Public Service Announcement – sb1070 DOES NOT ban Racial Profiling. It Seems to Mandate It.

by Elliot | 6:44 am, August 19, 2010 | Comments Off

With Colorado looking to copy Arizona’s sb1070 law, it is important to take a look at what is actually in that law.  One of the most frequent myths about the Arizona law is that it bans racial profiling.   People who advance such a myth cite to the following language: ““[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” A.R.S. § 11-1051(B).  This supposedly settles the argument…..

EXCEPT IT DOES NOT.

Why?  Because the people who promote this myth DON’T FINISH READING THE SAME SENTENCE.  If you continue reading that sentence, it goes on to say “except to the extent permitted by the United States or Arizona Constitution.”  Id. Guess what – racial profiling is allowed under both as relevant factor in both in immigration enforcement.  United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975) (allowing Mexican appearance to be a factor in a stop because “[t]he likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor” so long as it is not the only factor); State v. Graciano, 653 P.2d 683, 687 n.7 (Ariz. 1982) (stating “enforcement of immigration laws often involves a relevant consideration of ethnic factors”) (citing State v. Becerra, 534 P.2d 743 (1975)).  In other words, the law’s supposed prohibition on considering racial origin has a loophole big enough to drive a truck through.

Furthermore, the law also states “[n]o 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.”  A.R.S. § 11-1051(A).  If any Arizona resident becomes dissatisfied that an Arizona State Agency or City’s refusal to racially profile constitutes a policy that “limits or restricts the enforcement of federal immigration laws,” that person ”may bring an action in superior court to challenge [it].”   A.R.S. § 11-1051(H).  If the resident wins, the State Agency or City MUST pay a civil penalty of “not less than five hundred dollars and not more than five thousand dollars for each day that the policy has remained in effect after the filing of the [resident's lawsuit].”  Id. Moreover the State Agency/City will possibly also have to pay for the resident’s  attorney fees.  A.R.S. § 11-1051(J).

Thus, by the statute’s own terms, racial profiling is not barred, because the Federal and Arizona Constitutions allow it to be used as a relevant factor. Failure to use such profiling would constitute enforcing immigration law less than the full amount permitted by law, opening a City/State Agency up to a lawsuit by any legal state resident.  If the City/State Agency loses that lawsuit, they would be required to pay a massive fine  and possibly the attorney fees of the person who brought the suit.  As such, those who say that the law bans racial profiling would be well advised to actually read it.  It does no such thing; instead it seems to mandate it.

Provisos:

1) I am not saying racial profiling is good or bad, I’m just saying the people citing to the Arizona law need to get their facts straight;

2) This is not my own original research.  I am heavily indebted to this article;

3) Some of this analysis turns on what constitutes racial profiling.  I’m viewing the notion that race/ethnicity would be a relevant factor among several others as racial profiling; and

4) This post does not constitute legal advice.  Follow the reasoning within at your own risk, as it could be wrong.  If you think I am your attorney merely by reading this, you are wrong.

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