Arizona's new immigration law makes it a crime for illegal immigrants to be in the state — for any reason — but it also prohibits police from using racial profiling.
The tension presents police with an almost insoluble dilemma, and many Latinos in law enforcement fear the law inevitably will lead to police treating all Latinos — whether or not they're in the country legally — in a discriminatory way.
Other critics have voiced similar concerns. Two of the three lawsuits filed to block the law were brought by Latino police officers in Arizona. The National Association for the Advancement of Colored People says the law "tramples on the civil rights of Hispanic persons and … cannot be enforced without resorting to racial and ethnic profiling." President Obama told the U.S. Department of Justice to make sure it doesn't violate civil rights protections.
New training for law enforcement
All the controversy over racial profiling concerns has clearly frustrated the law's supporters, who say the law does more to explicitly rule out the practice than almost any other criminal statute. When Governor Jan Brewer signed the legislation last month, for example, she also issued an executive order requiring that cops be trained to avoid using race as a factor as they carry it out. She directed the state's law enforcement training agency to create a new training course in two months.
Brewer ordered that the course "shall provide clear guidance to law enforcement officials regarding what constitutes reasonable suspicion, and shall make clear that an individual's race, color or national origin alone cannot be grounds for reasonable suspicion to believe any law has been violated."
And then, shortly before Arizona lawmakers adjourned for the year, they added language to the law that explicitly forbids Arizona police from using "race, color or national origin in the enforcement of (the law) except to the extent permitted by the United States or Arizona Constitution."
That provision goes beyond nearly all other criminal laws in the United States by explicitly barring racial profiling, says Brewer spokesman Paul Senseman. Most other laws never even mention racial profiling, he says, because it's already illegal and police are generally trusted to obey the law.
Other changes added by the Legislature say that police cannot stop people based solely on the personal suspicion that they are in the country illegally. The law will be similar to seat belt laws that exist in many states: Police will be allowed to enforce it only after stopping someone for other violations. "At this point," Senseman says, "it's nothing but distortion — or a fear tactic — to believe that this is somehow, in any way, going to lead to racial profiling."
Senseman and other supporters say enforcement will rely on what suspects do, not on how they look. An example they often use is that of an officer pulling over a van that turns off its lights at night or drives erratically. If the police officer discovers that the van is crowded well beyond capacity, that officer would have the "reasonable suspicion" required by the law to start asking about the occupants' immigration status.
But Acevedo, the head of the Latino police group and police chief in Austin, Texas, says racial profiling would occur even in that situation. "If you have the same six people that look Hispanic in the same set of circumstances as six people with blonde hair and blue eyes," he told Stateline , "I guarantee you that … the folks in those vehicles will be treated differently."
A matter of trust
Acevedo says he also fears how the Arizona law will affect the ability of cops around the country to gain the trust of immigrants in their communities. Witnesses may think twice before talking to police about crimes they saw, he says, and that could give officers less information and less time to solve serious offenses.
In a lawsuit filed before legislators tweaked the law, Tucson police officer Martin H. Escobar claimed "there are no race-neutral criteria or basis to suspect or identify who is lawfully in the United States."
Based on his 15 years in law enforcement, Escobar said there is no way to tell who was in the country illegally by considering how close they are to the Mexican border; their skin color, age, dress, language or accent; whether they listen to Spanish-language music; where their license plates are from; or what kind of vehicles they travel in.
The law, Escobar claims, requires officers in effect to "actively engage in racial profiling to detain, question and require every Hispanic found within the limits of the City of Tucson to prove their legal status."
In dozens of cities around the country, local police already help enforce immigration law through a partnership with U.S. Immigration and Customs Enforcement. The program , called 287(g), requires participating cops to go through training on how to avoid racial profiling.
But key differences remain between that program and the situation that Arizona police will be in when the law takes effect there in three months. Most importantly, the federal government still controls the 287(g) program. It sets the terms under which officers — and departments — get access to federal databases and federal immigration officials.
This became important last year, when the Obama administration overhauled the 287(g) arrangement so that it would focus more heavily on pursuing illegal immigrants who also have committed serious crimes. In Arizona last year, for example, federal officials significantly cut back the power of Maricopa County Sheriff Joe Arpaio, an outspoken opponent of illegal immigration.
Matt Chandler, a spokesman for the U.S. Department of Homeland Security, says the agency, which includes Immigration and Customs Enforcement, is waiting for the legal review ordered by Obama before deciding what actions it should take on the Arizona law. "That review will inform the government's actions going forward," he says.