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.

I Dare You

FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON.

Reasonable suspicion? I wonder what that means. I wonder what an illegal immigrant does or says to cause reasonable suspicion. What are the guidelines that law enforcement would use to determine reasonable suspicion? I suspect that if no guidelines are in place, skin color and income level will provide all the suspicion necessary for potentially harrassing Mexicans, Mexican Americans, Native Americans and other ethnicities who might fit the profile of a Mexican undocumented worker.

Last night when I got home I checked my Facebook and noticed that some of my friends had marched in the huge rally protesting Arizona's recently passed SB1070, a portion of which is shown above. The rally took place in L.A. but I'm in Arizona. I felt useless and frustrated at not being able to march side by side with them but as I set out to walk my dog, an idea came to me. A friend of my husband's, who happens to be a very prominent business owner in Arizona, was complaining about the new immigration law. The businessman, who is of Jewish ancestry, started talking about the similarities between the legitimization that this new law gives to racial profiling and the racial profiling done at the onset of the Nazis' persecution of Jews.

"They might as well pass out stars for people to wear on their clothes," he said. Of course, we don't have to wear stars because I'm sure law enforcement can figure out who is an illegal immigrant just by looking at us, right? I agree with the fellow who said that this law is not anti-immigrant, it's anti-Mexican, because if you have blue eyes and fair skin, you probably ain't getting pulled over by the sheriff; you European immigrants are safe in Arizona.

It must be the former teacher in me but I was all about the yellow stars. What if I were to wear a yellow star that said "Mexican" on my clothes? Would it remind people how dangerous racial profiling can be? Now, I'm not comparing this anti-illegal immigration law to the Holocaust. I certainly do not mean to trivialize the millions who died but I think it honors those whose lives were lost through inaction that we learn from the past. These are the little things that pave the way for tyrants. So, I thought to myself that I had to help people see the connection. I've cut out a star for myself which I plan to wear on my clothing when I go about my daily business.

It says simply: "Profile This."

It may seem like a quiet way to protest but I assure you in my mostly Republican, anti-immigrant community of Phoenix/Scottsdale, it's going to upset the apple cart and will take a lot more guts than walking with my friends in a march. So wish me luck and if you drive through Arizona or live here, feel free to make your own star and wear it on your lapel. I dare you!