Racial-Profiling Trial: Former MCSO Deputy Testifies

ARIZONA REPUBLIC

By JJ Hensley

August 1, 2012

http://www.azcentral.com/arizonarepublic/local/articles/2012/08/01/20120801arizona-arpaio-racial-profiling-trial-traffic-stop-focus-testimony.html

The question has come from Sheriff Joe Arpaio's supporters time and again as he embarked on his immigration-enforcement efforts in recent years: "What part of 'illegal' don't you understand?"

That question has not come up once during the racial-profiling trial involving the Sheriff's Office, which is scheduled to wrap up in federal court today. The court instead has focused on the training and supervision of sheriff's deputies and the policies the office has put in place to deter deputies from discriminating.

Attorneys for the plaintiffs, who accuse Arpaio's agency of systemic discrimination against Latino residents, have pointed out that the office does not have a policy in place that bars racial profiling.

On Wednesday, former Phoenix Police Assistant Chief Bennie Click, retained by the Sheriff's Office as an expert in the case, said the agency did not necessarily need a policy that spells out a prohibition against racial profiling because other directives address the issue.

Click specifically pointed to an oath sheriff's deputies take upon joining the agency.

"It requires that deputies protect people's constitutional rights," Click said.

One of Arpaio's attorneys asked if Click was talking only about protecting the rights of legal residents.

"I'm talking about all people," Click said.

U.S. District Judge Murray Snow will begin weighing whether deputies lived up to that oath following the scheduled close of the trial this afternoon. Both parties are expected to submit written closing arguments in the coming weeks. Snow, who is serving as the sole decider of facts in the bench trial, has not indicated when he will issue a ruling.

The questions Snow has posed to sheriff's employees on the witness stand have generally concerned the deputies' experiences in the field and the training and instruction they have received before going on patrol, particularly the kind of intensive "saturation patrols" the Sheriff's Office chose to engage in as a way to contact motorists and potentially capture undocumented immigrants.

Attorneys for the plaintiffs have argued that type of immigration enforcement unreasonably subjected Latino drivers to being stopped and questioned about their immigration status, which, if true, would violate the U.S. Constitution.

In an extended question-and-answer session on Wednesday with one current and one former sheriff's deputy, Snow's queries focused on whether deputies routinely ask for identification from every passenger in vehicles they stop -- or just those they suspect of being in the country illegally.

Deputies throughout the trial have testified that asking passengers to identify themselves is standard practice and a step they take for their own safety. Passengers are not obligated to carry identification or provide their names to law-enforcement personnel, the deputies said.

In particular, Snow wanted to know why, during a 2007 operation in Mesa, former sheriff's Deputy Doug Beeks decided to call deputies who were federally trained in immigration enforcement to help him.

Beeks, who was not federally trained in immigration enforcement until 2009, made a traffic stop during a saturation patrol. Following Beeks' testimony, Snow pulled out a log of arrests made in Mesa during the 2007 operation and asked Beeks to explain his reasoning.

The log indicated that Beeks had stopped a Hispanic driver for speeding, but the driver was charged with failure to produce identification. Federally trained deputies later determined the driver was in the country illegally, along with two of his passengers.

Snow asked Beeks a pointed question that went to the heart of the equal-protection issue: "Do you call (federally trained) 287(g) officers anytime you stop someone who does not have valid United States identification?"

Beeks replied, "No."

Snow followed up: "Was it your habit to call 287(g) officers anytime you stopped someone in saturation patrol who didn't have valid identification?"

Beeks again replied, "No."

The sheriff's attorneys have had every deputy on the stand talk about his or her understanding of why racial profiling is improper.

The agency does not have a policy specifically barring the practice nor any reliable internal method of ensuring it is not taking place. But deputies and sheriff's administrators have said they trust deputies and assume citizen complaints about discriminatory policing would come to the Sheriff's Office if it occurs.

Several residents who allege racial profiling have testified that their attempts to register complaints were met with resistance or indifference.

Click, who served as Dallas police chief after leaving Phoenix in 1993, said on Wednesday that the sheriff's policies regulating deputies' behavior in the field meet national standards, and the instructions offered to deputies before embarking on saturation patrols were more than adequate.

"I would be surprised anywhere in the United States if you could find an officer who didn't understand that racial profiling is inappropriate and unlawful," Click said.

A police-practices expert retained by the plaintiffs drew the exact opposite conclusion. That was particularly the case when it came to citizen complaints about Hispanic men in certain areas of the Valley and the sheriff's saturation patrols that later appeared in some of those same areas, according to a report filed in the case.

"It is contrary to generally accepted law enforcement practice for Sheriff Arpaio to circulate to his staff, for their consideration and use in enforcement activities, communications that expressly call for the use of racial profiling or stereotyping and/or express the need for enforcement in racial or ethnic terms," Richard Stewart, a consultant, wrote. "In fact, I have never seen anything like this."

Arpaio's attorneys have indicated in court that the sheriff's policies offer some protection against the allegation that the agency systemically discriminates against Latino residents.

Having policies against profiling will offer the Sheriff's Office some protection in court, said David Harris, a University of Pittsburgh professor and racial-profiling expert. But other evidence could weigh more heavily.

"Having the policies themselves only takes Sheriff Joe so far; his actions tell the real tale, and his actions also set the tone for the entire department," Harris said. "If the policies were saying one thing and the sheriff and his command staff were doing another, simply having the policies won't protect him."