SB1070 Update: The imperative “shall”

by David Safier

In media coverage of SB1070, the most serious error I see regularly is saying that the bill gives an officer the right to determine if people are in the country illegally when there is a reasonable suspicion about their immigration status.

That's wrong.

An officer doesn't simply "have the right." If there's reasonable suspicion, the officer must make a reasonable attempt to determine a person's immigration status, if it is practicable (if an officer has to deal with another situation immediately, it might not be practicable to take the time to check) or if checking will not hinder or obstruct an investigation.

It's not at the officer's discretion. It's an imperative.

The law states,

. . . a reasonable attempt shall be made . . .

Howard Fischer always gets this right. For others, it's hit or miss.

This imperative lies at the evil heart of the law. Under SB1070, an officer cannot use his/her discretion if a "reasonable suspicion" exists a person might be in the country without the proper papers.

The officer isn't allowed to say, "I'm not suspicious enough to check immigration status," or "They're on their way to church, for God's sake!" If a reasonable person would say, "I can't say for sure this person is here legally," it's got to be "Show me your papers" time.

What constitutes "reasonable suspicion"? That hasn't been determined yet, but it will probably be a Spanish accent combined with nervousness combined with worn clothing and old tennis shoes. Oh, and some racial profiling. Don't let anyone tell you SB1070 or federal law prohibits suspicion based on skin color and facial characteristics. Racial profiling is allowable in certain situations by federal law, and this in one of them.

That guarantees countless people who are in the U.S. legally — even people who are U.S. citizens — will be asked for their papers because of their accents and their skin color.

If you seem "reasonably suspicious," and you're behind the wheel of a car with a valid Arizona driver's license, it's no big deal. If you have an out-of-state license, though, you're in trouble. SB1070 doesn't accept drivers' licenses from other states as valid ID.

If you're brown and in the back seat of a car, or on the street, or in a store, or even in your home and lack SB1070-acceptable identification — and why should you have to carry ID with you at all times? — you will be hauled to the police station, while an equally legal white person standing or sitting next to you will not even get a second glance.

And you will stay in the station or in jail until someone can produce the necessary papers. If your papers are lost or unavailable, God
help you, because Arizona law won't.

This is exactly the kind of mandatory ID, police-state tactic the right wing screams about — innocent people being hauled off to jail because some government official says they don't have the right papers.

The right wing crazies would be going crazy about this law — except, they understand it's not about them, because:

If you're brown, the law can mess you around.

But if you're white, you're all right.