Arizona court comes down on profiling - East Valley Tribune: News

Arizona court comes down on profiling

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Posted: Thursday, May 5, 2005 6:19 am | Updated: 9:39 am, Fri Oct 7, 2011.

Criminal and traffic cases will be subject to dismissal if defendants can prove they are the victims of racial profiling, the Arizona Supreme Court ruled Wednesday.

Attorneys for the state had argued that the issue of racial profiling is irrelevant to whether offenders are guilty of the criminal charge. People can raise the claim of racial profiling through a civil suit, state attorneys said.

But the justices rejected that argument and said selective enforcement of the law is unacceptable.

"Just as a state cannot enact criminal laws applicable on their face only to Afri- can-Americans or Latinos, neither can its agents enforce facially neutral laws on the basis of race," Justice Andrew Hurwitz wrote. "A state can no more make ‘driving while black’ a crime by means of its enforcement policies than it could by express law."

He said violation of federal equal protection provisions of the constitution can result in dismissal of the criminal charge.

The case involves three people who were charged with drug offenses after they were stopped in separate incidents by the Arizona Department of Public Safety along Interstate 17 between Phoenix and Flagstaff. One of the men is black, the other two are Hispanic.

Defense attorneys presented testimony by experts that racial profiling led to the arrests.

But a Yavapai County Superior Court judge rejected the expert opinion, saying racial profiling is not a defense to the drug charges.

The judge and prosecutors relied on a 1996 U.S. Supreme Court ruling which said that evidence seized as a result of a traffic stop that met other constitutional standards was admissible regardless of the subjective motivations of the police who made the stop.

But Hurwitz said that ruling concluded that race-based selective enforcement of the law is unconstitutional.

The justice acknowledged that people who are arrested under selective enforcement can seek remedies under federal civil rights laws.

"But the fact that a (civil rights) claim is an available remedy for selective enforcement does not make it the exclusive remedy,’’ Hurwitz wrote.

Wednesday’s ruling does not end the case: The three defendants still have to prove they were, in fact, the victims of racial profiling.

The decision comes three months after DPS agreed to a series of changes in its operations to ensure that motorists are not stopped and searched solely due to the color of their skin.

As part of the deal, DPS agreed to seek $750,000 to put video cameras in more than 330 vehicles used to patrol the state’s highways. That will provide a record of not only who is being pulled over but what happens in each case — a record available to both the plaintiffs who sued the agency and the general public.

In the agreement, DPS did not admit that any of its officers have engaged in racial profiling. And no cash will be paid to the 11 plaintiffs who filed suit claiming that they were stopped because of their race.

But the state, in settling the nearly 4-year-old lawsuit, agreed to pay close to $140,000 in legal fees.

Eleanor Eisenberg, director of the Arizona chapter of the American Civil Liberties Union, said the settlement is nearly as good as an admission that the claims of profiling are valid.

"There has been acknowledgement that there is a need for change,’’ she said.

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