Wednesday, August 04, 2010

The Supreme Court and Racial Profiling, A Precedent for Prejudice

Ever since I first read Arizona SB1070, I’ve been telling myself that Arizona was alone in its desire to trample on my rights in the name of protecting our borders. I was surprised when I saw that polls showed that a majority of Americans supported the law. Perhaps people believe Jan Brewer when she says that she will not tolerate racial profiling and that the framework for the law is based on Federal guidelines, I was not so sure. I could see that there was a lot of room for abuse and hoped that eventually the Supreme Court would step in and ensure that I receive equal protection, under the 14th Amendment, from the discriminatory practice of racial profiling. Sadly, the more I read about the U.S. Supreme Court’s decisions dealing with racial profiling, the less confident I am that they’re looking out for my welfare.

The court has a history of permitting racial profiling. Let me take you back to 1944, one of the bleakest periods in American legal history, to Korematsu v. United States, the landmark decision which affirmed the constitutionality of stripping Japanese Americans of their belongings and sending them off to internment camps during World War II. This decision allowed racial discrimination in the name of protecting the nation from possible spies. Justice Frank Murphy in his dissenting opinion compared the rationale behind this decision to "the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy," i.e. Nazi Germany. I concur.

Let’s move forward to 1968, when the Supreme Court decided the landmark case of Terry v. Ohio. This decision allowed police officers to detain and search a person without a search warrant if the officer had a reasonable belief that the person was armed. The practice is now so common among law enforcement officers that the stop, frisk and search routine is known simply as a “Terry stop.” What does this have to do with racial profiling, you ask? Only that a disproportionately large number of Terry stops involved black and brown suspects. In the ABC network’s investigative piece, Driving While Black we see a group of three young black men pulled over for a Terry stop because they change lanes without signaling. They’re made to get out of the car, are frisked, separated and their car is thoroughly searched without their consent. The young men, who have all been pulled over before without provocation, claim it is a common experience among African Americans. In 1999, the New Jersey State Police admitted to stopping and detaining a disproportionately large number of black men using the Terry stop. The real infraction that these men committed is known as DWB - Driving While Black.

But back to what brought me here, specifically racial profiling as it relates to illegal immigration. In 1975 the U.S. Supreme Court ruled in the United States v. Brignoni-Ponce case that U.S. Border Patrol officers should be allowed to stop cars that were near the Mexican/U.S. border and question the occupants regarding their immigration status if the occupants appeared to be of Mexican ancestry and there existed articulable facts that warranted suspicion. Examples of these articulable facts include but are not limited to proximity to the border, the make of the car being driven, the dress and haircut of the driver. Talk about judging a book by its cover! So let me get this straight, if you have brown skin, drive an older car and don’t have expensive clothes prepare to stop?

Are these the federal precedents that SB 1070 is based on? If so what happened to “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."? That’s from the 14th Amendment to the US Constitution, a document I treasure and respect. If SB1070 goes to the Supreme Court will the court acknowledge that racial profiling violates the 14th Amendment or will they continue to let fear of spies, of terrorists, of drug lords and illegal immigrants eat away at the very foundation upon which this nation is built? I suppose it’s more likely that SB 1070 will go down because the federal government rather than state government has the final word over immigration and naturalization laws but it would be a much sweeter victory if we could admit that racial profiling has been permitted for far too long.


Anonymous said...

Well... Even if we can admit that racial profiling has been permitted for far too long, that's not really going to do anything. It won't make up for it or make anyone feel any better.

Tapia said...

Unfortunately, these right-wing, bigoted, zealots are going after the 14th Amendment. Nothing will happen to the Amendment, but it will provide enough red meat for equally frightened nativists (not Native Americans) to go to the polls and vote for more right-wing, bigoted, zealots to do their bidding while making lot of money on kickbacks.