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Judge Snow's Decision Damns Not Just Arpaio, but All of Maricopa County

Sheriff Joe: A grotesque symptom of Maricopa County's disease of anti-Mexican bigotry, not the disease itself.
Jamie Peachey

Shortly after the release of U.S. District Judge G. Murray Snow's 142-page ruling in the 5 1/2-year-long civil rights lawsuit Melendres v. Arpaio, members of the Hispanic and activist communities gathered at Maricopa County Supervisor Mary Rose Wilcox's El Portal restaurant for an impromptu press conference.

Essentially, Snow found that the Maricopa County Sheriff's Office under Joe Arpaio had engaged for years in a pattern and practice of discriminatory policing aimed at Latinos.

He issued a broad injunctive order forbidding the use of "race or Latino ancestry" by the MCSO for law enforcement functions, including stopping vehicles, detaining those vehicles' occupants, and investigating them for violations of federal immigration law, in addition to state laws such as the human-smuggling and employer-sanctions laws.

Snow's decision was a long time coming. The original lawsuit was filed in late 2007 and finally went to trial before Snow last summer. In that time, Arpaio twice was re-elected, using Hispanic-hunting sweeps and employer raids to bolster his popularity with a majority of Maricopa County's electorate.

Several of the community leaders attending the El Portal press conference called on Arpaio to resign and praised Snow's detailed and unambiguous analysis of the evidence presented at trial and of the testimonies of Arpaio, his henchmen, and his deputies.

Others expressed the desire for Snow to appoint a monitor over the MCSO to ensure that Arpaio's office complies. This would be a smart move, considering that the MCSO was found to have destroyed evidence in the case and that the MCSO already violated a previous injunctive order from Snow.

The general mood at Wilcox's restaurant was one of vindication. After all, everyone present was intimately familiar with Arpaio's harassment and terrorizing of Maricopa County's Latino community.

Not that Arpaio has ever kept secret the bigoted nature of his law enforcement priorities. Snow often uses Arpaio's own words and the language in his agency's press releases to illustrate the MCSO's malicious intent.

Of all the speakers, veteran criminal attorney and civil rights activists Antonio Bustamante made the most salient point.

"The majority of people in Maricopa County allowed this to happen," he told the news media. "We have that kind of majority, that kind of community. That is the greatest outrage. Because that is to whom Arpaio was playing. That was his audience."

In fact, it is safe to say that Arpaio would not have turned the MCSO into an immigration-enforcement agency without the approval of the county's electorate.

To be sure, Arpaio's corruption and brutality precedes the wave of post-9/11 nativism that engulfed this state. But Arpaio's embrace of bigotry as a guiding principle of law enforcement did not create the wave. He just rode it.

In 2005, when his deputies arrested nativist wacko Patrick Haab for holding seven Mexicans at gunpoint at a Valley rest stop, Arpaio decried Haab as a vigilante.

"You don't go around pulling guns on people," Arpaio said of Haab at the time. "Being illegal is not a serious crime. You can't go to jail for being an illegal alien . . . You can only be deported."

Arpaio was behind the curve. The Minuteman Project was ongoing at the border, already drawing extremists and opportunists such as neo-Nazi and eventual baby-killer J.T. Ready and minutewoman and future murderess Shawna Forde, among others.

Up 'til that point, Arpaio's shtick had been cruelty toward the incarcerated. Even though more than 70 percent of those in his jails were pre-trial detainees, the idea of punishment before trial was popular with the electorate, even when it involved guards choking people to death in restraint chairs or denying a diabetic her medication until she slipped into a coma and died.

Keeping his vast incarceration complex a harsh and occasionally fatal one guaranteed Arpaio a high approval rating. On the Haab incident, however, he faced backlash from angry whites, while a relative newcomer, Maricopa County Attorney Andrew Thomas (later to be disbarred and disgraced), earned cheers for refusing to charge Haab.

A cunning and adept politician, Arpaio took note and began to act accordingly. The MCSO created a Human Smuggling Unit in 2006 and began to take advantage of Thomas' interpretation of a new state anti-human-smuggling statute, in which Thomas asserted that the average migrant could be prosecuted for helping to smuggle himself or herself into the country.

"I'm going to catch as many [illegal immigrants] as I can and throw them in my jail," Arpaio told the Associated Press in 2006 while announcing a new 250-member anti-immigration posse. "And the jails are not that nice."

And what about the efforts of pro-immigration advocates and civil libertarians to stop him in court?

"I get sued when I go to the toilet," he harrumphed. "If they think I'm going to slow down because of these threats, I've got news for them — I'm not going to slow down. I'll do more of it."

 

It was just this sort of bluster that Joe's fans loved. And, interestingly, it was just the sort of bluster absent on Friday when Snow's ruling was published.

In the recent past, when the U.S. Department of Justice issued a letter finding that the MCSO engages in discriminatory policing or when the U.S. Immigration and Customs Enforcement jerked its grant of immigration authority to Arpaio's gendarmes under the so-called 287(g) program, Arpaio used such incidents as an opportunity for a chest-thumping news conference, a media stunt, or both.

This time, the MCSO's reply came from Arpaio attorney Tim Casey, promising an appeal and offering the conflicting assertions that the MCSO does not engage in racial profiling and that whatever the MCSO did was ICE's fault because it was ICE that trained the MCSO on immigration to begin with.

That last bit from Casey ignored ICE's removing the MCSO's 287(g) field authority in 2009, in large part because the Sheriff's Office was running roughshod over the U.S. Constitution with its large-scale anti-immigrant sweeps.

Arpaio's office knew it was going to lose its 287(g) authority before it actually was taken way. So, as Snow recounts in his ruling, Deputy Chief Brian Sands asked Human Smuggling Unit Sergeant Brett Palmer to "conduct legal research into whether the MCSO had authority to enforce immigration law absent the authorization of the Department of Homeland Security."

Palmer is not a lawyer, and if you've ever seen him interviewed, you might assume that Walmart wasn't hiring security guards the day he applied to be a deputy sheriff.

Still, after an Internet search, Palmer reported back to Sands that local cops do have authority "to investigate and arrest violators of federal immigration statutes," without the knowledge of the feds. He even cited a federal law to this effect.

There was one big problem, however: The law didn't exist. This didn't stop Arpaio from citing it during an interview with right-wing TV pundit Glenn Beck not long after his losing 287(g) field authority.

Palmer, his colleagues, Arpaio, and a large portion of the public also were under the delusion that all undocumented persons were guilty of a federal criminal offense.

Snow disabuses them of this misconception, in part, by quoting from the U.S. Supreme Court's Senate Bill 1070 ruling in Arizona vs. United States.

"As a general rule," the Supreme Court wrote, "it is not a crime for a removable alien to remain present in the United States. If the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent."

Casey's contention that it was ICE that trained the MCSO to racially profile has an element of truth to it. Deputies testified that ICE taught them that race could be used as a factor, if not the sole factor, in detaining people and inquiring into their immigration status.

But Snow finds that this belief is a misinterpretation of a Supreme Court decision, one rejected by the U.S. Ninth Circuit Court of Appeals, which held that "in locations where a significant portion of the legal resident population is of Hispanic ancestry, Hispanic descent was not a permissible factor to consider, either alone or in conjunction with other factors, in forming reasonable suspicion justifying the detention of a suspect based on his or her unauthorized presence."

No doubt, the 287(g) program, dusted off and proliferated by the administration of President George W. Bush as part of the response to the 9/11 attacks, was fatally flawed.

Nevertheless, when then-Governor Janet Napolitano and the Bush administration conspired in 2007 to bring the 287(g) program to Arizona and give Napolitano's political pal Arpaio the largest 287(g) force in the nation, they were handing a dangerous new law enforcement tool to a bad actor engaged in persistent violations of civil rights.

Napolitano and the Bush administration also were introducing 287(g) to Arizona at a time when anti-Mexican animus was reaching a fever pitch. That a power-mad egomaniac like Arpaio would go nuclear with his new toy was predictable.

But the complicity of ICE and Napolitano (currently Homeland Defense secretary) does not alleviate any of the MCSO's guilt or the guilt of the majority of a public that applauded Arpaio's every racist deed and action.

The MCSO simply assumed it did not engage in racial profiling, and as long as it had a legitimate reason to stop a vehicle or person, MCSO satraps figured they were off the hook.

But Snow observes that several deputies testified that they could develop probable cause to pull over any vehicle after just following it for a couple of minutes.

With this in mind, the MCSO's poorly defined "zero tolerance" policy became a license to racially profile, since the MCSO made it clear before, during, and after its sweeps that the purpose of these "crime-suppression operations" was the arrest of as many illegal immigrants as possible.

 

The court found credible expert testimony that Latinos were far more likely to be stopped, detained, and arrested during the sweeps, in some cases 54 percent more likely.

This was backed up by a study of MCSO records — at least those the MCSO did not destroy — and by anecdotal evidence as well, such as one Hispanic driver whose ID was checked while that of his non-Hispanic wife was never asked for, an unusual occurrence considering that MCSO deputies were known for checking the ID of all Latinos in a vehicle.

Perhaps the most egregious example comes from the arrest of the lead plaintiff in the case, Manuel de Jesus Ortega-Melendres, who, in 2007, was a passenger in a vehicle driven by an Anglo.

The deputy who pulled over the car was ordered by the Human Smuggling Unit to follow it and develop probable cause to stop it. This after Melendres, a day laborer, got into the driver's truck. (Note: Another bit of Archie Bunker-like bigotry by the MCSO was that it equated day laborers with illegal immigrants, something Snow remarks upon.)

The driver was pulled over for speeding and got off with a warning. Though Melendres was authorized to be in the country, and had the proof on him, the MCSO turned him over to ICE nonetheless. ICE eventually cut him loose after examining his documents.

I and other witnesses to Arpaio's sweeps have seen human suffering and fear on a grand scale: crying children separated from their mothers, Latinos afraid to take to the roads, pedestrians stopped and forced to identify themselves, Hispanic kids menaced by black and gold MCSO cars, and deputies patrolling the streets in ski masks.

There were many in the county who fought back — an army of volunteers led by Phoenix Copwatch dogged MCSO vehicles during the sweeeps. Human rights activist Lydia Guzman of Respect/Respeto helped lawyers with first-person accounts of profiling she culled from those who contacted her.

Attorneys from the ACLU of Arizona, like Annie Lai and Dan Pochoda, spent countless hours researching and investigating the sweeps. Pochoda was even wrongly arrested during one of the MCSO's first large-scale actions, at Pruitt's Furniture in Phoenix.

Activists such as Sal Reza and Carlos Garcia organized the community and documented the racism overwhelming us all. Many, including Reza, were arrested in acts of civil disobedience, and Reza also was targeted by the MCSO and wrongfully arrested in retaliation.

There were the plaintiffs like Melendres, brave enough to come forward and submit themselves to scrutiny, and the many lawyers who worked on the lawsuit, including those who argued for the plaintiffs in front of Snow, such as Cecillia Wang of the ACLU's Immigrants' Rights Project and Stanley Young of the firm Covington & Burling LLP.

When this era of American history is written, future generations will look at Arizona as the repository of the sort of ugliness the Deep South was during the civil rights struggle.

They'll look at the photos and videos of the moms in handcuffs, the lines of arrestees, a self-inflated sheriff, high on his own authority, and they'll wonder, "What did you do to stop it?"

And if you don't have an answer, well, that is your own unique form of punishment.

Not that you're alone in Maricopa County.


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