By: Amy Lutz
Note: The full text of SB 1070 can be found here: http://www.azleg.gov/legtext/49leg/2r/bills/sb1070s.pdf

Recently, the newly passed Arizona immigration law (SB 1070) has been getting a lot of negative media attention, though most of it is undeserved. It has been called a racist measured and likened to tactics of the Gestapo in World War II. After reading and researching the bill for myself, I have come to the conclusion that such criticism is undeserved. The following analysis should serve to prove my point.

The first question that begs to be answered is, why is this needed? Why did Arizona pass this bill in the first place? It's needed because the situation in Arizona is dire. Phoenix is currently the kidnap capital of the United States and hosts the second most kidnappings in the entire world. An Arizona rancher, Rob Krentz, was shot to death last month and his suspected killer, a drug smuggler, fled over the Mexican border. The situation is depressing the economy and Arizonians, as well as citizens of other border states, are becoming less safe by the day. It's also important to note that 60% of Americans and 70% of Arizonians favor this bill, statistics that have been neglected by the main stream media.

Exact provisions of the bill are as follows. SB 1070 states, "No official or agency of this state of a county, city, town or other political subdivision of this state may adopt a policy that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law." Basically, the entire point of this bill is to strengthen current federal laws on illegal immigration by including and additional, but less severe, state sanctions on illegal immigration. 

The portion of the bill that has caused the most controversy is as follows, "For any lawful contract 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." Pay attention to the words REASONABLE SUSPICION. Reasonable suspicion is not simply based on the color of someone's skin or their country of origin, it's actually a specific legal term that has been backed up by years of legal precedence. Therefore, the concept that people will be questioned simply because of their race because of this bill is untrue and naive. 

So, what exactly is "reasonable suspicion?" It is not simply a hunch or intuition from law enforcement agents, it's 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 against unreasonable searches and seizures. Under the reasonable suspicion standard, law enforcement agents are also not allowed to to arrest a person without a higher standard of proof, probable 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 their 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. Simply questioning someone because of the color of their skin is illegal both under present day federal law and the Arizona bill. Where this law will most likely come into play is during traffic stops.("Notwithstanding any other law, a peace officer may lawfully stop any person who is operating a motor vehicle if the officer has a reasonable suspicion to believe the person is in violation of any civil traffic law and this section.") It is ridiculous to believe that law enforcement agents will constantly patrol the streets looking for people who "look like" illegal immigrants. 

The fact that aliens will be required to carry registration documents is also not all that shocking. Since 1940, it has been a federal offense for an alien to not carry the required documents with them. Therefore, the Arizona bill is simply reinforcing already present federal law. And think about it, would any American walk through any foreign city without a passport on hand? Laws such as this are global and certainly not new. According to President Obama, "you're going to be harassed" if you do not carry the required papers with you. This is simply untrue because, to reiterate previous statements, law enforcement agents cannot simply walk up to any person on the street and ask for their "papers" in a way similar to the methods of the Gestapo in WWII. It is a complete exaggeration and honestly, likening our legal system to that of the Nazis is incredibly insulting. Although citing the Nazis as an example is hopefully not a common source of argument, it still needs to addressed. Any law enforcement agent who does so (asking for "papers" without reasonable suspicion) would be violating current federal and state laws unless he/she had "reasonable suspicion." And trust me, reasonable suspicion is not an easy thing to be obtained. Reasonable suspicion must be strong enough to argue in court if the time ever comes. Cases are thrown out every day because law enforcement agents did not have reasonable suspicion to question a suspect or probable cause to arrest them.

Later on, the bill states, "A law enforcement officer, without a warrant, may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States." Remember, probable cause is much more specific than reasonable suspicion; therefore, it is difficult for a law enforcement agent to arrest anyone, legal and illegal alike, without legitimate evidence that a crime has occurred.

Law enforcement agents also have the right to ask for anyone's information regarding their immigration status if:
(1) They are "Determining eligibility for any public benefit, service or license provided by any federal, state, local, or other political subdivision of this state."
(2) They are "Verifying any claim of residence or domicile if determination of residence or domicile is required under the laws of this state or a judicial order issued pursuant to a civil or criminal proceeding in this state."
(3) They are "Confirming the identity of any person who is detained." or
(4) "If the person is an alien, determining whether the person is in compliance with the federal registration laws prescribed by Title II, Chapter 7 of the Federal Immigration and Nationality Act."

Therefore, it is evidenced that there are strict guidelines for questioning any suspect, regardless of his or her immigration status or even what they look like. These same laws apply thoroughly to American citizens as well. This bill is NOT going to allow for law enforcement agents to prowl the streets at night looking for people of Hispanic descent and harass them for their information. That is illegal, and if the bill did call for it, I would be the first one in line to protest. 

As an additional note, it is also immature that some Americans (from what I believe, a very select few) have campaigned to boycott the Arizona Diamondbacks because of this recent law. These baseball players had nothing to do with the legislation and politics and sports should be kept separate.

As to the constitutionality of the law, in 1976, the Supreme Court set precedent in De Canas v. Bica when they ruled that states my enact laws to discourage illegal immigration as long as Federal law does not explicitly forbid the law in question. In 2007, Arizona's law that forbid the hiring of illegal aliens knowingly stood because it fell under the 1976 precedent. 

In conclusion, this bill, SB 1070, might not be the perfect solution to the illegal immigration issue in this country, but it is certainly not racist. It's rational. 

Kris Kobach, a law professor at UMKC, wrote an article in the New York Times from which I started my research. The full article can be found here: http://www.nytimes.com/2010/04/29/opinion/29kobach.html?src=me&ref=general
 


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