Court upholds highway stops of Hispanics
Border Patrol bias shown, but no harm, panel says

Wednesday, 22 December 1999


By Howard Fischer
Capitol Media Services
http://www.azstarnet.com/public/dnews/1222N03.html

Border-area Hispanics can't sue to block Border Patrol officers from stopping motorists simply because they look Hispanic, federal judges ruled yesterday.
An 11-judge panel of the 9th U.S. Circuit Court of Appeals acknowledged that two Southern Arizona residents presented evidence that they had been stopped, for no apparent reason, on Interstate 19 south of Tucson.
But the court said they made no showing that they were likely to be ``wronged again.''
Without the threat of ``immediate and irreparable harm,'' wrote Judge William Fletcher, federal courts will not issue injunctions against government officials or agencies.
Attorney Armand Salese of the Arizona Justice Institute said yesterday's ruling provides an open invitation to Border Patrol agents to do ``racial profiling'' throughout the Southwest and West, stopping people solely because of how they look.
``The ruling means you need to get a complexion change and your hair redone because you're not getting protection from the Constitution,'' he said.
Salese said he may not take the risk of appealing the ruling to the U.S. Supreme Court.
Currently it affects only the 14 states in the 9th Circuit; an adverse high court decision would have nationwide implications.
The Immigration and Naturalization Service was studying yesterday whether the ruling will have any effect on its policies, spokeswoman Sharon Gavin said. The Border Patrol is part of the INS.
As it stands, the Border Patrol's policy is that agents must base traffic stops on ``articulable facts,'' Gavin said. Those facts must add up to reasonable suspicion that a crime is being committed.
Hispanic appearance alone ``is not enough to justify a stop,'' Gavin said.
The lawsuit was filed in 1995 on behalf of Panchita Hodgers-Durgin of Rio Rico and Antonio V. Lopez of Tucson. Both said they were stopped, in separate incidents, for no apparent reason on Interstate 19.
Searches of their vehicles produced no contraband and they were allowed to proceed.
Their lawsuit sought no financial damages. Instead, it sought to restrain the Border Patrol from stopping Hispanics who drive in eight counties of Central and Southern Arizona at any time, and anyone who drives there after dark, when agents allegedly can't detect their ethnicity.
The counties are Pima, Pinal, Cochise, Santa Cruz, Graham, Greenlee, Maricopa and Yuma.
Fletcher, writing for the unanimous court, said what happened to the pair is insufficient to get a court order restricting what the Border Patrol can do.
He pointed out that Lopez drives between 400 and 500 miles a week and sees Border Patrol agents nearly every day.
Hodgers-Durin drives between Rio Rico and Nogales at least four or five times a week and sees Border Patrol agents ``all over the place'' whenever she travels.
But both were stopped only once in 10 years, Fletcher said.
``In the absence of a likelihood of injury to the named plaintiffs, there is no basis for granting injunctive relief that would restructure the operations of the Border Patrol and that would require ongoing judicial supervision of an agency normally, and properly, overseen by the executive branch,'' he wrote.
Salese took issue with that reasoning, saying he gave the judges a thousand of the Border Patrol's own reports.
In each case, he said, the evidence showed that motorists were being pulled over because they were Hispanic.
``It's hard to imagine a more powerful argument showing this class of motorist was being stopped because of their race,'' he said. ``What else do you need?''
Fletcher acknowledged there was evidence that others had been stopped multiple times.
He said, though, that because those people had not filed suit, the court could not consider their claims.
The problem with that, said Salese, is that most people who are stopped for no reason and then released don't want to go through the time and expense of filing suit.
And others who are deported after an illegal stop are in no position to sue.
Yesterday's 11-0 ruling reverses a year-old decision of a three-judge panel of the same court.
In that ruling, Judge John S. Rhoades Sr. said there were ``numerous reports'' written by Border Patrol agents describing the reasons they pull over Hispanic motorists.
In some cases, the judge said, the facts the officers cite provide no legal reason for the stops.
In other cases, Rhoades said, the facts ``bear striking similarity to each other'' and are ``identical except for such details as the time of day, the color of the vehicle.''
He said that subjects the officers' claims to skepticism.
Rhoades, however, was not on the 11-judge panel that overruled his opinion.
In that opinion, Rhoades also noted that the two plaintiffs produced evidence of others who appeared to be Hispanic being stopped by the Border Patrol, allegedly without reasonable suspicion.
That, he said, gave them the right to try to make their case in court that the agency needs to be restrained.
Arizona Daily Star reporter Tim Steller contributed to this story.


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