What of Racial Profiling and its Application to Illegal Immigration?
The two thought-provoking words, racial and profiling, may be used together to convey a very sinister tone, especially to someone who has no real idea what racial profiling comprises and how it is used daily in law enforcement as a valid means of apprehending criminal suspects. The old, “let me see your papers, you don’t look Aryan,” anecdotal scenario, as applied to the fascist-Nazi motif, when the trench-coated Gestapo agent grabs the unwitting bearded suspect by the collar and carts him off to a dungeon where the person is tortured for information, is not the correct application of racial profiling in American law enforcement. Instead, imagine an elderly woman mugged on a street corner in downtown San Diego, California during the late afternoon. A police officer arrives on the scene after the mugger flees with the woman’s purse, and asks the bruised and bleeding woman a series of very important questions.
“Who mugged you, ma’am?
“A man,” she replies.”
“Would you describe the man?”
“He was a big man,” she says.
The police officer now asks the question that will really define the search for the mugger and create a racial profile needed in apprehending the mugger.
“Was the man white, black, Hispanic, Oriental, or Middle-Eastern?”
She replies, “Oh, he was a big tall black man, probably in his late forties, with half of an ear missing. He also had a thick black beard, a mustache, and a hand-gun.”
Now, grant you, most victims of muggings are not as descriptively glib and as emotionally responsive as this particular example of an elderly woman, beaten and robbed, conveys, but let’s assume that it happens as stated. The police officer writes his report and gets on his radio and puts out a call for all officers in that particular vicinity of San Diego to be on the lookout for an armed, bearded, mustached black man in his late forties, with half-an-ear missing. So, who, then, will the responding police officers be considering as suspects, white men, Hispanic men, Middle-Eastern men, or Orientals? None of these will be considered as suspects. Law enforcement will only be looking for black men according to the victim’s description. A black man has been racially profiled in a basic fashion in this fundamental example of how police (local, county, state, and federal) approach the apprehension of any, and all, suspects.
In a racially and ethnically diverse nation, as is the United States, racial profiling is ultimately necessary in the practice of law enforcement when attempting to apprehend and arrest criminal perpetrators, who are members of particular racial or ethnic classes. Determination of skin color is actually only the beginning in the process of profiling. The suspect’s age, height, color of hair, eye color, build, distinguishing marks, ethnically or racially distinguishing behaviors, characteristic clothing, and, even, type of shoes are descriptive factors in addition to skin color, and are merely the physical profiling details delineating parts of a composite profile of a perpetrator. The psychological and behavioral attributes of the perpetrators, when known, must be added to the physical details in order to complete the composite profile. Ultimately, not knowing the race, or skin color, of the perpetrator would yield an incomplete profile and make a successful apprehension of the suspect almost impossible.
In Ireland, for instance, where less than 8 percent of the population is black, racial profiling would be even more delineated, and pronounced, by law enforcement, if the suspect were described as a large black male with half an ear missing. Since there are so few black people in Ireland, and many more people of Middle-Eastern origin, racial profiling there hardly result in indignant cries of racial discrimination from the black community. In most cases, the greater the concentration of a minority population, the greater the chances of indiscriminate and unfair accusations of racial discrimination by that minority when law enforcement uses all available tools. Yet, the process of racial profiling remains ultimately necessary.
Now let’s proceed to the issue of enforcement of immigration laws and apply the factors necessary in profiling in order to derive a determination of “who reasonably fits the description of a Hispanic illegal alien.” First and, foremost, illegal immigration is a federal, and state, crime, as much as shoplifting is a crime, and Hispanic men, women, and adolescent children who violate the law should be apprehended and arrested. Those U.S. citizens who don’t agree with this basic premise are, in effect, advocating anarchy, and comprise a dangerous human microcosm of whim and arbitrariness within a nation of laws. Police officers who attempt to determine who, out of a population of millions of Hispanics, could reasonably be considered an illegal alien suspect, fully realize that a brown skin, or a dark complexion, is, but, one of the characteristics belonging to an Hispanic illegal alien.
So, if, perchance, a person with a brown complexion, and the other innate facial characteristics belonging to a Hispanic racial model, is speeding in a car down an Arizona highway, a police officer knows that that particular individual “might” be an illegal alien, just like the officer realizes that the individual might be a car thief, or an inebriated driver. The racial profiling by law enforcement has, therefore, already begun. When the officer stops the car and approaches it from the rear, he might notice bumper stickers on the automobile advertising a local college or a major university, or parking permits at a hospital or another professional setting. As he will near the driver, after stopping the car, the officer will probably ask him, or her, for a driver’s license, car registration, and proof of insurance. If the diver is Hispanic and replies in fluent English, “Sure officer, here they are,” and hands them through the window to the policeman, the peace officer might continue the conversation by asking if the driver is a student at the college or university displayed on the car. If the driver has nothing to hide, he, or she, will usually respond, either, yes or no in a friendly fashion to the question, which will show that the suspect is almost certainly an American citizen of Hispanic extraction. After perusing the driver’s license, proof of insurance, and registration, the officer will go back to the police car and call the suspects name and license number into the National Crime Identification Center database, where a search for outstanding warrants will be made. Then the officer will call the car’s tag number into another database for identification to see if it might be stolen. If everything checks out to be proper, the officer will return the driver’s documents, with the speeding citation, to him, or her, and finally explain to the driver the appearance that he, or she, has to make at court if the citation is challenged, or the proper way to pay the imposed fine for speeding. This is what ordinarily happens during most traffic stops.
Now, let’s look at the scenario a bit differently. During the traffic stop, the police officer notices, from a distance, that the driver is a Hispanic male, probably in his late 20s. As he walks toward the car, a late model BMW, he sees a bumper sticker saying, Arizona State University Alumnus. Then he approaches the driver and says, “Good evening,” but the driver only smiles and shrugs his shoulders. He also notices that the driver is dressed in dirty kakis and is perspiring heavily. There is also a strong smell of beer, or some other type of alcoholic beverage, coming from the car. He then asks for the driver’s license, registration, and proof of insurance, to which the Hispanic driver only shrugs, grins, and says “No hable.” Then the officer, with his hand on his unsnapped weapon, reaches slowly into the car, through the driver’s window, and takes the keys from the car’s ignition. He then firmly tells the driver, using hand gestures, to stay in the car, to which the driver, again, only grins and shrugs. The officer then proceeds to call in the car’s tag number to discover that the automobile, owned by a teacher, was stolen a day earlier from a parking lot in downtown Phoenix. According to police protocol, the officer calls for backup, that is, another police unit to assist him in what has now become a felony stop. The Hispanic suspect is subsequently arrested for two felonies (car theft and a loaded handgun found in the car’s glove compartment during a search of the vehicle), and four misdemeanors (speeding, driving without a license, driving under the influence of alcohol, and having open containers of alcohol in an automobile) and it is, finally, determined that the Hispanic suspect is an illegal alien with no documentation on his person. Has racial profiling occurred in this scenario? No, it hasn’t. So, let’s change things a bit.
Suppose a call has gone out for all Arizona peace officers to be looking for a late model Mercedes, owned by an Arizona State University professor, which was stolen from a downtown Phoenix parking lot a few hours earlier. A reliable witness, a Hispanic waitress at a restaurant across from the parking lot, said that, on a break, she saw a short Hispanic male, late 20s, in dirty kakis, break into the particular car in the parking lot and drive away at a fast speed. On exiting the parking lot, the car and driver passed so closely by the witness that she was able to see a prominent tattoo on the left side of the man’s face. So, the call goes out for such a suspect. Has racial profiling occurred? Yes. A detailed physical description of the Hispanic perpetrator was provided for law enforcement by a reliable witness. Such a description is the only means of searching for the thief in a large population of Hispanic males. Will the police be looking for white, black, or Oriental males? No, they won’t. It will be confined to only a population of Hispanic men between the ages of 20 and 30, dressed in dirty kakis, with tattoos on the left side of their faces. How many Hispanic aliens in Arizona, illegal or not, might fit this description, hundreds, thousands?
If the perpetrator depicted above is eventually apprehended and arrested, there is a very high probability that he will turn out to be an illegal alien, which will add another misdemeanor, a state and federal misdemeanor, to the charges against him. But does the mere unfolding of routine events in law enforcement make the typical Arizona policeman racist? Do they hate the perpetrator because he has the brown skin of a person of Hispanic origin? No, they don’t. Every Arizona peace office has taken an oath to uphold, protect, and defend the U.S. Constitution and the Constitution of the State of Arizona, and to faithfully enforce all criminal and civil laws legislated by the State of Arizona. This simply means that discovering that a Hispanic suspect is an illegal alien during an investigation and/or arrest for the commission of another crime is merely the correct enforcement of the law. Yet, there is much more to correct and prudent law enforcement to consider than meets the eye.
The true essence of the 4th Amendment, that is, probable cause, supported by oath or affirmation, found by the Framers, as the best, and only, reason for depriving a citizen of his, or her, fundamental God-given right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, was changed, without constitutional amendment by eight justices of the U.S. Supreme Court in the decision Terry v. Ohio 392 U.S. 1 (1968) to reasonable suspicion. Terry v. Ohio (1968), the will of the Earl Warren Court, essentially threw out “probable cause” from the 4th Amendment and made it much easier for all police officers to deprive a citizen of a basic constitutional right that the writers of the U.S. Constitution saw as sacrosanct.
From what we know about the almost unanimous 1968 decision, Chief Justice Earl Warren carefully courted the vote of each of the justices, just as he had done in Brown v. the Board of Education (1954), in order to produce a, hopefully, unanimous vote. To change the letter of the U.S. Constitution, without amendment, the Court had to show unanimity, because the decision, in and of itself, was basically illegal, if it had been subsequently challenged by the U.S. Congress. The only vote Warren was unable to acquire in 1968 was that of the Justice William O. Douglas, who vehemently wrote in his dissenting opinion, “To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment.” (392 U.S. 1, at 38). A few days after the decision was rended, Justice Douglas supposedly quipped to a reporter off-the-cuff that “if the Court can arbitrarily change the 4th Amendment, to read as it wants it to read, what is next, changing the word “respecting” to “denying” in the 1st Amendment?” What amazes me is the immediate, or latent, lack of opposition to the decision by the American people, when a section of the Bill of Rights was altered by the collective whim of eight of the Brethren, instead of by decree of the American electorate through the amendment process.
Hence, police officers have the opportunity to arrest quite a few more criminal suspects without showing probable cause for the arrests. The Terry stop, as police officers routinely call such a routine deprivation of personal liberty, can be made by local, state, and federal enforcers for almost any reason, and all the sworn officers need to do is to write arrest reports, true or otherwise, reflecting that they had “reasonable suspicion’ to support a belief that the suspects had committed crimes, were planning to commit crimes, or were in the process of committing crimes in order to support the Terry stops. If Terry stops are actually unfounded and heinous illegal deprivations of personal liberty, the poor victims of fascist police tactics have the duty of proving such facts in court, and, of course, we know that police officers “never” lie under oath, or otherwise.
Having been a police officer, I felt, during the time I wore a badge, the immense obligation and burden of correctly and prudently enforcing the law, and, in doing so, not depriving citizens of their basic inalienable rights under the law. And during my time spent with the San Diego County Sheriff’s Department, I witnessed more than a few instances of deliberate abuse of, then, Sheriff John Duffy’s voters under the color of police authority by numerous rogue and violent deputies and watch commanders, who, when officially questioned about their abuses, were supported by the lies of other, less violent deputies and Sheriff’s Department officials who didn’t want the insidious title of “rat” attached to them. Though there are many good honorable cops currently in local, county, state, and federal law enforcement agencies, I am sadly afraid, nevertheless, that way too many men and women, under the age of 30, who are overly aggressive, under-educated, and have backgrounds and personalities that will, later-on, conflict, with their prudent enforcement of the law, are currently being hired by these agencies. The type of law enforcement practiced by the thousands of police agencies around the nation is a direct reflection of the basic type of individuals they hire to enforce the law. Many of the same young naturally violent men, and women, who were actively recruited by the U.S. Military to bear arms during Desert Storm, in the 1990s, and during the post-9/11 invasions of Iraq and Afghanistan, are today wearing the uniforms of law enforcement, most of them federal. Many of these returning Vets, who found killing excitingly palatable in Iraq and Afghanistan, are sadly, today, the regular perpetrators of ritual abuse of citizens, and non-citizens, while as sworn peace officers. As the old saying goes, violence breeds continued violence, and the violent abuse under color of authority, committed against suspects by those wearing badges, implicitly conveys to an unwitting public a contradiction of the basic police purpose, to protect and serve.
Let’s take a look at another scenario, where the correct enforcement of Arizona’s illegal immigration law will really matter. Suppose that there is a 7-Eleven store in Mesa, Arizona where, perhaps, fifty Hispanic males gather every morning to be offered work by Arizona contractors, builders, etc. The normal, traditional process is for a potential employer to pull-up to the 7-Eleven in a pick-up, or with a trailer, and shout out the number of workers he, or she, will need for the day. In response to the offer, the requisite number of workers will then jump onto the trailer, or into the pick-up, and the employer will drive quickly away. Consequently, Mesa police officers realize that, of the fifty-or-more Hispanics gathered at the 7-Eleven, a high percentage of them are illegal aliens. In fact, most of the sworn officers of the Mesa Police Department are probably unable, at first sight, to detect the differences between persons of Hispanic descent and those of Middle-Eastern descent. Both have brown, or dark brown, complexions, and both are equally capable of committing crimes. Racial profiling is pretty-much necessary in order to properly distinguish between people of the two racial groups. Police attention is, therefore, immediately drawn to large gatherings of individuals, of any racial or ethnic grouping, in order to determine the legitimate reasons for the gatherings.
Hence, two police officers pull-up to the 7-Eleven in their vehicles, and immediately see ten-or-more of the individuals begin running away from the scene. The officers, using their authority under Terry v. Ohio (1968), reasonably suspect that these men running away are in the commission of a crime, are planning a crime, or have committed a crime. So, they begin a pursuit of the suspects and apprehend three of them, while the others escape immediate scrutiny. One of the three men attempts to resist arrest, and fights the police officers while brandishing a stiletto knife, and is hit about the head and shoulders, and subdued, by one of the officers with a baton. The three men are subsequently handcuffed and placed into the police vehicles for transport to a holding jail. Other officers are called as backup to the 7-Eleven, and of the forty remaining brown skinned individuals, thirty of them are found to be illegal Hispanic aliens, having no documentation showing a legal right to be in the country and unable to speak coherent English. The Hispanic male who pulled the knife during the foot pursuit is, later, found to be the perpetrator of five unsolved residential burglaries that have occurred in the Mesa area. Now, is this an example of racial profiling? Yes it is, but a very legitimate use of the process. As for the safety of the legal residents of the City of Mesa, the investigation of the large gathering of brown-skinned males at the 7-Eleven, made by the police officers, resulted in the arrest of an illegal alien burglar. This made the city much more safe. When apprehension of a criminal suspect is necessary for the sake of public safety, any facet of description that will make it easier for law enforcement to make a valid arrest, especially in cases of serial murder and serial rape, will be found useful.
In summation, racial profiling is very necessary in a multi-racial, multi-ethnic society for law enforcement to properly do its job. It is so important that the FBI and state investigative agencies have established separate behavioral science/profiling departments and training centers. The FBI Academy, at Quantico, Virginia, has trained numerous state and federal profilers to investigate crimes in order to establish credible racial, ethnic, behavioral, forensic, and psychological/behavioral descriptions of suspected perpetrators so that their apprehension will be made easier for law enforcement. Behaviors typically associated with ethnic/racial custom, such as the almost ritual practice of black men touching fists instead of shaking hands, or the various Muslim behavioral rituals, are discreetly analyzed today in profiling when seeking perpetrators of crimes. This is hardly comparable to the untenable accusation made by racists against white police officers of stereotypically stopping black people in late model cars for simply having a black skin, or driving while black (DWB). If Barack Obama, or, for that matter, his Attorney General, Eric Holder, knew anything at all about law enforcement, the President of the United States would not be criticizing Arizona Governor Jan Brewer for signing into law legislation that will allow Arizona peace officers to investigate, apprehend, and arrest those Hispanics in Arizona who fit the description of illegal aliens. Politics and law enforcement have never really blended well. The tragedies of 9/11 and the 9/11 Commission debacle bear this out quite well. It’s sort of like the case of former San Diego mayor, Roger Hedgecock, and his arrest by a San Diego peace office for driving under the influence of alcohol. The arresting officer, for some reason, didn’t know what he should do with the offending inebriated Mayor of San Diego. So, he called his watch commander who ordered him to take the mayor home and put him to bed, and not to jail. Well, this action placed Roger Hedgecock well above the law, and when the people of San Diego found out what had happened, Hedgecock suddenly had to kiss his meteoric political future goodbye.
Of course, U.S. District Court Judge Susan Illston has established a significant 2004 precedent in favor of a standing U.S. President by dismissing a lawsuit brought by a San Francisco attorney Stanley R. Hilton, on behalf of over 160 9/11 victims’ families against George W. Bush and several of his administration, citing “sovereign immunity” as the basis for the dismissal. Sovereign immunity basically means that a standing U.S. President can commit murder while in office and will not have to stand trial for the crime in a federal court. A political, not judicial, process called impeachment is, supposedly, the only way a President can be tried and brought to justice for his crimes, that is, before the U.S. Senate, with the U.S. Supreme Court Chief Justice presiding. But first, there has to be enough political votes in the House of Representatives to indict a standing President. As opposed to a traditional country grand jury, comprised of ordinary citizens, each representative in the House of Representatives has something to politically gain, or lose, by voting yes, or no, to impeachment. Impeachment, therefore, is a thoroughly political process, not one wrought through the channels of criminal justice. The U.S. Constitution does not explicitly say that a President, and his henchmen, cannot be tried civilly in the federal court system for egregious intentional torts, but it doesn’t explicitly say one can. Perhaps this is the reason that Mr. Obama is doing whatever he pleases with no fear of reprisal; and it was the same way with Dubya, Slick Willy & Hillary Clinton, and the duplicitous political actor Ronny Ray Gun.
Racial profiling can be portrayed by sensationally ridiculous political figures, such as Al Sharpton and people like him, as something heinous and reprehensible; but if the good Reverend Sharpton is ever mugged and robbed in a multi-racial/ethnic neighborhood by a large Hispanic man, and the police refuse to accept and broadcast a description of the man’s race, even if Sharpton keeps on whining, insisting that a big “brown” man hit him and took his money, the evening television news will end up saying, “Search underway for big man who mugged Rev. Al Sharpton, race and skin color of the man not a consideration in the manhunt.”
Norton R. Nowlin took M.A. and B.A. degrees in the social and behavioral sciences from the University of Texas at Tyler, studied law for one full year at Thomas Jefferson School of Law, in San Diego, California, was a sworn San Diego County, California, Deputy Sheriff, and earned an ABA-approved advanced paralegal certification from Edmonds Community College, in Lynnwood, Washington. Mr. Nowlin has attended LaJolla, California’s National University and Malibu’s Pepperdine University to attain graduate credits in business management and economics. Mr. Nowlin also attained a Texas State Teaching Certification, in social studies and psychology, from the University of Texas at Tyler. A paralegal, published essayist, poet, and free-lance fiction writer, Mr. Nowlin resides in Northern Virginia with his wife, the renown math tutor, Diane C. Nowlin, and their two very intelligent cats.
About the Author
Norton R. Nowlin took M.A. and B.A. degrees in the social and behavioral sciences from the University of Texas at Tyler, studied law for one full year at Thomas Jefferson School of Law, in San Diego, California, was a sworn San Diego County, California, Deputy Sheriff, and earned an ABA-approved advanced paralegal certification from Edmonds Community College, in Lynnwood, Washington. Mr. Nowlin has attended LaJolla, California’s National University and Malibu’s Pepperdine University to attain graduate credits in business management and economics. Mr. Nowlin also attained a Texas State Teaching Certification, in social studies and psychology, from the University of Texas at Tyler. A paralegal, published essayist, poet, and free-lance fiction writer, Mr. Nowlin resides in Northern Virginia with his wife, the renown math tutor, Diane C. Nowlin, and their two very intelligent cats.
