by JJ Hensley and Michelle Ye Hee Lee - Jul. 26, 2010
The Arizona Republic
Arizona's new illegal-immigration enforcement law has raised a host of concerns from critics, but none more prevalent than the pervasive fear that the law will lead police officers to target those who look Hispanic.
Those concerns are not unfounded. It has happened in Arizona before.
Racial profiling - stopping and questioning individuals based strictly on their race or ethnicity - is in most cases illegal. It is also easy to allege but difficult to prove in individual cases.
Two episodes in Arizona brought problems with racial profiling to the fore. The police agencies involved were left paying out settlements, implementing new training measures and overhauling their procedures to fend off similar claims in the future.
The term "racial profiling" didn't appear in the pages of The Arizona Republic until May 1998, in a story about an incident involving New Jersey State Police. By then, however, the potential for profiling was well-known in the Phoenix area because of a 1997 immigration sweep in low-income Chandler neighborhoods.
1997 Chandler sweep
A joint operation of Chandler police and U.S. Border Patrol agents resulted in the arrests of 432 undocumented immigrants. But it also caught in its snare hundreds of legal immigrants and U.S. citizens of Hispanic descent.
The five-day operation drew criticism from the Hispanic community that it was racially motivated.
A $35 million civil-rights lawsuit was filed, alleging violations of the constitutional rights of legal immigrants and citizens who were detained. The Chandler City Council paid $400,000 to settle the claims.
Federal investigations found that the sweep violated Border Patrol policies by going into residential areas and concluded that the racial- and economic-profiling allegations were difficult to defend. Border Patrol agents had failed to document basic information about the people who were detained, and the sweep was conducted in poorer parts of the city.
Chandler police admitted to making mistakes as well, with the police chief at the time saying his department may have alienated Latinos in the process.
The city and Police Department subsequently took steps to reach out to the Hispanic community, establishing a liaison's post, requiring annual police diversity training and establishing a policy for immigration-related issues.
"Most officers here, we're immersed in the community, you understand about the community from just doing your jobs," said Detective David Ramer, a Chandler police spokesman. "You need to have that bond, that relationship, because as police we need to be everywhere at once. We need to have the eyes and ears of the public to report things."
2001 DPS case
In 2001, racial profiling again was the focus of a class-action lawsuit after 11 motorists accused state Department of Public Safety officers in northern Arizona of targeting minority drivers for traffic stops and searches.
The suit was dismissed, appealed and ultimately settled, with the stipulation that DPS launch a data-collection campaign that included information on every stop officers made, including the reason for the stop, characteristics of the driver and vehicle, and the stop's date, time and location. The agency later agreed to give the information to an outside team to evaluate.
A team at the University of Cincinnati has analyzed the data every year since, and it concluded that there are too many variables to determine anything concrete about the role of race and ethnicity in DPS decisions on whom to stop.
But the study drew conclusions about what happens to motorists after they are stopped. The data showed that officers were most likely to ask Hispanic drivers for consent to search their cars and trucks and least likely to find any drugs or other contraband in their vehicles, while White drivers were least likely to be the subject of consent searches and the most likely to carry contraband.
It is the prevalence of minority drivers in the "consent" searches that continues to cause concern, years after the lawsuit was settled, said Annie Lai, an American Civil Liberties Union attorney working on the case.
They are particularly troubling, Lai said, because police can use their powers without any evidence of wrongdoing. If the stops are not linked to any evidence, and there is a racial disparity, the implication is that some unrelated factor such as race is behind the stop, she said.
"If it was a truly, truly consensual search, there would be less of a concern, but the average lay person, because the police officers have a badge and a gun, they might not feel free to walk away," Lai said.
DPS leadership is adamant that officers do not consider a driver's race when they stop a car. They also say the agency's efforts to educate officers about racial profiling have made an impact, despite what the data suggest.
The University of Cincinnati analysis credits the agency for being responsive to suggestions that have come out of the report.
Former DPS Director Roger Vanderpool, who led the agency from 2005 to 2010, said the data collection also put the agency in a better position to respond to profiling allegations.
"I'm not sure that you can look into the heart of a man or a woman" to determine motivations for stopping someone, Vanderpool said. But, he added, "If you don't have due diligence in doing the data collection, and an independent outside group like the University of Cincinnati looking at that data and helping you to direct where you're going, you have very little rebuttal other than to say, 'My officers don't profile.' "
Preventing a recurrence
In rare cases where profiling is proven or a case is settled in favor of the suspect, agencies are in a quandary of how to prevent a practice that typically comes down to the discretion of an individual officer.
In Chandler's case, the city formed a human-relations commission and established a diversity office after the 1997 sweep, in addition to requiring training for employees. The agency has steadfastly refused to get involved in immigration enforcement since the 1997 incident.
Martin Sepulveda, who chaired the City Council in 1997, said the sweep was an "absolute failure" because it was carried out without jurisdiction or proper training. Application of the new state law, known as SB 1070, will be nothing like the Chandler sweep, he said.
But Sepulveda acknowledged racial profiling could occur under SB 1070, and he emphasized the need for training.
"Anytime you delve into an area, that is, in this case, where you have a fairly high probability of racial profiling, that's a slippery slope that I don't think anybody wants to go on," Sepulveda said.
Current DPS Director Robert Halliday said that although the agency is not obligated to keep gathering data on its stops and outcomes, he plans to continue the practice because it leads to better policing and allows supervisors to get a sense of what goes into a stop for each officer.
It also has taught administrators some lessons, he said.
"We learned how we were perceived and how we do business, and we want to make sure we never violate the public trust again," Halliday said.