Denver police guidelines leave door open for racial profiling, ACLU says

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U.S. Attorney General Eric HolderDenver police policies don’t prevent profiling based on race and other factors, like religion. They also don’t include protections based on "gender identity." That means the Denver Police Department Operations Manual does not adhere to new federal guidelines Attorney General Eric Holder has recommended that local departments adopt.

The Denver manual bars profiling based on race, ethnicity, national origin, age, sex, sexual orientation, or religion so long as it is not the “sole basis” for police stops and searches. Those two words -- “sole basis” -- leave the door open to racial profiling, said Denise Maes, the director of the American Civil Liberties Union of Colorado. That's because it's not a categorical restriction on the use of those characteristics in policing.

The federal policy, meanwhile, prevents profiling “to any degree,” with a practical exception for situations where police are on the lookout for a suspect who matches a specific description.

Maes said the federal standards are “morally and constitutionally” better than Denver's.

“I think prohibiting it to any degree and permitting it, but not as the sole basis, is a very strong distinction,” Maes said.

The language that guides Denver's police officers is found in Section 118.01 of the Operations Manual:

The policy of the Denver Police Department is, further, that officers shall not consider race, ethnicity, national origin, age, sex, sexual orientation, or religion as the sole basis for establishing reasonable suspicion, probable cause, or a basis for requesting consent to search. The Denver Police Department reaffirms it’s [sic] commitment to unbiased policing as expressed in the policies outlined in OMS 118.02 below and endorses the principle that no law enforcement or other city agency may profile or discriminate against any person on the basis of race, ethnicity, national origin, age, sex, sexual orientation, or religion.

Holder’s guidelines are meant for federal law enforcement officials. However, they could be applied by local agencies, he said earlier this month.

In making routine or spontaneous law enforcement decisions, such as ordinary traffic stops, Federal law enforcement officers may not use race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity to any degree, except that officers may rely on the listed characteristics in a specific suspect description. This prohibition applies even where the use of a listed characteristic might otherwise be lawful.

Initially, when CPR News asked the Denver Police Department if it planned to adopt Holder’s language, the answer seemed to be no. In an e-mail, Matt Murray, the department's chief of staff, wrote that “the new Federal guidelines are consistent with a more stringent policy the Denver Police Department adopted in 2006. Therefore, we would not anticipate any changes.”

CPR News then turned to the ACLU, which has long monitored allegations of police misconduct, to compare the policies. The organization found the differences cited above.

CPR News then queried the Denver Police Department again, asking about the differences the ACLU pointed out. In this subsequent discussion -- an interview with Colorado Matters Host Ryan Warner -- Murray said that Denver police are now open to reviewing the policy. He added that the department’s existing policy, crafted in 2006, intends to combat wrongful profiling.

“Clearly the policy is very much in support of the same concept, so if we’re debating the way the words are used, then we’re happy to look at it,” Murray said. He added, "We will look into it."

The federal policy also forbids profiling based on "gender identity." Denver's policy does not include that phrase.

Murray said Denver police are also open to reconsidering that exclusion.