Feathered Bastard

Joe Arpaio Cites a Federal Law He No Longer Has Authority Under to Justify Racial Profiling (w/Update)

I give the MCSO points for trying. Ever since the sheriff's office cited a non-existent law and text from a nativist Web site to justify its claim of federal authority after being stripped of 287(g) street power by ICE, the MCSO's been attempting to walk the conversation backwards and extricate themselves from the legal tar pit they've wandered into. Joe's even claimed that he can stop you and ask you about your immigration status, if "you look like you just came from Mexico."

Now the MCSO has issued a press release, and what looks like part of a 2005 Immigration and Customs Enforcement training manual, which the sheriff's flacks say will "set the record straight." The page from the ICE manual states that an immigration officer must have "reasonable suspicion based on articulable facts" (kudos to commenter Tommy C for his posts concerning reasonable suspicion). It gives examples of articulable facts, such as speech, demeanor, dress, general observations, and so forth.

Interestingly, looking like you "just came from Mexico" is not listed.

This is Joe's latest effort to cover his hindquarters and get his many flubs on this subject past him. The press release reads like a denial of his past statements. It says, in part:

"Sheriff Joe Arpaio has continually stated that his deputies have never initiated contact with anyone solely on the basis of their nationality. The Sheriff's Office has always required its law enforcement personnel to have reasonable suspicion that a violation of state law has occurred which may then develop further indicators or facts to support the detainment of a suspected illegal alien."

That's not how it plays in reality. During the sweeps, like the one in Surprise this past weekend, deputies pull over brown people left and right. Joe practically admitted that the MCSO has been racial-profiling with his just-arrived-from-Mexico-remark.

But what's particularly nutty is that with this ICE handbook page, the MCSO's essentially citing the very statute that 287(g) is a part of: i.e., the Immigration and Nationality Act, Section 287, (also known as, 8 USC 1357), part (g) of which, is in fact 287(g), or "performance of immigration officer functions by State officers and employees."

In other words, this is the part of the law that Arpaio can no longer enforce, according to federal authorities.

Or as ACLU attorney Annie Lai told me, "The workbook is not law...And in any case, since Arpaio's no longer 287(g), this goes out the door."

Lai also pointed out that MCSO deputies first went through training in 2007, not 2005. So this handbook is old.

(BTW, I'm still waiting for a comment from ICE, and will update this post when I get it.)

ICE has deprived the MCSO of this 287(g) power on the street. Indeed, ICE honcho John Morton has stated, "The only explicit grant of federal law [would be] under 287(g) and the task force." Why is this so difficult for the MCSO to understand? Deputies can no longer act like ICE agents in the field. (The press release even points out they will soon be handing over their federal credentials.) The handbook the MCSO cites no longer applies to them.

Actually, the MCSO and its jefe Joe Arpaio act as if the law in general does not apply to them. They want to wiggle around the law by using ultra-conservative legal interpretations, or just by buffaloing the public. Personally, I don't think they're fooling anyone.

UPDATE 10/22/09 9:57 PM: I received the following statement from local ICE spokesman Vinnie Picard earlier today,

"The materials in the workbook referenced by the Sheriff are from 2005 and thus do not reflect the current priorities or guidelines of the updated [Memorandum of Agreement]. New training materials will be circulated to participating jurisdictions in accordance with the revised MOA."

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Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons