The Ox Bow Incident
By
Rodolfo F. Acuña
Reading the posts in the Huffingtonpost.com I was surprised at the poor grasp of history of many of the wannabe bloggers. One wrote, “In the last five minutes I've seen about half a dozen references to Nazi Germany, which tells me that those who keep using these references have no frame of reference about what happened in Nazi Germany, and have nothing constructive to add to the argument, whether their argument be pro or con.” It continued, “Is this bad law? To be sure. Does it warrant comparisons with Nazi Germany? Absolutely not.” The point was that genocide had not been committed—(yet).
As a historian, I recall the famous statement attributed to Pastor Martin Niemöller in 1946 about the inactivity of German intellectuals in the rise to power of the Nazis and their targeting chosen groups.
THEY CAME FIRST for the Communists, and I didn't speak up because I wasn't a Communist.
THEN THEY CAME for the Jews, and I didn't speak up because I wasn't a Jew.
THEN THEY CAME for the trade unionists, and I didn't speak up because I wasn't a trade unionist.
THEN THEY CAME for me and by that time no one was left to speak up.
At what point in history should people have collectively spoken out?
Let's not be hypocritical. Arizonians are targeting Mexican-looking people. To the credit of a large number of people, there has been a moral outrage. SB 1070, signed into law this week, among other things, requires all law enforcement officers in Arizona to act on “reasonable” suspicion that an individual is in the country illegally—a law that the Sheriff of Pima County has sternly criticized.
Two days later, the legislature passed,
HB 2281 (bill attacking ethnic/raza studies) states that any course,
class, instruction, or material may not be primarily designed for
pupils of a particular ethnic group as determined by the State
Superintendent of Instruction. State aid will be withheld from any
school district or charter school that does not comply.
It was signed by the Arizona governor. This act sets the stage to attack the Tucson Public Schools highly successful La Raza Studies program and to outlaw books which the censors deem critical of the United States. This follows on the heels of the Texas Board of Education whitewashing of history.
Everyone should see The Ox Bow incident (1943), especially the following scene: http://www.youtube.com/watch?v=eezMiIuNNn8. When does a society become a lynch mob? Does this warrant the analogy to Nazi-like actions? I would say that Nazism took time to whip itself up and did not begin with the mass genocide of Jews, Gypsies, homosexuals etc.
Between 1848-1928, god fearing Americans lynched at least 597 Mexicans. This does not count Mexicans killed by Texas Rangers and other so-called citizens.
I write about these injustices to prevent making the same—I hate to use the word—mistakes as the past. The Arizona law is beyond mean spirited. It is reflective of a dark mood that many American people are going through—these so called Minute Men want blood--they are no ready—nor do they want—to listen to reason.
THEN THEY CAME for me, and people DID speak up.

The Tucson Federal SB1070 Litigation Complaint: Escobar v. Brewer

The complaint which has been filed in the Tucson federal court in the Arizona immigration litigation, Escobar v. Brewer, is now available (http://www.tucsonsentinel.com/files/pdf/escobar_sb1070_suit.pdf) .

Anatomy of a Boycott

The national office of LULAC voted to join the inter/national boycott against Arizona, as well as to join lawsuits against the State of Arizona. In communicating the boycott, LULAC detailed the following list of companies in their instructions to boycott, seeking wide dissemination:

List of Companies to Boycott:

Air Evac (airline)

Allied Waste Industries

Amkor Technology

Apollo Group

Arizona Public Service

Arizona Republic

ASARCO

Auralog

Avnet

Banner Health Systems

Bashas' Supermarkets

BEST WESTERN

CSK (CHECKER/KRAGEN) AUSTO PARTS

COLD STONE CREAMERY

CyraCom International

Cactus Candy Company

Database Systems Corp.

DIAL CORPORATION

Discount Tire Company

eFunds Corporation

Elixir Interactive

Fender Musical Insstruments

First Solar

Freeport-McMoRan

FRY'S FOOD AND DRUG, A DIVISION OF KROGER

Fulton Homes

Food City

Giant Industries

GO DADDY

Grand Canyon Airlines

Harkins Theatres

Honeywell Aerospace

Insight Enterprises

Inter-Tel

icrossing

JDA Software Group

Jobing.com

Knight Transportation

KPX

MAIN STREET RESTAURANT GROUP (TGI FRIDAYS)

Medicis Pharmaceutical Corporation

Meritage Homes

Mesa Airlines

Microchip Technology

Mobile Mini

Motorsports Authentics

ON Semiconductor

Peter Piper Pizza

PETSMART

PING GOLF

Pinnacle West Capital Corporation

PinnacleOne

P.F. CHANG'S CHINA BISTRO

Poore Brothers

Republic Services

RSC Equipment Rental

RotorWay International

Rural/Metro

Salt River Project

Sierra Pacific Airlines

SHAMROCK FOODS

Sunstate Equipment Co.

SuperShuttle International Inc.

Swift Air

Swift Transportation

TACO TIME

Taser International

Tilted Kilt

Troon Golf

U-HAUL

US AIRWAYS

USF Bestway

U.S. Machineries LC

Unisource Energy

Viad Corporation

Volance Language Services

Westcor

Arizona Diamondbacks

Arizona Suns Basketball

Arizona Cardinals

Related to the burgeoning boycott, a friend of mine, a lawyer and the former mayor of El Paso, Raymond Caballero, now living in Portland and my fellow commissioner on the Oregon Commission on Hispanic Affairs, allowed me to reprint his powerful letter to one of these businesses expressing his sentiments:

Dear Friends at US Air

Over the years I have flown on your planes, both US Air and America West, as I used to be from El Paso. I travel to and from El Paso and other locations several times a year. I regret to tell you that, unless I have no other alternative, I will no longer fly on US Air at least until the anti-Latino Arizona immigration legislation is repealed. We in the Latino community recognize that legislation for what it is, a slap in the face of the entire Latino community. There is no other way to interpret it. Senator John McCain’s daughter Meghan aptly describes the new law as "essentially a license to pull someone over for being Hispanic."

The statute involved is not the act of a lunatic fringe; it is the official and deliberate action of the Arizona legislature and governor. They have been attempting to do this for some time and have now finally succeeded knowing fully how the Latino community would interpret the action.

So, you are an Arizona company. As an individual, I am not returning soon to Arizona, a place I love and would visit once or twice a year and pass through on others.

I’m sorry about this, but it is the price we all pay for hateful acts against a good community.

rcc

Raymond C. Caballero

The Rule of Law and Arizona Part Two: Litigation in the Desert

Today opponents of SB 1070 initiated complex litigation on two fronts. First, veteran Tucson police officer Martin Escobar filed an action in Tucson federal court alleging that the new immigration statute is unconstitutional and will undermine the ability of police officers to patrol Latina/o neighborhoods. In addition, the National Coalition of Latino Clergy and Christian Leaders brought a lawsuit in Phoenix federal court. The clergy allege that the Arizona legislation is preempted by federal law and violates due process rights in the way that the statute authorizes the detention of suspected undocumented persons. (Jonathan J. Cooper and Paul Davenport, The Washington Post, April 29, 2010). It is unclear whether the Tucson or Phoenix location is likely to be more favorable for the plaintiffs. Tucson, however, may be perceived as a more liberal environment. For instance, the Sheriff of Pima County,which includes Tucson, has said that he will not enforce the new legislation.

Collateral Attacks: Amnesty International and Undocumented Immigration in and Through Mexico

Timing is everything in politics and policy.  That might be something to consider now in the midst of the organization of international efforts to force Arizona to reconsider its unfortunate migration enforcement legislation, SB 1070.  It is curious that just as the international furor increases over Arizona's recent legislation targeting undocumented migrants, Amnesty International issued a report that condemned Mexico for serious violations of the rights of undocumented migrants  in Mexico or passing through Mexico to reach the United States. Amnesty International, Report:  Invisible Victims: Migrants on the Move in Mexico, AMR 41/014/2010, published April 28, 2010. The Report is also available in Spanish as: VÍCTIMAS INVISIBLES MIGRANTES EN MOVIMIENTO EN MÉXICO

Migrants on the move in Mexico

© Amnesty International

In January, police stopped a freight train carrying over 100 migrants in Chiapas State

© Amnesty International (Photo: Ricardo Ramírez Arriola)

Most migrants traveling through Mexico are Central Americans headed for the US border for work

© Amnesty International (Photo: Ricardo Ramírez Arriola)

Main routes taken by Central American migrants travelling through Mexico 2001-2005

© Amnesty International

Amnesty International Widespread abuse of migrants in Mexico is 'human rights crisis', 28 April 2010.  This web site story urges that "The Mexican authorities must act to halt the continuing abuse of migrants who are preyed on by criminal gangs while public officials turn a blind eye or even play an active part in kidnappings, rapes and murders, Amnesty International said in a new report released on Tuesday."  Id.  The Report is notable for its documentation of violence perpetrated by both elements of the state and private individuals. 

Kidnappings of migrants, mainly for ransom, reached new heights in 2009, with the National Human Rights Commission (CNDH) reporting that nearly 10,000 were abducted over six months and almost half of interviewed victims saying that public officials were involved in their kidnapping. An estimated six out of 10 migrant women and girls experience sexual violence, allegedly prompting some people smugglers to demand that women receive contraceptive injections ahead of the journey, to avoid them falling pregnant as a result of rape. 

Id.  The Report recommendation included a number of generally framed reforms to address the situation:

• Legislative reforms to ensure access to justice
• Establish a federal task force to coordinate and implement measures
• Compile and publish data on abuses against migrants and the steps taken to bring those responsible to account, including public officials.

Amnesty International Widespread abuse of migrants in Mexico is 'human rights crisis', 28 April 2010.   These recommendation would also serve as a useful  foundation for approaching reform efforts in Arizona within the U.S. federal system.

For good or ill, this report received wide coverage in the English language media, and was prominently featured by the BBC.  It is not clear whether this reporting diverts attention from Arizona's efforts.

Migrants in Mexico are facing a "major human rights crisis" as the authorities fail to tackle widespread abuses, Amnesty International has warned.  The human rights group said officials ignored or even played a part in the rape, kidnap, and murder of migrants, often carried out by criminal gangs. Tens of thousands of Central American migrants pass through Mexico every year to try to reach the US and find work. . . .   The majority of migrants are from the Central American countries of El Salvador, Guatemala, Honduras and Nicaragua.

Mexico migrants face human rights crisis, says Amnesty, BBC NewsOnline, April 28, 2010.

It would be lamentable if Amnesty's efforts draws attention away from the debate on Arizona's legislative approaches, approaches which are rightly subject to intense interrogation.  On the other hand, Amnesty reminds us all of the obligations of all states, and of the importance of human rights and human dignity concerns.  These do not end or change character beyond the territorial frontiers of the United States.    As Amnesty well put:

En virtud del derecho internacional, los gobiernos tienen la obligación de utilizar su poder para garantizar que los derechos humanos se respetan, se protegen y se hacen realidad.1Esto incluye no sólo garantizar que sus funcionarios cumplen las normas internacionales, sino también actuar con la “diligencia debida” para abordar los abusos cometidos por personas o grupos particulares (agentes no estatales). Los indicadores de falta de diligencia debida incluyen: falta de castigo o prevención de los abusos; falta de intervención por parte de las autoridades; ausencia de prohibición legal u otras medidas para erradicar los abusos; falta de reparación o indemnización a las víctimas.

under international law, governments have an obligation to use their power to ensure that human rights are respected, protected and fulfilled. this includes not only ensuring that their own officials comply with human rights standards, but also acting with “due diligence” to address abuses committed by private individuals or groups (non-state actors). Indicators of the lack of due diligence include: failure to punish or prevent the abuses; failure by officials to intervene; the absence of legal prohibition or other measures to eradicate the abuses; and the failure to provide reparation or compensation to victims. This applies in equal measure to all states.

Amnesty International, Report:  Invisible Victims: Migrants on the Move in Mexico, AMR 41/014/2010, published April 28, 2010, at page 10; VÍCTIMAS INVISIBLES MIGRANTES EN MOVIMIENTO EN MÉXICO, p. 10.  

Still, the timing of the report was curious.  And its power to distract the conversation in the United States ought not to be underestimated.  Still, while efforts to induce Arizona to reconsider its legislative approaches ought not to be sidetracked by these attacks on collateral actors adversely affecting the human rights of migrants, it is worth remembering that Arizona is one small part of a global system of migration in which it will be difficult for any state, or for the political cultures of any reason, to claim the high moral ground.  

The SS and SB 1070

Arizona’s highly inflammatory SB 1070 is creating a firestorm of responses from inter alia civil rights and immigrant rights activists, lawyers, including political representatives from the same state all wisely opposing the statute. While no one is disputing protecting geographical borders is important, Arizona “forgets” it is inside a nation that values civil rights and the rule of law. As many assert SB 1070 in contrast will directly expedite the racial profiling of many Latinos that appear or are perceived in unlawful status. Nonetheless many residents of non-Mexican descent support the legislation and the governor’s approval rating as she perceives it is increasing.

With the ink of SB 1070 barely dry forthcoming legal challenges, economic boycotts and further collateral burdens do not bode well for a state claiming economic distress. States are tethered to federal law and in this instance, SB 1070 conflicts not only with the supremacy clause but also stands to violate the fourth amendment and most likely will trigger disparate and unequal treatment claims. Violations of civil rights violations moreover will also follow and inspire new interpretations of prevailing legal standards. Consequently, to promulgate a law that offends the prevailing legal templates at base level forewarns of costly, and expensive litigation in a state that recently stated it could not afford to keep its highway rest stops open.

Aside from the broad girth of challenges emerging thus far, a host of yet unknown but forthcoming negative externalities however also underscore the questionable legal standing of SB 1070. Specifically, Arizona’s simplistic approach to the complexities of immigration law caused me to recall my time with MALDEF, in San Antonio, shortly after the passage of the Immigration Reform Control Act of 1986 (“IRCA”). From that time one externality of the past that is ignored in the present illustrates that SB 1070 also promises to burden non-Latino “trespassers.”

To the present IRCA obligates all potential employees to produce various documents demonstrating work eligibility. Following its adoption IRCA spawned forth employers’ confusion over the type of documentation required and inspired a culture where demands for proof of “legality” not only accelerated but also became a norm absent standards. It was in sum wild times for the practicing bar with dubious and harmful practices injuring not only the undocumented but spanned its reach to citizens and others in the nation. For example until challenged highway patrol officers demanded proof of immigration status from drivers stopping at Texas rest stops.

Not uncommonly other disbelieving “interpretations” of IRCA’s purported intent emerged but one incident in particular left an imprint. Although a few miles from the Texas-Mexico border, BP agents upon spotting a pick-up truck immediately flew into action. Get out the smelling salts because what drew their attention wasn’t a driving “infraction” but rather the rancher driving the truck and accompanied by his wife also had three of their Chicano workers with them. After stopping them and to the horror of the husband, wife and employees, the agents surrounded their vehicle with guns blazing. The agents then demanded proof of the legal status of the workers, the disbelieving husband and the wife. It happened that all five were citizens or in lawful status.

Accordingly and herein lies yet another externality for avid supporters of SB 1070 who naively believe they will escape its purported intent and reach. Reaching beyond the racial profiling and simplistic interpretation of the agents in targeting the ranchers’ group were the victims’ reactions upon facing guns coupled with the “request” for “documentation.” Specifically years ago the wife had fled Nazi Germany to escape the odious ideology of the SS and the heinous violence of the times. Surrounded by agents with guns to check documentation of her “lawful presence” caused her to “return” to Nazi Germany. She was in sum beyond incredulous that in the U.S. she was ultimately experiencing what she had long ago fled.

Immigration law is riddled with innumerable complexities and federal attempts to “fix” our broken system have been ongoing for decades. SB 1070’s shortsighted approach ignores the innumerable reasons why the undocumented flee to the U.S and for reference purposes a few examples are thereby included. Specifically until employers are sanctioned appropriately or recognize they must pay living wages, or until NAFTA stops hurting the Indigenous and small farmers in Mexico, thereby forcing them to work as the nation’s farmworkers, or until sectoral labor demands are met by U.S. workers who refuse to work in areas the undocumented are found, or until slave trafficking is terminated or until the nation recognizes the labor of the undocumented is urgently needed—then and only then— will answers to our broken immigration system begin to surface.

Feel free to add to the above but also trust further unknown externalities will also reveal at great cost and sacrifice the harm of SB 1070.

Nuestras Voces encourages readers to follow....

the immigration profs blog that has for years tracked immigration reform as well as anti-immigrant attacks. This blogger is a huge fan and has posted here interesting posts from that site. Looking forward to more powerful and informative posts from Dean Johnson and his fellow bloggers.

http://lawprofessors.typepad.com/immigration/