Legal Commentary

David Crump, the John B. Neibel Professor at the University of Houston Law Center, wrote an op-ed in the Houston Chronicle about Arizona's new immigration law,  SB1070.  Nothing indicates the op-ed has been retracted, and it has been featured on The Faculty Lounge and Nuestras Voces Latinas, so it has been disseminated not only to the general public, but also to law professors and the legal community.  I have written about SB 1070 (with colleagues who are not responsible for this post.).

The op-ed is "happy law", offering reassurances about two major legal issues that might concern reasonable people about SB1070.  But under fairly inescapable readings of U.S. and Arizona supreme court precedents and the text of SB1070, the claims are wrong--not debatable, not questionable, but wrong.  And it is not just that the op-ed is inaccurate or imprecise.  The rules are actually the opposite of what the op-ed asserts.

The op-ed claims SB1070 prohibits racial profiling (in the sense of using racial appearance as evidence of illegal status) when SB1070 actually authorizes racial profiling.  The op-ed claims that that SB1070 requires individualized suspicion before police investigate immigration status, when not only does SB1070 not restrict immigration investigations in that way, the law apparently prohibits enforcement policies restricting immigration investigations to those based on individualized suspicion, on pain of damages.  Details below.

Does SB 1070 Allow Racial Profiling?

A potent criticism of SB 1070 is that it allows or will result in racial profiling.  This is an important part of the debate, undoubtedly, because many Americans would not support a racial profiling statute.  Here is what the op-ed says: "And the Arizona law says that ethnicity ? a person's appearance ? cannot be considered as the basis of the reasonable grounds. It doesn't have to say this, because it's already the law, but it's a good thing for Arizona to restate it explicitly."

Here is what SB1070 provides at A.R.S. Sec. 11-1051(B) (and essentially verbatim at A.R.S. Secs. 13-1509(C), 13-2928(D), and 13-2929(C) as well):

A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE MAY NOT CONSIDER RACE, COLOR OR NATIONAL ORIGIN IN IMPLEMENTING THE REQUIREMENTS OF THIS SUBSECTION EXCEPT TO THE EXTENT PERMITTED BY THE UNITED STATES OR ARIZONA CONSTITUTION. (emphasis added)

Race can be considered, then, if and when permitted by the U.S. or Arizona constitutions.  According to the Supreme Court, the U.S. Constitution allows race to be considered evaluating reasonable suspicion in immigration enforcement: ?The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.? United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975).  The Arizona Supreme Court agrees that ?enforcement of immigration laws often involves a relevant consideration of ethnic factors.? State v. Graciano, 653 P.2d 683, 687 n.7 (Ariz. 1982) (citing State v. Becerra, 534 P.2d 743 (Ariz.1975)).  So SB1070 authorizes consideration of race in immigration enforcement. (Kevin Johnson has an excellent piece on this and related doctrines here).

Of course, there are many arguments that Brignoni-Ponce and Graciano should be overruled or limited.  But is it not an accurate reading that the Arizona legislature textually limited the use of race.  The legislature would have struck out the exception and replaced it with "under any circumstances whatsoever" if it intended to put race off-limits across the board in reasonable suspicion or probable cause determinations.  Note also that the operative word in the exception is "permitted", not "required"; SB1070 does not merely comply with (hypothetical) constitutional duties to consider race, it affirmatively embraces any available authority to use race in enforcing SB1070 whenever it is "permitted" by the constutions.

The clear meaning is that SB1070 incorporates existing doctrinal rules permitting the use of race, as well as any new ones that may arise, perhaps through litigation on SB1070 itself.  So the op-ed is incorrect both when it claims that SB1070 prohibits the use of race, and when it claims that the prohibition on use of race reflects existing constitutional law. 

Can Police "Go Fishing" for Immigration Violations?

Another criticism of the Arizona law is that it allows the police to investigate the immigration status of any person, including crime victims, witnesses, bystanders and random people walking down the street.  If true, this would bolster the claims of many law enforcement leaders that police enforcing immigration law could interfere with investigation of violent crimes by making local police the object of fear in the Hispanic community.  To some people, it also carries a whiff of totalitarianism.  

The op-ed addresses these concerns by claiming the law restricts the police to investigating the immigration status only of people lawfully stopped or arrested.  It states: "It is only after a valid arrest, stop or detention has been established ? only at that point ? that a police officer can even consider investigating immigration status, under the Arizona law. And at that point, the officer still can't investigate, unless there are 'reasonable' grounds to suspect illegal entry."  This claim reads a restriction into SB1070 which simply does not exist.

The op-ed is describing A.R.S. Sec. 11-1051(B), which identifies some circumstances when SB1070 requires the police to conduct immigration status investigations.  When someone is stopped, detained or arrested, and there is reasonable suspicion if undocumented status, an investigation "shall be made" if practicable. 

But nothing in SB1070 states or implies that because immigration status investigations are sometimes mandatory, they are prohibited in some or all other circumstances.  Nothing in SB1070 says the police "can't investigate" whomever the like, whenever they like; there is no threshold that must be passed before police "can even consider investigating immigration status."

The background principle of United States and Arizona constitutional law is that the police may investigate immigration status (or any other crime) without individualized suspicion, so long as they have a basis for any search or seizure. Muehler v. Mena, 544 U.S. 93 (2005) ("the officers did not need reasonable suspicion to ask Mena for her . . . immigration status."); State v. Johnson, 207 P.3d 804 (Ariz. App. 2009) (following Mena).  Not a word in SB1070 changes this, and it would be surprising if a statute  designed to increase the authority of Arizona police to enforce immigration law substantially restricted existing police power, sub silentio.    

In fact, SB1070 actually seems to prohibit the kinds of restrictions the op-ed claims the law mandates.  A.R.S. Sec. 11-1051(A) provides: "NO OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE MAY LIMIT OR RESTRICT THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW."  Accordingly, since it is, apparently, permitted by Federal law for state officers to investigate the immigration status of anyone, any time, so long as there is no unreasonable search or seizure, no Police Chief or City Council can instruct line officers not to investigate the immigration status of witnesses or victims, or only to investigate if there is reasonable suspicion or probable cause.  If a Police Chief  instituted such a policy, SB1070 provides he or she could be sued for a statutory penalty by any lawful resident of the State. A.R.S. Sec. 11-1051(H). 

The op-ed, almost certainly, focused on racial profiling and suspicionless investigations because these points are important in evaluating the wisdom of the law. The debate on SB1070 in Arizona and elsewhere should not rest on a falsely cheerful picture of either how it works or applicable background legal principles: SB1070 allows racial profiling and suspicionless investigations.