July 18, 2002
The Honorable Max Baucus
Senate Finance Committee
511 Hart Senate Office Building
Washington, D.C. 20510
Dear Senator Baucus:
On behalf of the Leadership Conference on Civil Rights, the nation’s largest and most diverse civil and human rights coalition, I write to express our strong opposition to section 141 of the House-passed Customs Border Security Act of 2001 (H.R. 3129), and to urge that this provision not be included in the final version of the bill that comes out of Conference. This provision would unjustifiably weaken protections against racial profiling and undermine President Bush’s call to end this pernicious practice.
Section 141 would provide Customs officers with legal immunity from civil lawsuits stemming from searches of individuals entering the country, based on the officer’s assertion that the search was conducted in “good faith.” We are unaware of any precedent for this sweeping protection. Customs officers would be afforded a legal shield unavailable to any other federal law enforcement officer.
Under current law, the “qualified immunity” doctrine protects officers from liability for actions “that did not violate any clearly established constitutional or statutory rights.” The additional protection now sought by the Customs Service apparently would cover searches that do violate clearly established constitutional or statutory rights but which were undertaken in good faith.
This additional protection is unjustified for several reasons. First, individuals victimized by official actions that violate “clearly established constitutional or statutory rights” deserve legal redress. Second, a good faith exception puts a premium on ignorance of the law; officers should not gain immunity because they did not understand what constitutes a “clearly established constitutional or statutory rights.” Finally, there is no reason for the Customs Service to have this additional protection that other law enforcement agents do not have. If Congress is going to debate whether all agents should receive this unjustified protection, that debate should not occur on this bill.
In considering whether the Customs Service deserves this unprecedented protection, Congress should recall that in a March 2000 report, the General Accounting Office found that Black female U.S. citizens were nine times more likely than White female U.S. citizens to be subjected to x-ray searches by the Customs Service. This disparity persisted despite the fact that Black women were less than half as likely to be found carrying contraband as White women. We understand that the Customs Service has taken steps to address this problem, but this is no time to reverse the agency’s progress.
Instead of weakening protections against racial profiling on an ad hoc, agency-by-agency basis, Congress should enact legislation to ban racial profiling. A bipartisan bill to implement that goal, the End Racial Profiling Act of 2001 (H.R. 2074), has been endorsed by the Leadership Conference and currently has 93 cosponsors.
Thank you for your consideration of our views. Please feel free to contact Julie Fernandes of the Leadership Conference staff at (202) 263-2856 regarding this issue.
Leadership Conference on Civil Rights
National Council of La Raza
Hilary O. Shelton
Dr. Ziad Asali
American Arab Anti-Discrimination Committee
Mexican American Legal Defense and Educational Fund
National Urban League
Karen K. Narasaki
National Asian Pacific American Legal Consortium
Lawyers’ Committee for Civil Rights Under Law
Sikh Mediawatch and Resource Task Force
Lawyers Committee for Human Rights