Wednesday, July 21, 2010

Forget the Constitution

Politicians of all stripes are in love with the idea of passing an “Arizona type” immigration law hereabouts.  It plays well in a state where a lot of folks only want to see folks of color installing drywall, picking crops and mowing lawns.

But, let’s assume that is the will of the people and there aren’t any constitutional problems with an “Arizona type” immigration law.  Let’s pass one.  Poof – here it is.

“For any lawful contact made by a law enforcement official… 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…. Any person who is arrested shall have the person’s immigration status determined before the person is released…. [The official] may not solely consider race, color or national origin in implementing the requirements of [this law] except to the extent permitted by the United States or Arizona Constitution.  A person is presumed to not be an alien who is unlawfully present … if the person provides … any of the following:  1.  A valid [Georgia] driver license.  2.  A valid [Georgia] … identification [card].  3.  A valid tribal identification card….  4.  [Another valid ID card if the issuing entity] requires proof of legal presence in the United States before issuance…” *

OK, now, you’re the cop and I’m driving my car.  I blow a red light and you pull me over.  I'm driving a beat up van with faded business lettering on the side.  I forgot to renew my driver’s license on my last birthday, so I have no valid ID to provide to you. Determine my immigration status under the language set out above and you have to do it before you release me.  Now, you can’t solely consider my race, color or national origin and indeed, they won’t do you any good because I’m a rapidly aging, balding, graying white guy.  Do your job.  Come on, do it.

Just how can you do it?  Am I illegal because I'm driving a beat up van?  Based on the facts, you can't conclude I'm illegal can you?

Of course, this isn’t going to happen because you aren’t going to suspect that I’m illegal in the first place.  I’m white and look like I belong.

Now let’s move to later in the day.  You gave me my ticket and are patrolling for more traffic scofflaws.  You see a banged up white van with faded business lettering on the side and it rolls through a stop sign.

Assume all of the facts I gave you about me, except the driver is my late friend Tony who was born in Cuba decades ago and was a naturalized citizen.  Change him just a touch so that his English isn’t flawless (as it was) – for our hypothetical he speaks only broken English (as a good number of quite legal Hispanic people around here do). 

Now remember, you can’t solely consider his swarthy skin, his language difficulties or even the fact that he tells you he was born in Cuba.  Read the text of our law again.  So what are you left with?  He’s a middle-aged guy who doesn’t have a valid license, driving a broken down van (he had such a van that he used in his business).  Is that probable cause to arrest him for being illegal?  (Note that our text doesn’t speak about needing probable cause – if you have a reasonable suspicion, you’ve to haul him to jail and hold him until he digs up his naturalization papers.)

Putting aside his racial characteristics, does driving a beat up van give you a reasonable suspicion that he’s illegal.  It didn't work with me, is there any difference?  Now take away the van, he’s driving a nice new car.  What’s your verdict now?

You see, there simply are no non-racial indicators of illegal status.  Tony and I are exactly the same to the cops, except for our accents and coloring.  I have little chance of detention; he would risk it on an ongoing basis under our new law.

A long time ago I listened to a Michigan State Trooper talk about pulling people over for DWB - driving while black.  He'd make up a pretext for the stop and then harass them.

I fear, no change that, I know that our nice new law is a ready made for similar racial profiling.

An "Arizona type" law would give cover to bad cops and be a nightmare for good cops.  Or, maybe not a nightmare for good cops as, as I said, there are no non-racial indicia of illegal status; so, a cop acting rationally wouldn't detain anyone.  If that is true, all such a law does is encourage bad cops to act badly.

That what anyone wants?

* The “law” above uses the exact language of the Arizona law.

(Here's a link to the Arizona training video for enforcing their law.  The best they come up with for non-racial illegal characteristics are foreign drivers license or registration, nervousness, fleeing, inability to give an address and "dress" whatever that means.


Kim said...

There is no way to convince me that all of the nice, white people who support enforcement of this law would be happy about being forced to carry around and produce their birth certificates in the event that the law were evenly applied, and not just used as an excuse for racial profiling.

Dave said...

Even then, we've reverted to a "papers please" society.

Debo Blue said...

This Arizona law is something else. My family and neighbours have read it and pretty much all agree -and only because we're all folks of colour- that we are all going to be detained and harrassed just for the fun of it.

But, that's our reality every day so what's going to change? Now we may actually be arrested if we don't have PID (positive ID).

fermicat said...

As someone with a last name that can (incorrectly) be interpreted as being "hispanic" (it is my married name, and it is an Italian surname that got misspelled at Ellis Island), I worry about being hassled in any jurisdiction with an AZ type law. No, I don't carry "papers" because I was born here. So, if pulled over and asked to provide immediate proof that I am an American citizen, I cannot do that without going to my home and producing my birth certificate and/or passport - neither of which I would carry around on a regular basis.

These kind of laws are a bad idea, and a poor way to tackle the underlying problem. I would prefer that the government go after businesses and individuals who HIRE illegal immigrants. This is why they come, so correcting this would have a more significant effect than any "papers, please" type of law. The state of Georgia has had some high-profile raids of such businesses in the past year. I'd prefer they continue with this approach and not create an AZ type of law, even though a majority of Georgians seem to prefer this extreme option.

j said...

"I would prefer that the government go after businesses and individuals who HIRE illegal immigrants."

So it OK for an employer to harass folks for their papers but not law enforcement??

Unfortunately the facts are that a preponderance of illegal immigrants crossing the southern border are "surprise" - Hispanic.

Not using racial profiling there is just as insane as strip searching granny or a 10 yr old at the airport.

Debo - by the way you can be detained and harassed just for the fun of it now in any state of the union. The law as I read it means that the harassment ends with the production of ID which is not the case today.

Notice that the wonderful Clinton judge that struck down parts of the law did not preclude law enforcement from seeking ID is just said that they are not 'required to' ask.