distribution of individuals stopped, searched, and arrested by law enforcement agents across the country. However, existing data demonstrates ongoing racial profiling by law enforcement agents across the U.S. The disproportionate rates at which people of color are stopped, searched, and arrested by police, along with concentration of law enforcement efforts in communities of color, make a significant contribution to the disproportionate representation of minorities in the prison population, a concern the Committee on the Elimination of Racism (CERD) expressed in its 2001 and 2008 Concluding Observations and Recommendations. Article 2(1)(a) of the Convention on the Elimination of Racial Discrimination provides that, “[e]ach State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation.” The Committee has interpreted this obligation to require signatory States to “take the necessary steps to prevent questioning, arrests and searches which are in reality based solely on the physical appearance of a person, that person’s colour or features or membership of a racial or ethnic group, or any profiling which exposes him or her to greater suspicion.”126 The Durban Declaration “[u]rges States to design, implement and enforce effective measures to eliminate the phenomenon popularly known as “racial profiling” and comprising the practice of police and other law enforcement officers relying, to any degree, on race, color, descent or national or
Sixth Periodic Report of the United States to the Committee on the Elimination of Racial Discrimination, CERD/C/USA/6, May 1, 2007, paras.153, 324. 124 Although the End Racial Profiling Act, which would have prohibited the use of race, ethnicity, national origin or religion in making routine spontaneous law enforcement decisions and required data collection to monitor compliance with its terms was introduced in a number of legislative sessions since the U.S. government’s last report to the Committee, it was not enacted by the U.S. Congress. Currently 26 states have no law explicitly prohibiting racial profiling by law enforcement agents. Amnesty International USA Domestic Human Rights Program, Threat and Humiliation: Racial Profiling, Domestic Security and Human Rights in the United States, available at: http://www.amnestyusa.org/racial_profiling/report/rp_report.pdf. The "Guidance" cited in ¶¶ 111 and 112 of the U.S. report is not mandatory, nor does it cover the vast majority of law enforcement officers in the U.S. Some state and local jurisdictions, including Rhode Island, Kansas, Illinois, and now New York City, prohibit racial profiling by law. However, as at the federal level, individuals must prove that law enforcement officers intentionally used race as the determinative factor in initiating law enforcement action. 125 Concluding Observations of the Human Rights Committee: United States of America. 27/7/06. CCPR/C/USA/Q/3/CRP.4 para. 24. 126 General recommendation XXXI.
ethnic origin as the basis for subjecting persons to investigatory activities or for determining whether an individual is engaged in criminal activity.”127 The U.S. government has failed to take any meaningful action to address discriminatory law enforcement practices in the U.S., and particularly with respect to the specific forms and contexts of racial profiling of women of color and LGBTQ people of color, in violation of its obligations under the Convention. A. Racial Profiling of Women and LGBTQ People of Color
Generally speaking, the U.S. fails to provide information on the gender or sexuality-specific impacts of racial profiling and race-based policing practices in its Report. Although racial profiling data reported by federal and state governments is rarely, if ever, disaggregated by race and sex, racial profiling studies which do analyze the experiences of women of color and lesbian, gay, bisexual, transgender and queer (LGBTQ) people of color separately from those of men of color conclude that “for both men and women there is an identical pattern of stops by race/ethnicity.” 128 Additionally, such studies often point to additional, gender and sexuality-specific forms and contexts of police profiling. For instance, a recent study of the experiences of African American youth in poor neighborhoods in St. Louis, Missouri found that young Black women experience the same kinds of profiling, daily harassment and excessive force as young Black men, and also report gender-specific forms of violence such as sexual harassment and assault by police.129 Racial profiling not only impacts African American and Latina women but also Native women as documented at an October 2003 Amnesty International hearing on racial profiling held in Tulsa, Oklahoma.130Additionally, the experiences of Arab, Middle Eastern, South Asian, Muslim, and women perceived to be members of these groups, have been noticeably absent from discourse regarding the impacts of the “war on terror” on communities of color in the U.S. Since September 11th, 2001 Arab, Middle Eastern, and Muslim women, and particularly women who wear the hijab, have also been routinely subject to street and airport profiling. Additionally, LGBTQ people, and particularly LGBTQ people of color, report significant levels of police profiling and misconduct.131 In a national survey conducted by Lambda Legal, twenty-five percent (25%) of all respondents with recent police contact reported at least one type of misconduct or harassment such as verbal assault, sexual harassment, physical assault or sexual assault. Respondents of color, those who were low-income, and transgender respondents all were much more likely to report having experienced at least one type of this misconduct. Previous national studies have similarly found that non-heterosexual
Durban Declaration, para. 72 R. Lundman and R. Kaufman, Driving While Black: Effects of Race, Ethnicity and Gender on Citizen Reports of Traffic Stops and Police Action, Criminology 41(1) 195-220 (2003). Analysis of recent statistics relating to stops and frisks in New York City demonstrate that rates of racial disparities in stops are equivalent for men and women. See New York Civil Liberties Union, “Days after Woman Takes Stand in Landmark Stop-and-Frisk Case, NYC Women Demand End to Discriminatory Stop-andFrisk,” April 3, 2013. 129 R. Brunson & J. Miller, Gender, Race and Urban Policing: The Experiences of African American Youth, GENDER & SOCIETY, Vol. 20 No. 4, August 2006 531-552. 130 Geneva Horse Chief, “Amnesty International Hears Testimony on Racial Profiling,” Indian Country Today, October 16, 2003. 131 JOEY L. MOGUL, ANDREA J. RITCHIE & KAY WHITLOCK, QUEER (IN)JUSTICE: THE CRIMINALIZATION OF LGBT PEOPLE IN THE UNITED STATES 61-64 (2011);
youth more likely to be stopped by the police and experience greater criminal justice sanctions not explained by greater involvement in violating the law or engaging in transgressive behavior.132 According to the National Gay and Lesbian Task Force (NGLTF) and the National Center for Transgender Equality (NCTE), transgender individuals across the U.S. report high rates of police harassment and discomfort seeking police assistance.133 Researchers at the City University of New York Graduate Center similarly found that LGB youth more likely to experience negative verbal, physical, and legal contact with the police, and more than twice as likely to experience negative sexual contact in preceding six months.134 As Mitchyll Mora, an LGBTQ youth of color leader and researcher at Streetwise and Safe recently testified before New York City Council, The policing of Brown and Black people begins with the color of our skin, our race, our ethnicity, and our youth, but it does not end there. What is hidden in the official numbers is how the [New York City Police Department] NYPD profiles us and discriminates against us based on our sexual orientation, and gender identity and expression. When an officer demands that LGBTQ youth empty their pockets or open their bag or purse and they find condoms, we are assumed to be engaged in prostitution or lewd conduct. When a friend of mine, a trans-identified woman, is standing on a New York City corner, she is told to unzip her pants to reveal her genitals to satisfy the curiosity of a police officer. When young women of color are stopped they experience sexual harassment and assault by police, or are told by officers that they wouldn’t get stopped if they didn’t dress “like a boy.” Another youth leader at Streetwise and Safe recently testified about the routine profiling she experiences as a young Black woman: My first police encounter was when me and my sisters and cousins were stopped on the stairs in our public housing unit in Brooklyn. We were told us to take off our shoes, socks, hoodies, and top shirt leaving us in our undershirts. They told us to unbutton our pants and roll the waistband down. Three of us were in pajamas. We then had to stand and wait with backs turned until a female officer came. She turned us around by our neck and frisked us. They were looking for weed. They didn’t find anything on us - we were 8, 9, 13 and 16 year old girls - but they took us to the precinct anyway, where our mother had to come get us. I have been told that if I just give a cop my phone number, they will make a summons go away. I have been told to take my newborn baby out of her stroller and put her on a filthy sidewalk while they searched the stroller. I have been sexually harassed by police officers as I walk my kids to school. The police in my neighborhood make me feel less safe, not more safe. Who is going to protect me from the police?
Kathryn E. W. Himmelstein and Hannah Brückner, Criminal-Justice and School Sanctions Against Nonheterosexual Youth: A National Longitudinal Study, Pediatrics 127:49 (2011) ( 133 J. Grant, L. Mottet, J. Tanis, Injustice at Every Turn: A Report of the of the National Trangender Discrimination Survey, National Center for Transgender Equality and National Gay and Lesbian Task Force (2011) ( 134 Brett G. Stoudt, Michelle Fine, and Madeline Fox, Growing Up Policed in the Age of Aggressive Policing Policies, New York School Law Review 56:1331 (2012)
Women of color and LGBT people of color are routinely profiled as drug couriers by law enforcement officers in the context of the “war on drugs,” leading to arbitrary stops, strip searches, and detentions. While the use of this practice at the nation’s airports is well documented by a 2000 General Accounting Office study,135 it continues to extend into streets and homes across the country. Additionally, women of color’s experiences of traffic and street stops are often uniquely gendered, as sexual harassment and assault and rape of women stopped by police for traffic offenses is reported with alarming regularity. A 2002 report, Driving While Female, documented over 400 cases of sexual harassment and abuse by law enforcment officers in the context of traffic stops across the U.S. Only 100 of these cases resulted in any kind of sanction. The authors of the report concluded “there is good reason to believe that these cases represent only the tip of the iceberg. Many victims do not come forward because of humiliation and fear of reprisal. And … some police departments do not accept and investigate complaints from many victims who do come forward.”136 The problem of police sexual harassment and sexual misconduct is so pervasive the International Association of Chiefs of Police issued guidance for police executives in 2011.137 Yet, two years later, it appears none of the report’s recommendations have been adopted.138 While racial profiling of women of color and LGBTQ people of color also takes place in gender-specific forms and contexts. For instance, women of color, and particularly African American, Latina, Native and Asian women, including transgender women, are routinely profiled on the streets and in their homes as sex workers by police, regardless of whether they are engaged in sex work at the time, or whether they are involved in the trade at all. As a result, they are subjected to discriminatory stops, strip searches, and arbitrary arrest and detention on a regular basis. In many jurisdictions, possession of condoms is used to profile women of color for prostitution-related offenses.139 Gay men, and particularly gay men of color and immigrant gay men, are routinely falsely arrested for lewd conduct offenses, or other sexual offences such as “crime against nature.”140 Implementation of policies requiring officers to make an arrest when responding to domestic violence often results in disproportionate arrests of women of color and LGBTQ people of color, who are more likely to be perceived by police to be perpetrators of domestic violence rather than survivors. Of survivors in a New York City study who had been arrested along with their abusers (dual arrest cases) or arrested as a result of a complaint lodged by their abuser (retaliatory arrest cases), a significant majority (66%) were
U.S. General Accounting Office, Better Targeting of Passengers for Personal Searches Could Produce Better Results (Washington D.C.: U.S. General Accounting Office 2000). 136 Samuel Walker and Dawn Irlbeck, Driving While Female: A National Problem in Police Misconduct, Police Professionalism Initiative, Department of Criminal Justice, University of Nebraska at Omaha, 2002, available at http://www.policeaccountability.org/drivingfemale.htm; Press Release, Driving While Female Report Launches UNO Police Professionalism Program, available at: http://www.unomaha.edu/uac/releases/2002may29ppi.html 137 International Association of Chiefs of Police, Addressing Sexual Offenses and Misconduct by Law Enforcement Officers: An Executive Guideˆ, 138 Steven Yoder, “Cops Gone Wild,” American Prospect, March 28, 2013. 139 Human Rights Watch. Sex Workers at Risk: Condoms as Evidence of Prostitution in Four US Cities. 2012; Open Society Foundations, Criminalizing Condoms: How Policing Practices Put Sex Workers and HIV Services at Risk in Kenya, Namibia, Russia, South Africa, The United States and Zimbabwe (2012), available at: http://www.opensocietyfoundations.org/sites/default/files/criminalizing-condoms-20120717.pdf; PROS Network and Sex Workers Project. Public Health Crisis The Impact of Using Condoms as Evidence of Prostitution in New York City. 2012, available at: http://sexworkersproject.org/downloads/2012/20120417-public-health-crisis.pdf. 140 Mogul, et al., supra.
African American or Latina.141 43% were living below the poverty line, and 19% percent were receiving public assistance at the time.142 The National Coalition of Anti-Violence Programs routinely reports high rates of police harassment and arrest of LGBTQ survivors of domestic and homophobic and transphobic violence. The U.S. government’s failure to keep racial profiling and police brutality statistics according to both the race and gender precludes a full assessment of the breadth and depth of the gender specific impacts of racial profiling and police brutality. Comprehensive legislative responses, such as the recently passed End Discriminatory Profiling Bill in New York City, which protect against police profiling based on race, ethnicity, national origin, gender, gender identity, sexual orientation, age, religion, immigration status, housing status, disability and HIV status are critical to documenting and addressing the multiple forms and contexts of racial profiling in the United States, and the many ways it is experienced by different individuals within communities of color. As Streetwise and Safe youth leader Chris Bilal put it, “women of color and LGBTQ youth of color deserve protection on as many fronts as we are policed.”
Haviland, M., V. Frye, V. Rajah, J. Thukral and M. Trinity, The Family Protection and Domestic Violence Intervention Act of 1995: Examining the Effects of Mandatory Arrest in New York City (Family Violence Project, Urban Justice Center 2001). 142 Haviland, M., V. Frye, V. Rajah, J. Thukral and M. Trinity, The Family Protection and Domestic Violence Intervention Act of 1995: Examining the Effects of Mandatory Arrest in New York City (Family Violence Project, Urban Justice Center 2001).
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