SB1070

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.

Ever since Governor Jan Brewer signed SB1070 into law – despite daily demonstrations and thousands of emails, calls, and faxes asking for veto – many of us both inside and outside of Arizona have been considering what to do in response. The new legislation is arguably the most far-reaching and repressive anti-immigrant legislation passed at the state level, and indeed, may not be constitutional. But in the mean time, while the lawyers ply their trade, what do the rest of us do to urge Arizona to reconsider?

Unitarian Universalism values relationship over creed; therefore, before we made any actions or recommendations of our own we had to know what our allies are asking for. And of our allies, it was most important to listen to those who would be most adversely affected by this new law. In this case, that would be organizations and people who represent immigrants, migrant workers, Hispanic/Latin@s, and other people of color who might be suspected of being “undocumented.” So we did a little research – some phone calls, some emailing, some websurfing – and this is what we found:

Not that they are the most important, but since they are in the news, let’s start with elected officials. Our only Latino/Hispanic senator, Sen. Menendez (D-NJ), is urging Major League Baseball players to boycott the 2011 All Star Game if it is held in Phoenix as scheduled. His voice joins that of Rep. Jose Serrano (D-NY) Rep. Polis (D-CO), Rep. Gutierrz (D-IL), and Rep. Grijalva who have all called for a boycott in some form or another.

“The question will inevitably be, aren’t you hurting yourself?” Gutierrez says. “The answer to that question is, yes, we are!”

“We understand that our people are inordinately the dishwashers and the busboys for the hospitality industry…But we also understand they are the mothers and fathers of children in this state. It is they themselves who are asking for this boycott.”

Secondly and more significantly, a coalition of over thirty organizations – representing Latin@/Hispanics, labor and civil rights groups, and others – have called for a national boycott. This effort is being spear-headed by the National Council of La Raza, the largest and most well-known Hispanic/Latin@ rights group in the nation.  You can sign their pledge here.

La Raza is joined by many other groups, including the League of United Latin American Citizens, the National Puerto Rican Coalition, and Presente.org.

Like Sen. Menendez, one of their main targets for the economic boycott is Major League Baseball’s 2011 All-Star game, which is scheduled to be played in Phoenix. From Presente.org’s email ask to move the game:

“Many other major league players and coaches are saying they don’t want to play ball in a state where Latino players — who make up more than 25% of the League — and Latino fans are subject to racial profiling.”

Latin@s/Hispanics are rightfully concerned that the Arizona law encourages racial profiling against them regardless of their legal status, but Asians know that such laws affect them as well. After Latin@s/Hispanics, Asians constitute the second largest population of undocumented immigrants, and South Asians in particular have been subject to harrassment. The Asian American Justice Center and the Japanese American Citizens League are part of the boycott coalition.   In a statement,  the JACL called SB 1070 “the worst case of racial profiling since World War II.”

And African-Americans are, of course, very familiar with racial profiling. The campaign against SB1070 is being waged with help from civil rights leaders, including Rev. Al Sharpton. Economic boycott was part of a strategy that the Black community successfully employed to “convince” the AZ legislature to honor Dr. Martin Luther King Jr with his holiday.  In that same vein, Alpha Phi Alpha, the fraternity of Martin Luther King, Jr. and Thurgood Marshall, moved their annual convention from AZ to NV.

“Our late Alpha brother the Rev. Dr. Martin Luther King Jr. said, in a letter he wrote while sitting in the Birmingham Jail, ‘injustice anywhere is a threat to justice everywhere.’ Alpha Phi Alpha’s decision to boycott Arizona continues that same fight, fought during the Civil Rights era.”

Other members of the coalition calling for national boycott are the Center for Community Change (CCC), which advocates for economic justice on behalf of low-income people, especially low-income people of color, and labor groups such as the Service Employees International Union  (SEIU) and the United Food and Commercial Workers (UFCW).

SEIU’s website includes a roundup of who is participating in the boycott.  Of particular note, the National Hispanic Caucus of State Legislators together with the National Black Caucus of State Legislators have canceled their upcoming conferences in Arizona.

“This misguided legislation will likely subject countless people to unwarranted harassment. In a demonstration of our disapproval, we have decided to hold our annual Promoting Healthy Lifestyles Conference, which was to be held in Scottsdale, Arizona, elsewhere,” stated NBCSL President, Representative Calvin Smyre (GA).

We also looked at what immigration and migrant worker rights groups were doing in response to SB1070.

• Interfaith Worker Justice is calling on faith leaders to join them in condemning the new law.
• The New Sanctuary Movement also condemns the new law and is vowing “resistance.”
• Reform Immigration for America is asking people to FAX Congress in support of comprehensive immigration reform. They are also calling for boycott.

“These boycotts are happening in conjunction with marches, rallies, and protests across the country. Our actions will show that we’re not going to sit quietly while the state enshrines racism and hatred as the law of the land.”

• National Day Laborer Organizing Network (NDLON) and Puente.org, as part of the Alto Arizona coalition, are organizing for a massive rally in Phoenix on May 29th.  They also have a petition asking the Obama administration to intervene.
• In addition to moving the MBL All Star Game (see above), Presente.org also has a petition letting Arizona leaders know how we feel about the new law: Shame on Arizona.
• Border Action Network is supporting a number of actions posted on Change.org, including petition the Obama administration to intervene, attend local solidarity actions, boycott, and civil disobedience.
• Detention Watch Network offered a similar list of actions.
• The National Network for Immigrant and Refugee Rights also offered four actions: calling Gov. Brewer, spreading the message locally, asking President Obama to intervene, and supporting local organizations working against SB1070.

The ACLU is also looking ahead to other states and organizing to keep what happened in Arizona from spreading.  (Currently 10-11 other states are considering similar legislation.)  Visit their site to tell your elected officials that What Happens in Arizona Stays in Arizona.

As I said, there’s a good argument to be made that SB1070 is unconstitutional, and three of the most experienced immigrants’ and civil rights legal organizations nationwide – the ACLU, the Mexican American Legal Defense and Educational Fund (MALDEF), and the National Immigration Law Center (NILC) – have announced a partnership, together with local Arizona-based counsel, to challenge the new law in court.

So as of the moment, the major possible actions for folks like you and me seem to be a “mega march” in Phoenix, AZ on May 29th (see this video), asking the Obama administration to intervene,  and a call for economic boycott.