The Constitution and Racial Profiling

The Constitutional issues surrounding the arrests and deportations in Irving can be a little confusing, so I thought I'd throw a short note up about what authorities are and are not permitted to do when they're thinking about arresting someone or pulling someone over for a traffic stop.

First of all, it's important to remember that police can't stop someone who's Hispanic just because they suspect he might be an illegal immigrant. In fact, police can't stop you at all and question you absent some reasonable suspicion that you're up to no good, and they're not permitted to stop you and demand I.D. unless they have a reasonable suspicion for doing so. And it's discriminatory to target Hispanics just because they're more likely to be illegal immigrants, absent-against-some reasonable suspicion that the particular person their stopping is up to no good (though that doesn't mean police aren't doing it, if you see the link to Nat-Wu's post above.) So how are these people in Irving being arrested in the first place?

Well clearly, you can be arrested for committing a crime, either with or without a warrant. But then, the police just about always arrest people for committing crimes. So the real question is, have the number of Hispanics being arrested gone up? According to the story Nat-Wu linked to, the Irving city manager admitted that 300 of the people who've been detained and turned over to ICE for deportation were detained during traffic stops. Now you may not know this, but under both the U.S. Constitution and Texas law, police are permitted to make pretextual traffic stops. What this means is that if the cops want to pull you over because they think you're a drug dealer and are hiding some drugs in your car but they can't prove that just by watching you drive by, they can pull you over so long as they have another reason for pulling you over, like if you make an illegal U-turn or fail to use a turn signal. And you may not know this either, but under both the U.S. Constitution and Texas law, police are also permitted to arrest you for a traffic offense, no matter how minor, including an offense as minor as failure to wear a seat-belt or failure to carry insurance. And if they arrest you, they can search your car incident to that arrest even without your consent, and even if the search has nothing to do with the reason that they stopped and arrested you.

As you can well imagine, combining all of these factors means that police can essentially justify pulling you over, arresting you and searching your vehicle for even the most minor of traffic offenses, and it doesn't matter if the real reason their doing it has more to do with what else they suspect you're up to, including being an illegal immigrant.

Why does this matter? Because it makes it very difficult to prove that the police are engaging in discriminatory racial profiling in any particular instance. The only possible way you can even show a pattern of racial profiling is by looking at figures related to traffic stops and arrests. According to this Ft. Worth Star Telegram article, Hispanics in Irving made up about a third of those pulled over in traffic stops in 2006. However, of the non-consent searches conducted following these stops, about half of them involved Hispanics, whereas only about 1/3 involved Caucasians. Why is it that while more Caucasians were pulled over, more Hispanics were searched? Who knows? And it's very difficult to know, thanks to the U.S. Supreme Court and Texas law.

Now as near as I can tell reading about the Criminal Alien Program in Irving, officials from ICE can only review the status of suspected illegal immigrants once they are detained and held in a city jail. This gives police on the streets every incentive to pull over Hispanics over any traffic offense, arrest them, and have them taken down to the city jail so that ICE officials can eventually get around to checking their status.

Again, the numbers are key. Right now stats are insufficient to get a good picture of what's going on. One would need to know how many Hispanics are being arrested and what they're being arrested for to even get a sense of what's really going on in Irving, and those figures just aren't readily available. A jump in the arrest of Hispanics for all reasons and in all circumstances would be deeply suspicious. But a jump in the number of Hispanics being detained after traffic stops would also be extremely suspicious. And questioning and arrest of Hispanics solely based on suspicion over their immigration status-absent any other crime-would be unconstitutional.

Either way, it can't be forgotten that whatever the justification for the traffic stops and arrests, the Irving City Council has made the conscious decision to start looking into the immigration status of those they arrest, and referring them to ICE when their status can't be determined, something that most cities in America don't look into. And in doing so, they've given themselves all the incentive in the world to start pulling people over and arresting them based solely on suspicion of their immigration status. Why would they start doing that now? Well...that's an excellent question.