Just a week after Governor Jan Brewer(R) signed Arizona’s new immigration law, legislators are moving to amend the most controversial provisions. The bill as originally passed and signed provided that race or ethnicity could not be the “sole” reason for law enforcement to suspect illegal presence in the country before requesting proof of legal presence. It allowed racial profiling to be one reason. The original bill also required law enforcement to demand proof of legal presence during “any lawful contact”, a phrase so broad it could include almost anything.
Responding to lawsuits and threats of lawsuits, the legislature is acting preemptively to scour some problem provisions from the law. Now passed by the Arizona House and awaiting Senate approval, the amendments change the wording that gave rise to accusations of racial profiling. The amended version would read:
“A law enforcement official or agency … may not
solelyconsider race, color or national origin” in establishing reasonable suspicion that someone is in the country illegally.
The intent is to eliminate any consideration of race or ethnicity in developing reasonable suspicion of illegality. The amendment gives no direction about what law enforcement can or should consider in making such determinations.
The second significant change does away with the “any lawful contact” language and replaces it with,
“lawful stop, detention or arrest”.
Proponents of the legislation make no bones that the changes are designed to make the law more palatable to the courts who will review it. One lawsuit has already been filed by a group of clergy who serve the Latino community in Arizona and other lawsuits are planned.
The amendments address some of the issues with the law, but leave others unanswered. The provisions making it a State criminal offense, trespassing, for an “illegal alien” to be “present on any public or private land in this State [Arizona]” remains intact and raises issues of federal preemption. The “reasonable suspicion” standard, which many legal scholars, including Jonathan Turley, believe to be the law’s constitutional soft spot, has not been amended to “probable cause”.
The question that no one seems able to answer, however, is how to enforce the law without using race or ethnicity as a stepping off point. Governor Brewer, when asked the question, had no answer. Nor has anyone else. If race, color or national origin cannot be used in any manner whatsoever in determining reasonable suspicion to demand proof of legal presence, what factors will law enforcement rely upon? The revisions may make the law constitutional on its face, but if the law is taken to the streets as newly amended, it will be effectively unenforceable. And if it is enforced through the use of racial or ethnic assessments like skin color or language or accent, it will open the floodgates to claims that it is unconstitutional as applied.
Pima County, Arizona Sheriff, Clarence Dupnik, may yet be proven right when he described the law in one word. “Bull”.
[Author’s Note: the photo above is of a Norwegian who would in fact be subject to Arizona’s new law to show papers of legal presence…but how would you know?]
Cross posted at Elijah’s Sweete Spot, where COMMENTS/DISCUSSION are Disqus™ enabled.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.