Many are claiming that Arizona's new immigration law is racist. Bart Motes at the Huffington Post claims that we should hope the law is racist, since if it isn't, the only way it can be enforced is to stop everyone several times a day and ask for papers! Al Sharpton says the law "is an affront to the civil rights of all Americans and an attempt to legalize racial profiling." Are these accusations true?
The law text would certainly give us no inkling that they are:
A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE MAY NOT SOLELY CONSIDER RACE, COLOR OR NATIONAL ORIGIN IN IMPLEMENTING THE REQUIREMENTS OF THIS SUBSECTION EXCEPT TO THE EXTENT PERMITTED BY THE UNITED STATES OR ARIZONA CONSTITUTION.
But what about indirect racism? Is this law, as Bart Motes suggests, not enforceable except by either profiling racially or by violating the civil rights of every American citizen? Racism certainly exists in our criminal justice system, but this claim is false. This law can be implemented without either of these happening. Whether it will be is another matter, but the situation is similar to other laws, and those concerned with racial profiling should target racial profiling directly.
Clearly the text of the law does not in itself show racism. What then is motivating these charges? One reason seems to be that the law is directed against illegal aliens, and illegal aliens in the United States and especially in Arizona are largely Latino. 81% are from Latin America, according to 2005 figures from the Pew Hispanic Research Center. Another more important reason may be that there have been in the past, and probably still are, racial disparities in immigration law enforcement. Whereas Hispanics were less than 60% of illegal aliens in 1996, they were over 90% of those subjected to INS enforcement actions. There could be other factors explaining this disparity besides simple racism: one could imagine scenarios in which INS was more reluctant to enforce the law against more educated illegal aliens, and those from Latin America were less educated than those able to afford overseas passage from Asia and Europe. But reasonably I think we can conclude that is unlikely to have accounted for all of the difference, and even if it did, it still might not have been justified.
It is a fact that US law enforcement can be racist. There is perhaps no more outrageous example than the drug war: blacks comprised 62.7 percent and whites 36.7 percent of all drug offenders admitted to state prison in 2000, despite only 12.7% of the US population being black. Relative to population, black men are admitted to state prison on drug charges at a rate 13.4 times greater than that of white men. This is despite that the drug use rate among blacks, 10.1%, was only slightly higher than the 8.2% figure among whites. And outrageous though it is, racism in drug enforcement is hardly unique. In New Jersey a 1997 investigation revealed that four in five drivers arrested were minorities.
What solutions have been proposed for this? There are some who do make the argument that we should repeal drug laws because enforcement is racist. But in general I think it's fair to say that this is not an especially big motivation for repeal: the economic benefits or increased security resulting from legalization clearly get more attention, and racist enforcement rated only #9 on the High Times list of "Top Ten Reasons Marijuana Should Be Legal." And certainly no sane person would make an argument that we should repeal laws against speeding because of racial profiling in traffic stops. Instead, one response to racial profiling has been data collection. Police are required to record the race of a person when they make a stop, and if the overall rates imply racism then it can be corrected. Another response has been to pass state laws against racial profiling that augment the Justice Department's federal enforcement capabilities.
The facts lead me to conclude that it would not be surprising if Arizona's new law caught more Latino illegal aliens than is due simply because our entire immigration enforcement regime probably catches more Latinos than is due. But any more than we would repeal all immigration laws because they are racist and pursue a policy of completely open and porous borders, racism is not a reason for opposing this law. Instead we should target the racial profiling directly by holding police accountable and by passing state laws against racial profiling. Arizona does not have a state racial profiling ban and there is little excuse for that. Enforcing immigration laws, however, is either justified or it isn't. If it is then Arizona's new push should be kept and if it is not then the real problem is our whole immigration policy.
What about Motes's claim that even if not racist, this law violates civil liberties? There is no evidence presented for this other than:
A LAW ENFORCEMENT OFFICER, WITHOUT A WARRANT, MAY ARREST A PERSON IF THE OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT THE PERSON HAS COMMITTED ANY PUBLIC OFFENSE THAT MAKES THE PERSON REMOVABLE FROM THE UNITED STATES.
Imagine! A law enforcement officer may arrest a person with only probable cause! But wait, I seem to have heard that before somewhere. In fact, digging through the Arizona statutes, I found more and more of these frightening provisions:
B. A peace officer, with or without a warrant, may arrest a person if the officer has probable cause to believe that domestic violence has been committed...
And in general:
A. A peace officer may, without a warrant, arrest a person if he has probable cause to believe:
- A felony has been committed and probable cause to believe the person to be arrested has committed the felony.
Look at the abuse! Our Constitution has been shredded!
But looking even deeper, I found the offending phrase in the Fourth Amendment itself!
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Seriously folks, the fact that officers can make arrests with probable cause is no different from with any other crime. Moreover, not having any valid ID by itself is not probable cause or a valid reason to arrest a person. Legal aliens are required to carry ID under federal and now Arizona law, but an arbitrary person is presumed a citizen. Refusing to even provide one's name can be a valid reason for arrest in Arizona, but only if there is already "reasonable suspicion" from other circumstances. Mr. Motes's later scenario of an arbitrary tip to the police reporting a family to be "possible illegals" combined with a citizen family member not having ID, speaking with an accent, and then getting arrested is almost certainly not valid; there are certain tests that have to be met for a tip to provide probable cause for arrest. In Spinelli v. United States the Supreme Court ruled that even though a tip accurately stated someone's phone number and that they were gambling illegally, that still wasn't enough for probable cause despite previous FBI suspicion that the person was a gambling bookie.
If arresting on probable cause is unquestionably normal and constitutional, then what is the potential problem with the Arizona law? The ACLU criticism claims that while state and local officials can enforce criminal federal immigration law, they cannot enforce civil violations. ACLU points to the case of Gonzales v. City of Peoria, the main finding of which was that criminal federal immigration offenses could be investigated by local and state officials, but which also assumed in its reasoning that civil immigration offenses were the exclusive domain of the federal government (a "pervasive regulatory scheme"). But the Center for Immigration Studies claims that even civil violations are enforceable and points to the case of U.S. v. Vasquez-Alvarez, which made no distinction like the one Gonzales did. In that case the presence or lack of a distinction was central to the court's ruling, whereas in Gonzales it wasn't. Still, as this document from the Connecticut Legislature notes, the issue is "not clear."
The constitutionality of this bill is hence a more subtle question than many people would care to admit. Based on the details I'd guess precedent is probably more on this law's side, but if it isn't, the Fourth Amendment isn't the issue. The only real question is the Supremacy Clause and the power of the federal over state government in immigration matters.
There is a great deal of misinformation on this topic. For example, the Boston Globe states erroneously that
the measure requires authorities to question people about their immigration status — and allows authorities to arrest them without a warrant — if law enforcement officials have a "reasonable suspicion’’ that they are in the country illegally.
Robert Creamer at the Huffington Post states:
the new Arizona law requires that all police officers with a reasonable suspicion that an individual might not be in our country legally, must demand to see that person's papers.
Both statements are false. Law enforcement cannot arrest anyone on "reasonable suspicion." As just demonstrated, that requires the higher standard of probable cause that applies in all cases of arrest. Police officers also do not have to ask for a person's papers if they are suspicious, though obviously they might ask for ID during a stop. Here is the actual occurrence of the term "reasonable suspicion" in the Arizona law:
B. FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR A LAW
ENFORCEMENT AGENCY OF THIS STATE OR A LAW ENFORCEMENT OFFICIAL OR A LAW
ENFORCEMENT AGENCY OF A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON, EXCEPT IF THE DETERMINATION MAY HINDER OR OBSTRUCT AN INVESTIGATION.
Reasonable suspicion is not just an arbitrary phrase used in this particular law. It has a specific legal meaning. It means the level of suspicion that a police officer must have to conduct a "Terry stop," or a brief detainment that could involve pulling someone over, demanding their name, or frisking their clothes. This is not true:
"I ask you, what does reasonable suspicion mean?’’ Letona, the associate director of the state’s chapter of the National Alliance of Latin American & Caribbean Communities, told a noisy throng through a megaphone yesterday on the Common. "It means not looking white. It means not sounding white. It means those who do not conform to a certain idea of what Americans should look like.’’
What are some practical examples of "reasonable suspicion"? Here's one from the original Terry case:
His interest aroused, Officer McFadden took up a post of observation in the entrance to a store 300 to 400 feet 6 away from the two men. "I get more purpose to watch them when I seen their movements," he testified. He saw one of the men leave the other one and walk southwest on Huron Road, past some stores. The man paused for a moment and looked in a store window, then walked on a short distance, turned around and walked back toward the corner, pausing once again to look in the same store window. He rejoined his companion at the corner, and the two conferred briefly. Then the second man went through the same series of motions, strolling down Huron Road, looking in the same window, walking on a short distance, turning back, peering in the store window again, and returning to confer with the first man at the corner. The two men repeated this ritual alternately between five and six times apiece—in all, roughly a dozen trips. At one point, while the two were standing together on the corner, a third man approached them and engaged them briefly in conversation. This man then left the two others and walked west on Euclid Avenue. Chilton and Terry resumed their measured pacing, peering, and conferring. After this had gone on for 10 to 12 minutes, the two men walked off together, heading west on Euclid Avenue, following the path taken earlier by the third man.
By this time Officer McFadden had become thoroughly suspicious.
In general,
while reasonable suspicion does not require hard evidence, it does require more than a hunch. A combination of particular facts, even if each is individually insignificant, can form the basis of reasonable suspicion. For example, police may have reasonable suspicion to detain someone who fits a description of a criminal suspect, a suspect who drops a suspicious object after seeing police, or a suspect in a high crime area who runs after seeing police.
One of the big questions that many have asked about this law is "What gives reasonable suspicion that someone is an illegal alien?" It's admittedly very difficult to give a complete answer to this question. Even the Supreme Court has acknowledged that it cannot not do so in general. But in Terry, it was actions related to the crime that led to suspicion. The suspects looked like they were planning a robbery. So if an officer finds people who look like they are in the act of crossing the border illegally--say, in the middle of the desert for no apparent reason--that seems like grounds for reasonable suspicion. If an officer pulls over a truck or van for speeding and finds six people in a hidden compartment, that is obviously grounds for reasonable suspicion and a traffic violation. If a driver gets caught with no license, that is also clearly suspicious.
This is no hard science, and more ambiguous scenarios can be debated. From the above quote we can deduce that if someone sees police and immediately runs away in an area with many illegal aliens, then is found to not speak English and have no ID, that is reasonably suspicious. You could also make a good case that even if they do speak English it is suspicious. It must be emphasized, however, that even if reasonable suspicion is aroused it only gives authority to check the person's immigration status, not to make an arrest. Arrest requires probable cause to believe the person is an illegal alien, the same as for any other crime.
What about other features of this law? One feature of the law that does seem unusual is that it requires police who have reasonable suspicion to investigate a crime. For most investigations, like administering a breath test in drunk driving cases, it is only the word "may" that is used. To find actual requirements among the Arizona statutes we may well need to look as far as dispersing a riot, or in a law that applies to any citizen and not merely to police officers, the duty to report child abuse. Such duties as opposed to mere rights are unusual, but all they really mean is that priority will be given to the same enforcement actions that would exist already. They require more time spent by police officers on the same actions.
Another unusual feature of this law is the authorization of lawsuits against government agencies that refuse to carry out its provisions. This is not unique, though. Lawsuits are also authorized in cases of discrimination, for example. This will have the same effect as the requirement to investigate, namely forcing higher priority and more time spent by law enforcement, but it will still not change the types of investigation that are allowed. The bottom line is that reasonable suspicion will still be required to investigate and probable cause will still be required to make an arrest, the same as for any crime.