Will Joe Arpaio Beat Uncle Sam?

I’ve never been to Maricopa County, and from what I read, I wouldn’t travel there for pleasure. The county, home of Phoenix and Scottsdale, is the domain of Joe Arpaio, the county’s sheriff. He’s a rough and tumble lawman torn straight from the pages of a B-grade western. If I want to see knuckles dragging across a barroom floor, I can watch television. I can think of one reason and one reason only to travel there: That would be to sue Joe Arpaio. He is a clear and present danger to every American whose skin color is a shade or two darker than his.

It turns out the Justice Department just might file suit. In a scathing report obtained by the Associated Press last week, federal lawmen blasted the sheriff for racial profiling, abuse of power and other acts of intimidation. Arpaio runs Maricopa County with an iron fist. The feds say he’s crossed so many lines they intend to file suit against him unless he cleans up his act. He’s been given until January 4, 2012, to decide either to work out a consent decree, a contract promising to change his colors, or the feds themselves will sue.

Expect litigation. I don’t see Arpaio backing down. Ever. He’s the kind of guy who’d rather fight than switch. Besides, he’s been elected and re-elected to office repeatedly since 1992. It’s not exactly as though he staged a coup to become the county’s top cop. Voters in the county love Joe. It’s the federal government they don’t like.

I don’t much like the feds either, but I am not rooting for Arpaio. He is a canker sore, burst right into sight, festering in plain view and demonstrating for all the world to see that racism and xenophobia are alive and well in the United States. He is also a walking example of what happens when federal judges bend the Constitution so far in the direction of those in power that its guarantee of equal justice for all snaps.

Any action brought against Arpaio by the Justice Department could well falter and fail before a jury is ever sworn. Arpaio is likely to be the beneficiary of a legal doctrine known as qualified immunity. You will never find this doctrine in the text of the federal Constitution. It is a theory federal judges created to give themselves the power to throw civil rights claims out of court. Qualified immunity is the right’s most egregious form of judicial activism.

A defendant is granted this form of immunity if the allegations against him do not violate clearly established law, or if reasonable police officers can disagree about whether the conduct in question is lawful. In lay terms, a police officer sued for an illegal search or seizure gets the benefit of the doubt in a close case. Our emerging case law transforms almost all cases into close cases so long as there is probable cause or some other articulable reason to support the search or seizure.

Let’s apply this legalese to Arpaio’s world.

He is accused of condoning and encouraging aggressive searches and sweeps for illegal immigrants. Think what you will of the law, but if a person is in the country unlawfully, then a lawman has the right and duty to enforce the law. Does this mean that all folks who look Mexican, regardless of their citizenship, can be rousted at will? It should not mean that. But probable cause for a search, or the lesser standard of articulable suspicion for a brief detention, is not the high standard of proof necessary to obtain a conviction. All that the law requires to justify a stop is a well-founded suspicion that foul play is afoot. Any lawman with an I.Q. one-step removed from idiocy can justify a search or detention if they but try.

These are easy words for a white man to write. I don’t live in a world in which genetics makes me a suspect. It is a white man’s world, by and large, from one coast to another in North America. The law governing searches, seizures and detentions remains one of the last bastions of racism. Hence the dark humor among criminal defense lawyers: What do you call a black man in Greenwich [pick your affluent community]? Probable cause.

People of color live a different reality. Sunday’s New York Times carried a poignant op-ed piece by a young black man named Nicholas Peart. Why, he wondered, do young black men keep getting stopped and frisked in New York City? The answer is obvious to lawmen. In the crabbed language of police speak: "the subjects live in a high-crime area known to be the focus of narcotics activity." In the Southwest, I suspect all but gated communities are locations in which illegal immigrants "congregate and associate in efforts to find work." This is justification enough for most courts when it comes to explaining why the police can stop, frisk and occasionally search those who look different.

What I am saying is that Arpaio is just a little more obvious and outspoken about what goes on in almost every community in the United States. Arpaio plays bad guy because we let him. All the tongue-clucking in the world won’t change the fact that in the privacy of the polling place, Arpaio wins, time and again.

The feds make a great show these days of how aggressive the civil rights division is in pursuing civil cases against errant public officials. But such a suit plays right into Arpaio’s hands: "You see what the feds are up to now?", he’ll boast. He’ll transform the dispute into a political referendum on whether Arizonans ought to secede from the union.

Joe Arpaio won’t be driven out of Maricopa County by a federal mandate. He’ll beat the feds because they will have to sue him on his home turf, where he’ll get a jury of folks who vote for him, and a judge armed with legal tools intended to assure that power is rarely checked effectively in a courtroom. If Arpaio is to be defeated, it will take the determined work not of tourists from Washington, D.C., but the efforts of lawyers and civil rights activists in Maricopa County, who, month after month, educate voters, jurors and judges that Arpaio is making a mockery of the law’s promise of equal justice for all.

Joe Arpaio is a throwback to the 1950s. He doesn’t want Mexicans in his community any more than Orvall Faubus wanted black students in Little Rock, Arkansas. Faubus’ brand of racism was driven out of power and underground with the help of the feds, to be sure. But real change comes from within. Arpaio won’t be beaten until the people of Maricopa County decide they’ve had enough of his brand of white man’s justice. They’re not there yet. There is a reason Republican presidential hopefuls want Arpaio’s endorsement. Racism is alive and well.


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