Reasonable Doubt Part III: Sweeps and saturation patrols violate federal civil rights regulations
Paul Giblin, for Ryan Gabrielson, East Valley Tribune
One Monday morning in December, health the Maricopa County Sheriff’s Office sent several of its most highly trained deputies to arrest day laborers. The human smuggling unit, police dogs and even the SWAT team spent hours swarming the intersection of Thomas Road and 36th Street, a primarily Hispanic neighborhood in Phoenix. The sheriff’s office had conducted major operations there for weeks, using minor traffic violations as legal cover to stop cars that might carry illegal immigrants.
But the deputies’ work that morning, as with dozens of similar MCSO immigration patrols across the county, violated federal regulations intended to prevent racial profiling, a Tribune investigation found.
>> U.S. Department of Justice: Guidance regarding the use of race by federal law enforcement agencies (PDF)
Those regulations specifically forbid crackdowns like Sheriff Joe Arpaio’s “crime suppression/anti-illegal immigration sweeps” unless there is “reliable, empirical data” that serious crime is taking place. That’s defined as 911 calls and crime statistics based on reports, among other things.
But the sheriff’s office conducts large-scale operations without any evidence of criminal activity. The sweeps are billed as crackdowns on general crime, primarily in neighborhoods where many Hispanics live and work.
That’s exactly what federal Immigrations and Customs Enforcement rules are designed to prevent.
And although Arpaio and his top officers admit they ignore the rules, ICE says MCSO is following its federal contract.
Last year, ICE partnered with MCSO to make 100 of the sheriff’s detectives and patrol deputies — and 60 detention officers — sworn federal agents, too. The deputies now have broad authority to arrest illegal immigrants under federal law.
The federal power comes with strict rules, but sheriff’s officials say they don’t necessarily follow them, especially when the rules conflict with what Arpaio thinks his agency needs to be doing and what he thinks Maricopa County residents want.
“Our response to the public for violations of state law come before that contract,” said Deputy Chief Brian Sands, head of the sheriff’s law enforcement division.
But MCSO’s immigration arrests this year are increasingly for federal, not state, violations, reports that the deputies send to ICE show.
When asked about the way MCSO is using its federal authority, ICE officials say the deputies have followed every condition in the agencies’ contract. However, they won’t discuss ICE policy about when the federal authority can be used to make traffic stops. Instructions that local agencies are to follow were removed from the agency’s Web site earlier this year.
“In our determination, our partnerships — and that includes everyone beyond Maricopa County as well — our partners are within the bounds” of their contracts with ICE, said Vincent Picard, the federal immigration agency’s Arizona spokesman.
MCSO’s contract includes a section titled “Civil Rights Procedures.”
It explains that when local police officers act as immigration agents, they are “bound” to follow all federal civil rights laws and rules. Those rules bar agents from using racial stereotypes as justification to conduct major operations.
To illustrate the type of operations that violate the regulation, the civil rights field guide for federal agents describes an instance where local police, attempting to catch offenders, make a large number of traffic stops in a particular neighborhood.
“The choice of neighborhood was not based on the number of 911 calls, number of arrests or other pertinent reporting data specific to the area,” the field guide says. Instead, the choice was based on the residents’ race.
To make such an operation legal, the field guide says agents must have trustworthy evidence proving crimes are taking place.
That’s not generally the case in Maricopa County, where the sheriff’s office has conducted saturation patrols and immigration sweeps mainly in Hispanic neighborhoods or in areas where day laborers gather. Arpaio has said he chooses the areas because business owners or politicians have asked him to come in.
But MCSO’s sweeps could be textbook examples in the federal field guide of what not to do. Arrest reports and e-mails sent regularly to ICE by deputies document that “reliable, empirical data” is nonexistent. Instead, deputies either don’t justify the operation or say it is in response to business owners’ complaints.
>> Human smuggling unit reports emailed to ICE detailing the saturation patrol in front of M.D. Pruitt’s in Phoenix (PDF)
On Oct. 22, for example, Arpaio sent the human smuggling unit to Fountain Hills.
The unit’s detectives had spent a year scouring rural highways in search of smugglers and their human cargo. But none of the smugglers’ known routes pass through Fountain Hills, where Arpaio lives. Most are on the other side of the county.
The operation was “based on information from local businesses in reference to the day laborers in the area,” Lt. Joseph Sousa wrote in an e-mail to Jason Kidd, ICE’s acting special agent in charge in Arizona.
Sousa, head of the human smuggling unit, went on to explain how deputies in patrol cars watched for vehicles that appeared to pick up illegal immigrants. Then, once they spotted a vehicle picking someone up, detectives in undercover cars “would establish probable cause for a traffic stop.”
Earlier that same month, MCSO dispatched deputies to do the same in front of M.D. Pruitt’s Furniture in Phoenix.
The store, at the southeast corner of Thomas Road and 36th Street, had long struggled with crowds of illegal immigrants that sed over from a nearby day labor center. The workers would loiter beside Pruitt’s parking lot, prompting customer complaints.
The store’s owners, Roger Sensing and his son, Mike, hired off-duty sheriff’s deputies after their negotiations with the day labor center and Phoenix officials broke down in early October.
Then, on Oct. 15, MCSO sent the human smuggling deputies on an operation to make immigration arrests there, reports show.
Immigrant rights activists soon followed to protest Arpaio and his anti-illegal immigration operations.
The sheriff’s office continued regular operations near Pruitt’s until January, announcing illegal immigrant arrest totals in news releases. Arpaio has since conducted similar operations in other parts of Phoenix, Guadalupe and — last month — in Mesa.
The Sensings did not respond to requests for an interview despite Tribune reporters calling them on the phone and visiting their furniture store.
In July 2007, the sheriff’s office opened an illegal immigration hotline that allowed people to call in complaints. MCSO officials say thousands of calls flooded the system, primarily about day laborers.
Arpaio says his office has not reacted to residents’ individual complaints about loitering illegal immigrants. But arrest reports show deputies have repeatedly responded with large-scale patrols when business owners call from Fountain Hills and Phoenix.
“Whether you call that evidence or not, I don’t know,” Arpaio said. “It’s intelligence we are receiving, so we don’t act on it all the time.”
Early this year, Guadalupe residents saw a marked increase in the amount of dealing in their neighborhoods, and pushed the sheriff’s office for more enforcement, said Santino Bernasconi, a member of the town’s public safety committee.
Instead, in early April, MCSO sent its human smuggling unit to the urban community of Hispanics and Yaqui Indians for a saturation patrol. Deputies stopped vehicles for minor traffic offenses in order to question the occupants about their immigration status, reports show.
“We got some calls on some of these violent crimes that were illegals. So I figured, ‘Wait a minute. We have a crime problem, illegal immigration probably, so let’s do suppression there,” Arpaio said.
Brian Sands, the MCSO law enforcement chief, said rising crime figures for the town justified the operation.
However, the monthly reports on criminal activity that the sheriff’s office provides to Guadalupe only show an increase in aggravated assaults and burglaries, not the kinds of crimes that officers would address through a sweep.
Then in June, dozens of MCSO deputies conducted a long anticipated two-day sweep through Mesa. This time, the operation came at the request of seven East Valley lawmakers who wrote a letter to Arpaio in April asking for immigration enforcement in their communities. One of the legislators was Rep. Russell Pearce, R-Mesa, who last year helped se more than $1 million in state funding for MCSO’s immigration work.
The Mesa sweeps were a favor to officials who helped the sheriff’s office, Arpaio told the Tribune after the letter was made public.
“I have a strange old philosophy that if someone does something for you, gives you resources, gives you money, I think if they want something back, we ought to do it,” he said.
Pearce said the quid pro quo of immigration enforcement in exchange for state taxpayer dollars was appropriate.
“That’s what they’re for,” said Pearce, a former MCSO deputy himself. “It was approved by the Legislature. I expect him to use those funds for what they’re there for — that’s enforcement.”
ICE officials declined to comment on Arpaio’s statements about the Mesa operations, during which deputies used their federal powers to apprehend 28 illegal immigrants.
“We don’t respond to a politician’s public comments,” Picard said.
In 1996, Congress changed federal immigration law to allow ICE, then called the Immigration and Naturalization Service, to partner with state and local police. The provision — named “287(g)” after the section of law that created it — certifies local officers as federal immigration agents once they’ve received training.
But ICE didn’t partner with a single police department until 2003.
The few that expressed interest in such partnerships never followed through, said Doris Meissner, INS commissioner during the Clinton administration.
At the time, much of the country opposed aggressive immigration enforcement, she said.
And INS outright prohibited its agents from targeting day laborers after the infamous “Chandler Roundup,” a 1997 operation in the East Valley city where the Hispanic population was growing quickly.
In July 1997, the U.S. Border Patrol teamed with the Chandler Police Department to arrest illegal immigrants. In one week, officers arrested 432 illegal immigrants and stopped hundreds of other Hispanic citizens.
The operation met with local and national outrage over the civil rights violations, and lawsuits soon followed. In a settlement stemming from the roundup, Chandler agreed to never again allow its police department to enforce federal immigration law. And MCSO has not conducted any sweeps in Chandler.
But other communities that had been hesitant to tackle immigration enforcement found themselves in a different situation after the Sept. 11, 2001, terrorist attacks.
“That changed after 9/11, when there was much more emphasis placed on the links between immigration and national security.” Meissner said.
The Florida Department of Law Enforcement stepped up first.
Several of the terrorists who participated in the 9/11 attacks had lived in Florida with expired visas. The state agency wanted the ability to make immigration arrests if, in the course of regular police work, officers came across people in the country illegally.
The federal government was happy for the help. ICE is chronically understaffed, as was its predecessor, the INS, said Kris Kobach, former special counsel to the U.S. Attorney General.
In that job from 2001 to 2003, Kobach helped negotiate ICE’s first two partnerships with state police agencies in Florida and Alabama.
Alabama had only three ICE agents stationed there in 2003, Kobach said, when the state’s department of public safety applied to partner with the immigration agency.
Today, 60 of Alabama’s state troopers have the authority to make federal immigration arrests. The troopers do not conduct operations specifically targeting illegal immigrants, said Dorris Teague, a spokeswoman for the Alabama agency, but check the legal status of those they stop in the course of their regular duties.
Teague said her agency specifically does not do large-scale operations or raids.
“This doesn’t interfere with the troopers’ normal duties, but it does enhance immigration enforcement,” Teague said.
What Alabama is doing is what ICE had in mind when it first started partnering with local police.
Three years ago, a top ICE official told Congress the agency would prevent local police from undertaking the kind of work MCSO now does.
Paul M. Kilcoyne, then an assistant director of investigations for ICE, told lawmakers in July 2005 the partnerships were intended to assist the federal agency’s work.
ICE’s field offices would keep close watch on the local officers they train so “that we are not out there doing roundups or just general immigration work,” Kilcoyne said in testimony before the House homeland security committee.
MCSO’s contract with the federal agency supports that expectation. It stipulates that ICE agents will “supervise and direct” deputies when they conduct immigration operations.
But that’s not happening.
The sheriff’s office files reports to ICE when it makes illegal immigration arrests, but agents are not present. “We obviously don’t supervise them doing their operations,” said Kidd, the ICE agent who oversees the partnership with MCSO.
Lack of close supervision isn’t the only area where ICE isn’t making MCSO follow the rules.
In September, the federal agency said local police cannot use traffic stops to make immigration arrests.
That month, ICE released a fact sheet about its “287(g)” partnerships that details what local police can and cannot do under the program.
“Officers trained and certified in the 287(g) program may use their authority when dealing with someone suspected of a state crime that is more than a traffic offense,” the document said.
Since October, deputies have used their ICE authority to make federal immigration arrests on several hundred occasions during traffic stops for minor offenses, like cracked windshields and failure to signal a turn, MCSO reports show.
ICE officials declined to explain the discrepancy.
“I know this isn’t quite what you are looking for, but ICE has decided that we have provided sufficient input for your article,” Picard wrote in response to the Tribune’s questions.
The agency has since removed the September fact sheet from its Web site and replaced it with a document that does not discuss when local police can use their federal powers.
Sweeps and saturation patrols have generated the most public reaction — and media coverage — but roving patrols are MCSO deputies’ primary tactic for arresting illegal immigrants.
Throughout 2006 and most of 2007, the human smuggling unit used roving patrols alone to make hundreds of arrests under the state anti-human smuggling law.
Roving patrols normally begin after dark and concentrate on the largely empty roadways human smugglers use to enter and leave the county, MCSO arrest reports show. Deputies look for vehicles that might carry illegal immigrants — large vans and SUVs, particularly those with darkened windows or sagging rear bumpers.
The U.S. Border Patrol has used the tactic periodically for years, often attracting controversy.
Nearly every aspect of roving patrols point to racial profiling, said Marjorie Zatz, director of Arizona State University’s School of Justice and Social Inquiry.
“They’re trying to go after smugglers, but they’re picking up disproportionately Latinos, whether they’re smuggling or not,” Zatz said.
While civil rights groups speak out against it, in 2002, the U.S. Supreme Court ruled that experienced border agents can make traffic stops based on “articulable facts.”
Those include the characteristics of vehicles and their occupants.
David Stoddard was the agent involved in that pivotal case and worked for the Border Patrol in Tucson for more than 20 years.
Evidence can come in the form of evasive driving or tortilla wrappers thrown out car windows, said Stoddard, who supports Arpaio’s operations.
“The officer on roving patrol categorizes these articulable facts and he can put down on paper to present in a court of law his reasons to make the stop, or make an arrest,” Stoddard said.
In interviews, top MCSO officials including Arpaio don’t seem to be aware of the Supreme Court ruling and the leeway it gave officers in the field.
Sheriff’s deputies don’t cite such evidence when making immigration stops. Instead, the human smuggling unit lists minor traffic offenses as probable cause during roving patrols as well.
“You can’t stop a car unless you have a violation of criminal or traffic laws,” Sousa, head of the unit, said.
Sands, the MCSO law enforcement chief, said deputies should be trying to come up with probable cause beyond suspicion of immigration violations.
“A lot of our guys have made so many arrests, our human smuggling people, that they are now experts in that field, although they typically don’t like to make contact without some kind of contextual reason to do that,” Sands said.
And the probable causes they do cite were little more than afterthoughts once they decide to make a stop, internal e-mails and interviews with MCSO’s human smuggling detectives show.
During 2006 and 2007, deputies cited license plate issues on nearly a third of the 71 traffic stops that led to human smuggling arrests, according to a database of the sheriff’s criminal immigration arrests. Burned-out license plate lights alone accounted for 10 percent of the deputies’ probable causes.
MCSO officials insist they do not racially profile and are operating within the law. “We’re very cautious. We’re going the extra mile on this,” Arpaio said.
But the fact that deputies must search for probable cause to justify traffic stops is, itself, the problem, said Marjorie Zatz, the ASU justice professor.
“They’re not looking for everyone who’s speeding, everyone who’s changing lanes and then saying, ‘Oh, some of these people are undocumented,’” she said. “They’re instead trying to find a way to go after as many undocumented people as they can. That’s what makes it racial profiling.”