April 21, 2000


Checkpoints...Papers and the Courts

By Raoul Lowery Contreras

Is it possible that the expensive charade played out every day throughout the American Southwest may be coming to an inglorious end? The charade is the ersatz imitation of roaming patrols and checkpoints made famous by the Nazi Gestapo of Germany. At this time and in this place, however, the patrols and checkers are United States officers of the Border Patrol.

The Southwest, in particular in San Diego County at the San Clemente, Temecula, Highway 94 and Interstate 8 Border Patrol checkpoints, is dotted with Gestapo-like checkpoints where anyone the Border Patrol wants to hassle and harass is subject to everything from warrantless searches to strip searches.

Are these checkpoints running out of time? The 9th Circuit Court of Appeals, just one step shy of the United States Supreme Court, has ruled in the U.S. vs German Espinoza Montero Camargo that the Border Patrol cannot "profile" (stop, frisk and arrest) Hispanic-looking people just because they look "Hispanic." Oops, is this a speed bump for those who defend cops/officers who use color and ethnicity instead of thorough police work to stop and/or arrest people? Is this an impenetrable legal wall that "profiling" believers won't be able to ignore as they have so many times before when judges have clamped down on these badge-wearing lawbreakers?

The decision covers all Border Patrol officers in the West and Southwest and puts them on notice that they can't pull people over just because they look Hispanic. Sure, they can pull people over if they do suspicious things like do a quick U-turn before a checkpoint, use dusty side roads off the Interstate, or throw out contraband during a chase. But, they can no longer pull someone over because they look Hispanic which, by the way, along the Mexican border means looking Mexican.

"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," wrote Judge Stephen Reinhardt for the the majority seven judges of the eleven judge panel that heard the case. Is the "profiling" by federal officers a giant institutional hate crime against millions of people?

Further, "Such stops, " wrote the court, "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 individuals second."

University of Toledo professor, David A. Harris, an expert on "racial profiling" says, "It is significant any time a court stands up and says that taking note of ethnicity as a mark of criminal activity is wrong."

More importantly, Harris says, "For too long, judges, not just police, have either implicitly or explicitly used race of ethnicity as a proxy for greater propensity to be a criminal."

We have, therefore, a situation here that places legal obstacles in the way of Border Patrol officers who consistently use "driving while Hispanic" as an excuse to stop people, Hispanic looking people. That's what they do at checkpoints throughout the Southwest. They spend all that money and assign dozens of Border Patrol officers to the large checkpoint on Interstate 5 in San Clemente, then brag they catch as many as 50 illegals a day. Whoopee, big deal.

They'll have to stop every tenth or fiftieth car soon, for without the ability to stop criminal looking Hispanics, like me, on a whim, there is no reason for the checkpoints to continue. Moreover, the Court, looking at the huge Mexican-origin population of California, providently wrote, "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."

Good, maybe we can direct those resources and officers where they belong.

Contact Raoul through www.raoul.net

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