By: Amy Lutz
Last year in Iowa, President Obama made this statement regarding the Arizona immigration law SB 1070: “Now, suddenly, if you don’t have your papers, and you took your kid out to get ice cream, you’re going to get harassed — that’s something that could potentially happen… That’s not the right way to go.” Theoretically, the President was correct in saying that the situation he painted would “not be the right way to go” but his facts were way off base. Personally, I would be surprised if Mr. Obama had read the law before making this statement. The first error in the statement lies in the word “suddenly.” The President implied that the provision in the Arizona law requiring immigrants to always carry documentation was a new, draconian idea. Not so. Actually, it has been a federal law since 1940. The President’s biggest error; however, resulted from his falling into the trap to which many who have not read the Arizona law succumb. Such people often claim that under SB 1070 or Utah’s recent illegal immigration bill HB 497, law enforcement officers will be able to question and “harass” anyone who “looks” illegal, basing their judgment on race or ethnicity alone. This error arises from a misinterpretation of the term “reasonable suspicion” and its relation to practices of questioning and arrest.

The Arizona bill, SB 1070, states: "For any lawful contact made by a law enforcement official or agency of this state or 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." In addition, the Utah House bill, HB 497, requires that an officer, when making a traffic stop, have reasonable suspicion that the driver of the vehicle is smuggling or transporting illegal aliens. Often, the opposition assumes that “reasonable suspicion” simply requires a law enforcement agent to have a “feeling” or “hunch” that someone is illegal. Not so. Reasonable suspicion is a legal principle that has been historically defined. This legal principle allows law enforcement agents to question suspects when they have a "reasonable suspicion" that a person has been or is about to be engaged in criminal activity. The Supreme Court case, Terry v. Ohio, established that reasonable suspicion does not violate the fourth amendment to the Constitution, which protects citizens against unreasonable searches and seizures. Under the reasonable suspicion standard, law enforcement agents are also not allowed to arrest a person without a higher standard of proof--probable cause (sometimes referred to as reasonable cause). So for example, a police officer would not be able to question someone standing by a car at 2AM, but they would be allowed to question someone under reasonable suspicion if that person was standing by a car at 2AM with a bent wire coat hanger in his or her hand. In that case, the police officer would have "reasonable suspicion" to believe that the person had or was about to break into the car. Additionally, both the Arizona and Utah bills state that law enforcement officers cannot take “race, ethnicity, or national origin” into account when building reasonable suspicion, which denies the claim that such illegal immigration laws will promote racial profiling. In actuality, since this provision is verbalized in both bills, it can be claimed that they do more to prevent racial profiling than promote it.

Reasonable suspicion, as required by SB 1070 and HB 497, actually takes two steps as well. A law enforcement agent must have reasonable suspicion that a suspect has, is, or is about to engage in criminal activity in order to question the suspect. Then, they must also have reasonable suspicion that the person is an illegal immigrant. For example, a police officer can pull someone over and question them if they are speeding, but cannot ask about the person’s immigration status unless they have reasonable suspicion that the person is an illegal immigrant. As the law states, a law enforcement agent cannot ask for someone’s immigration status in the process of a routine traffic stop (or other situation) simply because of race. They must have “reasonable suspicion” that the person is an illegal immigrant. For example, reasonable suspicion would probably exist if a law enforcement officer were to legally pull someone over for speeding only to find that the driver did not have a valid license or other identification, could not speak English, and wasn’t familiar with the procedure of a traffic stop. Only after having reasonable suspicion that the driver was committing a crime (in this case, speeding) could the officer even begin to develop the second step of reasonable suspicion, which, if obtained, would allow the officer to request the driver’s immigration status. This two step practice, along with the provision banning racial profiling, makes it difficult for President Obama and his supporters to claim that “harassment” will become commonplace in Arizona or Utah.

With an understanding of SB 1070 and HB 497, citizens of Arizona and Utah can rest easy, knowing that they will not be “harassed” about their immigration status while taking their children out for a hot fudge sundae. President Obama’s claims, like those of most who have not educated themselves with SB 1070 or HB 497, are without merit. The Arizona and Utah bills do not promote racial profiling and require a solid legal basis of “reasonable suspicion” for questioning. So I encourage all citizens of the two states in question to not only go out for ice cream without fear of law enforcement officials, but to simply go out for ice cream more often. Although the illegal immigration debate is far from over, nothing alleviates such contentious debate like a double scoop of mint chocolate chip and rocky road with a cherry on top.