Does Crackdown Cross Line?

Arizona efforts stir radical profiling claims.


Originally appeared in the Chicago Tribune on May 26, 2008.

The newest tactic in America’s quickening effort to gain control of its porous southern border starts with a cracked windshield, a broken taillight or even a failure to signal a right or left turn.

That’s all the probable cause sheriff’s deputies here in sprawling Maricopa County say they need to pull over a ve-hicle they suspect might be carrying illegal immigrants.

If the driver or the passengers fail to produce a U.S. driver’s license or a proper immigration visa, if they speak only Spanish, or if they can’t otherwise convince the officer they are in the country legally, they are likely to be arrested, jailed and handed off to federal immigration authorities for deportation.

To Maricopa County Sheriff Joe Arpaio, these zero-tolerance traffic sweeps, which he recently stepped up in heav-ily Hispanic neighborhoods across the Phoenix metropolitan area, are a successful tool to root out the undocumented workers that many conservative leaders say have overwhelmed America’s fifth-most-populous city just a three-hour drive north of the Mexican border. Arpaio’s deputies have arrested more than 500 illegal immigrants so far this year.

“We’re hitting this illegal immigration on all aspects of it,” said Arpaio, the elected Republican sheriff for the last 16 years. “We know how to determine whether these guys are illegal, the way the situation looks, how they are dressed, where they are coming from.”

But to a growing chorus of Hispanic activists, civil rights leaders and Democratic politicians, Arpaio’s policy repre-sents a blatant case of racial profiling. It is an extreme example, they say, of anecdotes that have begun surfacing across the country in which local police agencies respond to the national backlash against illegal immigrants by aggressively targeting Spanish-speakers for the offense of “driving while brown.”

As a result, Phoenix has surfaced as the latest fault line scarring America’s long-troubled racial map.

“We’re absolutely seeing a rise in racial profiling,” said Cynthia Valenzuela, litigation director for the Mexican American Legal Defense and Educational Fund. “It’s simply not legal to use a minor traffic offense as a pretext for in-vestigating immigration status.”

Indiscriminate sweeps

Arpaio’s critics allege that both U.S. citizens of Hispanic descent and Mexican visitors with valid visas have been caught up in the sheriff’s sweeps and held for hours in special immigration jails until they could prove their right to be in the country. And they say the sheriff’s tactics are provoking fear throughout Phoenix’s Hispanic community, as well as reluctance on the part of Spanish-speaking crime victims or witnesses to cooperate with police.

One class-action lawsuit already has been filed against the sheriff, and civil rights groups say they are collecting evidence for more.

“If you are of Mexican-American heritage, if you have brown skin, there is nothing you can do not to be stopped,” said Mary Rose Wilcox, the only member of the Maricopa County Board of Supervisors who has criticized Arpaio’s immigration sweeps and the only Hispanic on the board.

“Deputies are asking for birth certificates. Do you carry a birth certificate with you? Should you have to?” she added.

Arizona’s Democratic governor, Janet Napolitano, pulled $1.6 million in state funding for Arpaio’s office this month because she said the sheriff’s actions “were causing trepidation in the immigration community.”

Last month, Phil Gordon, the Democratic mayor of Phoenix, formally asked the U.S. Justice Department to open a civil rights investigation into Arpaio’s tactics, which Gordon said included “discriminatory harassment, improper stops, searches and arrests.”

“I understand these are serious allegations,” Gordon wrote to Atty. Gen. Michael Mukasey. “As mayor of the city of Phoenix, I must speak out when the rights of our residents are violated and the safety of our neighborhoods threatened.”

Under a new city policy, Phoenix police also question anyone they arrest about their immigration status and refer suspected illegal immigrants to federal authorities, but Gordon has expressly prohibited such questioning during routine traffic stops.

Arpaio, who styles himself as “America’s toughest sheriff” and is famous for confining criminals in tented prisons and issuing them pink underwear, scoffs at all the criticism, which he dismisses as politically inspired.

“We don’t racial-profile. That’s all garbage. Everything [Gordon] has said is a lie,” Arpaio said during an interview last week. “The politicians fear the Hispanic vote. They want to stay right on that fence; they don’t want to aggravate the Hispanic community.”

As training spreads

Controversies like the one in Phoenix are likely to surface with greater frequency across the country as more local police departments take advantage of a federal program run by the Department of Immigration and Customs Enforce-ment to cross-train state and local officers to make immigration arrests.

Nearly 50 police agencies have signed on to the program so far, and Arpaio’s office ranks as the most enthusiastic participant, with 160 sheriff’s deputies trained as immigration enforcers.

The cross-training is attractive to federal immigration officials because it means frontline local police can now sift every suspect they arrest for immigration violations.

But because ordinary traffic stops have long been a bedrock anti-crime tool for local police agencies across the country — felons and others wanted on outstanding warrants are discovered this way every day — the issue is whether such traffic enforcement can now be used as the legal basis for an inquiry into a suspect’s immigration status.

“This is a clearly impermissible use of race as a factor in law enforcement,” said Dan Pochoda, legal director of the Arizona chapter of the American Civil Liberties Union, which is among the groups challenging Arpaio’s immigration sweeps.

“The cars that get stopped are drivers of color, period. And since Arpaio’s claiming they are stopped because of traffic violations, he has no individualized suspicion to stop people on the grounds of immigration violations. There’s no way you can know by looking at a person if they are legal or illegal,” Pochoda said.

But Arpaio and his defenders — he’s got stacks of supportive letters and e-mails on his desk, and a box filled with $5,000 in checks donated to help replace the funding cut off by the governor — strongly disagree.

Just doing their job

The sheriff says that his deputies are not only making arrests for federal immigration violations but also are pursu-ing charges under a new state anti-smuggling law that makes it a felony for both human smugglers and their customers to enter Arizona.

“We’re enforcing the state laws,” the sheriff said. “If we come across any illegals, we take action. But we’re not go-ing on the street looking for illegals per se.”

On a ride-along last week, during which a Tribune reporter was permitted to observe members of the sheriff’s Hu-man Smuggling Unit out on a patrol, there seemed to be evidence for both sides in the debate.

On the one hand, the officers plainly admitted they were choosing vehicles to pull over based on telltale signs that they might contain illegal immigrants, such as low-riding axles indicating a large load of passengers.

But the officers also refrained from making a stop until they had developed legal probable cause, such as one case in which a license plate did not properly match the van to which it was affixed. Inside the van, the officers found a driver and seven passengers, none of whom spoke English or could produce any kind of license, visa or U.S.-issued identification. They gave conflicting stories about their destination, and all were arrested and charged under the state’s human-smuggling law.

For their part, federal officials overseeing the immigration arrests being made by the Maricopa County sheriff’s of-fice say they have received no complaints alleging racial profiling. And they say Arpaio’s officers are operating within the boundaries of their federal training during their traffic stops.

Yet the federal immigration department’s Web site states that the cooperative law-enforcement program “is not de-signed to allow state and local agencies to perform random street operations” and “does not impact traffic offenses such as driving without a license unless the offense leads to an arrest.”