Racial Profiling of U.S. Latinos by Local Police Officers

CHAPTER 5

Anti-profiling policies traditionally prohibit focusing on a person as a suspect on the basis of her race, color, ethnicity, or national origin. An exemplary profiling law today bars law enforcement agencies from reliance on ethnicity, color, national origin, political affiliation, language, sexual orientation, gender, gender identity, disabilities, or medical conditions as reasons to stop or search people (Rodriguez 2009). When a police stop is based on suspect classifications such as race and ethnicity, the constitutional protections of the Fifth Amendment’s due process clause (federal agents)1 and the Fourteenth Amendment’s equal protection clause (state agents)² are triggered.

In an amicus curiae brief presented to the Supreme Court, lawyers for the Mexican American Legal Defense and Educational Fund (MALDEF) described the Latino racial-profiling issue by stating, “It is not a crime to be of Mexican descent, nor is a person’s Mexican appearance a proper basis for arousing an officer’s suspicions. Those broad descriptions literally fit millions of law abiding American citizens and lawfully resident aliens” (Johnson 2010, 1019). MALDEF further asserted that a person’s racial or ethnic background or appearance is a neutral factor in appraising probable cause or reasonable suspicion. Citing Yick Wo v. Hopkins,³ the Latino civil-rights litigation firm rationalized that allowing police to base a decision to stop or search an automobile on the racial or ethnic appearance of the occupants would authorize the very same discriminatory law enforcement condemned by the Court (Johnson 2010, 1019). If Border Patrol agents can loosely decide who and what to search, experience establishes that they will naturally continue to focus on drivers of Mexican appearance, and on passengers who meet these ethnic criteria as the most likely targets for routine or random vehicle searches (Johnson 2010, 1019; Harris 2002, 4–6).

The Impact of Racial Profiling on America’s Latino Population

Racial profiling of Latinos unfortunately continues today. It occurred well before Arizona’s Senate Bill 1070 appeared in 2010. In fact, profiling of “Mexicans” dates back to the early years of the twentieth century, a fact documented extensively (Balderrama and Rodriguez 1995, 98–107; Salinas and Torres 1976, 873–75). Alleged lax enforcement by the federal government left state legislatures no choice but to implement immigration statutes to complement the federal effort. Once Arizona passed their statute, the copycats began. All similar state efforts have been vetoed by the federal courts on grounds that they interfere with the plenary power of Congress to regulate immigration.⁴

The Obama administration argued against state immigration-enforcement laws since they invite discrimination against many “foreign-born citizens and lawfully present aliens” (Mears 2011). The administration’s position is admirable. In limiting their language to “foreign-born citizens,” however, the Department of Justice overlooked the many native-born citizens who will continue to be victims of this degrading profiling. As the Arizona debate raged, American citizen Julio Mora was detained for hours without any facts to support suspicion.⁵ In Texas, a county deputy stopped a vehicle in which Luis Alberto Delgado was a passenger. Delgado, a U.S. citizen who spoke only Spanish, showed his identification, but the deputy thought his birth certificate and social security card might be fraudulent and called in the Border Patrol (Carroll 2010).

As previously mentioned, Julio Mora, an American citizen, along with Julian Mora, his father, a thirty-year resident alien, were detained on “suspicion” of undocumented status and fraudulent documents.6 Julian Mora was driving to work when a county police vehicle forced an abrupt stop. The Moras were detained for three hours and released without charges (BBVM 2009). It is impossible for any officer to form a “reasonable suspicion” that the Moras were undocumented, or that they possessed fraudulent documents, merely by seeing them drive by a business where police were conducting an immigration raid. After all, according to the Supreme Court’s guidance in Terry v. Ohio, police officers must be able to point to “specific and articulable facts” that, taken together with rational inferences from those facts, reasonably warrant a temporary stop and a limited frisk for weapons.⁷

Julio Mora testified before Congress about the discriminatory enforcement of the federal government’s 287(g) program. Steve King, an Iowa Republican and a staunch anti-immigration politician, asked Mora “if the ordeal he experienced at the hands of the sheriff outweighed the tragic death of a young girl killed” by an undocumented drunk driver. Mora stood his ground, expressed sorrow for the father’s loss, and told King that he wanted local police to enforce the law, but he only wanted for them to “be smart about it.” In doing their work, he stated, police do not have to “detain American citizens and legal residents just because they happen to be Latino” (Lemons 2009).

In 2011, the federal district court granted the Moras’ Fourth Amendment claim against the county for the unconstitutional stop and arrest.⁸ Maricopa County later settled with the Moras (ACLU 2011; Lemons 2011). Altogether, in a period covering almost four years, litigants named Sheriff Joe Arpaio in 2,150 lawsuits in federal court and hundreds more in Maricopa County courts (BBVM 2009). The estimated bill to the taxpayers for Arpaio’s policies through 2012 approximated $28 million (Ye Hee Lee 2012), an amount that will increase based on several alleged civil-rights claims pending, especially those arising in Melendres v. Arpaio,9 in which the district judge found Arpaio to be liable. The county announced more settlements amounting to several million dollars at the end of 2013 (Ye Hee Lee and Kiefer 2013). Maricopa County voters, unfortunately, continue to reelect Arpaio and allow their tax money to contribute to his discrimination victims and their attorneys who assume litigation in these difficult cases.

Notwithstanding extensive comments about Arizona’s less-than-fair policies, the state does not possess a monopoly on racial discrimination. For example, Nick Valencia, a CNN national news desk editor, encountered anti-Latino discriminatory treatment while attending a music festival in Atlanta, Georgia. When Valencia began speaking Spanish to some tourists from Mexico City, an Anglo woman told him to “go home,” adding vete (leave) in Spanish, in case he did not understand English. Valencia stated that while he is an American first and a Mexican second, he lamented that he can never walk into a room and be “white,” since to some people, the brown color of his skin means he is not even American (Valencia 2011).

The Chandler Roundup: State and Federal Cooperative Efforts in the Pre-287(g) Era

In Chandler, Arizona, instead of the Terry-type specific facts of criminal activity, a person’s “Mexicanness” provided the justification for stops concerning immigration status by federal and state police (Romero and Serag 2005, 77). This enforcement effort, known as the Chandler Roundup, exemplifies the discrimination that Latinos experience as police agents seek shortcuts and engage in profiling in the detention and removal of unauthorized aliens. In 1997, prior to the formal initiation of federal-state cooperative agreements known as 287(g) programs, Chandler, Arizona, police collaborated with Tucson Border Patrol agents in detaining undocumented aliens. The operation led to multiple civil rights complaints that epitomize racial insults U.S. Latinos experience during immigration raids (Romero and Serag 2005, 77).

For example, a Latina left a supermarket, and the officer stopped her on the way to her car to ask for proof of citizenship. Police stopped another person while driving and asked for his papers. An agent asked another Latino to show proof of citizenship while he was pumping gas. In contrast, the agent did not question the Anglo couple pumping gas nearby. Additional proof surfaced that “Mexican appearance” became the “criminal behavior” that justified the stops. Agents had inserted the words “Mexico” and/or “Mexican” in the “deportable alien” form before the dragnet even began (Romero and Serag 2005, 82, 84 n. 52).

Police and politicians frequently assume that undocumented persons lack constitutional rights. They are incorrect. The Fourth Amendment and judicial opinions provide protection from unreasonable searches and seizures for all persons, including undocumented aliens.10 The Chandler police chief defended his tactics during the five-day raid by asserting that the procedures were “no different than everyday experiences of all U.S. citizens crossing the border” (Romero and Serag 2005, 85). The chief, as the head of a police department, disregarded a critical distinction he should know: stopping and questioning a person—any person—about their citizenship is justified at the border since the border entry poses a much greater security risk to our country than detaining a person in Chandler, 120 miles from the border (Romero and Serag 2005, 86–88). The city eventually settled a lawsuit arising from this illegal activity (Vargas 2002, 796).

The 287(g) Program and the Exacerbation of Latino Racial Profiling

In the 1996 immigration statutes, Congress provided local governments with immigration enforcement powers by providing for collaborative 287(g) agreements, also referred to as memoranda of understanding.¹¹ Previous Department of Justice (DOJ) policy statements declared that state and local police lack authority to stop and detain an alien solely on suspicion of “civil deportability” (U.S. Department of Justice 1996), a perspective that changed after 9/11 when the federal government needed the assistance of local police to combat terrorism. In the process, however, 287(g) programs inadvertently allowed the injection of local anti-immigrant prejudice into immigration enforcement. Participation by some clearly racist county sheriffs exacerbated the already existing anti-immigrant hysteria (Stelter and Carter 2009), a mix that inevitably resulted in racial profiling and other civil rights abuses.

Section 287(g) formalizes the ability of the states and the federal government to enter into Memoranda of Understanding12 in the performance of immigration-officer functions.¹³ A subsection clarifies that a federal-state agreement is not required for a state employee to communicate with the attorney general regarding the immigration status of any individual, or to cooperate with the federal authorities in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.¹⁴

The 287(g) agreements have led to many complaints from civil rights groups and Latino victims. An immigrant-rights activist claimed that the program has been tainted by rampant mismanagement and racial profiling on the part of various lawmen, particularly Joe Arpaio, who ran the nation’s largest program (Weissman, Headen, and Parker 2009). Others complained that the secretary of Homeland Security had expanded the program notwithstanding the evidence of abuses by local police. Designed as an effort to remove “illegal criminal aliens” from the United States, the 287(g) programs instead have become synonymous with human rights abuses. The executive director of the National Immigration Forum stated that the program essentially allowed “local cowboys to round people up in immigrant communities” (Ruiz 2009).

A significant number of the nation’s large-city chiefs of police oppose 287(g) programs. These officials have called on Congress to fix the broken immigration system, and condemned the use of local police as immigration agents. Their primary apprehension centers on losing the confidence and cooperation of immigrants in coming forward as witnesses with regard to regular street crime, such as homicides. The chiefs have given community safety a higher priority (Ruiz 2009).

In 2009, North Carolina law professor Deborah Weissman provided a statement regarding state and local enforcement of immigration laws in North Carolina before the House Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties (Weissman 2009). In her report, she discussed the detrimental impact of 287(g) programs, which includes the tolerance of racial profiling and stereotyping; an apprehension about dealing with law enforcement, thereby compromising public safety for all (Pham 2004, 983); the economic damage to already financially strapped municipalities as immigrants flee these communities and create a loss of profits for businesses and a decrease in tax revenues (Pruitt 2009, 152–53); and the violations of basic American liberties that have a tendency to include resident aliens and citizens alike in the deportation process (Weissman 2009). Notwithstanding the stated goals of the 287(g) programs, i.e., to target dangerous criminals, the data reveal that the majority of undocumented immigrants snared in North Carolina’s 287(g) project committed traffic infractions and low-level misdemeanors (Weissman 2009).

These questionable law-enforcement activities prompted the DOJ’s Civil Rights Division to request Alamance County Sheriff Terry Johnson to amend the county’s policing practices to diminish the possibilities of violating constitutional rights of Latinos (Perez 2012). The DOJ gave the sheriff time to respond as to what the county would do to avoid Fourth Amendment unreasonable seizures. The sheriff’s attorney then responded with a general denial (Kitchen 2012), and the DOJ filed a lawsuit against the sheriff and the county (U.S. Department of Justice 2012b).15

The DOJ advised Sheriff Johnson and the Alamance County Sheriff’s Office (ACSO) in North Carolina that federal investigators found reasonable cause to believe that ACSO engaged in a pattern or practice of discriminatory policing against Latinos. These activities included targeting of Latino drivers for traffic stops, a claim based on a study that deputies were between four and ten times more likely to stop Latino drivers than non-Latino drivers. In addition, deputies routinely located checkpoints just outside Latino neighborhoods, forcing residents to endure police checks when entering or leaving their communities. In the event non-Latino drivers entered the checkpoint, deputies would allow these drivers to pass through without showing identification while deputies examined identification of all or most Latino drivers (Perez 2012, 3, 4).

The Alamance County study also indicated that deputies arrest Latinos for minor traffic violations, but they issue citations or warnings to non-Latinos for the same violations. The DOJ revealed evidence that Sheriff Johnson directed his supervisory staff to inform subordinates, “If you stop a Mexican, don’t write a citation, arrest him” (Perez 2012, 5). The DOJ investigation revealed that the sheriff and his leadership explicitly instructed deputies to target Latinos with discriminatory traffic stops and other enforcement activities (Perez 2012, 5; Fox News Latino 2013). This contributed to jail booking and detention practices that conveniently led to discriminatory immigration-status checks of Latinos. Eventually, the department accused the sheriff and his supervisors of fostering a culture of bias by using anti-Latino epithets, such as calling Latinos “taco eaters” and describing them as morally depraved drunks (Perez 2012, 6).