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May 5, 2005 - Arizona Republic (AZ)

State High Court Says Racial Profiling Can Get Cases Tossed

By Michael Kiefer

Return to Drug War News: Don't Miss Archive

The Arizona Supreme Court ruled Wednesday that criminal charges can be dropped in cases where police officers stop motorists because of their race.

Justice Andrew Hurwitz wrote in the unanimous decision that a state can neither write laws that apply only to people of certain races, nor selectively enforce the law according to race, a practice commonly referred to as racial profiling.

"A state can no more make 'driving while Black' a crime by means of its enforcement than it could by express law," he wrote.

The ruling comes out of 2001 and 2002 cases involving Black and Hispanic motorists on Interstate 17 who were stopped for supposed traffic violations and found to be carrying illegal drugs.

Flagstaff attorney Lee Brooke Phillips got several similar cases involving Black and Hispanic motorists on Interstate 40 thrown out of Coconino County Superior Court by alleging racial profiling on the part of state Department of Public Safety officers. DPS was not able to produce records regarding the traffic stops, and the cases were dismissed.

Phillips made the same argument with three cases in Yavapai County Superior Court. He asked the state to pay for an expert who would compile statistics to show a disproportionate number of stops of minority motorists. The judge denied the request, arguing that racial profiling was no defense against criminal charges.

"She (the judge) ruled that the officers' motives were irrelevant as long as there was a traffic violation," Phillips said.

Phillips took the question to the higher court, and the Yavapai County case was put on hold pending a decision.

Phillips also filed a class-action civil lawsuit against DPS, accusing the agency of racial profiling. Although DPS admitted no wrongdoing, it entered into a settlement in February, promising to gather data and take measures to avoid the practice.

Wednesday's Supreme Court decision sent Phillips' case back to Yavapai County Superior Court. The high court did not dismiss charges because of racial profiling; it ruled that such a dismissal is possible on constitutional grounds if the racial profiling allegations are proven in court, which Phillips has not yet done.

The trial of the three defendants in the drug case can now continue.

"We thought it was a thoughtfully written opinion, and we think the Supreme Court has provided standards to guide the Superior Court on when an expert witness should be appointed," said Andrea Esquer, a spokeswoman for the Arizona Attorney General's Office.

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