In Sheriff Joe Arpaio's Maricopa County, his critics say, the otherwise innocent tableau of Spanish speakers hanging out in front of a convenience store is probable cause for a police officer to approach and ask for identification.
So, apparently, is cruising down the street, according to a suit filed in federal court in Phoenix. The suit’s Hispanic plaintiffs contend that Sheriff Arpaio is ignoring constitutional probable cause standards by targeting Latinos with traffic stops, during which they are asked about their immigration status.
On Thursday, U.S. District Judge Murray Snow heard arguments in the case, with the options of allowing the suit to go to trial, throwing the suit out, or declaring that Arpaio uses racial profiling in the enforcement of immigration laws. The judge is considering whether the acknowledged shredding of documents by the Sheriff’s Department would enable a judge or jury to infer that deputies targeted Latinos.
But the suit is just one of a growing mass of legal challenges confronting the maverick sheriff. Last week, the U.S. Department of Justice cited Arpaio for racially profiling Latinos through the Sheriff Department’s frequent “sweeps” of Hispanic neighborhoods in suburban Phoenix.
The death this week of a Hispanic inmate at a Maricopa County jailhouse following a scuffle with Arpaio's deputies is adding to the sheriff's troubles.
The Maricopa County lawsuit and others were bolstered by the Justice Department allegations of racial profiling. One concrete outcome this week of those allegations: 90 of Arpaio's deputies had to turn in federal badges that allowed them to carry out immigration work, including checking suspects' immigration status.
Both the DOJ report and the lawsuit heard Thursday focus on Arpaio's use of large-scale neighborhood “sweeps” where 1,500 people, mostly Hispanics, have been arrested in the last three years alone, with illegal immigrants accounting for 57 percent of those arrested. The DOJ's report, based on a three-year investigation, accused Arpaio's department of using military-style patrols to confront people based on “racially charged” citizen complaints about Latinos participating in what some call a ubiquitous "storefront culture."
The DOJ investigation identified other problems with Arpaio's definition of probable cause, noting that the Sheriff's Department has allegedly tried to silence critics by arresting them without cause. Moreover, the report said Latinos are up to 9 times more likely to be stopped than whites, with many of them arrested without “good cause.”
But legal experts say the allegations against Arpaio's department are hardly slam dunks. For one, state and federal courts tend to give police officers the benefit of the doubt when they're involved in street arrests. Moreover, Supreme Court precedents require very specific, provable allegations to determine constitutional overreach on the parts of police officers on the beat.
"In essence, you've got three Mexican-American men hanging out on the street, and the question is whether that's probable cause for police to believe something is up?" says Norm Pattis, a criminal defense lawyer in Connecticut. "The police officers are going to say, 'We observed three men in a known narcotics area, we suspected foul play, and we went to talk to them.' "
Moreover, many Americans, including presidential candidates like Rick Perry and Michele Bachmann, consider Arpaio a “hero” for doing the job critics claim US immigration authorities won't do. Others see the DOJ allegations against Arpaio as a politicized attack from the Justice Department, intended to bolster President Obama's relationship with Hispanic voters.
Arpaio “takes great pains to make sure that he doesn't discriminate against people based on race,” Rep. Steve King (R) of Iowa, vice-chairman of the House Immigration subcommittee, said this week. “It's not a profiling operation going on that I can see.”
Besides Thursday’s court hearing in Phoenix, another federal judge will hear the DOJ's case against Arpaio unless he decides by Jan. 4 to work out a settlement on the racial profiling charges. A federal grand jury has also been investigating whether Arpaio and his deputies abuse their power.