Federal Judiciary

Illegal Immigrants and the Arizona Law -- By: Jack Dunphy

If Arizona?s new immigration law survives the many court challenges now facing it -- a dubious prospect, given the Ninth Circuit?s eventual role in the process -- it will take effect on July 29. And on that day, as police officers settle into their Crown Victorias, crank up the air conditioning, and drive out onto the streets of their cities and towns, they will be asking themselves, ?What am I supposed to do now??

The law signed by Gov. Jan Brewer is straightforward in its obligations on police officers: They are to make a reasonable effort to investigate the immigration status of persons who have been lawfully stopped and about whom there is reasonable suspicion to believe they are ?unlawfully present in the United States.? This vests too much discretion and authority in local police officers, say the law?s critics, ignoring the fact that police officers exercise such discretion and authority virtually every time they step out of their cars, and in the vast majority of cases do so properly.

How will the police, ask the critics, determine what is ?reasonable suspicion? to believe someone might be an illegal immigrant? On this I can speak from long experience, as I have spent a good part of my police career working in neighborhoods of Los Angeles where illegal immigrants can be found in abundance (there are many such neighborhoods here). As police officers develop on the job they learn to recognize certain cultural patterns, perhaps the most important of which are those displayed by men who have spent time in prison. Such men almost invariably adopt manners of dress, speech, and behavior that a seasoned police officer can recognize instantly -- and he had better, if he wants to end his day in the same condition he started it. Even if you were to dress an ex-con in a Brooks Brothers suit, give him a hundred-dollar haircut, and place him among a group of men similarly dressed and coiffed, any cop who had been around a while would have no trouble at all picking him out of the crowd.

This is not to equate illegal immigrants with ex-convicts, but the concept of noticing cultural cues nonetheless applies. Regardless of a given person?s ethnicity, there are mannerisms and behaviors that are more common on one side of our southern border than the other, and the degree to which a person displays these mannerisms and behaviors offers the careful observer an idea of which side of that border the person is from and how long it has been since he crossed it.

No, this isn?t foolproof. There are, after all, differences between an educated, middle-class Mexican from Monterey or Guadalajara -- one who, say, has overstayed a student visa -- and a high-school dropout from a farm in Michoacán or Durango. The former is more likely to be assimilated into American culture than the latter, and is less likely to arouse the curiosity of the police. But then, if the illegal-immigrant population were limited to those who are educated, middle-class, and assimilated, surely the issue wouldn?t have engendered the Arizona law in the first place.

Even if we allow that police officers are able in most cases to identify an illegal immigrant, critics of the Arizona law would nonetheless raise the bugaboo of ?racial profiling.? Hispanics will be unduly harassed, say the critics, as in President Obama?s flawed scenario of the family that went out for ice cream and was caught without their ?papers.?

First of all, as any police officer knows, it?s difficult to discern the ethnicity of a car?s occupants while following it down the street. This is all the more true at night or, as is very often the case in Arizona, if the car has tinted windows. You might be driving down the street and see a police car in your rear-view mirror and assume the officer is looking for a reason to pull you over. In truth that officer very likely isn?t paying any attention to you at all. Instead he is probably thinking about where he?s going to have lunch, what he?s going to do after work, or what a jerk his lieutenant is. Only when a driver commits some violation of the traffic laws is an officer?s attention drawn to a car, and the occupants? ethnicity becomes apparent only when the officer pulls the car over and asks the driver to produce his driver?s license, registration, and proof of insurance. When a driver has none of these documents, as most illegal immigrants do not, it seems only reasonable that the officer be allowed make inquiries as to the driver?s immigration status.

I suspect most otherwise law-abiding illegal immigrants in Arizona will have little to fear from this new law, as few police officers will invest the time and trouble to detain someone who, though illegally in the country, is causing no trouble in the community. There are enough illegal-immigrant hoodlums to occupy the attention of the police that families need not fear being harassed on their way to the local ice-cream parlor whether they?re illegal immigrants or not. Despite the president?s dire warnings, I don?t envision stakeouts at Baskin-Robbins stores in Tucson.

And there certainly won?t be in those areas around Tucson patrolled by the Pima County Sheriff?s Department. Sheriff Clarence Dupnik told reporters in Tucson last month that the new law ?is unwise, it?s stupid, and it?s racist,? raising the troubling question of whether his deputies will enforce the law if and when it takes effect.

Dupnik?s opinion puts him sharply at odds with many cops in Arizona, like Larry Dever, sheriff of neighboring Cochise County. ?There are people from all over this country#..#that are encouraging us to keep doing what we?re doing here and thanking the governor for signing that bill,? Dever said.

All of which points to the sticky politics in which police officers find themselves immersed when it comes to illegal immigrants. Here in Los Angeles, for example, police officers have been limited in what inquiries they can make regarding citizenship by Special Order 40, which was incorporated into LAPD rules in 1979. But, as I reported here last year, even when officers make perfectly legal and proper notification to federal immigration authorities regarding people who have been arrested, allowances to politics can sometimes throw sand in the gears. Mayor Antonio Villaraigosa is famously sympathetic to the cause of illegal immigrants -- he addressed immigrants?-rights marchers two weeks ago, on May 1, as he does every year -- so it?s no surprise that LAPD officers are sometimes discouraged from making even those immigration inquiries allowed under Special Order 40. Not that it could happen here, but imagine the dilemma for LAPD officers if California were to enact a law similar to Arizona?s.

Whatever the outcome of the challenges to the new Arizona law, this much is clear: With American businesses extending an invitation to low-skilled workers from Mexico and beyond, and with the federal government making only a token effort to keep them from accepting it, more states will consider enacting laws similar to Arizona?s. The problem isn?t going away.

-- Jack Dunphy is an officer in the Los Angeles Police Department. ?Jack Dunphy? is the author's nom de cyber. The opinions expressed are his own and almost certainly do not reflect those of the LAPD management.

Full post as published by Bench Memos - National Review Online on May 12, 2010 (boomark / email).