United States District Court Judge G. Murray Snow, an appointee of George W. Bush, has done Arizona and the nation a great service by chronicling, in meticulous detail, the unconstitutional harassment and racial profiling Hispanic people have been suffering at the hands of Maricopa County Sheriff Joe Arpaio. On Friday afternoon, on the eve of a holiday weekend, Judge Snow released a 142-page ruling which concludes that Sheriff Arpaio's well-publicized roundup policies violate both the Fourth and Fourteenth Amendments.
I'll keep this short-- I'd rather have you spend your time this Memorial Day weekend reading the ruling than my analysis of it-- but I'll offer just a few highlights here. It's important to remember as you read that the issue is not whether unauthorized immigrants should be subjected to "Terry stops" or permitted to continue to reside in the county but rather the means by which law enforcement officials may lawfully detain anyone suspected (or not) of criminal conduct. To read the opinion is to understand the heavy price paid for the "success" Sheriff Joe has bragged about for all these years.
1. The level of lawlessness revealed by Judge Snow is breathtaking. Not only did Arpaio routinely violate federal law and the constitutional rights of Latinos in his County-- including the rights of undocumented immigrants-- he also blatantly violated the terms of a prior court order on the topic. "The evidence introduced at trial establishes that, in the past, the [Maricopa County Sheriff's Office] has aggressively protected its right to engage in immigration and immigration-related enforcement operations even when it had no accurate legal basis for doing so," Judge Snow wrote.
2. From page 120, here's one of the many summarizing paragraphs contained in the ruling:
The problem with the MCSO's policies and procedures is that they institutionalize the systematic consideration of race as one factor among others in forming reasonable suspicion or probable cause in making law enforcement decisions. To the extent that officers do consider the race of a person in making law enforcement decisions that result in his or her seizure, they necessarily consider race as a factor in forming the reasonable suspicion or probable cause that led to their arrest. It is true that in any given factual setting there may be other facts independent of race sufficient to justify reasonable suspicion that a state statute related to immigration has been violated. But, that possibility does not justify the MCSO's systematic policy in using race as a factor in forming reasonable suspicion. Further, it is apparent that allowing the MCSO to consider race as one factor among others in forming reasonable suspicion will produce irreparable injury to the Plaintiff class.
3. Wondering how this ruling plays into Arizona's SB 1070, the anti-immigration law largely gutted last year by the United States Supreme Court? Judge Snow offers an answer:
The MCSO's LEAR policy is not saved by that part of the Supreme Court's decision in Arizona that upheld, as against a preemption challenge, a provision in SB 1070 which provides that, "[f]or any lawful stop, detention or arrest made by a law enforcement official... a reasonable attempt shall be made, when practicable, to determine the immigration status of the person." A.R.S. § 11-1051(B); see Arizona, 132 S. Ct. at 2515-16. The threshold requirement is a "lawful" stop or detention. As explained above, any stop or detention based only on a reasonable suspicion that a person is in the country without authorization, without more facts, is not lawful. Thus, the LEAR policy does not fall under the ambit of A.R.S. § 11-1051(B).
4. Judge Snow also found that Arpaio and his subordinates tried to hide the discriminatory nature of what they were doing:
The MCSO further made changes in its policies and instructions to present the appearance of racially-neutral operations without actually implementing such operations. One such measure was the so-called "zero tolerance policy." No officer could provide a consistent definition of that policy as instituted by the MCSO for large-scale saturation patrols. At best, it did not limit in any way a deputy's discretion as to whom to pull over for traffic violations during an operation. By Lt. Sousa's own admission, the zero tolerance policy was specifically designed to "avoid the perception of racial profiling."
5. On top of everything else, there was an appalling lack of professionalism exhibited by Arpaio and his subordinates. At one point, the Sheriff's Department relied upon a single cop's "Internet research" to determine whether local officials could still do what they wanted to do to Latinos even after federal authority for more aggressive policies had been withdrawn. From Judge Snow:
After MCSO's 287(g) authority was revoked, Sheriff Arpaio, on national television, professed MCSO's erroneous position that it could continue to enforce federal immigration law absent federal authorization based on this non-existent statute as justification. In relying on Sgt. Palmer's unverified internet research, the MCSO did not make any competent effort to ensure that its legal positions were in compliance with controlling authority, and therefore made no real effort to ensure that its deputies were following the law pertaining to the rights of minorities during such operations.
Arpaio already has pledged to appeal the ruling to the 9th U.S. Circuit Court of Appeals, which means more time and money spent by the taxpayers of Maricopa County in defense of this man and his mission. Last November, the citizens of the County reelected Arpaio and, despite recall efforts, he still seems popular there. According to the judge, these anti-immigration policies may be illegal, they may be unconstitutional, they may even be racist. But they belong to the people of Maricopa County as surely as they belong to Sheriff Joe himself.