Appeals Court Rejects Suit That Alleged Racial Profiling by U.S. Border Patrol

A racial profiling suit, accusing the U.S. Border Patrol of targeting Latino-looking drivers in southern Arizona, hit a roadblock in federal court Tuesday.

Lawyers for the drivers said they had evidence that Border Patrol officers commonly stopped motorists in eight counties because of their appearance, without reason to suspect illegal immigration or any other lawbreaking. They sought no damages, only a court order prohibiting stops of drivers without reasonable suspicion of wrongdoing.

But the 9th U.S. Circuit Court of Appeals ordered the suit dismissed in an 11-0 ruling. The court said two named plaintiffs in the suit, who sought to represent a class of all affected drivers, had been stopped only once each by the Border Patrol in 10 years and failed to show a likelihood that they would be pulled over in the future.

Although they might be able to seek damages on their own behalf, they cannot act as representatives in a class-action suit “that would restructure the operations of the Border Patrol and that would require ongoing judicial supervision,” said the opinion by Judge William Fletcher.

He said the Supreme Court, in a series of cases alleging police abuses, “has repeatedly cautioned that, absent a threat of immediate and irreparable harm, the federal courts should not enjoin a state to conduct its business in a particular way.”

Fletcher said drivers who have been stopped repeatedly might be able to maintain such a suit. He did not discuss the allegations that Latinos were targeted, a practice long prohibited by federal court rulings.

A lawyer for the drivers said he would appeal to the Supreme Court.

The ruling “means that the ability of minorities to stop these kinds of abusive practices has diminished greatly,” said attorney Armand Salese. Despite President Clinton’s public condemnations of racial profiling, Salese said, it still exists in the Border Patrol and will be encouraged by the ruling.

A call to the Border Patrol’s regional office seeking comment was not immediately returned.