For those who have not read the bill, it is available on the Arizona legislature’s website at: http://www.azleg.gov/alispdfs/council/SB1070-HB2162.PDF. That document contains the current version with modifications that have been made since the bill was originally passed.
The law requires that when law enforcement stops, detains or arrests an individual, “A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON,” whenever “REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO AND IS UNLAWFULLY PRESENT IN THE UNITED STATES.”
Thus, the plain words of the law make it mandatory to “determine the immigration status” of such persons whenever there is “reasonable suspicion” of unlawful presence in this country. However, this requirement is only mandatory “when practicable.” I frankly have no idea what that important modifier means. Under what types of circumstances would it be “practicable” to try to determine one’s immigration status? What kinds of situations might make it impracticable? I certainly would welcome enlightenment on this point. It appears to be a very ambiguous phrase. With such ambiguity in statutory drafting there are a host of potential pitfalls—including (but not limited to) unbridled discretion in the hands of law enforcement. Unbridled discretion in the hands of any mere mortals seems unwise.
The following passage also appears in the text of the law:
...A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE MAY NOT [SOLELY] 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.
Per the legislature’s website, the word “solely” originally modified the anti-racial profiling language in the law, but that important modifying language has been removed from the current version. Thus, the plain words of the statute originally permitted law enforcement to consider “race color or national origin” as long as there were also other factors that gave rise to “reasonable suspicion” that the person was unlawfully present in the United States.
However, on its face, the current version of the law seems to indicate that law enforcement may not consider “race, color or national origin” at all--not as the sole factor or even as one of several factors--except to the extent either the U.S. or Arizona Constitutions permit racial profiling. For a few reasons, this passage from the law is curious to me.
First, I must admit that I am not a constitutional law expert and I am not sure how much racial profiling either constitution might permit. For example, I would think racial profiling would be a violation of the Equal Protection clause of the U.S. constitution, but perhaps there are exceptions this language is intended to exploit.
Secondly, even assuming the constitutional exception is narrow, in everything I have read and heard in discussions of the law, I have yet to hear how law enforcement will decide when there is “reasonable suspicion” without resorting to consideration of “race, color or national origin.” That really seems to be the key issue in the whole controversy surrounding S.B. 1070. The law seems to forbid racial profiling on its face, but it is not clear what factors beyond “race, color or national origin” would trigger “reasonable suspicion.” I would very much like to hear what law enforcement techniques are used to ensure this important provision of the law is honored.
The Lord your God is God of gods and Lord of Lords, the great God, mighty and awesome, who is not partial and takes no bribe, who executes justice for the orphan and widow, and who loves the strangers, providing them food and clothing. You shall also love the stranger, for you were strangers in the land of Egypt. You shall fear the Lord your God; him alone you shall worship; to him you shall hold fast, and by his name you shall swear. He is your praise; he is your God, who has done for you these great and awesome things that your own eyes have seen.