Arizona Legalizes Racial Profiling

Arizona Legalizes Racial Profiling

By Marjorie Cohn
Jurist

April 26, 2010

The conservative “states’ rights” mantra sweeping our country has led
to one of the most egregious wrongs in recent U.S. history. New
legislation in Arizona requires law enforcement officers to stop
everyone whom they have “reasonable suspicion” to believe is an
undocumented immigrant and arrest them if they fail to produce their
papers. What constitutes “reasonable suspicion”? When asked what an
undocumented person looks like, Arizona Governor Jan Brewer, who
signed SB 1070 into law last week, said, “I don’t know what an
undocumented person looks like.” The bill does not prohibit police
from relying on race or ethnicity in deciding who to stop. It is
unlikely that officers will detain Irish or German immigrants to check
their documents. This law unconstitutionally criminalizes “walking
while brown” in Arizona.

Former Arizona attorney general Grant Woods explained to Brewer that
SB 1070 would vest too much discretion in the state police and lead to
racial profiling and expensive legal fees for the state. But the
governor evidently succumbed to racist pressure as she faces a
reelection campaign. Woods said, “[Brewer] really felt that the
majority of Arizonans fall on the side of, ‘Let’s solve the problem
and not worry about the Constitution.’” The polls Brewer apparently
relied on, however, employed questionable methodology and were
conducted before heavy media coverage of the controversial
legislation. No Democrats and all but one Republican Arizona
legislator voted for SB 1070.

Undocumented immigrants in Arizona now face six months in jail and a
$500 fine for the first offense – misdemeanor trespass – and an
additional $1,000 fine for the second offense, which becomes a felony.
By establishing a separate state crime for anyone who violates federal
immigration law, the new Arizona law contravenes the Supremacy Clause
of the Constitution, which grants the federal government exclusive
power to regulate U.S. borders.

SB 1070 creates a cause of action for any person to sue a city, town
or county if he or she feels the police are not stopping enough
undocumented immigrants. Even if a municipality is innocent, it will
still be forced to rack up exorbitant legal fees to defend itself
against frivolous lawsuits.

The bill also makes it a misdemeanor to attempt to hire or pick up day
laborers to work at a different location if the driver impedes the
normal flow of traffic, albeit briefly. How many New York taxi drivers
impede the flow of traffic when they pick up fares? The law also
criminalizes the solicitation of work by an undocumented immigrant in
a public place, who gestures or nods to a would-be employer passing
by. This part of the legislation is also unconstitutional as courts
have held that the solicitation of work is protected speech under the
First Amendment.

The new law effectively compels Arizona police to make immigration
enforcement their top priority. Indeed several law enforcement groups
oppose SB 1070. The Law Enforcement Engagement Initiative, an
organization of police officials who favor federal immigration reform,
condemned the law, saying it would probably result in racial profiling
and threaten public safety because undocumented people would hesitate
to come forward and report crimes or cooperate with police for fear of
being deported. The Arizona Association of Chiefs of Police also
criticized the legislation, saying it will “negatively affect the
ability of law enforcement agencies across the state to fulfill their
many responsibilities in a timely manner;” the group believes the
immigration issue is best addressed at the federal level.

Many civil rights and faith-based organizations also oppose SB 1070.
The Mexican American Legal Defense & Educational Fund (MALDEF) called
the law “tantamount to a declaration of secession.” The National
Coalition of Latino Clergy and Christian Leaders Legal Defense Fund -
which represents 30,000 evangelical churches nationwide - as well as
MALDEF, the National Day Laborer Organizing Network (NDLON), and the
American Civil Liberties Union (ACLU), are preparing federal lawsuits
challenging the constitutionality of SB 1070.

Cardinal Roger M. Mahony of Los Angeles called the ability of
officials to demand documents akin to “Nazism.” Former Arizona Senate
majority leader Alfredo Gutierrez said, “This is the most oppressive
piece of legislation since the Japanese internment camp act” during
World War II. Representative Raul M. Grijalva (Dem.-AZ) called for a
convention boycott of Arizona. The American Immigration Lawyers
Association (AILA) complied. AILA is moving its fall 2010 conference,
scheduled for Arizona, to another state.

Even though SB 1070 will not take effect for at least 90 days,
undocumented immigrants in Arizona are terrorized by the new law. A
man in Mesa, Arizona looked around nervously as he stood on a street
corner waiting for work. “We shop in their stores, we clean their
yards, but they want us out and the police will be on us,” Eric
Ramirez told the New York Times.

Ironically, expelling unauthorized immigrants from Arizona would be
costly. The Perryman Group calculated that Arizona would lose $26.4
billion in economic activity, $11.7 billion in gross state product,
and approximately 140,324 jobs if all undocumented people were removed
from the state.

“This bill does nothing to address human smuggling, the drug cartels,
the arms smuggling,” according to Democratic Senator Rebecca Rios.
“And, yes, I believe it will create somewhat of a police state,” she
added. “Police in Arizona already treat migrants worse than animals,”
said Francisco Loureiro, an immigration activist who runs a shelter in
Nogales, Mexico. “There is already a hunt for migrants, and now it
will be open season under the cover of a law.”

SB 1070 is the latest, albeit one of the worst, racist attacks on
undocumented immigrants. The federal program called 287(g) allows
certain state and local law enforcement agencies to engage in federal
immigration enforcement activities. But a report released earlier this
month by the Department of Homeland Security Office of Inspector
General found a lack of oversight and training without adequate
safeguards against racial profiling.

We can expect SB 1070 to be replicated around the country as the ugly
wave of immigrant-bashing continues. Lawmakers from four other states
have sought advice from Michael Hethmon, general counsel for the
Immigration Reform Law Institute, who helped draft the Arizona law.

“SB 1070 is tearing our state into two,” said Phoenix Mayor Phil
Gordon, who called the bill “bitter, small-minded and full of hate.”
He thinks “it humiliates us in the eyes of America and threatens our
economic recovery.” More than 50,000 people signed petitions opposing
SB 1070 and 2,500 students from high schools across Phoenix walked out
of school and marched to the state Capitol to protest the bill before
it passed. On Sunday, about 3,500 people gathered at the Capitol,
chanting, “Yes we can,” “We have rights,” and “We are human.”

President Obama criticized SB 1070 as “misguided,” saying it will
“undermine basic notions of fairness that we cherish as Americans, as
well as the trust between police and our communities that is so
crucial to keeping us safe.” He called on Congress to enact federal
immigration reform.

But Isabel Garcia, co-chair of the Coalition of Human Rights in
Tucson, told Democracy Now! that there have been more deportations
under the Obama administration than in any other administration. “This
administration continues to follow the flawed concept that migration
is somehow a law enforcement or national security issue,” she noted.
“And it is not. It is an economic, social, political phenomenon.” She
mentioned that NAFTA has displaced millions of workers in Mexico who
flood into the United States.

Instead of expressing gratitude for the back-breaking work migrant
laborers contribute to our society, there is an increasingly virulent
strain of racism that targets non-citizens. Republican lawmakers are
joining together to oppose federal immigration reform, opting instead
for a “states rights” approach where each state is free to enact its
own racist law.

Let us join the voices of compassion and oppose the mean-spirited
actions that aim to scapegoat immigrants. Laws like SB 1070 demean us
all.

Marjorie Cohn is a professor at Thomas Jefferson School of Law
and immediate past president of the National Lawyers Guild. See
http://www.marjoriecohn.com/.

http://jurist.law.pitt.edu/forumy/2010/04/arizona-legalizes-racial-profiling.php

As well as my oldest sister.