"I like nonsense, it wakes up the brain cells." - Dr. Seuss
Question #57475 posted on 05/14/2010 3:01 a.m.

Dear 100 Hour Board,

Does the new Arizona immigration law allow a racist Arizona police officer to go up to a Hispanic-looking person just walking down the street doing nothing wrong and demand to see their papers?

- can't hear past all the unsourced screaming

A: Dear can’t hear,

Your question addresses some of the fundamental concerns that people have with the new Arizona immigration policy. Your scenario of a “racist Arizona police officer” demanding to see immigration papers of any “Hispanic-looking person . . . doing nothing wrong” touches on some of the most debated issues at play here: racial profiling and the circumstances under which police officers can ask to see papers. Before going into any detailed analysis (and I guess as kind of a teaser), the answer to your question is no, but it some respects yes. No, a racist police officer (or any police officer) could not stop someone “Hispanic-looking” and demand to see their papers if looking Hispanic is the one and only thing that might make a police officer suspect that the person is in the country unlawfully. But if the police officer was stopping someone for a legal reason, and if looking Hispanic were combined with other characteristics about someone (the way the person dressed, walked, acted, gestured, who they were with, what they were doing, etc.) that could justifiably make the officer suspect that that individual was not a legal citizen, then yes the officer could ask them questions about their legal status.

Lest you think I’m simply repeating talking points, let’s look at what the law actually says.

There have been two iterations of this bill signed into law. The first, signed on April 23, 2010 and a second bill amending several key points of the law especially regarding racial profiling, signed on April 30, 2010. I think it will be easiest to describe a little more about the sticky parts of these two versions of the law in order to understand exactly what the current policy is or is not. (Note: All of my information, including the citations of the original bills as well as information from legal experts I gathered from a series of in depth articles from Politifact.com, a Pulitzer prize winning fact-checking website that analyzes claims made by politicians and by news programs. I highly recommend this website, as well as FactCheck.org for anyone who is confused or turned off to current events because of the climate of news or political reporting.)

April 23rd Law: “reasonable suspicion”

This is how the law read when it was first signed on April 23, 2010:
"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."
I have bolded two statements, “lawful contact” and “reasonable suspicion” that raised a lot of questions about what this law was actually allowing. First, “reasonable suspicion.” In an on-air debate, Arizona State Senator John Huppenthal indicated that police would only stop someone if they were actually committing a crime. Under the original wording of the law stated above, this is not true. From Politifact:
In discussing these questions with legal experts, we found that everyone agreed that there's some gray area that will need to be sorted out in future court decisions. That said, the general consensus was that police could indeed stop someone even in the absence of suspicion that a crime was being committed.

Peter Spiro, a Temple University law professor, said that law enforcement officers can use profiling rather than suspicions of a specific crime being committed.

"Police departments come up with profiles that can establish a reasonable suspicion," Spiro said. Such profiles "entitle an officer to stop someone and say, 'I'd like to ask you some questions?' The officer can then investigate, which could lead to probable cause." . . . .

Spiro said the challenge is drawing up a defensible profile for spotting illegal immigrants. "You can't stop someone just because they look Hispanic," Spiro said, because the law specifically says that officers "may not solely consider race, color or national origin." As a result, Spiro said, "there has to be some other factor or factors, not all of which are race-based, as well as some empirical explanation of why that profile establishes a reasonable suspicion. You have to come up with something beside race that sounds plausible as correlating with undocumented status, and it's hard to say what that would be."
As an example of a situation when a legal stop by police could be combined with a profile that indicates “reasonable suspicion” another law professor said this:

"Officers can use traffic stops to look for people who have invalid licenses, and invalid licenses for people who do not speak good English will be proxies for reasonable suspicion that the person is an illegal alien," said Stephen Saltzburg, law professor at George Washington University. In 1996, he said, the Supreme Court ruled in Whren vs. United States that it was permissible to use traffic laws to enforce drug laws. Similar stops for immigration laws, Saltzburg said, are "also likely to be upheld" if challenged under the Fourth Amendment, which protects against improper search and seizure.
The language regarding “reasonable suspicion” remains in the April 30th version of the bill. I think that for many people, this is an eye-rolling moment, when they say, “Don’t be silly. Of course no officer would do that.” I think that this is true to a large degree. I imagine that to prevent a flood of lawsuits, police departments in Arizona will be very strict about establishing the protocols under which they can profile individuals, knowing that inevitably they will have to defend the actions of officers in a court of law. But the point is, that under the explanation provided in the law “reasonable suspicion” does not require that a law actually be broken for an officer to inquire as to someone’s legal status.

April 23rd Law: “lawful contact”

“Lawful contact” is another troubling phrase for many because there are many, many perfectly legal interactions that the police can have with people that do not involve the police suspecting any type of illegal activity. This wording was revised in the second bill that was signed on April 30th. The new wording is discussed below. Politifact quotes Jennifer Chacon, law professor at the University of California (Irvine) regarding “lawful contact”:
"Lawful contact can occur in many instances when there is no reasonable suspicion of a crime," she said. "A consensual encounter, such as asking a police officer for directions, reporting a crime to a police officer, or being a victim of a crime or a witness and being questioned by a police officer, is a 'lawful encounter.' Also lawful are some stops premised on absolutely no individualized reasonable suspicion -- think about DUI checkpoints where everyone is stopped even if there is no individualized suspicion for the stop. The bill is clear that so long as the initial encounter is lawful, a police officer can then ascertain my legal status upon suspicion that I am undocumented. . . . Under the plain language of the law, any time the police engage in a lawful encounter, that is enough to trigger the inquiry into status upon reasonable suspicion."
To me, there are a lot of worrisome implication of the phrase “lawful contact.” I think that legally, “lawful contact” would in many respects create a scenario in which, as you said, police could find a way to ask almost anyone about their legal status. A secondary problem this could cause would be to create reluctance on the part of people and communities to contact the police for legitimate criminal concerns (when, for example, someone has been victimized by a crime) simply to avoid questions about a person or a family member’s legal status.

I think, like with the “reasonable suspicion” discussed above, this abuse of legal contact would likely not take place by law enforcement officers. This is a delicate situation with many legal and social ramifications and I think law enforcement agencies know that they will be in the spotlight. But the fact remains that, with this legal language, such use of all “lawful contact” could have taken place. In the newer law, signed April 30, 2010, the phrase “lawful contact” was changed to “lawful stop, detention or arrest.” Again, the implications of this phrase will be addressed below.

April 30th Law: “the possibility of racial profiling”:

On April 30, 2010, Arizona governor Jan Brewer signed a bill that made some important changes to the original bill signed into law on April 23rd. Specifically, the new changes include a section specifically addressing the illegality of racial profiling as well as two important changes of phrasing in a key paragraph of the law. Regarding the new additions addressing racial profiling, Governor Brewer said this: ” These changes specifically answer legal questions raised by some who expressed fears that the original law would somehow allow or lead to racial profiling. These new amendments make it crystal clear and undeniable that racial profiling is illegal, and will not be tolerated in Arizona.

I am proud that the Arizona Legislature has listened carefully to everyone’s concerns, and, in a gesture of statesmanship, acted swiftly and appropriately to lay to rest questions over the possibility of racial profiling.”

The new version of the law says this:
"A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not 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." (emphasis added)
The original version had said that an official "may not solely consider race” while implementing the new law.

While I think that Governor Brewer is correct that the new language seems to be more clear cut in regards to how race can be used in the enforcement of the law, the reality is that it just changes the shade of gray in terms of the way the law can be interpreted. The problem with the “crystal clarity” of the new law isn’t that it is unclear about the legality of straight-up racial profiling (it’s illegal), it’s that it allows the consideration of race “to the extent permitted by the United States or Arizona Constitution,” an extent which is not well defined.

According to Politifact, there is some inherent conflict in what the United States allows in regards to race:
A big reason for uncertainty is that there is Supreme Court precedent for allowing racial profiling under similar circumstances to those envisioned in the Arizona law.

In 1975, the U.S. Supreme Court decided a case called United States vs. Brignoni-Ponce. In that case, a roving unit of the U.S. Border Patrol stopped a vehicle near the Mexican border and questioned the occupants about their immigration status. In this case, the court wrote, "the only ground for suspicion is that the occupants appear to be of Mexican ancestry."

In a 9-0 decision, the court ruled that "because of the important governmental interest in preventing the illegal entry of aliens at the border, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border, an officer, whose observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, may stop the car briefly, question the driver and passengers about their citizenship and immigration status, and ask them to explain suspicious circumstances; but any further detention or search must be based on consent or probable cause."

In the majority opinion, Justice Lewis Powell continued, "The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor," even though "standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens." In other words, racial factors can be legitimately used in profiling, just as long as they are not the only factors -- language that's similar to the Arizona law's original wording.

Complicating matters further, the Ninth Circuit Court of Appeals -- the federal court that includes Arizona -- has issued a more restrictive ruling than the Supreme Court on the use of race in profiling. Unlike the Supreme Court, the Ninth Circuit ruled that consideration of Hispanic appearance in a stop is impermissible, said Jennifer Chacon, law professor at the University of California (Irvine). This tracks closely the new language added to the law.
Basically, while the U.S. Supreme Court said that race, specifically “Mexican appearance” is a “relevant factor,” though it is illegal if it is the only factor, the Circuit Court of Appeals said that use of Hispanic appearance as a cause for consideration during a legal police stop is “impermissible.” Clearly, there are issues here for the courts to decide and because of that, the practical day-to-day implementation and interpretation of this law by police officers may well be affected. Also, this doesn’t change the fact that police are still within the law to profile based on other characteristics including clothing or behavior. Profiling, in any way, is a hazy legal area that probably will need future court rulings (which I think are inevitable) to sort out.

April 30th Law: “enforcement of any other law or ordinance”

As mentioned above, the new bill changed the phrase “lawful contact” in the wording of the Arizona law. The relevant paragraph now says this:
“"For any lawful stop, detention or arrest 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 in the enforcement of any other law or ordinance of a county, city or town in this state where reasonable suspicion exists that the person is an alien and 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."
The phrase “lawful contact” was worrisomely unclear, and the more direct phrase "lawful stop, detention or arrest” could help to alleviate the concern that something as innocuous as just asking a policeman for directions could lead to an inquiry about immigration (something that I’m sure people will continue to repeat and believe forever). But to many, “lawful stop, detention or arrest” doesn’t do nearly enough to curtail the amount or type of people that the police can legally contact under this law, and in some instances might actually expand the reasons for which police could question someone about their immigration status.

The problematic phrase in the new law is “the enforcement of any other law or ordinance of a county, city or town.” Before, the law had not mentioned city or town laws (municipal law enforcement) as being options for police to ask questions. Opponents of the bill have mentioned municipal law violations such as having an overgrown lawn or a loud, barking dog as examples of laws that could be broken that could legally merit police investigation (and therefore questions about legal status). Politifact investigated this specific claim, as well as the larger implication about police using municipal law enforcement to investigate a person’s legal status:
[W]e called Ken Strobeck, the executive director of the League of Arizona Cities and Towns. Strobeck told us that such violations [overgrown lawns and barking dogs] are indeed common in Arizona municipal codes. He said that while such violations are ordinarily enforced by unarmed code enforcers rather than by armed, trained police officers, there is nothing in the Arizona law to prevent a police officer from using an unmowed lawn, or some other civil violation for which they make a stop, detention or arrest, as the trigger for an immigration status check.

The expansion of the law to municipal ordinances gives police "virtual carte blanche to ask for documentation," said Stephen W. Yale-Loehr, adjunct law professor at Cornell University.

The language on municipal ordinances may be new, but the original version of the law had already established a low threshold for asking immigration-related questions.

For instance, the law would have allowed police to use traffic stops as a justification to ask immigration questions. Traffic stops are a well-used, and legal, way for police officers to enforce other laws. They can be used to test for drunken driving, or to catch violators of vehicle laws, such as those against broken taillights.
Finally, the language of the law doesn’t require that any time the police investigate any municipal law infraction they can and should inquire about immigration status if there is suspicion. It says that “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.” Rather than requiring police to always behave a certain way toward people they suspect, it instead gives them the option to investigate immigration status if that doesn’t obstruct their other investigations.

April 30th (and April 23rd) Law: “a gesture or a nod”

Finally, one focus of both the original and current versions of the law is the targeting of illegal day-laborer (people, often illegal immigrants, being picked up in a parking lot or roadside for a day of work). While few people are arguing that this practice is illegal (and often exploitative of the laborers), the language of the bill includes some phrases that are specifically designed to make picking up day-laborers illegal. For example, in one section the law says this:
It is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway or highway to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.
But in specifically targeting persons in the United States illegally, the law says this:
It is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state. . . . “Solicit” means verbal or nonverbal communication by a gesture or a nod that would indicate to a reasonable person that a person is willing to be employed
This discussion could probably fit under “reasonable suspicion” since it is discussing a behavior (gesturing or nodding at someone in a public place) that is legally defined as one that could be considered suspicious behavior that could be investigated by police. Certainly the police will not be demanding immigration papers of every person who nods or gestures on every street. But that is an example of behavior that, because it specifically violates a law, could present police with a “lawful stop” situation wherein immigration status could be questioned.

Personal Conclusions

To answer your specific question, no the law doesn’t allow racist police officers to ask anyone Hispanic for their papers. But it is a problematic law because it simultaneously outlaws racial profiling while giving police vaguely defined powers to act on what they determine to be suspicious. There are too many loopholes, too many available options for potential abuse by law enforcement officers, for people who disagree with the law (like me) to feel at all comfortable with the law. I do take comfort in the common sense and good judgment that I’m positive the police in Arizona will use in enforcing this law. But I also think that fear of lawsuits is a shaky safeguard against a law that has the potential to go too far. There have already been lawsuits from groups suing the state in an attempt to block the legislation from going into effect in three months.

I understand concern with the terrifying violence happening in Mexico, and I’m certainly not saying that entering or living in the United States without documentation isn’t illegal. I’m sure that, because they will be under a microscope, police will be extra cautious in the way the law is enforced. But using finite state and federal resources to target everyone simultaneously is a less effective and certainly more invasive strategy toward illegal immigration than trying to focus first and foremost on those who are in the United States illegally and breaking state and federal laws on top of that.

- Rating Pending (who appreciated these articles from Politifacts here, here, here and here. Here is the full text of the actual bill.)