by David Safier
One of the most serious misstatements about SB1070 is that it doesn't allow racial profiling. After all, this phrase is repeated a number of times in the amended law — that an enforcement official:
may not consider race, color or national origin in the enforcement of this section . . .
Pretty clear, right?
Wrong. The next phrase in that sentence says:
except to the extent permitted by the United States or Arizona Constitution.
The Arizona Republic published an version of SB1070 annotated by a constitutional scholar at UA. Here's some of the things he says on the subject.
According to a U.S. Supreme Court decision, race can be considered in immigration enforcement:
“The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.” United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975).
The Arizona Supreme Court agrees:
“enforcement of immigration laws often involves a relevant consideration of ethnic factors.” State v. Graciano, 653 P.2d 683, 687 n.7 (Ariz. 1982) (citing State v. Becerra, 534 P.2d 743 (1975)).
These rulings will be tested if the law is put into effect, because the circumstances in the cases aren't exactly identical to the kinds of stops we would see with SB1070, but the fact is, racial profiling is written into SB1070. If the writers wanted to ban racial profiling, the law would have left out the reference to the U.S. and Arizona constitutions.
So if racial profiling is allowed in enforcing immigration laws, why is it a big deal that it's allowed in SB1070?
Two reasons come to mind.
First, every supporter of SB1070 states adamantly that the law doesn't allow racial profiling. They're scrambling to neutralize a hot-button issue. If the law ever goes into effect, then they'll be more willing to confront the racial profiling issue. But right now, the supporters are trying to put out fires. So their mantras are, there's nothing new in the law, and it doesn't allow racial profiling.
Second, the law makes it mandatory for a police officer to check someone's immigration status if there is a "reasonable suspicion" that person might not have documentation. And "Mexican appearance," "ethnic factors" or "race" — whatever name you want to give to it — will be a factor in that reasonable suspicion.
Because of the imperative word "shall" in the law, police officers will be forced to use racial profiling on a regular basis, during any kinds of "stops" — traffic stops, random questioning on the street, a visit by an officer to someone's home, etc. Every time an officer deals with someone with brown skin, he/she will have to think, "OK, there's step 1 in my 'reasonable suspicion.' Now let's see what else I have."
Racial profiling by police officers in Arizona will increase exponentially — not because the officers are racists, but because they are required to make racial profiling one weapon in their "reasonable suspicion" arsenal.
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Racial profiling is not really the important point.
The important point is that _discrimination_ can happen through this law. The first time a Swedish Volleyball Team player is pulled over in Scottsdale because of a broken taillight, speaks to the officer in broken or accented English, and the officer is not feeling any “reasonable suspicion” and thus does not ask to see papers, then that will be de facto evidence the law is being used differently on two different groups of people. Discrimination. Assuming anybody pulled over in same circumstance with a Spanish accent is asked for papers.
The first time my Canadian snow-bird neighbor is pulled over for speeding and my Hispanic neighbor is also pulled over for speeding, one is asked for papers, the other is not, that will be de facto discrimination.
Racial profiling is a code phrase for the real affront to American citizens and the real affront to our historical experiences — Discrimination.
Discrimination cannot ever be allowed to happen ever again, to any group of people, in our country. Anytime, any place, ever again. Too much ignominious history with discrimination, too many lives and families have been hurt, too many beat up and killed in various long-time struggles, too much ugliness, baseness, too much inhumanity has reared its ugly head for anybody, anytime, any place to ever be OK with the possibility of it happening again in our American society.
The author of this bill, Kris Korbach, worked carefully to make sure this bill could withstand a de jure constitutional challenge. Like Lezli said above, it mirrors federal law, and the court will have a hard time ever reasoning it to be unconstitutional as it is written. But in practice? De Facto? We all know the police will ask for papers when my Hispanic neighbor gets pulled over for speeding, and we all know the Sweedish volleyball player who has an expire visa will not.
Discrimination.
It’s not acceptable. Ever again.
Neifi, since yours is a reasonably intelligent comment, I’ll respond to a few items.
There is no such thing as a “US Drivers License.” There are state licenses. And the law only accepts AZ licenses because many states don’t check naturalization status. Read the law.
And this is not simply about asking a driver for his/her license at a traffic stop. This is about demanding identification of passengers in cars or of anyone anywhere, including in your own home, if there is “reasonable suspicion” you may be undocumented. Tell me, do you advocate a National ID which people are required to carry with them wherever they go? Because that’s essentially what SB1070 requires of anyone with brown skin.
Also, you’re right, nothing stops an officer from asking for some form of ID. But this will be the first time an officer will no longer have discretion in the matter. Every officer will be required to ask for ID during any kind of stop or detention if there is reasonable suspicion that person might be undocumented.
People like you are the reason I keep on repeating this. You’re an intelligent person who hasn’t read the bill carefully or thought this through. Once you acknowledge the facts about SB1070, you’re entitled to your opinion. If we disagree, fine. But you’re not entitled to your own facts.
So now people are giving up on the “Its unconstitutional” argument and adopting a “The constitution is racist” approach to try and bitch? wow…
Anyway,
“Every time an officer deals with someone with brown skin, he/she will have to think, “OK, there’s step 1 in my ‘reasonable suspicion.’ Now let’s see what else I have.”
And it ENDS WITH STEP 2 – ask for identification. Once an officer is handed a drivers license issued in the US, its done. Person doesnt have a US Drivers License and they will then be asked for further documentation. A F*ing chimp can figure this out, yet this site needed 2 nearly identical posts to ignore logic and go off on a illogical tangent so it can try to incite rage in people?
PS – you do realize that there is absolutely nothing stopping every officer from asking every person of “brown skin” (as you put it) for legal documentation right now, correct? SB 1070 could completely remove the “verify legal status” portion and still accomplish its goal.
You have a strawman argument no matter which way you approach it – but I think you know that and are solely intent on inciting rage in others anyway.