Originally Posted by halls120

Oh, really?

The question of whether profiling is or is not illegal frequently comes up in a hypothetical like this – can a Chief of Police advise his officers that they could consider whether or not the passenger or drivers appeared to be of Middle Eastern origin to determine whether to conduct a thorough search of vehicles stopped at roadblocks?

To answer this question, we start with the often-expressed position of the Supreme Court that any statute or official policy that expressly considers race must be subjected to "strict scrutiny." See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 222 (1995) (clarifying that all racial classifications must be analyzed under "strict scrutiny"). Police, alerted to be on the lookout for a burglar, drug dealer, or terrorist, without further description, generally cannot legally target only Italians, African-Americans, Hispanics, Arab-Americans, or any other race. United States v. Avery, 137 F.3d 343, 355 (6th Cir. 1997) (finding the Equal Protection Clause is violated by government actors who act based on race alone). As the Sixth Circuit stated in United States v. Avery, "If law enforcement adopts a policy, employs a practice, or in a given situation takes steps to initiate an investigation of a citizen based solely upon that citizen's race, without more, then a violation of the Equal Protection Clause has occurred."

Yes, the law is clear as to the general prohibition against objective reliance solely upon race and ethnicity in law enforcement decisions, but this does not mean that race and ethnicity can never be overtly considered as a relevant factor. In United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975), the Supreme Court stated the likelihood that an individual of Mexican ancestry on the Southwest border was an alien was sufficiently high to make that ancestry a legitimate objective factor in the Border Patrol's decision to stop and interrogate the passengers in a vehicle. The following year, in United States v. Martinez-Fuerte, 428 U.S. 543 (1976), the Court stated that it perceived no constitutional violation in referring certain motorists to detailed secondary inspections at the San Clemente checkpoint "even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry." Id. at 563.

The Court in Brignoni-Ponce understood that the vast majority of Hispanics crossing, living, and driving in the vicinity of the Southwest border were American citizens or individuals who had been legally admitted. 422 U.S. at 886-87 n.12. However, the Court felt that the illegal alien problem involving individuals of Mexican ancestry was significant enough for officers to at least be able to consider race as a factor in their decisions.

Yes, the Supreme Court in Whren v. United States, 517 U.S. 806, 813 (1996) acknowledges that the "Constitution prohibits selective enforcement of the law based on ... race"). But Wren does not prevent officers from thinking in this manner, and if you think they don’t, you’re fooling yourself. Although the law concerning when race may be considered as a factor may not be completely settled, it is clear that if police actually receive a "tip" that suggests the race of a suspect, they are not illegally profiling by concentrating on that race. See Brown v. City of Oneonta, 195 F.3d 111, 115, 120 n.8 (2d Cir. 1999), amended and superseded by 221 F.3d 329 (2d Cir. 2000).

Your opinion notwithstanding, government officials have the right to occasionally consider ethnic background in making decisions, and they are not being racists or acting illegally in doing so.