SB 1070--Legal Experts' Overview

A recent report from three Arizona law professors confirm much of what the bloggers here have been saying for several weeks. Among other things, they confirm the new law endorses racial profiling and creates new criminal violations beyond federal law. Below is some of the relevant language, for those of you that cannot download the report, as well as a link too the report. I hope to recruit these authors to a book deal for my series.

II. Some Basic Questions and Answers

What is racial profiling?

We define racial profiling as using race as a factor in an investigation, stop, or arrest, other than where there is a description of a particular suspect’s race. This is a common way to define racial profiling, though not the only way. But we think this definition accurately and usefully identifies when race is, or is not, a critical factor in the exercise of police powers. Defining racial profiling
in this way does not answer the question of when the use of race in deciding whether to stop, search, examine or arrest a person is legal or illegal.

Does SB 1070 authorize racial profiling?

Yes, the literal text authorizes racial profiling. But the interpretation and application of SB 1070 with regard to race remain uncertain.
Although public officials have stated that the legislation prohibits racial profiling and that profiling is not otherwise legal, these statements are not consistent with the text of the statute or with existing law. The law says that law enforcement officers “may not consider race, color or national origin . . . except to the extent permitted by the United States or Arizona Constitution.” A.R.S. 11-1051(B). Decisions by both the United States Supreme Court and the Arizona Supreme Court have identified “ethnic factors” as a relevant consideration in enforcement of
immigration laws, and have further determined that the U.S. Constitution allows race to be considered in immigration enforcement. United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975); State v. Graciano, 653 P.2d 683, 687 n.7 (Ariz. 1982) (citing State v. Becerra, 534 P.2d 743 (1975).

2 As we will discuss, an equally important question is whether race would influence law enforcement, even if the statute had stated that race may not be a factor in decisions to stop or request information, and even if the statute is interpreted to forbid racial profiling despite its current language. The unavoidable issue is whether race so pervades the underlying determination of immigration status that it will inevitably infect law enforcement decisionmaking, either explicitly or implicitly.

Does SB 1070 require racial profiling?

Again, on the text, apparently yes, but this could be limited by the application or interpretation of the statute, and some proponents argue the answer is “no.” The statute prohibits restricting enforcement of immigration law “to less than the full extent permitted by federal law.” A.R.S. § 11-1051(A). As explained above, federal law permits racial profiling. Under A.R.S. § 11-1051(G), any legal resident of this state may sue an agency that violates § 1051(A). A law 2 See also Kevin Johnson, How Racial Profiling in America Became the Law of the Land: United States v. Brignoni-
Ponce and Whren v. United States and the Need For Truly Rebellious Lawyering, 98 Geo. L.J. 1005 (2010).


Does SB 1070 authorize arrest or detention based on race alone?

No. However, few arrest laws or policies anywhere operate based on race alone, without regard to other factors, such as location or conduct. Even the most explicit forms of racial profiling use race as a factor along with other factors (for example, the Arizona Department of Public Safety was accused of stopping motorists on the highway on the basis of race, and entered a consent decree with the ACLU). SB 1070 allows Arizona police officers to consider race as a factor.

May Arizona police arrest or stop based on undocumented status alone?

Yes. Under existing precedent, state and local law enforcement can arrest for violation of federal offenses. Almost all people who came here without any documentation and do not have authorization to be here committed some criminal violation of federal immigration law, such as entry without inspection in violation of 8 U.S.C. § 1325. Therefore, being undocumented will often constitute probable cause for this offense. In addition, SB 1070 makes clear that an officer
can arrest for any deportable offense. A.R.S. § 13-3883(A)(5).

Are people in Arizona now required to carry identification?
Not generally. However, for decades federal law has required non-citizens to carry immigration documents issued to them. 8 U.S.C. § 1304(e). Also, SB 1070 makes possession of acceptable identification evidence of citizenship, A.R.S. § 11-1051(B), so it is prudent for everyone to carry identification so status can be proven on the street rather than waiting in jail while records are checked.

How can the police tell if someone is undocumented?

They can ask. The police need no reasonable suspicion or probable cause to ask any question of any person, so long as officers do not create the impression that answers are required. So a common way for the police to determine immigration status will be for them simply to ask an individual where they were born and how they got to the United States. Police can also evaluate the totality of the circumstances. If a person does not admit to being undocumented, law enforcement may still determine immigration status based on assessment of the facts and circumstances. Relevant considerations include apparent race, clothing, language used and accent, the location of the encounter, origin and destination of travel, and behavior of
the individuals, such as whether they are nervous or angry.


What is the purpose of making state crimes based on violations of federal law?

Disagreement with federal immigration policy. Arizona police already have power to arrest for federal immigration crimes. Ordinarily, there is a tremendous advantage in handing over federal offenders to the federal government: The United States assumes the cost of prosecution and incarceration. However, for various reasons, the federal government prosecutes only a fraction of low level immigration offenders, just as it prosecutes only a fraction of, say, tax offenders. The new law gives Arizona the ability to prosecute based on violations of federal law that the
federal government itself would decline to prosecute.

Does SB 1070 Simply Replicate and Enforce Federal Immigration Law?

No. SB 1070 does not simply mandate the enforcement of federal criminal and civil immigration laws. It creates new state crimes with different elements than similar federal crimes, it creates mandatory penalties that are different than the discretionary penalties in the federal statute, and it appear to remove the policing and prosecutorial discretion which is inherent in federal immigration enforcement.
Any mandatory directive to state law enforcement to enforce federal law would transfer discretion in federal immigration enforcement from federal actors to the state. While a shift in the balance of power between federal and state actors when enforcing federal law might raise issues of preemption, the preemption concerns, discussed later in this memorandum, are heightened by the creation of distinct state crimes and penalties aimed at the same or similar underlying act as the federal immigration provisions.*****

Here is the lin to the full report:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1617440