April 26, 2005

The Senator vs. the Narc Pirates of Highway 281

Legalizing Law Enforcement in the South Texas Drug Wars

By GREG MOSES

Austin, Texas

South Texas seems an unlikely place for boosting people's rights during an age when everywhere else people's rights are coming down. But once you think about it, of course it makes sense that wherever an entire geographical region is subjected to the experience of lockdown, there might be the precise place to look for practical resistance rising.

And if you're going to have a Texas-sized fight between people-power and self-made mercenaries who run around dressed in trappings of state why not have that fight in the boot tracks of a homeland security stomping grounds, along two state highways that shoot a hundred miles North from the Mexican border cities of Reynosa and Matomoros?

And finally if you're going to have a fight worth singing about (because in South Texas if it's not worth singing about it doesn't even count) why not cast the protagonist as an elder state senator who is antagonized by a youthful drug force commander? Laws of wisdom ride the highway of the gun.

So if we look at the political battle along Highway 281 that is actually taking place between Senator Juan "Chuy" Hinojosa (D-Mission) and drug war commander Jaime Garza of Kingsville, we begin the story pleased to know that everything needed for a definitive conflict is already well in place. And we can cheer like hell for the senator who is trying to make one or two laws that respect a people's rights to privacies attached to their persons and chains attached to their state. Because long are the days when laws directed toward South Texas seemed to get the rights with the chains mixed up.

The Traffic Stop

The story begins along Highway 281 with a collision of sorts between two polished power cars, one driven by the senator, the other by a narcotics task-force officer. It wasn't a metal-to-metal collision. It was more a collision of power spheres that took place last Oct. 7 as the task force officer turned on his flashing lights and went after the car the senator was driving.

"Juan Hinojosa state senator," says the senator to the cop on a southbound shoulder, "why did you stop me sir?" The senator stands to the rear of his SUV, its roof nearly level with his hat. "You have no reason to stop me officer."

"Actually I do," says the uniformed narc, but Hinojosa is quick to reply, "No you don't." In the end, say news reports, the officer cites the senator for window tinting too dark and claims that the senator's car swerved. The senator claims the window tinting was factory installed and that he was waving at the narc officer at the time of the alleged swerve, perhaps following the official motto of the Texas highway, "Drive Friendly." Allegedly the senator is also discovered to be carrying an expired insurance card, but the narc does not cite the senator for that.

From the senator's point of view he was "profiled" as a Hispanic motorist in a cowboy hat who had no legal business driving a nice car. And the senator was southbound at the time, which means the narcotics task force wasn't looking so much for drugs going north as drug money going south.

Reigning in the Task Forces

When the senator returned to Austin for the 2005 legislative session he filed two bills on drug war policy. One bill would require all drug task forces to accept supervision from the Department of Public Safety and to contribute 25 percent of their seized property to county funds for drug abuse prevention and chemical dependency treatment.

"Right now those drug task forces who receive grants from the Governor's office come under the supervision of DPS," explained Hinojosa on April 12 to fellow members of the Senate Committee on Criminal Justice. "Those that do not receive money from the Governor's office through grants are on their own and can voluntarily come under DPS if they wish to or not. But sadly we have too many drug task forces out there who are not accountable to anyone or anybody, not to the DPS, not the Governor's office, or to us or to the Commissioners Courts." One of the units that remains under voluntary non-supervision is the one that stopped Hinojosa in October, the South Texas Specialized Crimes and Narcotics Task Force.

"These drug task forces are out there just interdicting and stopping people illegally without probable cause asking to search their vehicles and pretty much harassing citizens of the state of Texas," continued Hinojosa. "And all they are trying to do is see if they can find money that they can seize to fund their operations. To me what they do is illegal, improper, and not good public policy."

To make a drug task force, explains Hinojosa, "all you have to do is call yourself a drug task force, get two or three law enforcement people together, pick out fifteen miles of highway and start stopping people. You're a drug task force. That's what happens. They're not accountable to anybody." Hinojosa's first law (SB 1125) would require all drug task forces to report to the state for supervision under the state troopers at DPS.

"Let me tell you I've been stopped several times by drug task forces that don't come under jurisdiction of the DPS," said Hinojosa. "They don't need probable cause to stop you. They just stop you. They will profile you which is illegal to stop you, ask to search your vehicle without probable cause which is also illegal, and I refuse. But a lot of citizens don't know that and what they do is go through your car, snoop around, see what they can find and let you go if they don't find any money. Those drug task forces have no business operating in our state."

"This is an important bill as we start to reform the drug task force system," said Scott Henson of the Texas ACLU, who is first to testify for the bill. "I don't have to tell this committee the history of the Tulia scandals and Hearne and Floresville, and now more and more racked up as time goes on, these scandals involving drug task forces all over the state."

"In response to a series of these scandals," explained Henson, "the governor put these drug task forces under the supervision of the Department of Public Safety. I believe this was in January of 2002. They created a memorandum of understanding and a new set of DPS rules that all drug task forces would have to comply with. And DPS within the limits of their resources has put a great deal of effort into trying to fix some of the problems, creating new rules and standards for them to operate by."

"We still believe that the continuation of these scandals means that the task force system still has a lot of problems," said Henson, "but be that as it may, there has been a lot of effort to try and fix some of those problems. And in response what we've had is some of these agencies, some of these task forces have said you know what, we're not going to accept your oversight. We're lucky enough to have a major highway running through our task force area and so we can make enough money off of asset forfeiture to where we can go out on our own and not be under anyone's supervision and simply go out and look for money that way."

"Senator Hinojosa is absolutely correct that this creates a completely unaccountable scenario," said Henson. "Any several counties can join together, create a task force that has the officers go from one jurisdiction to the next and stop folks along the highway or whatever, and it's almost like a scenario of pirates on the open seas where you're raising your own budget based on your asset forfeiture income every year."

Hinojosa's bill, argued Henson, "would eliminate those task forces that chose to not be part of DPS' oversight. And I think that's very appropriate. And I think it reinforces DPS' authority, and sends a message to all these other task forces that look the state of Texas is serious about getting you folks under control. We're not going to tolerate a bunch of cowboys out here!" Henson's anti-cowboy remark draws an interruption, as the chair guides the testimony back to facts. Later the chair will offer and withdraw the term "outlaws" as his inflammatory word of choice. When lobbying the Texas legislature, one should never confuse outlaws with cowboys.

Henson closes by saying there are at least three drug task forces who are refusing federal funds in order to dodge DPS supervision in Abilene, Ft. Worth, and South Texas.

DPS Director Thomas A. Davis next testifies that there are about 22 drug task forces now under the jurisdiction of a DPS Lieutenant. And the main purpose of the supervision is to enforce DPS guidelines for the use of informants and undercover trafficking. Fewer than ten task forces still operate outside the system.

"I think the people who dropped out, most of them will tell you the reason they dropped out is they didn't want to comply with our rules about informants, the way you handle informants, the way you conduct your buys, and just the general rules we go by," said Davis. When asked if he thought Hinojosa had a good bill, Davis said, "Yessir."

Protecting Rights to Privacy

The second bill sponsored by Hinojosa would limit the ability of police to convert a traffic stop into a vehicle search. Under Hinojosa's bill unless police have probable cause for the search, they would need written permission upon a form that warned drivers of their rights.

"This bill is pretty much a straightforward simple bill trying to protect the rights of people from being searched without proper authority," says Hinojosa as he reads the bill to his fellow Criminal Justice committee members. "A peace officer who stops a motor vehicle for any alleged violation of the law or ordinance regulating traffic may not request the operator of the motor vehicle for consent to search the vehicle unless the peace officer has probable cause or another legal basis for the search."

"Many times," explains Hinojosa, "we have our citizens stopped for a traffic violation. And they may not know their rights and the police officer wants to search their vehicle and most of the time the citizen will say yes not knowing that he or she has the right to refuse. And the police have no business being in that person's car. The vast majority of time they find nothing and to me this is intrusion, it's intimidating, and there's no reason to do that. Many states have passed laws against consent search." And with that said, Hinojosa tells his own story.

"I have been stopped several times," says Hinojosa, "and when they ask my consent I refuse. And the police officer once I refuse most of the time they comply. And to me it is a waste of time, it is a waste of police resources. They should be used against someone who for whatever reason the police feel there is probable cause to arrest or search their vehicles. And that's pretty straightforward Mr. Chairman."

"We have a constitutional right to privacy and a constitutional right to not be searched without probable cause," says Hinojosa in response to follow up questions. "But right now under the law, if you refuse consent, you can also be arrested for a traffic violation and taken to jail."

The questioner stammers another follow up, and Hinojosa tells the story of the soccer mom stopped for a traffic violation who rubs the cop the wrong way and next thing she knows she's off to jail. The questioner pursues: what was the disposition of that case? And Hinojosa replies: the officer has the right to make the arrest. And the questioner asks: for simply refusing? And Hinojosa answers: no sir, for traffic violation, for speeding. In this exchange it is difficult not to see what a difference the cocoon of white skin color privilege makes between Hinojosa and his questioner. Hinojosa is attempting to teach remedial lessons across color lines.

"Under this bill," says Hinojosa, "if they cannot ask you to search your vehicle then you cannot refuse, right? Then they will not arrest you. Right now, let me explain this very simply Senator. Right now if you are speeding and the police officer stops you and he says may I search the vehicle and you say no they can arrest you for a traffic violation. Now, under this law if you are speeding and the police officer stops you, he's not going to ask you to consent to a search, okay. He'll probably just give you a ticket and you go on your way. There's the difference."

"But qualitatively," begins the next question and the words are spoken in high pitch, as the questioner further explores his very sincere ignorance of the matter. He's not faking anything here. He just doesn't know what it's like to be a member of a profiled class. So qualitatively, "if he can arrest you for a traffic violation because you've not given permission can he also arrest you if he never brings it up?" For this senator, the problem is a pure mind puzzle like the ones they drill you with in law school or philosophy class in which you never intuit the practical force field of the existential situation.

So Hinojosa draws the practical distinction. The Senator is intellectually correct, "but that's not going to happen."

"Well" again the pitch is high, querulous, and a prelude to more legal intellectualism, "we can say it's never going to happen but in terms of allowances under the law, it's not going to change anything."

"Of course it does," says Hinojosa. Then again slowly so everyone can hear clearly: Of, course, it, does. The cadence itself wins an okay. "Otherwise what are you going to have, every time you have a traffic violator you arrest them and take them to jail?� The questioner agrees that he would not anticipate that. �Of course not," says Hinojosa, driving home the practical conclusion. "Right now good police officers with probable cause don't need consent search."

Police State Mentality on Display

On April 13, the day after the hearing by the Senate Criminal Justice committee, the following quote was reported by Guillermo X. Garcia in the San Antonio Express-News:

"He followed me for three miles before he stopped me for no reason. When I would not give him permission to search my vehicle and he would not answer my questions about why he chose to stop me, he gave me a warning because he said my window tint was too dark," Hinojosa said.

On April 19 The South Texas Specialized Crimes and Narcotics Task Force released their tape of the traffic stop for media consumption. And task force commander Jaime Garza hit the broadcast news.

In an April 19 broadcast clip, the commander stands before the camera dressed in an official black shirt, his right arm resting upon an official black truck. TASK FORCE says the silver logo on the truck, with the capital A thrust down upon the point of a silver Texas star. He looks like he is posing for a political campaign and he is.

"I was quite shocked," says commander Garza. "And you know to be responsible for a bill that's being passed that's going to have statewide impact that's you know that's devastating."

Using the official trappings of his office as commander of a South Texas drug task force, the commander was lobbying hard against the senator's efforts to bring the drug task force under control and curb its powers to search Texas drivers.

But aside from the particular issues of the case, something about the image is disturbing. Something here is brazen: "Marked by flagrant and insolent audacity." The commander makes it seem quite natural to assume that he can flash his official symbols in this way.

The pose, the language, and the trappings of office assure us that the Task Force Commander lives in a territory where police lay down the laws for senators to listen. He can be shocked and devastated when a senator writes laws to change the way the drug war is waged.

Without realizing what he is really conveying, the Task Force Commander has marshaled all the signs and images in his power to broadcast loud and clear that police-state mentality holds sway.

In a police state laws are made to serve the police rather than the police made to serve the laws. In a police state also, police take the powers they are given to enforce laws and use those powers to build up their political clout.

By being shocked and devastated that a state senator is making laws with statewide impact, the Task Force Commander seems not to be aware what a state senator is elected to do.

The Task Force Commander seems not conscious of the fact that had state senators enacted no statewide laws whatsoever, there would be no official black shirt or truck for him to show off with. No silver star stabbing upward into his Task Force logo. In other words, the Task Force Commander speaks exactly like someone who thinks of himself very simply as a law unto himself.

Furthermore, the Task Force Commander is appearing on television this day because his task force has just released a video tape. And this is exactly how police in a police state work. They gather up their evidence one day under cover of "law enforcement" then release it on another day to produce well-timed political effects.

As a political threat to the senator, the tape is completely innocuous. But releasing the tape empowers the task force commander to appear on television and talk about the senator. This is police state politics pure and simple.

Rather than exercise his right to testify in front of the Senator at the committee hearing, the Task Force Commander orchestrated his own opinion in his own way using the powers and trappings of his office, releasing tapes and posing for cameras. Well, someone should thank him for that, because he couldn't have said anything more clearly than this: I am the law. And this message was a most important thing to see.

Cross Your Heart

On April 25 Hinojosa's bills were placed on the Senate intent calendar, which is usually a good sign that the Senate favors their passage.

Greg Moses is editor of the Texas Civil Rights Review and author of Revolution of Conscience: Martin Luther King, Jr. and the Philosophy of Nonviolence. His chapter on civil rights under Clinton and Bush appears in Dime's Worth of Difference edited by Alexander Cockburn and Jeffrey St. Clair. He can be contacted at: gmosesx@prodigy.net