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OSU Law Students, ABLE Allege Racial Profiling

The following article, written by Kevin Milliken, appeared December 2, 2014 on La Prensa's website. ABLE Attorney Eugenio Mollo is quoted inthe article. Read below, or view the contents on laprensatoledo.com.

Law school students at the Ohio State University (OSU) have sued the U.S. Border Patrol, hoping to force the disclosure of arrest records that they claim will show federal agents have committed racial profiling across northern Ohio, an area with a growing Latino population.

The Freedom of Information Act (FOIA) lawsuit is focused on the border patrol's Sandusky Bay Station, which patrols heavily along the Ohio Turnpike between Cleveland and Toledo. That station is charged with monitoring the U.S.-Canada border along Lake Erie. The OSU law school students want to compel border patrol agents to release documents that could reveal the profiling in both policy and practice.

Law students contend border patrol agents have disproportionately targeted Latinos since 2008, shortly after the Sandusky Bay station opened.

OSU's Moritz College of Law Civil Law Clinic and Advocates for Basic Legal Equality (ABLE) filed a public-records request with the Border Patrol on Aug. 18, 2014 but have yet to get a response. So the two groups filed the FOIA complaint in U.S. District Court of Southern Ohio in Columbus on Nov. 18.

"The Customs and Border Patrol Sandusky Bay's disproportionate focus on individuals of Hispanic descent disrupts the day-to-day lives of innocent families," said ABLE attorney  Eugenio Mollo. "When a trip from school or a stop at a gas station results in interrogation of one's citizenship, Border Patrol practices need to be publicly evaluated."

"The Sandusky Bay Station's alleged use of racial and ethnic profiling has caused documented concern in the community as demonstrated by media attention and litigation addressing the practice," the lawsuit states. "Concerns about the practices and policies of the Sandusky Bay Station arise at a time when there is a growing national dialogue around racial profiling and immigration enforcement."

The FOIA lawsuit seeks access to documents "that will shed light" on the Sandusky Bay Station's "practices and procedures regarding the apprehension, arrest, and detention" of individuals. The suit also calls for the release of records related to the agency's "policies regarding racial profiling and collaboration with local law enforcement."

The plaintiffs hired Bowling Green State University sociology professor Kara Joyner to conduct a study, which revealed 85 percent of those arrested by Sandusky Bay agents in 2009 are Hispanic, when the Latinos only make up three percent of the northern Ohio region's overall population. Latinos comprised two-thirds of arrests in 2010 and 62 percent in 2011.

The lawsuit claims that Latinos were significantly more likely to be stopped by law enforcement and interrogated about their immigration status than people of other racial and ethnic groups. The law students allege that minor traffic violations led to much longer detentions of Latinos than other groups. Only 0.2 percent of those arrested by border agents were Canadian.

Emails obtained as part of the lawsuit show that Cory Bammer, who's in charge of the Sandusky Bay office, has used racial slurs to refer to Latino workers when discussing farms that he believed needed to be monitored.

ABLE and the Farm Labor Organizing Committee (FLOC) filed a class-action lawsuit a few years ago on behalf of 14 plaintiffs and two workers rights groups, accusing ICE of engaging in a culture of racism and using ethnic slurs. Five individual plaintiffs in the case were going about their business when they were stopped by border patrol agents-- walking down the street, pumping gas, or traveling by bus.

"When we filed the lawsuit, our individual clients were of mixed immigration statuses — some were U.S. citizens, some were lawful permanent residents, and some were without status," said Mollo. "If I gave you their names and photos, or a voice recording to determine an accent, I don't think you'd be able to match them with their immigration statuses — and that's one of the points of the lawsuit. Not only does ethnic profiling create distrust between law enforcement and the public, not only is its selective stopping unconstitutional, but it's also totally ineffective — it's ineffective when officers target people who they think  are here without states based on appearance."

Some small town police departments in northern Ohio were named in the lawsuit, which claimed those departments were encouraged by the Border Patrol in how to "illegally profile Hispanics and then turn these individuals over to the Border Patrol. Attorneys for police departments in Wakeman, Norwalk, Attica, and Plymouth have all denied wrongdoing, saying they either were legitimately stopping motorists who broke the law or were assisting Border Patrol agents in their duties.

Norwalk, Attica and Plymouth were eventually dropped from that lawsuit after reaching an agreement to provide documents and interviews to those suing the U.S. Border Patrol.

An appeals court recently reinstated that case after dismissal by a federal judge in the U.S. District Court of northern Ohio, who stated he did not have jurisdiction to hear the case. That lawsuit is scheduled to go forward in March—five years after it was filed.

A second such lawsuit was filed last September, accusing police in Wakeman, Ohio, of stopping a car with five Hispanic people on their way to work at a farm in Oberlin, both near Cleveland. The lawsuit alleges police made the stop for no reason and asked for their papers. 

That lawsuit claims the stop was "based on their complexion and hair color" and when the driver told the police her driver's license at other documents were at home, they were forced to wait while police contacted the border patrol. Once federal agents arrived 30 minutes later, one of the agents questioned where they were from, then opened a car door and handcuffed a male.

The border patrol agents, the lawsuit claims, eventually took the five Hispanic occupants back to the Sandusky Bay station and interrogated them for several hours. The suit stated "one agent  told the individuals in Spanish, 'I did not invite you to my house. You all came without an invitation. So you're (expletive).'" Agents eventually took the five to the Seneca County Jail in Tiffin for immigration detention.

Those lawsuits are examples of what the OSU law students believe are the human stories behind what the statistics they gathered also state.

"When we allow civil rights to depend on the color of a person's skin, constitutional safeguards become fictitious. Our constitutional rights are only as strong as the rights of our most vulnerable," said Kori Brady, a third-year law student at OSU.

According to ABLE, the Border Patrol's practices in other states have violated the constitutional protections of vulnerable communities and has led  the ACLU to name areas within 100 miles of an international border the "Constitution-Free Zone." Similar FOIA litigation elsewhere has unveiled evidence that shows the Border Patrol engages in improper activity. In New York, Families for Freedom and the NYU Immigrant Clinic's FOIA request uncovered agent incentive programs based on the number of people arrested. The lawsuit also showed that close to 300 individuals were wrongfully arrested.