Pubdate: Wed, 22 Dec 1999
Source: Arizona Daily Star (AZ)
Copyright: 1999 Pulitzer Publishing Co.
Author: Howard Fischer, Capitol Media Services 
Note: Arizona Daily Star reporter Tim Steller contributed to this story.


Border Patrol Bias Shown, But No Harm, Panel Says

Border-area Hispanics can't sue to block Border Patrol officers from
stopping motorists simply because they look Hispanic, federal judges ruled

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

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.
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