Two years ago, University of Arizona Associate Professor of Law Jane Bambauer and Professor of Law Derek Bambauer were on the lookout for opportunities to submit public records requests that would help them better understand law enforcement procedures in the Borderlands. Meanwhile, the American Civil Liberties Union of Arizona wanted information about the Border Patrol checkpoint and roving patrol stops conducted in Southern Arizona in order to investigate how complaints of abuse and racial profiling are handled by the agency.
The Bambauers partnered with the ACLU, filed an open records request and – after being ignored by the federal government for three months – filed a lawsuit for access. As a result, the Department of Homeland Security has now released about 6,000 pages of responsive records.
The lawsuit and the contents of those records were covered in an Oct. 14 New York Times feature, “Border Patrol Accused of Profiling and Abuse.” The story also quoted Jane Bambauer about the value of law enforcement record-keeping and why it’s important for Border Patrol to keep records of all traffic stops and searches, not just the ones that result in arrest, which is how the Border Patrol operates today.
“If they’re only reporting when their hunches turn out to be correct, we can’t say if their hunches have been reliable,” Bambauer told the New York Times. “What you end up with is a pretty aggressive agency that doesn’t know how to measure the effectiveness of all the power that it wields.”
The incomplete data also affects Bambauer’s research on suspicion and the reliability of methods that law enforcement agencies use to predict crime and make decisions.
“Good record-keeping could validate some of the measures that Border Patrol uses,” Bambauer says. “But we can’t know that if false positives aren’t being tracked.”
These themes are consistent with Bambauer’s scholarly research. Her recent article “Hassle,” published in the Michigan Law Review, makes the case that law enforcement officers have a constitutional obligation to ensure that its operations effectively identify criminals without imposing undue burdens on the innocent.
Professor Bambauer’s experience on the case has already made its way into her Criminal Procedure classroom. In addition to teaching the standard Fourth Amendment case law, she makes a point of teaching students federal cases that originate in the border region, where balancing national security interests and civil liberties are particularly complex.
Also quoted in the New York Times story is James Lyall, the ACLU lawyer working on the case, who is also a part-time professor of practice at Arizona Law.