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Inspector General Report: DEA Doesn’t Keep Data on Racial Profiling in ‘Cold Consent Encounters’

The Office of the Inspector General for the Justice Department conducted a review of Drug Enforcement Agency “cold consent encounters” at mass transportation facilities after receiving complaints from two African American women about a practice that has been associated with racial profiling. The review found that the DEA does not collect the appropriate racial and other demographic data for the government to determine whether such encounters are routinely violating the civil rights of citizens.

“We recommend that the DEA consider how to determine if cold consent encounters are being conducted in an impartial manner, including reinstituting the collection of racial and other demographic data and how it could be used to make that assessment,” the OIG urged [PDF].

The interdiction tactic used by DEA agents and task force officers involves an agent approaching an individual “based on no particular behavior” or when the agent “approaches an individual based on the officer’s perception that the person is exhibiting characteristics indicative of drug trafficking without any independent predicating information.

The encounter is “considered voluntary,” according to the OIG review, because “the officer does not seek to compel the person to participate in the encounter or submit to a search based on prior information about the person encountered or their connection to drug trafficking.” However, “officers conducting searches are not legally required to warn those of their right to withhold consent.”

Defense Department Lawyer Alleged Racial Profiling Against DEA Agents Who Stopped Her

One African American woman submitted a complaint to the OIG that while she was on the jetway preparing to board her flight DEA agents “treated her unprofessionally” and “improperly seized $8,000 from her.” The OIG Office of Investigations interviewed task force members involved in the encounter and they maintained she “consented to answering questions when approached,” allowed her purse and luggage to be searched and declined to sign a “disclaimer of ownership form abandoning her money.” They additionally claimed she had been “pacing nervously” and engaged in other behavior that led them to suspect she “might be engaged in narcotics trafficking or acting as a money courier.”

In a second case, a Defense Department lawyer traveling on “government business” complained to OIG that she was preparing to board a flight when DEA agents stopped her for “secondary screening.” She alleged she had been “subjected to aggressive and humiliating questioning by the agents.” No funds were found or seized so, when the OIG went to investigate, the DEA task force told investigators there was no record of this encounter. The task force explained that they only document encounters with “positive” results, meaning when drugs are found or fund are seized.

Neither of these cases led to the substantiation of claims, however, the OIG decided a systemic review would be “important.”

DEA Terminated Project Collecting Demographic Data in 2003

“Between 2000 and 2003, following an order by President [Bill] Clinton, the DEA collected data on every encounter in certain mass transportation facilities as part of a Department pilot project to examine the use of race in law enforcement operations,” the OIG report notes. However, in July 2003, the DEA terminated the pilot project and ceased collecting demographic data about each encounter.”

As it stands, DEA interdiction Task Force Groups (TFGs) “do not collect demographic information about each cold consent encounter they conduct.” There is no requirement for the DEA to document or report encounters where a person is “approached and questioned, does not give consent to a search and a search therefore does not occur.”

Remarkably, the OIG review also found that the DEA could not provide information on “whether any lawsuits alleging racial profiling had been brought” against the agency. “The DEA’s Assistant Deputy Chief Counsel told us that the DEA’s litigation tracking system cannot identify cases by the basis of the lawsuit.”

Deliberate Misrepresentation by DEA Agents When Seizing Property

A key goal of interdiction at airports, as is the case for much of the DEA’s operations, is to “effectuate seizures of illegal drugs and illegal drug proceeds.” Under federal law, agents seize property, including money, that agents believe to have been involved in facilitating “illegal drug transactions.” But because data is not collected, there is no way to know how discriminatory the DEA is when it comes to seizing assets at airports.

As part of the Washington Post’s series on asset forfeiture, the Post noted that it examined 400 federal court cases involving people who “challenged seizures and received some money back.

“The majority were black, Hispanic or another minority,” however, the data included cases stemming from all types of interdictions and not only “cold consent encounters.”

The report highlighted two practices where the DEA may be deliberately involved in misrepresenting themselves or the ability of the traveler to contest seizure of their cash:

…One such practice that we were told about in one TFG involved approaching a passenger at the gate area (after they passed through Transportation Security Administration (TSA) security) and informing them that the TFG was conducting a “secondary inspection.” We believe that using such terminology creates a risk that travelers will interpret the statement to mean they are required to consent to the encounter, similar to their obligations at a TSA checkpoint. Another practice of concern involves TFGs’ use of a form whereby travelers are asked at the time of the encounter to disclaim ownership of any seized cash. However, while such forms may be used in the field, the Senior Attorney in the DEA’s Asset Forfeiture Section told us that she did not consider the forms legally binding in subsequent proceedings, and we found there is no consistent policy or practice regarding the use of such forms.

Again, the DEA is not legally required to warn those of their right to withhold consent, and it often easier for government agents to get away with misconduct in mass transit centers because travelers want to get to their destination and will comply with procedures they would not submit to in other situations.

DEA Agents Accused of Racially Profiling Passengers on Amtrak Train

The OIG was able to review complaints submitted by citizens and examine six complaints at airports or train stations where “racial profiling” was alleged. Five of these were “cold consent encounters.”

One example from 2007 involved two African American women alleging DEA agents racially profiled them while they were conducting “cold consent encounters” on an Amtrak train in Dearborn, Michigan:

…The complainants alleged that although the train contained a total of 64 passengers, the agents only “interrogated” and searched the luggage of the nine black passengers, and they did not question any of the white passengers. The agents, however, reported that they spoke with every passenger on the train, consensually searched the luggage of fewer than five passengers, and made no arrests or seizures. In this case, the DEA cleared the task force officers of the racial profiling allegations.

There also was a case from February 2001, where an individual claimed she had been stopped upon her arrival at Minneapolis-St. Paul International Airport and racially profiled.

The woman used “Operation Jetway pilot program” data to show that during the first 12 months of data collection 88 percent of the passengers “cold-stopped” by the special agent, who also stopped her, had been African American. None of the travelers “cold-stopped” had been white males. None of the African Americans encountered were ever found to be carrying drugs or drug money.

A judge denied a government motion for summary judgment and ruled the “agent did not have reasonable articulable suspicion to stop and search” the woman and that the agent’s “cold stops were overwhelmingly minority persons.” Without admitting wrongdoing, the government settled the case in 2007.

Does DEA Need Its Own “Consent Decree”?

There are multiple police departments in the United States, which currently have Civil Rights Division “consent decrees” or agreements designed to detect racial profiling. They oftentimes require data collection so the race of people being stopped and searched is recorded.

A June 2001 “consent decree” requires Los Angeles police to “complete a written and electronic report” that includes the race of the person stopped each time a pedestrian stop occurs. Puerto Rico police, under a July 2013 “consent decree,” are required to collect demographic data on all “investigatory searches.” New Orleans police were required under a “consent decree” to “immediately notify a supervisor when considering a search based on consent.” The supervisor had to approve the search before it could be conducted.

The OIG argues that collecting this data would help the DEA defend itself against racial profiling allegations, since it could theoretically prove that they were fairly engaging in “cold consent encounters.” Yet, it seems more likely is that they would reveal systemic racism in the way that DEA agents go about using this tactic.

After all, no government agency, particularly the Justice Department, keeps a database with records on killings by police officers. There is no official government data on how many such killings occur each year or whether they disproportionately involve minorities. This benefits police departments, which do not have to address institutional racism in their policing of communities.

The same goes for the DEA, which can get away with not doing anything about their racist operations if there is no data to prove they’re agents are disproportionately targeting black or brown-skinned people.

CommunityThe Dissenter

Inspector General Report: DEA Doesn’t Keep Data on Racial Profiling in ‘Cold Consent Encounters’

The Office of the Inspector General for the Justice Department conducted a review of Drug Enforcement Agency “cold consent encounters” at mass transportation facilities after receiving complaints from two African American women about a practice that has been associated with racial profiling. The review found that the DEA does not collect the appropriate racial and other demographic data for the government to determine whether such encounters are routinely violating the civil rights of citizens.

“We recommend that the DEA consider how to determine if cold consent encounters are being conducted in an impartial manner, including reinstituting the collection of racial and other demographic data and how it could be used to make that assessment,” the OIG urged [PDF].

The interdiction tactic used by DEA agents and task force officers involves an agent approaching an individual “based on no particular behavior” or when the agent “approaches an individual based on the officer’s perception that the person is exhibiting characteristics indicative of drug trafficking without any independent predicating information.

The encounter is “considered voluntary,” according to the OIG review, because “the officer does not seek to compel the person to participate in the encounter or submit to a search based on prior information about the person encountered or their connection to drug trafficking.” However, “officers conducting searches are not legally required to warn those of their right to withhold consent.”

Defense Department Lawyer Alleged Racial Profiling Against DEA Agents Who Stopped Her

One African American woman submitted a complaint to the OIG that while she was on the jetway preparing to board her flight DEA agents “treated her unprofessionally” and “improperly seized $8,000 from her.” The OIG Office of Investigations interviewed task force members involved in the encounter and they maintained she “consented to answering questions when approached,” allowed her purse and luggage to be searched and declined to sign a “disclaimer of ownership form abandoning her money.” They additionally claimed she had been “pacing nervously” and engaged in other behavior that led them to suspect she “might be engaged in narcotics trafficking or acting as a money courier.”

In a second case, a Defense Department lawyer traveling on “government business” complained to OIG that she was preparing to board a flight when DEA agents stopped her for “secondary screening.” She alleged she had been “subjected to aggressive and humiliating questioning by the agents.” No funds were found or seized so, when the OIG went to investigate, the DEA task force told investigators there was no record of this encounter. The task force explained that they only document encounters with “positive” results, meaning when drugs are found or fund are seized.

Neither of these cases led to the substantiation of claims, however, the OIG decided a systemic review would be “important.”

DEA Terminated Project Collecting Demographic Data in 2003

“Between 2000 and 2003, following an order by President [Bill] Clinton, the DEA collected data on every encounter in certain mass transportation facilities as part of a Department pilot project to examine the use of race in law enforcement operations,” the OIG report notes. However, in July 2003, the DEA terminated the pilot project and ceased collecting demographic data about each encounter.”

As it stands, DEA interdiction Task Force Groups (TFGs) “do not collect demographic information about each cold consent encounter they conduct.” There is no requirement for the DEA to document or report encounters where a person is “approached and questioned, does not give consent to a search and a search therefore does not occur.” (more…)

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."