What of Racial Profiling and its Application to Illegal Immigration? Part 2

Posted by Guest Writer on June 16, 2010 under How | Be the First to Comment

By Norton R Nowlin

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.