Federal Appeals Court Bans Race-Based Border Stops

April 12, 2000 12:00 am

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LOS ANGELES – According to a story in today’s Los Angeles Times, Border Patrol agents may not consider an person “Hispanic appearance” as a factor in deciding whether to stop motorists for questioning near the U.S.-Mexico border, a federal appeals court ruled on Tuesday.

“Stops based on race or ethnic appearance send the underlying message to all our citizens that those who are not white are judged by the color of their skin alone,” the U.S. 9th Circuit Court of Appeals said in a 7-4 ruling. “Such stops also send a clear message that those who are not white enjoy a lesser degree of constitutional protection–that they are in effect assumed to be potential criminals first and and individuals second.”

The Times reported that the decision by the appellate court is likely to add fuel to the growing debate over racial profiling by law enforcement agencies. Last year, Atty. Gen. Janet Reno said the U.S. Justice Department was conducting several investigations and a study of the issue, in response to complaints that police agencies across the nation engage in such conduct.

The American Civil Liberties Union said 200 police departments are now tracking racial and ethnic information to help assess the scope of possible racial profiling problems.

“It is significant any time a court stands up and says that taking note of ethnicity as a mark of criminal activity is wrong,” said David A. Harris, a law professor at the University of Toledo College of Law who is considered one of the nation’s leading scholars on racial profiling.

Harris is the author of the ACLU’s comprehensive report, “Driving While Black – Racial Profiling On Our Nation’s Highways.” (The report is available at: http://archive.aclu.org/profiling/report/index.html .)

The court decision comes less than one week after a Chicago-based federal district court issued another strong opinion condemning racial profiling. (See http://archive.aclu.org/news/2000/w040600a.html .)

Although Tuesday’s ruling, written by Judge Stephen Reinhardt, upheld the ultimate validity of the traffic stop citing other factors used by agents to justify the stops in the case, the court’s comments on race may have broad ramifications, law professor Harris said.

“What is significant is that seven members of this court are standing up and saying you can’t look to the ethnic group of these people as a possible indicator of suspicion,” Harris said. “For too long, judges, not just police, have either implicitly or explicitly used race or ethnicity as a proxy for greater propensity to be a criminal

” The newspaper reported that federal public defender Stephen Hubachek, who represented Sanchez, also lauded the judges for taking “ethnicity and race out of the reasonable suspicion calculus so that factor won’t be and shouldn’t be relied on in executing vehicle stops. That should go a long way toward eliminating the ‘driving while Hispanic’ and ‘driving while black’ complaints people have legitimately raised.”

Nonetheless, Hubachek and Harold Murray, who represented the other defendant, said they were disappointed that the judges upheld the search, arguing that their clients’ conduct was not so suspicious as to warrant being stopped.

Reinhardt’s majority opinion emphasized that California has a substantial Latino population and that the population of Imperial County, where El Centro is located, is 73% Latino. “Accordingly, 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,” Reinhardt wrote.

“Reasonable suspicion [for an officer to stop and question an individual] requires particularized suspicion, and in area in which a large number of people share a specific characteristic, that characteristic casts too wide a net to play any part in a particularized reasonable suspicion determination,” Reinhardt stated.

To buttress his argument, Reinhardt said that in recent years, federal courts have significantly restricted the use of race as a criterion in government decision-making. He quoted decisions by conservative Supreme Court justices striking down affirmative action programs as illustrations, including a 1989 decision which said that “classifications based on race carry a danger of stigmatic harm.”

Reinhardt added that the danger of such harm “is far more pronounced in the context of police stops in which race or ethnic appearance is a factor.”

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