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Illegals face arrest if found driving
Lawyers fight state law affecting Latinos

Sunday, February 04, 2007
By Katy Reckdahl

It was Monday morning, and Juan Herrera was doing what he always did on Monday mornings: driving to work. But on Oct. 2, at 8:25 a.m., New Orleans police officer David Finneman spied what he believed to be an expired license tag on Herrera's 1990 Buick Century. He put on his cruiser's blue lights and pulled Herrera over near the corner of Palmyra Street and North Carrollton Avenue.

In the end, Finneman arrested Herrera not just for an expired license tag but also for driving a motor vehicle without valid immigration documents, a violation of state law.

The law was enacted in 2002, not long after the Sept. 11 attacks, to prevent "terrorism on the highways," according to its author, state Sen. James David Cain, R-Dry Creek.

This law was rarely enforced before Hurricane Katrina brought an influx of Latino workers to the area, said Ramona Fernandez of the Loyola Law Clinic. In fact, Fernandez could think of only one pre-Katrina arrest.

Finneman hadn't even heard of the law until his commanders read a memo about it during a precinct roll call in late 2005.

But these days it's being enforced regularly. Kenner police Capt. James Gallagher said his department's arrests under this law have stepped up "quite a bit" since the hurricane. Currently, his officers make "one or two arrests a day" on this charge, he said.

According to the Orleans Parish Criminal Sheriff's Office, 225 people have been arrested on the charge since Katrina and most have had Latino surnames. Advocates of immigrant rights refer to the charge as "driving while Latino."

For most of November and December, Herrera sat in Orleans Parish Prison without access to counsel. But shortly after Christmas, attorneys Oscar Araujo and Louis Irvin heard about him from another client and decided to take on his case pro bono.

They are now part of an ad hoc group of attorneys, including Fernandez and her students at the Loyola Law Clinic, who have been filing motions in four parishes in an effort to get the law struck down.

Essentially, their argument is that Louisiana should not be in the business of creating and enforcing immigration law, since that's the federal government's territory. Immigration law, they say, is always changing and is like the tax code in its complexity -- far beyond the training of most local law officers.

And given that driving without a license is ordinarily a misdemeanor offense, the law's penalties -- a $1,000 fine, a year in jail, or both -- are overly harsh, they say.

Advocates within the Latino community find other faults with the law. Although in recent years, the U.S. Department of Justice has announced that local law enforcement officers have the "inherent authority" to enforce federal immigration law, some cities, including New York, Chicago, Houston, Portland, and Phoenix, have resisted because of regulations barring their officers from inquiring about immigration status. The New Orleans Police Department has no policy on the issue, according to spokesman Joe Narcisse.

Fear of Immigration

The idea behind these "don't ask" policies is that people from immigrant communities are less likely to call 911 or cooperate with police if they believe they will be reported to Immigration.

"If you find an alien who happens to be undocumented and is the victim of a crime, the chance that he will report that to the police is small if he fears being reported," said Martin Gutierrez, executive director of the Hispanic Apostolate of the Archdiocese of New Orleans.

This past Tuesday, Herrera got his day in court, before Judge Arthur Hunter.

Under questioning by Araujo, Finneman testified that he arrested Herrera under the driving-without-documents law after Herrera couldn't provide proof that he was in the country legally.

"Have you been commissioned to enforce federal immigration laws in the state of Louisiana?" Araujo asked.

That wasn't necessary, said Finneman. "I wasn't enforcing federal. I was enforcing a state statute."

Exactly the problem, said Fernandez, who, along with Irvin and Araujo, filed a motion to quash the felony charges against Herrera. "In order to enforce this law, a police officer has to become an immigration agent," she said.

On the way to work

Herrera, 45, worked as a chauffeur in Monterrey, Mexico, before moving to Houston about five years ago and learning carpentry. He had moved to New Orleans and was working for a contractor when Katrina struck. After the hurricane, the contractor set him to work gutting houses, repairing floors and walls, doing carpentry.

Advocates say Herrera is typical of people stopped under the driving-without-documents law. "Almost everyone I know has either been coming or going to work when they were arrested," Araujo said.

In the aftermath of 9/11, Louisiana is not the only state to have passed similar measures. Many have been struck down, because they were found to discriminate based on race or national origin or because they infringed on federal immigration regulation.

Louisiana's version is "deeply flawed," according to Melissa Crow, Gulf Coast policy attorney for the National Immigration Law Center. A legal advocacy organization, the center filed an amicus brief on behalf of Omar Barrientos, who was charged under the law in Jefferson Parish's 24th Judicial District Court.

The problem lies in the law's two "state-created" categories of violators -- "alien student" and "nonresident" -- because they are not defined in immigration law, Crow said. Even an expert in immigration might have trouble discerning who to charge under this particular state law, Crow argued. Jefferson Parish Judge Joellen Grant cited those terms in a decision, issued Wednesday, that threw out the charges against Barrientos.

Law challenged

When contacted this week, the law's author, Cain, said that he didn't envision that most of the defendants would be workers from Central America and Mexico. "That wasn't the intent of this bill," Cain said. But he's OK with using the law that way, as long as it "keeps people out of here that aren't supposed to be in America," he said.

That use of the law more or less requires racial profiling, Crow said. "Officers end up relying on last names, accents or appearances to decide who to charge," she said.

In Herrera's case, Judge Arthur Hunter questioned Finneman about a whole list of scenarios, asking him the circumstances under which he would ask drivers of different ethnicities if they were illegal immigrants. "What makes you ask a Latino driver whether or not he is an illegal alien?" Hunter asked.

"I don't have an answer for that," Finneman said.

"No answer? Is it because a Latino driver speaks Spanish and doesn't speak English?" the judge asked.

"Not real sure," Finneman replied.

Those answers laid the groundwork for Hunter's decision, rendered Thursday, that Finneman didn't have sufficient grounds to arrest Herrera. The arrest was "the result of a selective enforcement policy profiling, targeting and arresting Latino drivers," Hunter ruled.

Hunter did not rule on the bigger issue, the law itself, but noted that the state 4th Circuit Court of Appeals last month affirmed a similar ruling by his colleague down the hall, Judge Calvin Johnson, in the case of defendant Neri Lopez.

On Jan. 19, the Orleans Parish district attorney notified the Louisiana Supreme Court that it intended to appeal the Lopez decision. The court has not yet said whether it will hear the case.

Until it does, district attorneys in Jefferson Parish and Orleans have signaled that they will hold off on further prosecution of undocumented driver cases. Arrests, however, will continue.

"We're still arresting on that charge," Kenner Police Department Capt. James Gallagher said.

NOPD spokesman Garry Flot said New Orleans police will also continue to make arrests pending a higher court ruling. "Until then, we'll continue to do what we always do: enforce the law," he said.

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Katy Reckdahl can be reached at kreckdahl@timespicayune.com or (504) 826-3300.