Court Bars Border Stops Based on Ethnicity

Border Patrol agents may not consider an individual’s “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 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.

The American Civil Liberties Union said 200 police departments are tracking racial and ethnic information to help assess the validity of complaints about race-based traffic stops and similar practices.

“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.

Despite the court majority’s conclusion that two Border Patrol agents improperly considered racial appearance in deciding to stop German Espinoza Montero Camargo and Lorenzo Sanchez Guillen, the court unanimously ruled that the agents still had valid reason to stop the two men because the two were driving suspiciously.

Among the reasons cited by the seven-judge majority were that the two men were “driving in tandem,” made a sudden U-turn when they approached a recently reopened checkpoint north of the California-Mexico border in El Centro, and then stopped in an obscure spot “historically used for illegal activities.”

Federal officials said they were satisfied with the ruling because it is already the Border Patrol’s policy not to make stops solely based on race.

“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.

The Border Patrol agents in El Centro had said they stopped the two cars after another motorist tipped them that two cars with Mexican license plates had turned around about a mile from the checkpoint. The agents found two large bags of marijuana in one of the cars and a loaded .32-caliber pistol and an ammunition clip in the other.

A federal trial judge rejected the defendants’ claim that the searches were illegal. Subsequently, Montero entered a guilty plea to conspiracy to possess and possession of marijuana with intent to distribute, but reserved the right to appeal. Sanchez went to trial and was convicted of those crimes as well as of being an illegal alien in possession of ammunition. A passenger in Sanchez’s car also pleaded guilty to the weapons charge.

Last May, a divided three-judge panel of 9th Circuit judges upheld the convictions and said that it was allowable for the officers to consider Latino appearance, among other factors, in deciding to stop the two vehicles. The 2-1 majority also said that the cars’ traveling together, the agents’ prior experiences and the past use of the area as a drug drop-off spot were other valid rationales. That opinion was formally withdrawn when a majority of the 9th Circuit’s 21 judges decided that a larger panel of judges should rehear the case.

Although Tuesday’s ruling, written by Judge Stephen Reinhardt of Los Angeles, upheld the ultimate validity of the traffic stop, 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.”

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 jurists upheld the search, contending that their clients’ conduct was not so suspicious as to warrant being stopped.

Substantial Latino Population Noted

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.”

Although they agreed on the outcome of this case, four 9th Circuit judges, led by Alex Kozinski of Pasadena, accused the majority of engaging in “verbal Macarena.” In a tart opinion, Kozinski contended that the two drivers were engaging in such patently suspicious behavior trying to evade law enforcement that there was no need to consider any other issue.

“Turning in one’s tracks just before reaching a law enforcement checkpoint is precisely the kind of behavior that properly gives rise to reasonable suspicion,” he wrote. Kozinski said that the 9th Circuit ought to overturn a 1975 decision, U.S. vs. Ogilvie, in which it came to the opposite conclusion.

Kozinski accused the majority in Tuesday’s ruling (U.S. vs. German Espinoza Montero Camargo, No. 97-50643 and U.S. vs. Lorenzo Sanchez Guillen, No. 97-50645) of writing a contorted decision, attempting to distinguish this case from the Ogilvie ruling in attempt to keep the older ruling intact.

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.