Immigrations and Customs Enforcement (ICE) identifies illegal immigrants using physical appearances as a criteria, which the Supreme Court just ruled was constitutional. But at the same time, the Maricopa County Sheriff’s Office (MCSO) in Arizona is still under court monitoring due to alleged racial profiling. This order has cost Maricopa County taxpayers approximately $350 million so far.

On September 8, the Supreme Court issued a 6-3 decision in Noem v. Vasquez Perdomo, overturning a lower court’s temporary restraining order that had barred ICE from using race, ethnicity, language or occupation as primary factors for stops in Los Angeles. ICE is arresting illegal immigrants in places they are known to be at, such as farms and car washes.

While the court declined to issue a full opinion, Justice Brett Kavanaugh’s concurrence clarified that ethnicity alone cannot justify suspicion but can be a “relevant factor” alongside others, citing United States v. Brignoni-Ponce (1975) and United States v. Arvizu (2002).

Border Czar Tom Homan said during an appearance on Fox and Friends, “People need to understand, ICE officers and Border Patrol don’t need probable cause to walk up to somebody, briefly detain them, and question them. They just need the totality of the circumstances … get articulable facts based on their location, their occupation, their physical appearance, their actions.”

Homan said that the standard to confront an individual is reasonable suspicion, not probable cause. Probable cause is a higher standard, which requires a fair probability of likely wrongdoing. Reasonable suspicion is merely the suggestion that possible wrongdoing may be involved.

Through the 287(g) program with the Department of Homeland Security (DHS), MCSO conducted “saturation patrols” in high crime areas. The plaintiffs claimed that motorists were pulled over based on their skin color, pointing out that the sweeps were conducted in areas with high concentrations of illegal immigrants such as day laborer hang outs.

Activists filed the lawsuit Melendres v. Arpaio in 2007 challenging the practice. They claimed that the patrols violated the Fourth Amendment, asserting that deputies stopped individuals without probable cause, running afoul of the Fourteenth Amendment’s Equal Protection Clause by targeting individuals based on race.

However, MCSO asserted that its deputies had probable cause to pull the vehicles over due to traffic infractions. Since many illegal immigrants are poor and less familiar with U.S. driving laws, they are more likely to commit traffic infractions or have a taillight out.

Claiming that immigration sweeps are racial profiling also fails to take into the fact that illegal immigrants commit more crimes on average than the general population. The Maricopa County Attorney’s Office issued a groundbreaking report in 2008 which found that while illegal immigrants made up 9 percent of the population, they committed 21.8 percent of felonies. Many of the felonies were not immigration related, such as 20.3 percent of felony DUIs. Phoenix has more Latinos than whites, 43 percent of the city, so the odds of them being stopped often is quite high.

After a three-week trial in 2012, U.S. District Judge G. Murray Snow ruled in 2013 that MCSO had engaged in systemic racial profiling. Snow issued injunctions requiring MCSO to implement reforms, including appointing an independent monitor to oversee compliance, developing systems to prevent discriminatory policing and improving internal affairs processes.

A while after issuing his order, Snow accused MCSO of noncompliance, resulting in a 2016 contempt of court finding against Arpaio. Arpaio was pardoned in 2017 by President Donald Trump. Showing just how overreaching the courts were, even the next sheriff, Democrat Paul Penzone, was found in civil contempt. 

In parallel, the U.S. Department of Justice (DOJ) under President Barack Obama launched a civil rights investigation in 2008 into MCSO’s practices. The DOJ’s December 2011 report concluded that MCSO engaged in “the worst pattern of racial profiling in U.S. history.” The DOJ filed a lawsuit against Arpaio and MCSO for unlawful discriminatory conduct, and DHS suspended MCSO’s 287(g) agreement and restricted its access to immigration databases like Secure Communities.

Unfortunately, the Trump DOJ cannot remove the monitoring. The judicial branch that enacted it can. Maricopa County Supervisor Thomas Galvin sent a letter to Attorney General Pam Bondi this year urging the DOJ to help reduce or end the federal oversight of MCSO, citing costs exceeding $300 million and arguing that the oversight had expanded beyond its original scope.

Snow has a history of anti-conservative rulings. On May 14, he granted a preliminary injunction in a case involving Fatemeh Tabatabaeifar, a 22-year-old Iranian woman detained in Arizona. He said Trump’s attempt to restrict immigrants’ rights to request asylum was unlawful.

In 2022, Snow granted an injunction limiting the City of Phoenix’s ability to clear out homeless encampments. Fortunately, Maricopa County Superior Court Judge Scott Blaney issued a ruling in 2023 ordering Phoenix to clean up the sprawling encampment known as “The Zone.”

Under the new Trump administration, there are now over 1,000 287(g) partnerships. It makes zero sense to continue punishing Maricopa County taxpayers for a rogue judge’s opinion that goes contrary to the new Supreme Court ruling.

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