Rep. Carter Joins The Liar's Chorus Of Arizona Apologists
Last night on the House floor, Rep. John Carter (R-TX) defended Arizona's notorious new immigration law by claiming that it reflects federal law "word for word." In fact, the Arizona law includes enforcement policy that doesn't exist at the federal level. Carter's second talking point — that the bill completely prohibits racial profiling by requiring a "lawful stop" — is just as hackneyed and just as false. Proponents of the law admit that they would use the clothing, accent and appearance of someone lawfully stopped (say, for speeding) to form a "reasonable suspicion" and demand a person's immigration papers.
Rep. Carter: "Why Does It Track Word For Word The Federal Law?"
REP. JOHN CARTER (R-TX): But, why did the Arizona legislature and the Arizona governor put this law forward? And why, by the way, did they take this law and track, according to multiple experts, word for word the enforcement provisions set out in the federal law as far as the actions of federal agents and what they can and cannot ask someone? Why does it track word for word the federal law? And why did they pass this with specific provisions saying that we will not do any kind of profiling of any sort, racial or otherwise, and it can only be done as a result of a lawful stop on other matters, can you ask a question about the immigration status of the person you're talking to, or what country they come from?
SB 1070 Goes Beyond Federal Immigration Enforcement Statutes In Numerous Ways
FactCheck.org: Arizona's Law "Does More Than Merely Mirror Federal Law." FactCheck.org examined a similar claim by AZ Gov. Jan Brewer. According to FactCheck.org:
Contrary to what the law's defenders often say, the new statute does more than merely mirror federal law.
To a degree, [Gov. Brewer is] right. Arizona's new statute contains provisions that criminalize, at the state level, certain conduct that's already a violation of federal immigration law. For instance, immigrants are required under both state and federal laws to carry their alien registration documents or other applicable records at all times - in federal law that's under 8 USC sec.1304 and 8 USC sec. 1306.
Other parts of the state law, though, don't exist at the federal level. They include section 5A, making it illegal for a driver to stop and attempt to hire or to hire and pick up passengers, if that action impedes traffic; for a person to get into someone's vehicle in order to be hired; or for an illegal alien to apply for work or solicit work publicly in the state. Most of this is aimed at day laborers and those who hire them.
Another example: Section 2H allows any citizen to sue an official or agency in the state who "adopts or implements a policy that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law."
And section 2B of the new law requires law enforcement officers to try to check the immigration status of anyone they lawfully stop if they have "reasonable suspicion" the person might be an unauthorized immigrant.
[FactCheck.org, 6/3/10, emphasis added]
The Arizona Law's "Reasonable Suspicion" Standard Makes Racial Profiling Possible
PolitiFact: Reasonable Suspicion "Leaves Open Several Possibilities" For Profiling. In a lengthy examination of a previous claim made by Arizona State Sen. John Huppenthal, PolitiFact.com consulted legal experts and concluded that the law does not prohibit profiling:
Perhaps the ambiguities of the law will one day be settled in the courts. But we think that a close reading of the statute and the views of the experts we contacted allow us to draw some conclusions.
Huppenthal's position — that the police must suspect that something illegal is being committed before asking someone for proof of legal status — is not correct. The law says the police officer just needs "reasonable suspicion'' that the person is an alien that is unlawfully present in the United States. The police are prohibited from using a profile based solely on racial or ethnic factors, but that standard can be sidestepped. In addition, some seemingly innocuous behaviors like getting in a car or making a gesture or nodding could be seen by a law officer as "reasonable suspicion" of the newly enacted prohibition against seeking work while in the U.S. illegally.
The passage in the law citing racial profiling does provide some protection, as does the difficulty of defining a profile for illegal immigrants that could pass legal muster, but the law leaves open several possibilities for police questioning individuals without seeing or suspecting a specific crime. So we rate Huppenthal's statement False.
[PolitiFact.com, 4/26/10, emphasis added]
Proponents Of The Law Have Suggested That Accents And Physical Appearance Should Be Used To Profile Suspected Illegal Immigrants
Rep. Brian Bilbray (R-CA): Law Enforcement Will Identify Illegal Immigrants By "The Kind Of Dress You Wear...Right Down To The Shoes." In an April 21 appearance on MSNBC's Hardball, Rep. Bilbray had the following exchange with host Chris Matthews:
Chris Matthews: ...like what, like what? Give me a non-ethnic aspect that would tell you to pick up somebody.
Rep. Bilbray: They will look at the kind of dress you wear, there's different type of attire, there's different type of ...right down to the shoes, right down to the clothes. But mostly by behavior it's mostly behavior, just as the law enforcement people here in Washington, DC does it based on certain criminal activity there is behavior things that professionals are trained in across the board and this group shouldn't be exempt from those observations as much as anybody else.
[Hardball, 4/21/10 via PoliticalCorrection.org]
Rep. Steve King (R-IA): Law Enforcement Should Identify Illegal Immigrants Based On "Shoes," "Grooming," Accents, or "A Sixth Sense." In a June 14 floor speech, Iowa Congressman Steve King said: "It's just a common sense thing. Law enforcement needs to use common sense indicators. Those common sense indicators are all kinds of things, from what kind of clothes people wear — my suit in my case — what kind of shoes people wear, what kind of accident [sic] they have, um, the, the type of grooming they might have, there're, there're all kinds of indicators there and sometimes it's just a sixth sense and they can't put their finger on it. But these law enforcement officers, if they were going to be discriminating against people on the sole basis of race, singling people out, that'd be going on already." [Rep. King Floor Speech, 6/15/10, emphasis added]
Modifications To The Bill Maintain The "Reasonable Suspicion" Standard
AZ Gov. Brewer Signed Follow-On Legislation To "Quell Concerns" About Racial Profiling. According to the Associated Press: "Gov. Jan Brewer on Friday signed a follow-on bill approved by Arizona legislators that makes revisions to the state's sweeping law against illegal immigration. She said the changes should quell concerns that the measure will lead to racial profiling. The law requires local and state law enforcement officers to question people about their immigration status if there is reason to suspect they are in the country illegally, and it makes it a state crime to be in the United States illegally." [AP via New York Times, 4/30/10]
Follow-On Changes Do Not Include Definition Of What Constitutes "Reasonable Suspicion." According to the Arizona Capitol Times:
H2162 prescribes a few key changes to the new immigration law, clarifying both the definition of lawful contact and guidelines for municipalities, as well as lowering the minimum — not the maximum — fine that can be assessed to cities that have so-called "sanctuary city" policies. It also restructured some of the punitive actions that a court would apply to those charged under the new law.
One of the changes to S1070 removes the word "solely" from the description of the new law's lawful contact, when it comes to race. So, now race, color or ethnicity simply cannot be used as part of reasonable suspicion.
The last change outlined in H2162 concerned a phrase that said lawful contact can include an officer's use of the new immigration law "in the enforcement of any other law or ordinance of a county, city or town or this state.
[Arizona Capitol Times, 4/27/10]
Immigration Law Expert: "Reasonable Suspicion" Is "Vague" And "Gives Institutional Cover For Selective Immigration Enforcement." According to UCLA School of Law professor and immigration law expert Hiroshi Motomura, writing in the New York Times: "In judging whether immigration enforcement adheres to the rule of law, it is most important to examine how laws are enforced. From this perspective, it is deeply troubling that Arizona's new law uses a vague 'reasonable suspicion' standard. This standard gives institutional cover for selective immigration enforcement through racial and ethnic profiling, and for this reason it will lead to constitutional violations if the statute goes into effect." [New York Times, 4/26/10, emphasis added]
American Immigration Lawyers Association Leader: 'Reasonable Suspicion' In AZ Law "Effectively Requires" Racial Profiling. According to AILA President-elect David Leopold, writing for The Wonk Room:
Frankly, [the law's co-author Kris] Kobach is intellectually dishonest to claim that "reasonable suspicion" will not turn Arizona into a "show me your papers" state by effectively forcing the police to use racial profiling. What Kobach fails to point out is that law enforcement may question anyone under the Arizona law whom they suspect is an undocumented immigrant once they have made "lawful contact." Arizona law does not define what "lawful contact" means and, therefore, the phrase is open to very broad interpretation by the police. It does suggest some limit, but that limit is well short of the "reasonable suspicion" standard (articulable facts, along with rational inferences that arise from those facts) set forth by the U.S. Supreme Court in Terry v. Ohio. Why else would the drafters of the Arizona legislation have felt the need to use the term "legal contact" and as a pre-requisite to "reasonable suspicion" rather than "reasonable suspicion" of criminal activity? For example, if someone approaches a police officer on the street, there is "legal contact". If the person then speaks English with an accent or "looks Latino" that might raise "reasonable suspicion" that the person is not documented. While "reasonable suspicion" under Terry v. Ohio is based on criminal activity, "reasonable suspicion" under S.B. 1070 is based on a subjective notion of a person's status. The Arizona law not only doesn't prohibit racial profiling, it effectively requires it.
[The Wonk Room, 4/29/10, emphasis added]
The Follow-On Law Expands The Basis For Reasonable Suspicion To Include Municipal Ordinance Violations
The Follow-On Legislation Allows Officers To Pursue Immigration Questions During Enforcement Of Local Ordinances. According to the Los Angeles Times: "Lawmakers on Thursday night also added a provision extending immigration enforcement to local ordinances, which critics warned could permit police to check the immigration status of people guilty of nothing more than a poorly tended lawn." [Los Angeles Times, 5/1/10]
"Cars On Blocks In The Yard" Could Lead To Immigration Inquiries. According to the Arizona Republic: "Rep. Kyrsten Sinema, D-Phoenix, said those two changes help clarify the bill, and lighten its impact somewhat. But she called a third change 'frightening.' That change clarifies that a police officer responding to city ordinance violations would also be required to determine the immigration status of an individual they have reasonable suspicion of being in the country illegally. City ordinance violations vary by municipality but could include things like loud parties, barking dogs, cars on blocks in the yard or too many renters." [The Arizona Republic, 4/29/10]
Lawyer Who Helped Draft The Law Wanted To Make Sure Police Could "Initiate Queries" Based On "Cars On Blocks In The Yard."
Kris Kobach: "We Need To...Allow Police To Use Violations Of Property Codes (e.g. Cars On Blocks In The Yard)...To Initiate Queries." According to The Wonk Room:
Wonk Room recently obtained an email written by Kris Kobach, a lawyer at the Immigration Reform Law Institute — the group which credits itself with writing the bill — to Arizona state Sen. Russell Pierce (R), urging him to include language that will allow police to use city ordinance violations such as "cars on blocks in the yard" as an excuse to "initiate queries" in light of the "lawful contact" deletion:
More importantly, Kobach is basically admitting to Pearce that by allowing police to use the violation of "any county or municipal ordinance" as a basis for inquiring about a person's immigration status, the bill will still cast a wide enough net to help offset the effect of omitting the "lawful contact" language which would've allowed police to ask just about anyone they encounter about their immigration status.
[Wonk Room, 4/30/10]