Behind the vote: SB 1070′s risk to citizens

First published in the Examiner

What would Arizona SB 1070 mean to people on the ground? At this point, it is impossible to know for sure since the law will not go into effect until August at the earliest. The contention in opposition of the law is that SB 1070 will lead to racial profiling and require American Latinos, even those who are citizens or legal residents, to carry verification of immigration status at all times in case they are stopped by police.

The first dispute to be examined is the argument over what SB 1070 would mean on the ground. At this point, it is impossible to know for sure since the law will not go into effect until July 29th at the earliest. The contention in opposition of the law is that SB 1070 will lead to racial profiling and require American Latinos, even those who are citizens or legal residents, to carry verification of immigration status at all times in case they are stopped by police.

Before diving into the opposition’s counters to the above claims, it is beneficial to clarify the following. According to the text of SB 1070, Sec. 2 Article B:20-24, the law applies not only in “…any lawful stop, detention, or arrest made by a law enforcement official,” but also, “In the enforcement of any other law or ordinance of a county, city or town or this state.” Therefore, the widely distributed assurance that arrests can only occur in situations where a person would usually be carrying identification is not necessarily true since not all eligible interactions are of a traffic-violation nature.

Moving on, supporters of the law claim that fears of racial profiling are overplayed. They point to several safeguards added to the law that prevent race from being the only deciding factor in building “reasonable suspicion” and stipulate training programs to help police avoid this pitfall.

This may be somewhat reassuring, but it overlooks a simple fact that was pointed out at the Pasadena City Council meeting by a member of the public named Lance Charles. As an African American, Mr. Charles explained that he had experienced racial profiling even though it is already illegal and there have already been several attempts to increase Police Departments’ awareness of it in the Los Angeles area. He argued that it is unlikely to be any different with SB 1070 in Arizona.

Another popular argument in support of SB 1070 is that United States immigration law has already required that legal residents carry identifying documents since 1940. While this may be true, federal law also states (on the same page) that failure to do so is considered a misdemeanor and penalties shall not surpass $100 and/or 30 days of imprisonment. Furthermore federal law stipulates that immigration records would only be available to agencies designated by the Attorney General. This means that if the Arizona police encounter a legal resident alien who does not have these documents, he or she may be arrested and imprisoned before their identity is secured by ICE. Immigrants usually do not usually carry these documents when travelling domestically.

One could ask why it is that legal immigrants do not usually carry their documents as outlined in federal law. The answer is best illustrated through an analogy. Most legal immigrants consider carrying one’s papers on their person akin to keeping one’s vehicle registration form in their car: if the car is stolen, the thief has the very record of ownership that could could be used to recover it, the victim is more or less at a loss. Similarly, if a legal immigrant’s wallet and green card is stolen (something at least as likely as a car-jacking) then they have no easy defense against identity theft or proof that they belong in the country. If their green card is safely at home, on the other hand, they can have a family member or a friend help them out of the situation, much like people who carry only a copy of their pink slip in their car. The cost-benefit calculation should be clear.

But even if we excuse the plight of the legal resident immigrants, that still leaves us with the Citizens that may be mistaken for undocumented immigrants. Assuming the citizen has not forgotten it at home, as illustrated in Councilman Gordo’s explanation, one would think that they could simply show their ID or drivers license and all doubt would be dissipated. This, however is not the case under SB 1070. The text of the law indicates

A PERSON IS PRESUMED TO NOT BE AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES IF THE PERSON PROVIDES TO THE LAW ENFORCEMENT OFFICER OR AGENCY ANY OF THE FOLLOWING:

1. A VALID ARIZONA DRIVER LICENSE.

2. A VALID ARIZONA NONOPERATING IDENTIFICATION LICENSE.

3. A VALID TRIBAL ENROLLMENT CARD OR OTHER FORM OF TRIBAL IDENTIFICATION.

4. IF THE ENTITY REQUIRES PROOF OF LEGAL PRESENCE IN THE UNITED STATES BEFORE ISSUANCE, ANY VALID UNITED STATES FEDERAL, STATE OR LOCAL GOVERNMENT ISSUED IDENTIFICATION.

This may seem easy enough so far. However, the fourth category of documents can cause severe problems for out-of-state drivers because some states do not require proof of legal presence in the United States to obtain a license. This means that a Latino American Citizen from out of state, who may have raised “reasonable suspicion” by perhaps having his whole family with him in the car, could legally be arrested after changing lanes without signaling and be kept in custody until a birth certificate or passport is obtained.

This is compounded by the fact that only about 68 million Americans or 22% even have passports. Probably fewer than 30% have certified birth certificates. Therefore, Arizona SB 1070 may even lead to the legal long-term imprisonment and deportation of an American citizen. That is to say, if police were to make such a grievous error, they would be protected from repercussions.

Taking these factors into account, a modified opposition to SB 1070 could read as follows: Arizona SB 1070 creates an environment where racial profiling is extremely likely. Although it attempts to address these issues, it is unclear that racial profiling can ever be controlled without changing the underlying system. It may be that the best defense against racial profiling is to require all Arizonans to carry their proof of citizenship or legal residency and that the requirement of “reasonable suspicion” be abandoned. A national identification card would also need to be created in order to account for out-of-state visitors. This would be the fairest method to proceed. It would also be the most authoritarian.

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