Joe Arpaio and the MCSO Need a Court-Appointed Babysitter in the Melendres Racial-Profiling Case

Is Arpaio really out of the immigration enforcement business?
Dennis Gilman

Would you trust Joe Arpaio and his underlings to police themselves in the wake of U.S. District Judge G. Murray Snow's May 24 order, which found that the Maricopa County Sheriff's Office engaged in a pattern and practice of racial profiling and ordered it to cease?

Put another way, would you expect convicted Baseline Killer Mark Goudeau to give up his hobby of raping and murdering women if he were set free tomorrow?

As with Goudeau, neither Arpaio nor his flunkies have expressed anything approximating remorse.

True, there's a big difference between serial murder and targeting a whole community for scrutiny on the basis of skin color and ethnicity.

But each is against the law, and each man has relished the power he has wielded and the terror he's provoked in his victims.

Arpaio's sweeps and raids targeting Latinos tore apart families, made children weep for their mothers and fathers, and stripped even citizens and lawful permanent residents of their dignity.

In 2009, New Times published stories based on interviews with several individuals who'd been profiled or mistreated by the MCSO on the basis of skin color and ethnicity.

All are alarming.

Like the American citizen son and his legal permanent resident dad who were cuffed and held for hours like common criminals during an MCSO worksite raid.

Or the 12-year-old American citizen who, along with his green-card-holding dad, was zip-tied and made to sit with about 26 other Latinos who'd been arrested in a drop house next to their home.

Or the senior-citizen green-card-holder jerked from his car and his face bloodied because he didn't pull out his ID fast enough.

Then there are the children caught on video crying as their undocumented mother is taken into custody, or the kids who saw their parents on TV getting arrested for working without papers.

Most of these incidents weren't mentioned during the voluminous discovery in Melendres.

Sure, there was emotional testimony during the trial, and some of the evidence was infuriating, like e-mails to and from MCSO deputies containing crude jokes involving drunk Mexicans and other ethnic stereotypes.

But as I recounted in a previous column, Judge Snow, in his 142-page ruling, took a dispassionate, nine-month-long gaze at the evidence in the case.

The statistics, the experts, and the testimony of the MCSO's deputies and commanders led Snow to conclude that the office engaged in biased policing, violating the U.S. Constitution's Fourth Amendment prohibition against unreasonable search and seizure and the 14th Amendment's guarantee of equal treatment under the law.

Snow also had a rebuttal to those who figure that racial profiling against Latinos is A-okay, since most undocumented folks in this state are Latino.

The judge cited statistics showing that 31.8 percent of all Maricopa County residents are Latino, a figure about the same as the percentage of Latinos in Arizona overall.

The Pew Hispanic Center has estimated that 6 percent of the state's population is undocumented. Steven Camarota, a nativist on staff with the Center for Immigration Studies, has estimated the proportion of undocumented in the state at 8.9 percent.

Which means that, on the low end, even if absolutely every undocumented resident is Latino, an estimated 72 percent of the Latino population of this county is lawfully present. On the high end? 81 percent, according to the judge's cited statistics.

"The fact that someone is Latino in Maricopa County does not present a likelihood that such a person is here without authorization," Snow observes.

The MCSO has operated under the opposite assumption, treating all Latinos as potential suspects.

The agency insisted it could use race because that's how the feds trained deputies under the 287(g) program.

When U.S. Immigration and Customs Enforcement jerked the MCSO's 287(g) field authority in 2009, Arpaio's office claimed it could still enforce all federal immigration laws.

Snow disabused the MCSO of such assumptions in late 2011, pointing out that while it retained the authority to enforce criminal provisions of federal immigration law after the loss of its 287(g) powers, it lacked authority to investigate civil violations.

In 2012, the U.S. Supreme Court made clear in its decision on Senate Bill 1070 that, in general, "it is not a crime for a removable alien to remain present in the United States."

Removal from the country is a civil proceeding, you see.

That's why, a year earlier, Snow had been able to inform the MCSO: "Actual knowledge, let alone suspicion that an alien is illegally present, is not sufficient to form a reasonable belief he has violated criminal immigration law."

So while the MCSO could enforce state laws, such as human smuggling, it couldn't stop or detain someone on suspicion that he or she was present unlawfully.

When Snow rendered his latest decision, he noted that even after his December 2011 judgment ordering the MCSO to discontinue detaining people on such erroneous assumptions, the office persisted, "even when it had no accurate legal basis for doing so."

The MCSO's intransigence had "apparently resulted in the violation of this court's own preliminary injunction."

Snow set a hearing for Friday, June 14, to consult with the parties and "order additional steps that may be necessary to effectuate the merited relief."

Lawyers for the plaintiffs have made clear that they want an independent monitor, as is common in such cases, to make sure the MCSO and Arpaio leave race and ethnicity out of future law enforcement calculations.

Knowing this, Arpaio, the MCSO, and Arpaio's lawyer, Tim Casey, have bent over forward, assuring the media that the MCSO is out of the immigration business, at least until after June 14, which also happens to be Arpaio's 81st birthday.

But Arpaio's office already has defied Snow's order once, and it now has a lengthier list of orders from Snow to abide by, signaling the urgent necessity of an independent monitor.

Neither Arpaio nor his minions have a very good record of obeying orders, much less the law.

For example, despite several notices from the plaintiffs asking the MCSO to preserve evidence, the office destroyed stacks of it in Melendres — records from the sweeps and pertinent e-mails — and had to be sanctioned by Snow.

And though his handlers mostly have kept Arpaio muzzled on Snow's ruling, save for canned statements, Arpaio seems predisposed to blur what should be a bright line.

In a June 2 radio interview with KTAR's Jay Lawrence, he boasted that his agency had "locked up thousands and thousands of those in our country illegally."

Significantly, he mentioned that his lawyers would be going in front of Judge Snow.

"Don't forget, I still have state laws we've been enforcing, human-smuggling laws," Arpaio said. "We just arrested 80 in the past five weeks, for those who think I disappeared.

"I put out press releases, but the media never covers all of those that we arrest and book into our jail for class-four felonies for coming into our county [sic] from Mexico, but also the employer-sanctions laws."

You'd think Snow had neither ruled against him in 2011, pointed out that the MCSO had violated that order, nor imposed even more restrictions on the MCSO's enforcement of Arizona's human-smuggling and employer-sanctions laws.

Not only does Arpaio conflate federal and state law, he seems to hint that, depending what Snow decides after June 14, there may be a way around the order.

Snow should be on to Arpaio by now. Only a monitor will force Arpaio and the MCSO to cease their serial racism once and for all.

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