Is Sheriff Arpaio a profiler?

By Scott Forsyth

The Daily Record Newswire

December was not a kind month to "America's toughest sheriff," Joe Arpaio. He heads the Maricopa County Sheriff's Office in Arizona. Phoenix is the county's hub.

For starters, the man Arpaio endorsed for president, Rick Perry, trailed badly in the polls the entire month. Arpaio's political influence may not be as great as he thinks.

On Dec. 15 the Justice Department issued a report blasting the MCSO for "unconstitutional policing." The MCSO unfairly targets Latinos for detention and arrest and retaliates against those persons who complain about the practices. The Justice Department attributed the practices to "a pervasive culture of discriminatory bias against Latinos" that "reaches the highest levels of the agency."

Arpaio attacked the report as politically motivated. He did have "compassion" for Latinos "but enforcing the law overrides my compassion."

Arpaio is going to have a harder time dismissing U.S. District Judge G. Murray Snow. He is presiding over a lawsuit brought in 2007 alleging that the MCSO engages in a policy or practice of racially profiling Latinos.

The plaintiffs complain that tied to the profiling policy is a policy of stopping persons without reasonable suspicion that criminal activity is afoot. Both policies, if proven, are a violation of the Fourth Amendment's prohibition on unreasonable searches and seizures and the 14th Amendment's Equal Protection Clause.

The five named plaintiffs were stopped by deputy sheriffs in three separate incidents. None of the stops resulted in arrests. The detentions were lengthy. The plaintiffs are U.S. citizens or legal residents. They are Latinos.

The MCSO justified the stops and the detentions on the grounds that the deputies had reasonable suspicion to believe that the plaintiffs were not legally present in the country or were transporting persons not legally present in the country for profit, a state crime.

Judge Snow studied the circumstances of the stops and detentions and on Dec. 23 ruled them to be unreasonable, Melendres v. Arpaio, CV-07-2513 (D. Arizona 2011).

As for the first justification, the judge reminded the MCSO that it did not have the authority under federal immigration law to enforce status violations. Such violations are civil in nature, not criminal, and left to the Department of Homeland Security for follow up, including apprehension.

As for the second justification, police may make brief seizures based only on reasonable suspicion that "criminal activity may be afoot," for the limited purpose of investigating a person's connection to the activity, Terry v. Ohio, 392 U.S. 1, 30 (1968).

Reasonable suspicion depends on the totality of the circumstances surrounding the stop. Of little probative value are Hispanic appearance and inability to speak English. Similarly, lack of legal status, standing alone, cannot be the basis for an investigatory stop involving a state law.

Judge Snow determined that the plaintiffs were indeed stopped because of their Hispanic appearance, poor English, and work as day laborers. The deputies had no evidence that the plaintiffs were smuggling persons and so admitted. But they were very suspicious that the plaintiffs were "here illegally."

Seeing a pattern in the stops, Judge Snow enjoined the MCSO from detaining persons for further investigation without reasonable suspicion that a crime has been or is being committed. In essence, he instructed the MCSO to comply with Terry.

The judge sent to trial the claim that the MCSO racially profiles Latinos. He pointed out that the plaintiffs had abundant proof.

Arpaio has made many provocative statements. For example, he has claimed the power to detain people based upon "their speech, what they look like, if they look like they came from another country."

The plaintiffs unearthed a file of letters and news clippings maintained by Arpaio, also suggestive of racial profiling. The judge mentioned several. One was entitled "Dark skin unfortunately is the look of the Mexican illegal."

If the parties do not settle, Judge Snow will be the trier of fact. The ACLU represents the plaintiffs. Arpaio will not have a happy day in court defending himself and his agency.

A new year has begun. Maybe Arpaio can start enforcing the law with compassion and stop targeting Latinos in Maricopa County. As Scrooge demonstrates, it is never too late for a miser to act humanely.

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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

Published: Thu, Jan 5, 2012

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