PROFILED Act

II 116TH CONGRESS 1ST SESSION S. 2396 To protect United States citizens and residents from unlawful profiling, arrest, and detention, and for other purposes. IN THE SENATE OF THE UNITED STATES JULY 31, 2019 Mr. MENENDEZ (for himself, Mrs. GILLIBRAND, Mr. BOOKER, Ms. HARRIS, Ms. WARREN, and Mr. WYDEN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To protect United States citizens and residents from unlaw- ful profiling, arrest, and detention, and for other pur- poses. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLES; TABLE OF CONTENTS. 3 (a) SHORT TITLES.—This Act may be cited as the 4 ‘‘Protecting the Rights of Families and Immigrants Who 5 Legally Entered From Detention Act’’ or the 6 ‘‘PROFILED Act’’. 7 (b) TABLE OF CONTENTS.—The table of contents for 8 this Act is as follows: 9 VerDate Sep 11 2014 20:07 Aug 12, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2396.IS S2396 khammond on DSKBBV9HB2PROD with BILLS 2 •S 2396 IS Sec. 1. Short titles; table of contents. Sec. 2. Findings. Sec. 3. Definitions. TITLE I—PROHIBITION OF RACIAL PROFILING Sec. 101. Prohibition. Sec. 102. Enforcement. Sec. 103. Policies to eliminate racial profiling. Sec. 104. Attorney General to issue regulations. Sec. 105. Publication of data. Sec. 106. Limitations on publication of data. TITLE II—PROTECTION FROM UNLAWFUL ARREST AND DETENTION Sec. 201. Protections against unlawful detentions of citizens of the United States. Sec. 202. Protections for primary caregivers with children. Sec. 203. Basic protections for vulnerable populations. Sec. 204. Reports on protections from unlawful detention. Sec. 205. Immigration and Customs Enforcement Ombudsman. Sec. 206. Rulemaking. Sec. 207. Rescission. SEC. 2. FINDINGS. 1 Congress finds the following: 2 (1) Officials at U.S. Immigration and Customs 3 Enforcement have mistakenly detained and deported 4 United States citizens and lawful permanent resi- 5 dents. 6 (2) Mistaken identities, bureaucratic mix-ups, 7 and discriminatory attitudes further contribute to 8 unconstitutional actions against United States citi- 9 zens, lawful permanent residents, and other persons 10 lawfully present in the United States. 11 (3) The United States should not be a country 12 in which United States citizens and lawful perma- 13 VerDate Sep 11 2014 03:17 Aug 09, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2396.IS S2396 khammond on DSKBBV9HB2PROD with BILLS 3 •S 2396 IS nent residents are mistakenly or unlawfully detained, 1 deported, or mistreated by government agents. 2 (4) No person in the United States should be 3 subject to government actions that deny basic pro- 4 tections or constitutional rights. 5 SEC. 3. DEFINITIONS. 6 In this Act: 7 (1) DEPARTMENT.—The term ‘‘Department’’ 8 means the Department of Homeland Security. 9 (2) DETAINED.—The term ‘‘detained’’, with re- 10 spect to an individual, means an individual who is in 11 government custody or subject any other deprivation 12 of the freedom of movement by government agents. 13 (3) DETAINEE.—The term ‘‘detainee’’ means 14 an individual detained during an immigration-related 15 enforcement activity. 16 (4) DETENTION.—The term ‘‘detention’’, in the 17 context of an immigration-related enforcement activ- 18 ity, means government custody or any other depriva- 19 tion of the freedom of movement of an individual by 20 government agents. 21 (5) GOVERNMENTAL BODY.—The term ‘‘govern- 22 mental body’’ means any department, agency, special 23 purpose district, or other instrumentality of Federal, 24 State, local, or Indian tribal government. 25 VerDate Sep 11 2014 03:17 Aug 09, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2396.IS S2396 khammond on DSKBBV9HB2PROD with BILLS 4 •S 2396 IS (6) HIT RATE.—The term ‘‘hit rate’’ means the 1 percentage of stops and searches in which a law en- 2 forcement officer finds drugs, a gun, or something 3 else that leads to an arrest. The hit rate is cal- 4 culated by dividing the total number of searches by 5 the number of searches that yield contraband. The 6 hit rate is complementary to the rate of false stops. 7 (7) IMMIGRATION-RELATED ENFORCEMENT AC- 8 TIVITY.—The term ‘‘immigration-related enforce- 9 ment activity’’ means any action by a government 10 agent in which— 11 (A) an individual suspected of an immigra- 12 tion violation is detained for such violation; or 13 (B) an individual who has been detained 14 by government agents is questioned about a 15 possible immigration violation. 16 (8) LAW ENFORCEMENT AGENCY.—The term 17 ‘‘law enforcement agency’’ means any Federal, 18 State, local, or Indian tribal public agency engaged 19 in the prevention, detection, or investigation of viola- 20 tions of criminal, immigration, or customs laws. 21 (9) LAW ENFORCEMENT AGENT.—The term 22 ‘‘law enforcement agent’’ means any Federal, State, 23 local, or Indian tribal official responsible for enforc- 24 ing criminal, immigration, or customs laws, includ- 25 VerDate Sep 11 2014 03:17 Aug 09, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2396.IS S2396 khammond on DSKBBV9HB2PROD with BILLS 5 •S 2396 IS ing police officers and other agents of a law enforce- 1 ment agency. 2 (10) RACIAL PROFILING.—The term ‘‘racial 3 profiling’’ means the practice of a law enforcement 4 agent or agency relying, to any degree, on actual or 5 perceived race, ethnicity, national origin, religion, 6 gender, gender identity, or sexual orientation in se- 7 lecting which individual to subject to routine or 8 spontaneous investigatory activities or in deciding 9 upon the scope and substance of law enforcement ac- 10 tivity following the initial investigatory procedure, 11 except when there is trustworthy information, rel- 12 evant to the locality and timeframe, that links a per- 13 son with a particular characteristic described in this 14 paragraph to an identified criminal incident or 15 scheme. 16 (11) ROUTINE OR SPONTANEOUS INVESTIGA- 17 TORY ACTIVITIES.—The term ‘‘routine or sponta- 18 neous investigatory activities’’ means the following 19 activities by a law enforcement agent: 20 (A) Interviews. 21 (B) Traffic stops. 22 (C) Pedestrian stops. 23 (D) Frisks and other types of body 24 searches. 25 VerDate Sep 11 2014 03:17 Aug 09, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2396.IS S2396 khammond on DSKBBV9HB2PROD with BILLS 6 •S 2396 IS (E) Consensual or nonconsensual searches 1 of the persons, property, or possessions (includ- 2 ing vehicles) of individuals using any form of 3 public or private transportation, including mo- 4 torists and pedestrians. 5 (F) Data collection and analysis, assess- 6 ments, and predicated investigations. 7 (G) Inspections and interviews of entrants 8 into the United States that are more extensive 9 than those customarily carried out. 10 (H) Immigration-related workplace inves- 11 tigations. 12 (I) Such other types of law enforcement 13 encounters compiled for or by the Federal Bu- 14 reau of Investigation or the Department of Jus- 15 tice Bureau of Justice Statistics. 16 (12) SECRETARY.—The term ‘‘Secretary’’ 17 means the Secretary of Homeland Security. 18 (13) STATE.—The term ‘‘State’’ means each of 19 the 50 States, the District of Columbia, the Com- 20 monwealth of Puerto Rico, and any other territory 21 or possession of the United States. 22 (14) VULNERABLE POPULATION.—The term 23 ‘‘vulnerable population’’ includes any of the fol- 24 lowing: 25 VerDate Sep 11 2014 03:17 Aug 09, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2396.IS S2396 khammond on DSKBBV9HB2PROD with BILLS 7 •S 2396 IS (A) Individuals with a nonfrivolous claim 1 to United States citizenship. 2 (B) Individuals who have a disability or 3 have been determined by a medically trained 4 professional to have medical or mental health 5 needs. 6 (C) Pregnant or nursing women. 7 (D) Individuals who are detained with 1 or 8 more of their children. 9 (E) Individuals who provide financial, 10 physical, and other direct support to their 11 minor children, parents, or other dependents. 12 (F) Individuals who are at least 65 years 13 of age. 14 (G) Children (as defined in section 15 101(b)(1) of the Immigration and Nationality 16 Act (8 U.S.C. 1101(b)(1))). 17 (H) Victims of abuse, violence, crime, or 18 human trafficking. 19 (I) Individuals who have been referred for 20 a credible fear interview, a reasonable fear 21 interview, or an asylum hearing. 22 (J) Stateless individuals. 23 (K) Individuals who have applied or intend 24 to apply for asylum, withholding of removal, or 25 VerDate Sep 11 2014 03:17 Aug 09, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2396.IS S2396 khammond on DSKBBV9HB2PROD with BILLS 8 •S 2396 IS protection under the Convention Against Tor- 1 ture and Other Cruel, Inhuman or Degrading 2 Treatment or Punishment, done at New York, 3 December 10, 1984. 4 (L) Individuals who make a prima facie 5 case for eligibility for relief under any provision 6 of the Immigration and Nationality Act (8 7 U.S.C. 1101 et seq.), including returning lawful 8 permanent residents. 9 (M) Individuals who self-identify as les- 10 bian, gay, bisexual, transgender, or queer 11 (LGBTQ). 12 (N) Any group designated by the Secretary 13 as a vulnerable population. 14 TITLE I—PROHIBITION OF 15 RACIAL PROFILING 16 SEC. 101. PROHIBITION. 17 No law enforcement agent or law enforcement agency 18 shall engage in racial profiling. 19 SEC. 102. ENFORCEMENT. 20 (a) REMEDY.—The United States, or an individual 21 injured by racial profiling, may enforce this part in a civil 22 action for declaratory or injunctive relief, filed either in 23 a State court of general jurisdiction or in a district court 24 of the United States. 25 VerDate Sep 11 2014 03:17 Aug 09, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2396.IS S2396 khammond on DSKBBV9HB2PROD with BILLS 9 •S 2396 IS (b) PARTIES.—In any action brought under this part, 1 relief may be obtained against— 2 (1) any governmental body that employed any 3 law enforcement agent who engaged in racial 4 profiling; 5 (2) any agent of a governmental body who en- 6 gaged in racial profiling; and 7 (3) any person with supervisory authority over 8 an agent described in paragraph (2). 9 (c) NATURE OF PROOF.—Proof that the routine or 10 spontaneous investigatory activities of law enforcement 11 agents in a jurisdiction have had a disparate impact on 12 individuals with a particular characteristic described in 13 section 3(11) shall constitute prima facie evidence of a vio- 14 lation of this part. 15 (d) ATTORNEY’S FEES.—In any action or proceeding 16 to enforce this part against any governmental body, the 17 court may allow a prevailing plaintiff, other than the 18 United States, reasonable attorney’s fees as part of the 19 costs, and may include expert fees as part of the attorney’s 20 fee. 21 SEC. 103. POLICIES TO ELIMINATE RACIAL PROFILING. 22 (a) IN GENERAL.—Federal, State, local, and Indian 23 tribal law enforcement agencies shall— 24 VerDate Sep 11 2014 03:17 Aug 09, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2396.IS S2396 khammond on DSKBBV9HB2PROD with BILLS 10 •S 2396 IS (1) maintain adequate policies and procedures 1 designed to eliminate racial profiling; and 2 (2) cease practices in effect on the date before 3 the date of enactment of this Act that allow racial 4 profiling. 5 (b) POLICIES.—The policies and procedures de- 6 scribed in subsection (a)(1) shall include— 7 (1) a prohibition on racial profiling; 8 (2) training on racial profiling issues as part of 9 law enforcement training; 10 (3) the collection of data in accordance with the 11 regulations issued by the Attorney General under 12 section 104; 13 (4) procedures for receiving, investigating, and 14 responding meaningfully to complaints alleging ra- 15 cial profiling by law enforcement agents; and 16 (5) any other policies and procedures the Attor- 17 ney General determines to be necessary to eliminate 18 racial profiling by law enforcement agencies. 19 SEC. 104. ATTORNEY GENERAL TO ISSUE REGULATIONS. 20 (a) REGULATIONS.—Not later than 6 months after 21 the date of enactment of this Act, the Attorney General, 22 in consultation with stakeholders, including Federal, 23 State, and local law enforcement agencies and community, 24 professional, research, and civil rights organizations, shall 25 VerDate Sep 11 2014 03:17 Aug 09, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2396.IS S2396 khammond on DSKBBV9HB2PROD with BILLS 11 •S 2396 IS issue regulations for the collection and compilation of data 1 under section 103. 2 (b) REQUIREMENTS.—The regulations issued under 3 subsection (a) shall— 4 (1) provide for the collection of data on all rou- 5 tine or spontaneous investigatory activities; 6 (2) provide that the data collected shall— 7 (A) be collected by race, ethnicity, national 8 origin, gender, and religion, as perceived by the 9 law enforcement officer; 10 (B) include the date, time, and location of 11 such investigatory activities; 12 (C) include detail sufficient to permit an 13 analysis of whether a law enforcement agency is 14 engaging in racial profiling; and 15 (D) not include personally identifiable in- 16 formation; 17 (3) provide that a standardized form shall be 18 made available to law enforcement agencies for the 19 submission of collected data to the Department of 20 Justice; 21 (4) provide that law enforcement agencies shall 22 compile data on the standardized form made avail- 23 able under paragraph (3), and submit the form to 24 VerDate Sep 11 2014 03:17 Aug 09, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2396.IS S2396 khammond on DSKBBV9HB2PROD with BILLS 12 •S 2396 IS the Civil Rights Division and the Department of 1 Justice Bureau of Justice Statistics; 2 (5) provide that law enforcement agencies shall 3 maintain all data collected under this subtitle for not 4 less than 4 years; 5 (6) include guidelines for setting comparative 6 benchmarks, consistent with best practices, against 7 which collected data shall be measured; 8 (7) provide that the Department of Justice Bu- 9 reau of Justice Statistics shall— 10 (A) analyze the data for any statistically 11 significant disparities, including— 12 (i) disparities in the percentage of 13 drivers or pedestrians stopped relative to 14 the proportion of the population passing 15 through the neighborhood; 16 (ii) disparities in the hit rate; and 17 (iii) disparities in the frequency of 18 searches performe [Text truncated for display. Full text available on Congress.gov.]