Sheriff Joe Arpaio recently crawled out from under his rock in Fountain Hills where he's been licking his wounds since his February slip and fall to do a YouTube video, in which he responds to U.S. District Court Judge G. Murray Snow's ruling, enjoining the MCSO to stop its racial-profiling ways.
The video gives Arpaio a chance to show off his graveyard tan and his emaciated wrists. If his lips weren't moving, I'd swear he'd been embalmed already.
Plus, you're telling me Arpaio would rather do a YouTube video in his office than a full on press conference? More evidence of how fragile the old coot is these days.
Anyway, in the video, Arpaio cops the same line that his lawyer Tim Casey did on Friday when Judge Snow's ruling dropped.
That is, he blamed it all on the training his deputies received from U.S. Immigration and Customs Enforcement once the MCSO entered into a so-called 287g agreement with ICE, allowing some MCSO detention officers and deputies to act as immigration cops.
"Now the federal court has ruled that the federal training was unconstitutional and it led to racial profiling," says Arpaio, who also indicates that his office will be appealing Snow's decision.
Arpaio partially is correct, in that Judge Snow found that,
"In the 287(g) training that ICE provided, and in other policies and procedures promulgated by the MCSO [italics added], MCSO deputies were instructed that they could consider race or `Mexican ancestry' as one factor among others in making law enforcement decisions during immigration enforcement operations without violating the legal requirements pertaining to racial bias in policing."
As I mentioned in my column this week, Snow explains that this belief is actually a misinterpretation of a U.S. Supreme Court case.
"ICE failed to take into account," Snow writes, "that its interpretation ...was rejected by the en banc Ninth Circuit 13 years ago...the Ninth Circuit held, at a minimum, 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 suspected unauthorized presence."
And since around one-third of Arizona's population is Latino, and the vast majority of that Latino population is legally present -- anywhere from 73 to 81 percent, depending on the estimate you accept -- then "Hispanic ancestry" is not a permissible factor for law enforcement to use in developing reasonable suspicion concerning immigration status.
ICE, the U.S. Department of Homeland Security, DHS secretary and former Arizona Governor Janet Napolitano, and the administration of President George W. Bush all bear some responsibility for the wide-scale racial profiling that occurred under ICE's 287g grant of immigration authority to the MCSO.
But you don't hear Arpaio or his backers arguing that the MCSO should never have been allowed to have 287g authority, or that the 287g program was itself fatally flawed.
Moreover, in his video, Arpaio fails to mention that ICE revoked MCSO's 287g field authority in 2009. After this, Arpaio very publicly thumbed his nose at the feds and the Obama administration, asserting that under federal law, he retained the power to enforce immigration law, despite ICE's rescinding its 287g agreement with the MCSO.
On Glenn Beck's Fox News show in 2009, and in other statements to the media, Arpaio asserted that the authority to continue enforcing immigration law in absence of a 287g agreement came from, "that [federal] law in 1996, part of the comprehensive law that was passed, it's in there."
On KTAR around the same time, Arpaio sang a similar tune, saying he didn't need 287g:
"I don't need the feds to do my crime suppression to opt to arrest illegals. I can do it without the federal authority, and I'm going to continue to do it. It makes no difference. It helps us. Because I don't have to do all the paperwork for the feds, number one. And number two, I won't be under their umbrella, their guidance. So I will operate the same way, nothing is going to change."
I obtained a copy of the alleged law Arpaio cited after one of the sheriff's media events in 2009. As I wrote back then, the law didn't exist, and apparently had been swiped from a nativist Web site.
It was later revealed during discovery in Melendres, that the, er, "legal scholar" who dug up this non-existent law via the Internet was in fact one of Arpaio's dumbest deputies, Sergeant Brett "Shut Up" Palmer, who was one of the supervising sergeants of MCSO's Human Smuggling Unit.
Palmer, infamous for telling public officials such as Maricopa County Supervisor Mary Rose Wilcox and others to "Shut up!" after they accused the MCSO of racial profiling, was asked to do this research by another brain titan, Deputy Chief Brian Sands. Essentially, Sands and Palmer were looking for a loophole to continue the very racial profiling that had led to ICE nixing the MCSO's 287g.
They also wanted to prove that local cops have the "inherent authority" to enforce federal, civil immigration law.
But in 2011, when Snow granted Latinos stopped by the MCSO class-action status, Snow made clear that, "Local law enforcement officers...do not have the `inherent authority' to investigate civil immigration violations."
Nevertheless, the MCSO hired anti-immigration attorney, and now Kansas Secretary of State Kris Kobach in 2009 at a fee of $300 per hour to train MCSO deputies in immigration law.
In his Melendres decision, Snow writes,
"The MCSO did eventually base its training concerning its deputies continued authority to enforce federal immigration law on the legal theories of Kris Kobach. Mr. Kobach is apparently legally trained, but it is not clear that MCSO sought his legal counsel on whether his theories were in compliance with the law in this jurisdiction."
"After the revocation of its 287(g) status [italics added], the MCSO erroneously trained all of its 900 deputies that they could enforce federal immigration law. The MCSO further erroneously trained its deputies that unauthorized presence in the country, without more, was a criminal as opposed to an administrative violation of federal immigration law. The MCSO operated under that misunderstanding during most of the period relevant to this lawsuit."
ICE took away MCSO's 287g for a reason. But MCSO doubled-down, wrongly training ALL of it deputies in immigration matters, inculcating them with policies bound to result in racial profiling.
Snow observes, as it would be hard not to, that MCSO's press releases reveal a history of bias. Arpaio and others at MCSO conflated "day laborers" with "illegal immigrants," so that the two terms were almost synonymous in the minds of Arpaio and his stooges.
When MCSO flak Lisa Allen recently kvetched in a letter to the Arizona Republic that there was no difference between a Phoenix Police Department crime sweep and one done by the MCSO, I commented on the Rep's site that she was damned by her own press releases, which always prominently featured the number of illegal immigrants nabbed, making clear that it was the only reason for these operations.
Both my colleague Ray Stern and I have noted that in a conversation with Deputy Chief Frank Munnell, a conversation Munnell surreptitiously recorded, both Allen and Munnell acknowledged that there was no real law enforcement purpose for the sweeps.
Additionally, Snow finds that the MCSO developed a purposefully ill-defined "zero tolerance policy," which, because it only takes a couple of minutes for a deputy to find probable cause to pull over any vehicle, served as cover for racial profiling.
An analysis of the MCSO's own data -- or at least what was left after the MCSO destroyed much of it -- done by plaintiffs' witness Dr. Ralph Taylor found that Hispanics were up to 54 percent more likely to be stopped during a sweep.
Snow also looks at the work of specific deputies who testified and swore under oath that they did not use race as a factor in whom to pull over or arrest. Such avowals are not borne out by the results, where the overwhelming number of those arrested had Hispanic surnames.
"While the Court does not doubt the work ethic of these deputies," comments Snow at one point, "nor their desire to follow the various directives pertaining to their operations, it is difficult to reconcile their testimony in this respect with their actual performance during large-scale saturation patrols. That analysis demonstrates that it is unlikely that Deputy Armendariz, Deputy Rangel, Deputy Beeks, or Deputy Kikes engaged in the race-neutral policing that they claimed."
And Snow continues, boring down on the individual deputies. Armendariz makes a particularly fine example.
"When asked to explain his disparate arrest rate of Hispanic persons," Snow states, "Armendariz testified that the majority of Maricopa County's population is Hispanic. That assertion is simply wrong. Approximately 30% of the population of Maricopa County is Hispanic.
"Approximately 77% of the arrests made by Deputy Armendariz during large-scale saturation patrols had Hispanic surnames. 100% of the persons he arrested during the limited sampling of small-scale patrols had Hispanic surnames. The Court concludes that Deputy Armendariz considered race as one factor among others in making law enforcement decisions during both large- and small-scale saturation patrols."
Snow also notes that MCSO deputies made a habit of asking all Hispanic passengers in the vehicles they stopped for their papers.
So Hispanics were singled out for extra scrutiny, they were more likely to be stopped, and more likely to be arrested. Even when they were not arrested, they were detained for longer periods of time.
"The MCSO stops a vehicle for the length of time it takes to investigate its occupants," writes Snow, "not the amount of time necessary to dispose of the traffic infraction that resulted in the stop."
The MCSO had no written policy concerning racial profiling, no specific training to avoid racial profiling other than maybe a brief mention of race in the academy, and never did a statistical review to determine if its policies were resulting in racial profiling.
I would argue that is because the MCSO wanted to profile Latinos based on ethnicity and skin color. That was, indeed, the whole point, to feed the ethnic animus of the public at large, and to spread terror throughout the Hispanic community.
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Though Snow doesn't give a lot of space to the treasure trove of racist emails MCSO deputies exchanged that were exposed as a result of this lawsuit, they do show how pervasive and ugly the MCSO's targeting of Latinos had become, how routine and accepted, even among some deputies of Hispanic descent.
Finally, if all of this was simply ICE's fault, then why is Arpaio appealing the ruling?
I'll tell you why, because the use of race and ethnicity by his office is so widespread that it would require new leadership, including a new sheriff, to change the culture of bigotry that has infected the MCSO from the top down.
Arpaio's attempt to spin Friday's ruling should be a signal both to the lawyers for the plaintiffs, and to Judge Snow himself, that the MCSO and Arpaio are not penitent, though Casey and Arpaio claim they will comply with Snow's order. Only the most vigilant methods will keep a persistent liar like Arpaio and a rogue agency like the MCSO in check.