Debate Over Arpaio Policing Kicks Off In Phoenix
Maricopa County Sheriff Joe Arpaio in a file photo from May 2012.
Al Macias
June 13, 2013

PHOENIX -- The Latino plaintiffs who sued Sheriff Joe Arpaio for racial profiling back in 2007, weren’t suing over money, but rather for meaningful change at the Maricopa County Sheriff’s Office.

And since May 24, when U.S. Federal District Judge Murray Snow issued a 142-page ruling against the office and its leader Sheriff Joe Arpaio, things have begun to change.

Snow found the Sheriff's immigration enforcement overstepped the law, and named seven things Sheriff’s deputies aren’t allowed to do during traffic stops involving Latino motorists.

Friday morning, both sides will meet with Snow to discuss permanent policy changes to ensure the Sheriff's office complies with the order. It will be the first face to face meeting with the judge since he issued his ruling.

Arpaio’s lawyer Tim Casey said the key is that, “the MCSO cannot and will not be in the enforcement of federal immigration law."

Casey said that means for deputies making patrols "if they come across people that are here in the country unlawfully, unless there is probable cause that they have committed a crime — a crime — they cannot detain those persons.”

Simply being in the country unlawfully is not enough to merit detention or arrest.

MCSO previously had authority to carry out certain federal immigration tasks, but the Department of Homeland Security ultimately stripped the office of all of those powers. Nevertheless, the office continued to engage in immigration-related enforcement.

Furthermore, Snow found the Sheriff's deputies violated the law by considering race as a factor when deciding whether to investigate immigration status, and other law enforcement decisions.

Since the ruling, MCSO has temporarily suspended human smuggling patrols on highways, as well as operations that target unauthorized immigrants working with fraudulent documents.

“It is probably not a prudent thing to go out there and do some of these things until we can have the training the court believes we need to have,” Casey said. “So we can do it constitutionally, and that we can give assurances to the community that we are not going to be infringing on any people's rights, particularly Latino Americans.”

There’s also been a notable change in tone in the sheriff’s communications. The agency used to publicize arrests of “illegal aliens” on human smuggling and drug charges, but lately it’s announcing what it’s calling “rescues” of border crossers lost in the desert.

The Sheriff's response to the ruling is a marked departure from the past, when he reacted to legal action or reprimands with defiance.

“Sheriff Arpaio's history has been that he does not take well to being told that he has to change what he is doing,” said David Harris, a law professor specializing in racial profiling at the University of Pittsburgh. “He doesn’t answer to anyone, and the fact that he is in this position now is a new thing.”

Judge Snow instructed Arpaio’s attorneys and the ACLU who represents plaintiffs, to consider to what extent the office should further train its deputies to abstain from racial profiling, record information about stops deputies make, and the degree to which the office should be supervised.

Supervision could come in the form of an appointed, independent monitor to oversee the Sheriff’s Office. It promises to be among the most contentious issues.

Already the two sides have been negotiating privately in an effort to find areas where they can agree.

UC Davis Law School Dean Kevin Johnson said the key question will be whether the settlement “will have enough teeth to enforce the letter of the law.”

What is certain, though, is this case will set important precedent.

“It is certainly going to be the case that people think of when they talk about limiting racial profiling in immigration,” Harris said.

The ruling only applies in Arizona, but it's being watched by law enforcement experts around the country.

Johnson suggested the ruling puts “in jeopardy” the practice by local or state police of making immigration related arrests or detentions.

Arpaio’s team indicated they will appeal. But Attorney Tim Casey says that doesn’t mean the Sheriff wants to racially profile.

“The order is going to have a great deal of precedent setting value,” Casey said. “Not only for this office at the MCSO, but through local law enforcement throughout the country, and you want to make sure those legal areas are proper.”

Those questions could include how much coordination there can be between local police and federal immigration agents, and the question of state's rights.

One person who will be watching closely is Kansas Secretary of State, Kris Kobach. He helped train MCSO, and also was behind Arizona’s strict immigration law, SB 1070. The ruling debunks his philosophy that local law enforcement have inherent authority to make immigration arrests.

“The extent of the judge's injunction is excessive,” Kobach said. “And also the injunction would cripple federal-state cooperation in immigration enforcement.”

Meanwhile, plans by the Sheriff to appeal have prompted another fight.

Activists and state legislators belonging to the Latino caucus are calling on Maricopa County Board of Supervisors to refuse funding to pay for an appeal.

Arpaio’s legal defense on this case has already cost the county $1,025,241.46 as of May 31. And since the losing side must pay opposing counsel’s legal fees, that figure is likely to double when the plaintiffs’ lawyers fees are added.

Maricopa County Attorney Bill Montgomery is currently researching the Board of Supervisor’s authority on issues surrounding the appeal and its cost.