By: Travis Henderson
Lady Justice stands blindfolded, paying homage to the equality of the law. Our pledge of allegiance culminates in “liberty and justice for all.” While many believe these ideals are fundamental in our society, to others, they ring as hollow examples of an unjust system. Our nation has had a long history of law enforcement using racial characteristics to suspect people of color of criminal activity.[1] However, in recent years law enforcement agencies have cracked down on these practices, citizens have used their voices to protest its use, and courts have disparaged its relevance. Yet, race is still often used openly along the U.S. and Mexico border to determine who to stop.[2] I will highlight a brief history of how the U.S. got here, explain the current state of affairs along the border and the use of racial profiling, and how it is unjust that a nation like ours does not require an outright ban on the relevancy of race.
While racial profiling has been rampant throughout our nation’s history, we began to see law enforcement readily use it after Terry v. Ohio. Terry gave rise to a search or seizure that was “less intrusive” than the typical search or seizure.[3] A “Terry Stop” only requires reasonable suspicion to conduct, which is a lower standard than typically required by the constitution.[4] Subsequent cases expanded “Terry Stops” even further and gave rise to many of today’s border and immigration cases. Two such cases decided in the 1970’s laid the foundation for this area. U.S. v. Brignoni-Ponce held that an apparent Mexican ancestry could be a factor when finding reasonable suspicion to conduct a roving investigatory stop.[5] U.S. v. Martinez-Fuerte expanded further by saying that brief routine questioning at a permanent checkpoint is allowed even without reasonable suspicion.[6] “[T]hat it is constitutional to refer motorists selectively to the secondary inspection area… [based on] criteria that would not sustain a roving-patrol stop. Thus, even if it be assumed that such referrals are made largely [based on] apparent Mexican ancestry, we perceive no constitutional violation.”[7]
However, recent cases have called into question the use of race by law enforcement in determining who to stop. For example, the court in U.S. v. Montero-Camargo foundthat when conducting a roving investigatory stop, the demographics along the border made the use of an apparent Mexican ancestry obsolete as a factor for reasonable suspicion.[8] This holding cast doubt upon Brignoni-Ponce and the use of race. However, even with these few steps forward, the use of race has still not been entirely discredited. Furthermore, when we do not even require reasonable suspicion to conduct a stop at a fixed checkpoint, the courts implicitly approve the Customs and Border Protection (CBP) use of race in these types of encounters. Martinez-Fuerte and its progeny have given rise to many current CBP policies and procedures and how they operate fixed checkpoints along the U.S. border.[9] While CBP will not release any data concerning these types of stops, an organization in Arivaca, Arizona, took it upon themselves to observe one such fixed checkpoint.[10] After over 100 hours across two months, the organization found if a Latino was in a vehicle, it was 26 times more likely to be stopped and required to show identification and questioned about their status.[11] Additionally, if a Latino was present in a vehicle, it was 20 times more likely to be sent to secondary inspection.[12] These numbers show that even if CBP says they do not explicitly use race when operating a fixed checkpoint, the impact of their actions shows otherwise.
As Martin Luther King Jr. sat in a Birmingham jail, he wrote, “Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”[13] As long as we continue to see race as a relevant factor in certain situations, it is inescapable that it will reemerge in others. Many U.S. citizens may not feel concerned with racial profiling being used at the border because they believe it only affects criminals or illegal aliens. However, these checkpoints operate miles away from the border.[14] Citizens, lawful permanent residents, and foreign travelers’ constitutional rights are frustrated by CBP at these fixed checkpoints every single day.[15] As American citizens, when CBP waives someone who is white through a checkpoint and requires an individual with darker skin to prove their status, it tells the latter their constitutional rights are less than those of the former. If this inequality continues, how can we look in the mirror and, with a straight face, genuinely claim “liberty and justice for all.”
[1] https://www.americanbar.org/groups/criminal_justice/publications/criminal-justice-magazine/2020/winter/racial-profiling-past-present-and-future/
[2] Id.
[3] Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968)
[4] Id.
[5] U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975)
[6] U.S. v. Martinez-Fuerte, 428 U.S. 543 (1976)
[7] Id.
[8] U.S. v. Montero-Camargo, 208 F.3d 1122 (2000)
[9] NOTE: THE PRAETORIANS: AN ANALYSIS OF U.S. BORDER PATROL CHECKPOINTS FOLLOWING MARTINEZ-FUERTE, 93 Wash. U. L. Rev. 803
[10] https://www.aclu.org/blog/speakeasy/dangerous-precedent-why-allow-racial-profiling-or-near-border
[11] Id.
[12] Id.
[13] Martin Luther King Jr., Letter from the Birmingham Jail
[14] NOTE: THE PRAETORIANS: AN ANALYSIS OF U.S. BORDER PATROL CHECKPOINTS FOLLOWING MARTINEZ-FUERTE, 93 Wash. U. L. Rev. 803
[15] Id.
Travis graduated from Utah Valley University with a B.S. in Business Management and a minor in Finance after serving six years in the United States Air Force. He is currently a 2L and plans to work in the field of criminal justice as either a public defender or prosecutor. His personal interest include working out, going on motorcycle rides with his wife, and taking his dogs Tonka (Mix) and Tony (Pit Bull) to the dog park.
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