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Human Smuggling versus Racial Profiling

Human Smuggling versus Racial Profiling*

Human smuggling is not an unusual phenomena here in the United States, however, Arizona’s law, adopted in 2005, has caused the local law enforcement entity, known as the Maricopa County Sheriff’s Office (MCSO) and the Office of the County Attorney to join forces to combat human smuggling. Unfortunately, this double edged sword of law enforcement has been taken to the extreme in which a person being smuggled is now considered a “co-conspirator” in their own smuggling. Furthermore, the notional for being a “co-conspirator” in his or her own smuggling has yet to be tested in a court of law as a legal premise. And to date, the anticipated ‘racial profiling’ cases are now forthcoming and are being tested in federal court, and from therein, the viability of Arizona’s human smuggling law. And Hispanics, of course, see this as an overt dance of a “double-jig.”

Earlier this week, the first case filed in federal court, was challenged and the private attorneys for the MCSO argued in court and before Federal Judge Murray Snow that local law enforcement under Arizona law is permitted to stop all automobiles on public thoroughfares and subject to being stopped for even minor traffic violations. Subsequently, Hispanics being stopped is not to be considered as “racial profiling” since the traffic stop takes precedence and the driver being Hispanic is just incidental to this law enforcement behavior.

Despite this current view, if you’re Hispanic and stopped for a minor traffic violation, you are being segmented into this perceived human smuggling construct. And yet, the obverse is true as well in that if your Anglo and a Canadian citizen, you are not being segmented into this human smuggling construct, and therefore, we now enter the current legal case that is being heard before the bench that is the Federal Court and Judge Murray Snow.

In 2007, the case filed by Manuel Jesus Ortega Melendres, a legal resident and his case has now been joined three additional plaintiffs, all Hispanic citizens, and who are adamant in their belief that they’ve been racially profiled, and together, are facing a daunting challenge in that “the sheriff’s inherent authority to enforce federal law has taken a backseat to the methods used to enforce Arizona’s human-smuggling law, particularly their practice of relying on a single element of the multifaceted crime to develop the requisite “reasonable suspicion.”   Of course, “probable cause” has been shifted onto the traffic curb.

At present, the plaintiffs were stopped for a minor traffic violation and are now charging that “racial profiling” was utilized by law enforcement authorities as the “single element” of a multifaceted crime, and of which they were not part and parcel to human smuggling or for being a “co-conspirator” in their own smuggling.

On this past Thursday, the attorneys for the MCSO representing Sheriff Joe Arpaio, told the federal judge that the Sheriff now believes that he does not have the inherent authority to enforce civil immigration but does have the inherent authority to enforce Arizona’s human smuggling law. And this changes the legal dynamic for Arizonans in that the Sheriff has now shifted his legal rationale for enforcing, not civil immigration but for human smuggling, and by this “logic”, the MCSO’s law enforcement behavior is as a perceptive work-around to the existing federal law. Perhaps, the Sheriff is waiting on the affirmative SCOTUS decision scheduled for next summer on SB 1070 and which if delivered appropriately political, will reinvigorate “state’s rights”?

Consequently, the attorneys for the combined plaintiffs, are asking that they be permitted to bring forth the thousands of Hispanics and who have been “traffic-stopped” by the MCSO over these six years or since the inception of Arizona’s human smuggling law, given that the law has several facets that have to be met and which a minor traffic stop, in and of itself, is not sufficient to establish a “reasonable suspicion” to implement Arizona’s human smuggling law.

And as an added note, the state police or the Department of Public Safety is currently operating under a voluntary court order not to conduct “racial profiling” via traffic stops. As such, the Department of Public Safety entered into a voluntary court order and where this state agency does not admit to having conducted racial profiling in these past few years. Therefore, the overall effort of this ongoing almost four-year court order is to collect the appropriate data from both the front line troops and the management team and where a civilian review body is required to assess this data, leading to a much more enlightened management effort, as part and parcel to public policy relative to the Governor’s Office and the decision-makers from within this Office.

To wit, Judge Murray Snow’s decision is due to be issued next week. And the political fireworks are only beginning should the MCSO continue to defend its self-interest in this denial of “racial profiling” in federal court.

*Originally posted at the Web Site for the Chicano Veterans Organization.


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