By David Bacon
Stand - ACLU Magazine, June 2014
Under the Fourth Amendment, the American people are not generally subject to random and arbitrary stops and searches. But within 100 miles of a U.S. border, these rules don't apply.
Last July, a worker phoned Alejandro Valenzuela, a young staff member at the Southside Workers Center in Tucson, Arizona. The police were at his home, the worker said, and were detaining him for deportation. Valenzuela and a friend drove over to observe - "to make sure his rights were being respected." Over the next half hour the police grew increasingly hostile, demanding identification from Valenzuela, despite the fact that he was not driving the car, which was parked at the curb. They then detained Valenzuela and the worker.
Police then drove the two to Border Patrol headquarters. Neither was ever arrested or accused of a crime. Valenzuela was detained and intensively questioned for five hours, and finally released only when he could show he qualified for Deferred Action, which allows undocumented young people (DREAMers) to apply for deferred deportation and work authorization.. The worker was eventually deported.
The Border Patrol watches from a hilltop next to the fence, in the Constitution-free zone.
"On the street we get stopped and questioned because of the way we look," Valenzuela charges. "It's racial profiling." On his behalf the ACLU filed the first challenge to section 2B of Arizona's infamous SB 1070 "Show me your papers" law, which went into effect in September 2012. It authorizes police to enforce immigration law, and the ACLU argues it "unconstitutionally authorizes and encourages illegal police practices ... the South Tucson police officers' actions amounted to false arrest, violated Alex's right to equal protection of the law and trampled his right to be free from unreasonable seizures."
Tucson is sixty miles from the Mexican border, within a 100-mile zone where immigration authorities say important due process rights can be suspended. "SB 1070 interacts with this 100-mile area to enable these rights violations," explains James Lyall, ACLU staff attorney in Tucson. "It's easy for police to stop people on a pretext, detain them longer than permitted, and turn them over to the Border Patrol." The Valenzuela suit was one of the first actions taken by the ACLU Border Litigation Project, launched to document and litigate civil and human rights cases on the U.S. Mexico border.
Enforcing the "Zone"
Outside of communities like Tucson, the existence of a 100-mile "Constitution-free zone" is not well known. "There, the longstanding view [established in court rulings] is that the normal rules do not apply," according to the ACLU. "For example, the authorities do not need a warrant or probable cause to conduct a 'routine search.'" As of 2008, the zone potentially covered a staggering 197.4 million people-two-thirds of the U.S. population, including nine of the country's 10 largest cities.
In Arizona, the impact is magnified by Federal enforcement and state legislation. Isabel Garcia, Legal Defender for Pima County (which includes Tucson), explains, "In Arizona we've become a laboratory for every kind of anti-immigrant, anti-human [rights] piece of legislation." She points to Proposition 100 that amended the state constitution in November 2006 to permit the detention without bail of any undocumented immigrant accused of a felony. Under state legislation, a felony now includes using a fictitious document or a Social Security number belonging to another person.
The Project has documented other instances of immigration-related police misconduct beyond the 100-mile zone. They include an elderly Latino citizen jailed by Mesa police after picking a bottle from a trashcan, a passenger in a car stopped for a broken taillight taken to immigration authorities by Casa Grande police, a woman interrogated about immigration status after calling Tucson police about domestic violence, and a legal resident questioned about his status by Phoenix police while picking up his impounded car.
ACLU attorney Christine Sun calls the cases "representative of policing problems throughout Arizona." Lyall testified before the Tucson City Council, noting that in May, Federal District Court Judge Murray Snow ruled that Maricopa County Sheriff Joe Arpaio, using policies like those in Tucson, was guilty of systematic and unconstitutional racial profiling.
The ACLU of Arizona made 20 recommendations for changes in Tucson's police practices. The most basic were to prohibit police "from questioning crime victims and witnesses about their immigration status," from "extending any stop or detention solely to await a U.S. Customs and Border Protection (CBP) or ICE response," requiring officers to contact their supervisors before questioning people about immigration status, and to document "the reasons such questioning is believed necessary." According to Arizona Public Media, the council unanimously approved council member Regina Romero's motion to ask police to put public safety above checking immigration status.
Detained and Demeaned
In October, the ACLU demanded an investigation of the Border Patrol, citing five examples of unlawful stops by roving patrols within the 100-mile zone. Although U.S. Customs and Border Protection (CBP) claims broad authority to conduct searches here, the ACLU complaint responds that "the Fourth Amendment's protection against unreasonable searches and seizures extends to protect against unlawful investigatory stops." Some of the documented mistreatment clearly exceeds this standard.
In May, Clarisa Christiansen was stopped by the Border Patrol n the desert west of Tucson, 40 miles north of the border, while driving her five- and seven-year-old children home from school. All are citizens, yet she was threatened with a Taser and knife, forced from her vehicle, interrogated, and left beside the road with a slashed tire.
In April, a Native American woman was tailgated by a Border Patrol vehicle, dragged from her pickup, threatened and manhandled, interrogated and ridiculed, and detained for over an hour on the Tohono O'odham reservation. Other Native Americans have told her of similar treatment.
In March, a tourist from Oregon was threatened, detained and falsely accused of drug possession after hiking at the Fort Bowie Historical Site. A drug-sniffing dog did hundreds of dollars of damage to his car, but when his insurance company sought reimbursement, the CBP claimed the Federal Tort Claims Act "bars recovery for property damaged by CBP employees while the property is under detention."
In May, a Latino citizen farmer was followed and detained on his property by Border Patrol agents holding automatic weapons. Agents trespass frequently, the family complains.
Two years ago, Suzanne Aldridge was stopped just outside of Bisbee, Arizona, 30 miles from the border, dragged from her car, handcuffed, and groped by a Border Patrol agent. Ten vans of agents, police and sheriffs searched her car with a drug-sniffing dog without her consent. She tried to file a complaint, but was given the runaround by CBP representatives.
In September, the ACLU of Washington and the Northwest Immigrant Rights Project settled a lawsuit challenging CBP's roving patrols on the Olympic peninsula, which lies within the 100-mile zone. As in Arizona, the Border Patrol conducted arbitrary vehicle stops, prolonged detentions and other forms of mistreatment. Fourth Amendment protections still apply, the settlement says. "Border Patrol officially agreed to follow the Constitution and not racially profile Latinos and other minorities ... People should not have to fear that they could be stopped and questioned without reason any time they drive or are passengers in cars," said Sarah Dunne, legal director of the ACLU-WA.??
The Heavy Price of Immigration Enforcement
In testimony to September's Congressional ad-hoc hearing on border security, the ACLU detailed other areas in which the Border Patrol violates constitutional rights. In Arizona ports of entry, a May ACLU complaint documented 11 cases involving "unprovoked assaults and verbal abuse, the unwarranted use of handcuffs and shackles, extended and recurring detention, invasive searches, property destruction and confiscation, and denial of food, water and legal representation."
At the state's 11 CBP checkpoints, border residents report numerous unlawful searches, detentions, threats and abuse. The vast majority of detentions are for petty crimes, not immigration, and Federal authorities dump those cases on local courts. Says Santa Cruz County Sheriff Tony Estrada. "They tell us, 'If you don't take them, we're going to take your [Federal law enforcement] funding away.'"
Abuse in CBP custody is rampant. A recent University of Arizona report revealed that 11 percent of deportees reported physical abuse by U.S. authorities, 23 percent experienced verbal abuse, 45 percent received insufficient food, 39 percent had their possessions confiscated and 29 percent had their identification documents taken and not returned.
The worst abuse is deadly. Since 2010, 20 people have died as a result of CBP use of force. Sixteen-year-old Jose Antonio Elena Rodriguez-standing on Mexico soil-was shot seven times in the back in 2012 by an agent firing across the border at Nogales, Arizona. Nineteen-year-old Carlos LaMadrid was shot four times in the back while running toward Mexico at Douglas. Ramses Barron Torres was shot while simply standing in Mexico. The Department of Justice would not prosecute agents in the LaMadrid and Barron killings, and is still investigating the death of Elena Rodriguez.
One other product of the Constitution-free zone is the Operation Streamline courtroom, where every day 70 young people are brought before a Federal District Court judge, chained at their wrists, waists and ankles, and pressured into pleading guilty to criminal charges of illegal entry or reentry. "These proceedings offend fundamental principles of due process," the ACLU testified.
"We just closed our post office in Tucson because it cost $14 million a year to run, and lost 400 jobs," charges Garcia. "We closed eleven schools because the Tucson district had a shortfall of $17 million. Yet we pay Corrections Corporation of America $11 million a month to house these migrants."
The ACLU testimony made seven recommendations for humane reform. They include increasing CBP oversight, preventing excessive use of force, reducing the high number of border crossing deaths, increasing detention standards and inspections, discouraging local and state authorities' involvement in immigration enforcement, abolishing the Operation Streamline court, and reducing CBP's "zone of authority" from 100 miles to 25 miles from the border.
Tucson résidents protest against abuse by Phoenix Sheriff Joe Arpaio.
Let Them Go!
In October, community anger in Tucson finally boiled over when police stopped a car in front of the Southside Worker Center. The ACLU and other organizations charge that, especially since passage of S 1070, police often find pretexts to stop vehicles they believe are carrying undocumented people, and then hold them for deportation.
In this case, police called the Border Patrol after detaining the car's occupants, who then put them into a CBP truck. A local migrant family organization, Corazon de Tucson (Tucson's Heart), urged people to come protest. In an act of civil disobedience, some 60 people surrounded the vehicle carrying the two detained migrants. People from the nearby Presbyterian Church came out in support. They peacefully held hands, chanting, "Let them go!" as the Border Patrol and police responded by shoving people and using pepper spray. Eventually the two were taken to detention.
Alejandro Valenzuela says, "We're tired of being arrested for no reason. These were people we knew. We wanted to prevent them from being taken from their community and family." Three days later, in further civil disobedience, demonstrators blocked busses taking detainees into the Federal courthouse, chaining themselves to their wheels. The day's session of the Operation Streamline court was cancelled, and 17 demonstrators were arrested. Similar acts of civil disobedience, blocking busses carrying people for deportation, have taken place in Phoenix, San Francisco, Chicago, San Diego and Austin, among other cities. They respond to the fact that in the last five years, two million people have been deported from the U.S.
In December, Tucson Congressman Raul Grijalva was one of 27 signing a letter to President Obama opposing mass deportations. "Criminalizing American families or giving local law enforcement the responsibility to choose who stays and who goes is not the right option," they said. Whether in court, in Congress or in the streets, the denial of rights in Arizona is being challenged and that challenge is growing.
Three facts about the Constitution-Free Zone
In the "Constitution-free zone," Border Patrol agents don't need a warrant or probable cause to conduct a "routine search." All travelers crossing a border are assigned a risk assessment score that will be retained for 40 years.
The Border Patrol can put a checkpoint anywhere in the Constitution-free zone (think Fifth Avenue!). "One hundred air miles is still, technically, the border," says Leslie Lawson from the Nogales Border Patrol Station. Everyone at a checkpoint must answer questions about citizenship status.
The Constitution-free zone extends 100 miles from any U.S. border. Two-thirds of the U.S. population (197.4 million in 2008) lives within this zone, which includes nine of the 10 largest metropolitan areas, and the entire populations of: Connecticut, Delaware, Washington, D.C., Florida, Hawaii, Maine, Massachusetts, Michigan, New Hampshire, New Jersey and Rhode Island; and over 90 percent of: California, Maryland, New York, Vermont and Washington.