[Cross posted at dotCommonweal] Cornell Clinical Law Professor and conservative blogger William Jacobson argues that the Az. immigration law is not racist and does not encourage racial profiling. He says:
The law does not authorize unlawful stops, but only permits verification of immigration status once a lawful stop has been made (emphasis mine):
11-1051 B. For any lawful contact made by a law enforcement official or a law enforcement agency of this state of 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….
Of course, to say that the law “only permits verification … once a lawful stop has made” is true, as long as, by “permits,” you really mean “requires.” (The law says that, once a reasonable suspicion arises, a reasonable attempt “shall be made” to determine immigration status. And failure to comply with the law opens local law enforcement agencies up to citizen lawsuits.)
Moreover, Jacobson’s assurance that the “law does not authorize unlawful stops” is only comforting if you ignore the breadth of the category of “lawful stops.” It is perfectly lawful for a police officer to simply approach you on the street or in the grocery store or enter a bus you are riding and, for no apparent reason, engage you in conversation. Once he does, anything you say or do that gives him “reasonable suspicion” that you are an illegal immigrant requires him to force you to show your proverbial “papers.” And, once that occurs, if you can’t demonstrate with the documents you have on your person that you are a lawful immigrant, so much the worse for you, as this story seems to show. No, a drivers’ license is not enough.
More importantly, neither the law (nor Jacobson) makes any effort to explain what exactly would constitute “reasonable suspicion” that a person is an illegal immigrant apart from (or at least not in addition to) phenotype and accent. To argue that this law is not an open invitation to racial profiling of Latinos without offering an explanation of how else a reasonable suspicion of illegal immigration status might arise is not much of a defense at all.