One of the problems with debates on serious issues being played out in the media is that all sides, by necessity, make their arguments with shorthand and sound bites. The same is true, in spades, of the public discussion on Arizona’s SB1070 immigration law.
Much of the debate centers around the law’s requirement that law enforcement personnel demand immigration documents when they have “reasonable suspicion” that someone they have stopped might be undocumented. Proponents of the law often give the example of an Arizona driver who has been stopped for speeding and is unable to produce a valid driver’s license as an example of reasonable suspicion.
While that example makes for a nice sound bite, the reality is a little more complicated. If Arizona had meant to limit the circumstances to that, they readily could have written a law that said that if a person required to produce an Arizona driver’s license cannot do so, check for his proof of legal status. That would have been ethnically neutral, and would have avoided getting into the vague territory of “reasonable suspicion.” But they didn’t do that. Instead, they went much further.
The Arizona law requires law enforcement officers (including non-police civil servants enforcing municipal civil codes) to demand documents where “reasonable suspicion” exists that a person might be undocumented. Thus, if a county official goes to a home to cite the resident for the grass being too tall, or having too many people living in the house, or having a car on blocks in the yard, this obligation kicks in. Since there is no reason in these kinds of instances to look at a drivers license, what would create “reasonable suspicion” in this form of “stop”?
The legal definition of “reasonable suspicion” arises from a 1968 Supreme Court case called Terry v. Ohio. The court there said that, under the Fourth Amendment prohibition against unreasonable searches and seizures, an officer may “stop and frisk” a person if the officer observes “articulable facts” that make it “reasonable to assume” that the person is violating the law. Well, here, the “frisk” would be the demand for the documents. But what articulable facts could arise that would make it reasonable to assume that someone is in violation of immigration laws? THAT is the sticking point. In the vast majority of circumstances covered by this law, the ONLY articulable facts would be ethnically based–color of skin, accent, language. And THAT then triggers an issue under the Equal Protection Clause of the Fourteenth Amendment to the Constitution, which states “no state shall … deny to any person within its jurisdiction the equal protection of the laws”.
Modern law interpreting the Equal Protection Clause derives from the famous school desegregation case, Brown v. Board of Education. That case, and those that have followed it, have established that this Clause operates as a general restraint on the government’s power to discriminate against people based on their membership in certain classes, including those based on race and ethnicity. Because in the vast majority of the circumstances in which the Arizona law requires officers and officials to demand documents, the only possible articulable fact that would lead to the demand is ethnically based, the law conflicts with the Fourteenth Amendment.
It also is just plain against American values to engage in this kind of ethnic profiling.
There are those who argue that police develop “instincts” and “can identify patterns” that lead them to a reasonable suspicion based on their experience. Even assuming that that is true, and is not in fact based on subliminal prejudices, it would not be true here. The enforcement of this law is being assigned to state and local police and to civil servants, rather than to immigration officers. None of them have the experience to know what those patterns would be. Again, that leaves them with only ethnicity to serve as a guide. And, since the majority of ethnic minorities, including Latinos, in Arizona are in fact U.S. citizens or legal residents, ethnicity would not be a reliable basis even if such profiling were not morally repugnant.