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Arizona Legalizes Racial Profiling

JURIST Contributing Editor Marjorie Cohn of Thomas Jefferson School of Law says that Arizona's new immigration legislation - requiring 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 - demeans us all by effectively legalizing racial profiling...

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

April 27, 2010

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I am surprised that an attorney and professor such as yourself could have made such a blatant, factually incorrect statement when you say that Arizona's recently signed SB1070, "... does not prohibit police from relying on race or ethnicity in deciding who to stop."

The bill explicitly provides, "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... A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state MAY NOT SOLELY 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." [Text in caps is my own for the purpose of highlighting the relevant language].

One may have legitimate concerns that the law could be improperly instituted, but the the language of the law, along with the Arizona governor's concurrently issued Executive Order on training related to the law's proper implementation make it clear that racial profiling is prohibited and unacceptable.

Here are two official State of Arizona postings of SB1070 so people may read the language for themselves:

April 28, 2010  

Come on... this article is so onesided. I am white and would have no problem if Chinese authorities questioned my immigration status when visiting China on the sole basis that I am white. This is just another professor who wishes to warp the minds of the future and continually tie America's hands behind its back. I have read articles in the past from this so called professor of law critisizing the Bush administration for war-crimes,Gitmo, etc., however, she glaringly omits the Obama administration from any of her critiques. I bet you cannot define what a criminal looks like, but you sure as hell may have a reasonable suspicion when criminal activity is afoot. That dosent mean that we should wait for the crime to occur before we inquire as to the suspicious behavior. Or maybe we should just allow all illegals into this Country, allow messages of American hatred to spew out of the mouths of such illegals and then watch them blow up a building. Maybe I should have gone to law school as it seems that anyone could become a law professor.

April 29, 2010  

Hey Cohn, as an Immigration Service officer for 25 years, I can assure you, Keith Olbermann, Chris Hayes, Rachel Maddow, Raul Grijalva, Luis Gutierrez, Cardinal Mahoney, Frank Sharry and all the other collective doubters that the vast majority of illegal aliens that I apprehended at airports and land border ports I did so using a combination of "reasonable suspicion" plus smart questioning to let them convince me that I had indeed happened upon a person who was intending to enter the country for illegal purposes, or had previously been in the country illegally and was now returning to continue that illegal, unauthorized activity. As for "show-me-your-papers", please review Sections 250-258, 235, 212 of the Immigration and Nationality Act. Also, the next time you attempt to board a flight, an interstate or intercity train or bus, please do so with no "papers" in possession, then let your readers know if you were able to access those conveyances!

J. Smith
Brunswick, Georgia

April 30, 2010  

You can't stop the waves of inmigrants with facist policies, no matter how facist they are. The only way to do that is by helping Latinamerican countries with their economies and improving their social situation. Otherwise you will have to deal with our presence 'till ourselves figure out how to solve our economics and social problems.

May 02, 2010  

This is a country of laws - for everyone. I have not heard of any provision in the laws exempting illegal aliens. Since the Federal Gov will not enforce their own laws to protect the states from illegals it is up to the individual states to do the job.
"Undocumented" is the same as a "Criminal" who has violated the immigration laws and is illegally in this country. Criminal and subject to prison time and deportation afterwords.
Stop using words like Undocumented when the correct term is Criminals.
If the criminals don't like to obey the laws of this country they should leave..

May 03, 2010  

"The only thing we have to fear is... fear itself." - Franklin D. Roosevelt.

This is probably one of the most famous quotes in American History, and nearly as repeated as the one where our president told the world he was a pastry. And yet, despite its popularity, it is barely understood.

I think to really understand it, you need to see the whole sentence instead of the popular quote:

"So, first of all, let me assert my firm belief that the only thing we have to fear is fear itself—nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance."

It is a warning. It means that we cannot let fear guide our actions. We cannot allow fear to cause us to act rashly, for it is that very fear that truly leads to nightmarish possibilities.

This may seem a little out of place here, but I cannot help but think of this when I see responses that justify the erosion of our Constitutional rights out of fear of terrorists and bombers.

This Arizona statute is born of fear, and it is, as the author warns, eerily similar to the Japanese concentration camps that embarrassed this great nation during WWII. We need to learn from our past mistakes, not repeat them.

May 03, 2010  


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