by David Safier
If an article in the Star has it right, then Goddard has it wrong. And in the process, he's giving aid and comfort to the proponents of SB1070 by saying the law limits the use of racial profiling.
Gov. Jan Brewer and Attorney General Terry Goddard asked a judge Friday to dismiss a lawsuit that seeks to overturn the state's new immigration law.
Lawyers for both officials say the lawsuit by Washington-based researcher Roberto Frisancho should be thrown out because his claim is based on his speculation that, as a U.S.-born Hispanic, he will be asked for immigration papers as a result of the law.
The law requires police, while enforcing other laws, to question a person's immigration status if officers have a reasonable suspicion that the person is in the country illegally.
Brewer and Goddard's lawyers say the lawsuit doesn't take into account that the Legislature amended the law to strengthen restrictions against using race as the basis for questioning by police.
No, the amendments in HB2162 to SB1070 don't "strengthen restrictions against using race as the basis for questioning
by police."
HB2162 removed the word "solely" from this part of SB1070:
. . . may not solely consider race, color or national origin in implementing the requirements of this subsection . . .
But that doesn't mean race, color or national origin can't be considered, because the next words in the law are:
. . . except to the extent permitted by the United States and Arizona Constitution.
State and U.S. Supreme Court decisions state that racial and ethnic profiling may be used in determining a person's immigration status.
So what the first phrase disallows, the second phrase permits.
Racial profiling is an integral part of the law. Goddard has it wrong, if the article is an accurate depiction of his position.
I know I'm being presumptuous telling the AG he doesn't understand the law. So here is an analysis by Gabriel J. Chin, a UA law prof, and others, whose expertise gives them a bit more legal heft than I have.
Does SB 1070 authorize racial profiling?
Yes, the literal text authorizes racial profiling. But the interpretation and application of SB 1070 with regard to race remain uncertain.Although public officials have stated that the legislation prohibits racial profiling and that profiling is not otherwise legal, these statements are not consistent with the text of the statute or with existing law. The law says that law enforcement officers “may not consider race, color or national origin . . . except to the extent permitted by the United States or Arizona Constitution.”
A.R.S. § 11-1051(B). Decisions by both the United States Supreme Court and the Arizona Supreme Court have identified “ethnic factors” as a relevant consideration in enforcement of immigration laws, and have further determined that the U.S. Constitution allows race to be considered in immigration enforcement. United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975); State v. Graciano, 653 P.2d 683, 687 n.7 (Ariz. 1982) (citing State v. Becerra, 534 P.2d 743 (1975)).2
As we will discuss, an equally important question is whether race would influence law enforcement, even if the statute had stated that race may not be a factor in decisions to stop or request information, and even if the statute is interpreted to forbid racial profiling despite its current language. The unavoidable issue is whether race so pervades the underlying determination of immigration status that it will inevitably infect law enforcement decisionmaking, either explicitly or implicitly.
In a separate analysis, Chin commented,
I am deeply surprised that anyone construes this law to prohibit racial profiling.
I fear Goddard is letting politics cloud his legal perspective. And I also fear his political instincts to placate rather than to confront will cost him votes in the gubernatorial election.