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The Dismantling of Joe Arpaio

Posted: Dec 23, 2011

PHOENIX, Ariz. – He called himself the toughest sheriff in America.

When immigration became a hot-button issue for voters, Maricopa County Sheriff Joe Arpaio, who had been in office for over a decade, transformed himself into a crusader against illegal immigration.

He used state laws to go after immigrants who were being smuggled, incarcerating them as “conspirators.” He used a civil employer sanctions law to raid businesses, arresting fast food cooks and gardeners for using false documents to work.

The federal government gave 160 of his deputies the power to enforce immigration laws in the jails and the streets through a 287(g) agreement, a contract between local law enforcement and federal immigration authorities.

Despite public uproar about his tactics – conducting massive round-ups in Latino neighborhoods and allegations of violating civil rights of U.S. citizens – nothing seemed to change.

But now, almost six years later, Arpaio’s unchecked immigration enforcement machine is starting to crumble.

A Department of Justice federal investigation that started under the Bush administration, a civil rights lawsuit and a series of new litigations are shedding light on a systematic pattern of racial profiling and abuse toward Latinos by his agency.

DOJ officials said in a press conference that the pattern of abuse is coming from the top down.

The DOJ investigation report, released on Dec. 15, found that the Maricopa County Sheriff’s Office “engaged in a widespread pattern or practice of law enforcement and jail activities that discriminate against Latinos.”

Widespread news coverage of the latest findings hasn’t helped the 79-year-old sheriff, who is still the subject of a criminal investigation for alleged abused of power.

As the sheriff’s office continues to be investigated by the DOJ for potential use of excessive force, questions are being raised around the death of Latino inmate and veteran Ernest “Marty” Atencio, who his family says was tazered by deputies while in jail.

A Latina woman who was shackled during childbirth filed a lawsuit against the sheriff’s office, stating that by being shackled during labor and after a Cesarian-section, her civil rights to be free of “cruel and unusual punishment” had been violated.

The question is not whether Arpaio can crack down on illegal immigration, but the manner in which the sheriff has directed his agency to go about it.

“He doesn't have the authority to enforce state law in a racially discriminatory manner,” said Stanley Young, a lawyer representing the plaintiffs in a racial profiling lawsuit hearing on Thursday.

U.S. District Judge G. Murray Snow heard arguments this week in a four-year-old racial profiling lawsuit that contended that Arpaio’s agency had engaged in racial profiling and unlawful search and seizures of U.S. citizens and legal residents.

Snow ruled on part of the case on Friday afternoon, indicating that the sheriff’s office would face sanctions for destruction of evidence in the case. But a broader decision as to whether the case will go to trial is expected in the coming days.

Tim Casey, attorney for the Maricopa County Sheriff’s Office, said in front of the judge that the sheriff’s deputies did not have inherent authority to enforce civil immigration laws, contradicting a political stance that Arpaio has defended in the past.

Arpaio had hired controversial attorney Kris Kobach, one of the drafters of Arizona immigration law SB 1070, to train his deputies to enforce immigration laws in 2010.

The Department of Homeland Security recently revoked its 287(g) agreement with the sheriff’s office in order to prevent Arpaio from conducting “crime suppression sweeps” that were not in line with the priority of going after immigrants who had committed crimes. Arpaio was defiant following the DHS announcement, saying he would continue with business as usual.

When asked how the recent DOJ findings could benefit the pending racial profiling lawsuit, Young said that the judge has to decide this case based on the evidence connected to it. “But many of the facts that the Justice Department refers to are in this case,” he added.

That could include possible connections between racially charged letters that Arpaio received from residents, that the DOJ said were “infected with bias” toward Latinos, and Arpaio’s decisions on where to conduct his sweeps.

For example, in August 2008, Arpaio received a letter from a resident in Sun City that complained about people not speaking Spanish in McDonald’s. Even though the letter didn’t say that there was a violation of any law, Arpaio wrote a note on it for someone on his staff to “look into it.”

Two weeks later, Arpaio conducted a sweep in that city.

The DOJ also drew conclusions from the testimonies of people who were allegedly racially profiled during Arpaio’s “crime suppression sweeps.”

“Those facts are really what led the Justice Department to its conclusion, and what we believe should lead this office to the conclusion that the sheriff’s office has been violating the Constitution,” said Young.

Racial profiling lawsuit is ahead of the curve

The DOJ gave Arpaio a deadline of Jan 4 to say whether or not he will be willing to work together to create a blueprint for change within his agency. If he doesn’t agree, the DOJ can sue him to bring about changes.

In that respect, the ongoing racial profiling lawsuit is ahead of the curve in bringing about changes in the Maricopa County Sheriff’s Office in a more immediate way, said Alessandra Soler Meetze, director of the American Civil Liberties Union (ACLU) of Arizona.

“We want him to issue a decision that would not only stop this type of operations, but for (Arpaio’s) agency to be reformed, because there’s a culture in which racism is accepted from Arpaio to the rest of his agency,” she said.

Soler said she didn’t believe the DOJ report was strong enough in the way it’s handling the agencies violations of civil rights.

“He will not stop unless there’s a judicial decision,” she said.

Judge Snow said on Thursday that he would issue a decision in one or two days. He has several options: allowing the lawsuit to go to trial with a jury, tossing it out, or finding that the Maricopa County Sheriff’s Office had engaged in racial profiling.

Perpetrator or pawn for federal programs?

In addition to the pressure coming from the DOJ, the Department of Homeland Security has revoked its 287(g) agreement and suspended its Secure Communities program with the sheriff’s office. Under Secure Communities, local law enforcement shared fingerprints of anyone they arrested with federal immigration authorities and had access to federal databases.

Now Arpaio’s deputies won’t be able to question people entering the jail about their immigration status.

With his own attorney conceding that local police do not in fact have the inherent authority to enforce immigration law, Arpaio is left to enforce only state laws. (In Arizona, of course, this includes the state law SB 1070.) He will be further limited if Snow rules against him.

Arpaio’s deputies could have to do much more than routine traffic stops in order to arrest undocumented immigrants.

Snow hinted during the hearing that the threshold to find probable cause that deputies have been using might be higher and involve more than just one element of suspicion that a crime is being committed.

Some pro-immigrant critics of the sheriff argue that the dismantling of Arpaio’s immigration powers proves that there are fundamental problems with federal programs such as 287(g) and Secure Communities.

For them, the recent DOJ indictment serves as an indictment of all programs that encourage cooperation between local police and federal immigration authorities.

Carlos Garcia, founder of the PUENTE pro-immigrant movement recently wrote in a column, “Clipping Arpaio's wings is only the beginning of what’s required if DHS is to address the lessons from Arizona.”

“As the truth comes out in Maricopa County,” he writes, “the department is still paving the way for the Arizonification of the country through the same programs that gave rise to our civil and human rights crisis in Maricopa County. The ‘wall of distrust’ described in the DOJ report is one that is being built across the country between local police departments and immigrant communities everywhere.”

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