Immigration traffic law criticized in Louisiana

NEW ORLEANS —  A Louisiana state law that allows police to arrest people they suspect are in the country illegally during routine traffic stops is under fire from lawyers representing some of the thousands of Latinos who have come to the city since Hurricane Katrina.

The Louisiana statute enacted in 2002 makes it a felony for “alien students” and “nonresident aliens” to drive a vehicle without documentation proving that they are in the United States legally.

The law was a response to the Sept. 11 terrorist attacks, an attempt “to uncover those who seek to use the highways of [Louisiana] to commit acts of terror and who seek to gain driver’s licenses or identification cards for the purposes of masking their illegal status in this state.”

But since Katrina, lawyers say, the law has been used primarily to stop and detain members of the city’s burgeoning immigrant workforce, the majority of them Latinos.

Hard numbers are not available, but lawyers who are handling multiple cases estimate that dozens of people have been arrested under the statute after being stopped for what some here call “Driving While Mexican.”

“Before Katrina, we just knew that the law was on the books, but nobody was really being charged with it,” said Ramona Fernandez, associate director of the Law Clinic at Loyola University.

Now, “they are singling out one specific group of people,” said Fernandez, who is handling three cases relating to the statute. “Of course, it’s racial profiling. They don’t speak English, they look ‘Mexican.’ ”

Melissa Crow, Gulf Coast policy attorney for the Los Angeles-based National Immigration Law Center, has been monitoring the surge in these cases.

“Given the difficulty of determining immigration status, police officers often resort to using last names, accents and physical appearance to determine whether an individual is subject to arrest,” said Crow.

Almost 100,000 Latinos came to Katrina-devastated areas of the Gulf Coast in the first few months after the storm, according to U.S. Census Bureau figures. The influx of Latinos has irritated some longtime residents, who say the newcomers are taking jobs from local workers and depressing wage standards by accepting below-average pay.

Crow said the Louisiana statute is flawed because it is superseded by federal immigration law. She said a state law regulating the conduct of noncitizens is invalid if it regulates immigration, which is the exclusive domain of the federal government.

“Regulation of immigration is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain,” Crow said.

Crow also said the statute wrongly requires state and local law enforcement officials, without the proper immigration expertise, to determine whether drivers are lawfully in this country.

In an opinion issued Thursday in the case of Mexican construction worker Juan Herrera-Olvera, who was arrested and jailed under the immigration statute on Oct. 2, New Orleans Criminal Court Judge Arthur Hunter found that the arrest was “made without probable cause, because it was the result of a selective enforcement policy profiling, targeting and arresting Latino drivers.”

But Hunter refrained from ruling on a motion by Oscar Araujo, Herrera-Olvera’s lawyer, challenging the constitutionality of the Louisiana statute.

Hunter said he would wait for a Louisiana Supreme Court decision in the case of Mexican national Neri Lopez, who was arrested in 2004 under the immigration statute, after being stopped by New Orleans police for driving with nonfunctioning brake lights and found to be without a license.

In December, Louisiana 4th Circuit Court Judge C.J. Armstrong dismissed the charges against Lopez, ruling that the Louisiana statute “places a burden on both legal and non-legal aliens which exceeds any standard contemplated by federal immigration law.”

The district attorney’s office is appealing the decision to the Louisiana Supreme Court.

Hunter’s decision to await the Supreme Court’s ruling in the Lopez case, and his charge of racial profiling by the New Orleans Police Department, followed a hearing Monday in which New Orleans police officer David Finneman testified that he stopped Herrera-Olvera for having an expired temporary tag.

Using limited Spanish to question Herrera-Olvera, who did not speak English, Finneman said he learned that the defendant had no driver’s license, or “any kind of paperwork to validate his legal presence to work or live” in the United States, and admitted to being in the country illegally. So Finneman arrested him.

Finneman, who joined the force in 2002, told the court that he became aware of the statute in October or November 2005, after Katrina.

He said the announcement of making arrests under the statute was read to officers during a roll call.

Finneman said he had never made any such arrest before Katrina, and he wasn’t even familiar with the law then.

He said he had attended a one-day training seminar on immigration after the storm, and had since made four or five arrests under the statute.

Amid objections from the prosecutor, Judge Hunter asked Finneman whether he had ever stopped white, black or Asian drivers and asked them whether they were legal U.S. citizens. The officer said no.

“Well, what makes you ask a Latino driver whether or not he is an illegal alien?” Hunter asked Finneman.

“I don’t have an answer for that,” Finneman replied.

“No answer? Is it because a Latino driver speaks Spanish and doesn’t speak English?” Hunter continued.

“Not real sure,” Finneman said.

Sgt. Joseph E. Narcisse, a New Orleans police spokesman, said the department “has not encouraged or discouraged” the enforcement of immigration laws, and he rejected accusations that officers intentionally targeted Latinos through racial profiling.

“It is not tolerated,” said Narcisse. “We have policy that forbids such activity. We cannot, and do not, selectively enforce the law.”

On Wednesday, the 24th Judicial District Court of New Orleans in neighboring Jefferson Parish quashed charges against 28-year-old Omar Barrientos, who was stopped in March for having an expired license plate. He ended up being charged under the immigration statute after police discovered he didn’t have a driver’s license.

Araujo, who, along with Fernandez of Loyola is representing Herrera-Olvera pro bono, expressed concern that Louisiana parishes were continuing to arrest people under the statute. The similarity of those being apprehended would make it tough for officers to refute the charge of racial profiling, Araujo said.

“When you have all these arrests, and the people being arrested are of Latino descent, I don’t see how they can get on the stand and deny it,” said Araujo, who has two other statute-related cases pending in neighboring parishes.

Violation of the statute carries a maximum penalty of $1,000, a year in jail or both.

Herrera-Olvera was scheduled to be released from jail Thursday as soon as he paid the fees from the traffic citations for which he was originally pulled over.

ann.simmons@latimes.com