That's another good challenge to the law that is being made by Officer Escobar of the Tucson police. He's arguing that they will either be vulnerable to discrimination lawsuits (as you say, how do you decide whose status to verify if you're not racially profiling?) or they'll spend all their time verifying the status of virtually every person they come into contact with. Either way, it will make doing their jobs more difficult.
We could make their jobs a lot easier if we didn't make so many things illegal. Fortunately, making their jobs "easier" is not on the agenda.
The notion that they need to verify the status of virtually everyone they meet is simply not true. The bill has been
amended to clarify that "law-enforcement officers shall inquire about the immigration status only of those they "stop, detain or arrest."
Part of the whole stop, detain, arrest scenario requires checking IDs. If people are carrying certain ID (AZ license or ID card, immigration documentation, or ID from states that require proof of immigration status), that is considered proof of legal status. While I don't have any direct evidence, I don't think it's unreasonable to say that most of the people the police encounter will have some form of acceptable ID. Thus, the extra work for "virtually everybody" argument just doesn't play out.
As I asked in another post, what do you call probable cause for making an arrest? Is there a way to do it and avoid racial profiling lawsuits? As a layman, I think there is. Hear me out.
First, the police already ask questions that people are not legally required to answer, yet they do. In droves. For example, if a cop pulls you over and asks if you have been drinking, there is no requirement that you answer. In reality, people do answer. Likewise, a cop cannot search your vehicle without probable cause, but they ask anyway. You can refuse, but in reality people agree to it even when they have guns and drugs hidden.
So, let's look at it from the cop's perspective. He's involved in a lawful encounter such as a traffic stop. If he's pulled you over, you need to produce a driver's license. If you don't have one, you can be arrested. Once in custody, they will go try to identify you, and if they can't verify your information, they will run you through ICE. If you have an AZ license, contacting ICE is off the table.
But let's say you have a license from a state that does not verify your citizenship or immigration status. Contacting ICE is still on the table. So, what does the cop do at this point?
As a matter of policy, I would say they should ask a series of direct questions about your immigration status. If you say that you are not a citizen, then by law you are supposed to have your immigration card with you. If you don't, they can arrest you because you are in violation of the law.
In my opinion what I've described so far will go a long way towards enforcing the current federal immigration laws without putting any risk whatsoever on the police department or putting an undue burden on civilians.
What if you say that you are a citizen? You could be lying, of course. This is where it gets sticky. In Arizona you are required to give you full name. If they run your name through the system and find you have been deported for immigration violations, then it's a safe bet that you're probably not a citizen at this point. To me, that's probable cause.
What if they don't find you in the system? This is where I think it starts to get really sticky. Will courts consider the ability to speak English a factor? In other words will it be probable cause to arrest you and run you through ICE if (say) you are brown (Mexican) and have difficulty speaking English? I dunno. I'm thinking probably not. If you have a valid license from California (I'm pretty sure they don't check immigration status there, but I could be mistaken), and say you're a citizen of the USA, I think the cops will need more than that for probable cause.
What about encounters other than traffic stops? In Arizona, you are not required to produce ID to the police, just your name. I would say the policy would be to ask if the person has a license. They can refuse to answer, but I'm betting many will answer. If they have a license, ask them to produce it. I think most will. If so, ICE is off the table.
Still, though, the cop will be expected to run the name through the system. Could they find out that the person was deported recently? Maybe, I dunno. If so, that might indicate the license is invalid. I think they would have probable cause there.
Again, I would say you ask about the immigration status. If the person says they are not a citizen, then they are required to carry their immigration card. If they don't have it, then they can be arrested. If you ask everybody that, there's no racial issues involved.
Suppose they say they are a citizen. They say they have no license. You run the name through the system and find nothing. Is that probable cause? I'd say no. If they struggle with English, is that probable cause? Maybe, but probably not. If they are walking through the middle of the desert and can't offer a reasonable explanation, can you put all that together and have probable cause to believe they are crossing illegally into the state? I'd say so, but the courts will have to decide that.
Are there steps they can take to investigate further at the stop? Well, they could ask for the person's address. They don't have to answer, but I'm betting most will. If they give a fake address, I would say that this could be part of forming probable cause. If the address is valid, I don't think you have much to go on.
So, at this point I can only see a couple of ways to be at risk for accusations of racial profiling based on the new statute. The first would be if they didn't ask the questions I have suggested of everyone. It only takes a few seconds, so I don't think it's a big burden.
Another way I can see it happening is if people lawfully refuse to answer the questions, and only (say) brown people are arrested. That's very obviously profiling. If they use the admittedly subjective metric of fluency of English, then it shouldn't matter if you're brown, black or white even though statistically here in AZ, one could make the argument that brown people with English difficulties speaking Mexican Spanish who claim to be citizens without IDs are probably more likely to be here illegally than any other group.
So, I leave to others to point out what I'm missing in my argument that the new statute is impossible to enforce without risking discrimination lawsuits. I fully acknowledge that it could be
abused in a discriminatory fashion, but the same is true of just about any law. I'm interested in hearing how it's not possible to do it properly.
