Wednesday April 12, 2000

U.S. High Court Bans Stops at Border Based on Mexican Appearance

'Mexican appearance' may not be considered as a factor in detaining persons crossing border at check points rules the 9th Circuit Court of Appeals on Tuesday.

Historically, U.S. Chicanos have been harassed and detained at U.S./Mexico border crossing points simply because they look like Mexicans. Many Chicanos who are third and four generation U.S.A. citizens have in the past been detained until they can prove their citizenship. In extreme cases, many Chicanos have been deported and dropped off on the other side of the border by the Border Patrol agents simply because of their appearance.

"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 decision by the San Francisco-based 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.

"We think it's a good decision and it's consistent with how we conduct our operations," said Virginia Kice, a spokeswoman for the Immigration and Naturalization Service in Laguna Niguel.

Robert Gilbert, the Border Patrol's deputy assistant director for the western region, said that "race, on its own, is not a reason to stop anyone." Gilbert said that agents are trained to consider a wide variety of factors before deciding to make a stop.

"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."

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."

The judges divided almost entirely on ideological lines. All seven judges who voted in the majority were appointed by Democratic presidents; all but one of the judges in the minority were appointed by Republicans.