January 15, 1999
By Bob Egelko
ASSOCIATED PRESS WRITER
SAN FRANCISCO - Two Hispanic drivers who say they were stopped by the Border Patrol for no legal reason can sue to try to change the patrol's practices in southern Arizona, says a federal appeals court.
In a 2-1 ruling Tuesday, the 9th U.S. Circuit Court of Appeals reinstated a class-action suit that accuses the Border Patrol of following and stopping drivers in eight southern Arizona counties without reasonable suspicion of illegal immigration.
The dissenting judge said the two motorists were improperly using the courts to try to change agency policy.
Hispanic drivers were targeted in the daytime, but drivers of all ethnic groups were illegally stopped after dark, the suit alleges. Attorney Armand Salese said witness statements and Border Patrol reports indicated that nighttime agents would pursue drivers of vans, older cars, and cars that slowed when they passed the patrol cars.
``We have overwhelming evidence of a pattern and practice on the part of the Border Patrol to stop Hispanics because they were Hispanics,'' said Salese, who filed the suit in 1995. He said he reviewed 2,000 to 3,000 Border Patrol reports of traffic stops over about two years.
The ruling allows the two drivers to try to prove their case and seek a court order requiring the Border Patrol to follow the law. Salese said he wants an independent monitor and a requirement that the patrol document all vehicle stops, not just those in which evidence of a crime is found. The suit seeks no money damages.
The Border Patrol's regional office in Laguna Niguel, Calif., which oversees officers in Arizona, did not return a telephone call seeking comment.
The plaintiffs are Antonio V. Lopez of Tucson and Panchita Hodgers-Durgin of Rio Rico, a small town north of Nogales. Both said they were stopped by Border Patrol agents for no reason, Lopez in the daytime and Ms. Hodgers-Durgin at night, and allowed searches that found no contraband.
The suit named other Hispanics who allegedly were stopped by the Border Patrol, some repeatedly and all without legal grounds. Other evidence came from numerous reports written by Border Patrol agents who found evidence of wrongdoing after stopping drivers.
Some reports recited only that a newly painted car contained two Hispanic males, inadequate grounds for a stop under long-established law, the court said. Other reports stated enough evidence to justify a stop but used wording that was identical except for such details as the time of day and the color of the car, raising questions about the agents' truthfulness, the court said.
The suit was dismissed in 1997 by U.S. District Judge John Roll, who said the two drivers could not sue on behalf of all motorists because the circumstances of every Border Patrol stop were different. He said they could not sue on their own behalf because they had failed to show a likelihood that they would be stopped illegally in the future.
But the appeals court said every vehicle stop covered by the suit had one thing in common: the lack of reasonable suspicion of wrongdoing. The court also said the evidence that the Border Patrol had a practice of making such stops was enough to create a reasonable likelihood that the two drivers' rights would be violated.
``A credible threat of future (legal) injury hangs over plaintiffs' heads every time they drive on these highways,'' said the opinion by U.S. District Judge John Rhoades of San Diego, temporarily assigned to the appeals court. He noted that the court had previously allowed a similar suit by Hispanic-looking drivers in Washington state.
Judge James Browning agreed, but Judge Joseph Sneed dissented. He said the suit was an improper attempt by private parties, who may have suffered ``slight harm,'' to get the court to intrude into the policies of a government agency.
``It is unfortunate, but when the incidence of crime is high, some innocent individuals will be suspected,'' Sneed wrote. He said there was no evidence of any policy to make illegal stops.
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