In the wake of SB1070, the Arizona law that directs local law officials to apprehend undocumented workers, there has been a lot of confusion over what the law does and does not do.  One such point of confusion is racial profiling.   According to the law,  “where reasonable suspicion exists” that a person is undocumented, law enforcement officials are instructed to ascertain his/her status.   To many, the phrase suggests that officers will selectively target Latin@s/Hispanics and possibly other people of color.  We wonder what other basis the framers of the legislation think would cause “reasonable suspicion” that someone is not here “legally.”   In an attempt to address  this criticism, lawmakers amended the language with a clause that specifically prohibits the use of perceived race in making their determinations.   And that, they said, guaranteed that there would be no racial profiling in the enforcement of SB1070.  This has convinced some and not others.

So what does the law actually say?   Not long ago I found this site that contains the full text of the bill with interactive annotations.  (It’s really cool!)

And this is what the pertinent text actually says:

Section 2.b.
For any lawful stop, detention or arrest made by a law enforcement official or agency of this state or 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 of 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. The person’s immigration status shall be verified with the federal government pursuant to United States Code Section 1373(c).

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.

A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following:
1. A valid Arizona driver license.
2. A valid Arizona nonoperating identification license.
3. A valid tribal enrollment card or other form of tribal identification.
4. If the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state or local government issued identification.

There are several things to point out about this language:

1. “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”

As the notations point out, where there is “reasonable suspicion,” the law directs law enforcement officials to attempt to determine the person’s status, but it does not place limits on what the officer can do while making such an attempt.  That there are no stated restrictions is reason for concern, as it places people at the mercy of the predilections of the officers with whom they happen to come into contact.

2. “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.

From the annotations:

According to the Supreme Court, the U.S. Constitution allows race to be considered in immigration enforcement: “The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.” United States v. Brignoni-Ponce, 422 U.S. 873, 886… See More-87 (1975).

The Arizona Supreme Court agrees that “enforcement of immigration laws often involves a relevant consideration of ethnic factors.” State v. Graciano, 653 P.2d 683, 687 n.7 (Ariz. 1982) (citing State v. Becerra, 534 P.2d 743 (1975)).

The author of the annotations goes on to say that if they had really wanted to prohibit racial profiling they would not have added the “except” clause.  As it is written, what the law basically says is go ahead and harass people based on their skin color and we’ll leave it up to the courts to decide, on a case by case basis, whether or not what was done exceeded what is allowed in the Constitution.

3. “A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following:… IF the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state or local government issued identification.”

On a different site, the author argues that since several states do not require proof of legal residence before issuing a drivers license,  if you are from one of those states, your license is not sufficient to prove your legal status.  I was unable to find a list of states and whether they require proof of legal residence before issuing licenses, but it seems like this would be a serious concern for non-Arizonan Latin@s/Hispanics traveling in the state.

Based on the language within the law, it seems safe to say that not only does SB1070 promote racial profiling but there are other civil rights concerns as well.