Feathered Bastard

Joe Arpaio's Racial Profiling Trial Ends, and Yes, Joe's Still Guilty as Sin

See also: Joe Arpaio's Racial Profiling Trial Begins, and, Yes, He's Guilty as Sin See also: Joe Arpaio's Taliban, Nativist Steve Camarota, and More Problems for the MCSO See also: Joe Arpaio's (ahem) Legal Scholar Brett "Shut Up" Palmer and Flunky Brian Sands Under Oath

As U.S. District Judge G. Murray Snow explained what he wanted opposing counsel to address in their closing, written arguments in the ACLU's big racial-profiling case Melendres v. Arpaio, he mentioned that he didn't mean to "foreshadow" his ruling with the questions he was asking.

And yet, Snow seemed to do just that after the last witness left the stand a little before 3 p.m. Thursday, the final day of the trial.

An exacting jurist with an obsession for detail, Snow noted that in videotaped testimony Sheriff Joe Arpaio's lawyers had played for the judge earlier, Alonzo Pena, former Special Agent in Charge of U.S. Immigration and Customs Enforcement's Phoenix office, said race could be used, along with other factors, in developing probable cause regarding an individual's immigration status.

Snow, who is both judge and jury in this bench trial, observed that in the Ninth Circuit, Pena is "dead wrong," according to a precedent set in U.S. v. Montero-Camargo, a 2000 Ninth Circuit Court of Appeals ruling that eliminated race as a factor in most immigration stops.

If the MCSO used race as "one factor among many," does it matter if they believed they were following the law, as instructed by ICE? That is to say, if MCSO deputes intended to use race as a factor, does it matter if they did not intend to violate the law?

That was the inquiry put to lawyers for both sides, and yet, in his December ruling granting class action to all Hispanics stopped by the MCSO since January of 2007, Snow addressed the same issue.

Back then, Snow wrote:

"Defendants assert that in training 287(g) officers, ICE informs them that race or apparent ancestry may be used as one factor in evaluating whether officers have reasonable suspicion to stop an individual, although it cannot be considered the sole factor.

"Whether or not such information is provided by ICE to local law enforcement officers during their 287(g) training, the law in the Ninth Circuit is clear: `Hispanic appearance is of little or no use in determining which particular individuals among the vast Hispanic populace should be stopped by law enforcement officials on the lookout for illegal aliens.'"

In the ruling to come, Snow must address both Fourth Amendment claims of unreasonable search and seizure, as well as 14th Amendment claims of racial profiling. Snow pointed out that to issue an injunction for the 14th Amendment claims, he needed to identify "a certain element of intent" on the part of MCSO.

Plaintiffs' counsel Stanley Young, speaking to reporters after the judge recessed, seemed eager to address that issue of intent.

"I think the issue of intent is a pretty simple one," Young said. "If a government agency has as a matter of policy the principle that it can make decisions on the basis of race, our view is that's wrong. Even if the government agency thinks it's correct in taking race into account."

Translation: the MCSO is up a creek sans paddle, flippers, or canoe.

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