USDA challenges racial profiling after untimely death

In May 2011, a man drowned near Forks, Washington, after being chased by U.S. Customs & Border Patrol (CBP) agents. The federal response to the incident reflects a rare bright spot in the struggle to end racial profiling by law enforcement.

The man who drowned in Washington state had been visiting the Olympic National Forest with his long-term female partner, when they were stopped by a U.S. Forest Service (USFS) officer. According to his companion (whose identity has not been disclosed for privacy concerns), the USFS officer was investigating whether they had a permit to harvest salal, a plant that grows in the Pacific Northwest Region. The couple needed an interpreter. But as the Seattle Weekly notes,

Who did [the Forest Service] call? Spanish-speaking locals like [a local] Sheriff's Department uses? An agency offering interpreter services? No, the Forest Service called the Border Patrol.

In fact, the USFS officer had already called for Border Patrol agents before interacting with the couple, suggesting the interpretation request was mere pretext. When the CBP vehicle arrived, both the complainant and her partner fled on foot.  CBP agents chased the driver, who ran into a nearby river and subsequently drowned.

Unfortunately, CBP's involvement in this tragedy is not a random occurrence: many other community members of the Olympic Peninsula have experienced racial profiling. As previously highlighted by The New York Times, Leonard found that requesting interpretation assistance from CBP "was merely an excuse to target Latino individuals for immigration enforcement."

Now the Department of Agriculture (USDA) (which oversees the Forest Service) is taking action to restore civil rights. In May 2012, the USDA's Office of the Assistant Secretary for Civil Rights (OASCR) issued a federal administrative decision in which Assistant Secretary Joe Leonard, Jr. criticized the "discriminatory" practices of the USFS, including using CBP agents for interpreting and security backup during routine stops. More specifically, OASCR found that the Forest Service had discriminated based on race, national origin, and by failing to provide adequate access to an individual proficient in English.

There are four main outcomes from the OASCR decision:

  • It orders the USFS to locally announce the discriminatory finding and provide information on how to file civil rights complaints.
  • USFS must develop and implement a national meaningful language access policy.
  • The Forest Service agent and his supervisor must complete 40 hours of civil rights training within 60 days.
  • The Forest Service is required to develop and implement a national policy on law enforcement data collection to reduce instances of racial profiling.  This would be similar to the regime envisioned under the proposed End Racial Profiling Act (ERPA), which remains stalled in Congress after a decade of inaction in the face of a mounting crisis.

While the USDA is usually not seen as a civil rights agency, OASCR describes its mission, in part, as the "enforcement of civil rights."  An inter-agency tension between the Department of Agriculture and CBP, a division of the Department of Homeland Security, further underlies the decision.

The Northwest Immigrants Rights Project (NWIRP), which represented the complainant, praised the USDA's decision as "precedent setting." In a press release, Jorge L. Baron, Executive Director of NWIRP, declared:

We also believe this first legal ruling addressing the issue of whether the use of Border Patrol agents as interpreters violates civil rights protections and we are pleased that this federal agency has concluded unambiguously that this practice is discriminatory.

In addition, NWIRP and other immigration reformers have filed a request under the Freedom of Information Act (FOIA) for records regarding local law enforcement's discriminatory use of Border Patrol agents as interpreters. Furthermore, a decision is still pending in NWIRP's separate complaint with the U.S. Departments of Justice and Homeland Security alleging discriminatory practices by other law enforcement agencies using Border Patrol agents throughout Washington State.

The Bill of Rights Defense Committee (BORDC) has extensively reported on both immigration and racial profiling, and offers materials, training and toolkits to  grassroots organizers. BORDC's Local Civil Rights Restoration campaign includes a model ordinance with a data collection requirement similar to that imposed by OASCR, and offers an opportunity to help restore civil rights at the local and state levels.

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Unfortuately, performance in law enforcement and associated para-military organizations depends on statictics.
Numbers of arrests and assists count toward performance ratings.
Until a different form of evaluation is desired by overseeing governmental agencies, patrol will be rewarded as always.