Wednesday, July 14, 2010

We will find out the truth about SB 1070 in 15 days.

Many commentators--radical leftists to a man--have said a lot of patently stupid things about SB 1070. Miguel Guadelupe of the "Huffington Post" claims that it imposes a "papers please" policy on anyone who looks Latino, as though "reasonable suspicion" means "stupid hunch". Tucson Communist Party factotum (no joke) Carolyn Trowbridge likened it to apartheid and ethnic cleansing. If Raul Grijalva can be said to think at all ("th" and "dr" being similar but not identical), Raul Grijalva thinks the bill so bad as to justify an economic boycott of his constituents.

A common-sense reading--taking into account that "reasonable suspicion" is a legal term of art that does not mean "a bigot's hunch"--is not the only thing that rules out "papers please." History does as well. In 1997 Chandler officials attempted an immigration-enforcement dragnet, known now as the Chandler Roundup. Policemen asked those who looked Latino to prove their citizenship, detained those who could not do so (picture Cheech Marin: "Greencard? I'm from East LA!") and as a result the city ended up paying over $400,000 to plaintiffs in a class action.

SB 1070 is bad policy and probably unconstitutional, too--see the Justice Department and the AACJ's respective Dormant Commerce Clause and 4th Amendment arguments. We can confidently say that Grijalva and co. aren't being truthful, and we can confidently call Panglossian, disingenuous, or ridiculous the right-wingers who claim that 1070 merely parallels Federal enforcement policy. Beyond that, honest observers will simply have to wait until the 29th to learn the implications of SB 1070.

One of the more pressing questions is its implications for public schools. Arizona has gone along with the (upsetting) trend of keeping a police officer around public schools through the course of the day. These officers are often friendly with the schoolkids and may learn something about students' immigration status either directly or through word of mouth. Suppose a student is lawfully stopped due to participation in a fight and the "school resource officer" has heard that he's in the country illegally. Does SB 1070 require prolonged detention and an inquiry into the student's visa status?

Jack Chin's whitepaper law review article (very much worth reading) provides some clues as to SB 1070's effects outside of schools. Among his claims are that it's a racial profiling bill, but he's not using "racial profiling" to mean what it's commonly taken to mean. "Racial profiling" to the average Joe means "treated like a criminal because I'm (e.g) black", but in Chin's usage it applies even if ethnic appearance is merely one factor among many used in a police decision to stop or detain someone. Perhaps the most important document, however, are the new police guidelines issued by AZ POST.

While it emphasizes the totality of circumstances, the POST guidelines document features a troubling bulleted list of criteria for reasonable suspicion. Copied verbatim:
•Lack of identification (if otherwise required by law)
•Possession of foreign identification
•Flight and/or preparation for flight
•Engaging in evasive maneuvers, in vehicle, on foot, etc.
•Voluntary statements by the person regarding his or her citizenship or unlawful presence (Note that if the person is in custody for purposes of Miranda, he or she may not be questioned about immigration status until after the reading and waiver of Miranda rights.)
•Foreign vehicle registration
•Counter-surveillance or lookout activity
•In company of other unlawfully present aliens
•Location, including for example: A place where unlawfully present aliens are known to congregate looking for work, A location known for human smuggling or known smuggling routes
•Traveling in tandem
•Vehicle is overcrowded or rides heavily
•Passengers in vehicle attempt to hide or avoid detection
•Prior information about the person
•Inability to provide his or her residential address
•Claim of not knowing others in same vehicle or at same location
•Providing inconsistent or illogical information
•Demeanor – for example, unusual or unexplained nervousness, erratic behavior, refusal to make eye contact
•Significant difficulty communicating in English

Some of these are extremely problematic, elevating mere "suspicious" behavior--familiar to anyone who's ever been in the company of e.g. illegal gamblers or paranoid pot smokers--to "reasonable suspicion" of a particular civil offense having to do with visa status. And as Martin Escobar noted in his complaint, skill with the English language is no indicator of status as an alien, let alone of visa status.

What remains to be seen is how many of these criteria must be satisfied before police decide that they have "reasonable suspicion" and apply SB 1070--and how many lawsuits police departments will get from bigots who think they're not being loose enough with their standards of suspicion. Taking Phoenix Law Enforcement Association president Mark Spencer's
remarks to the Arizona Republic
as being representative, I predict that most policemen will err on the side of caution. Somewhere--and it wouldn't surprise me if "somewhere" was either in Prescott Valley, Chandler, or anywhere under the MCSO's watch--a policeman or department will push at the boundaries and ruin someone's day. (MCSO goons were doing this long before SB 1070.) That person will "win the lottery", so to speak. A bad day followed by litigation, probably with a lawyer on the case pro bono, and a large payout from the public purse.

That's hardly "apartheid" or "papers please". If, on the 29th, I turn out to be wrong, I'll correct myself here. I don't expect the Miguel Guadalupes, Carolyn Trowbridges, and Raul Grijalva's of the world to be honest enough to do the same; if I turn out to be correct, they should be brought to account: removed from positions of public trust, fired from newspapers (Guadalupe was not merely wrong: he was wild), and shunned from polite company until they issue retractions, apologize, and preferably make some sort of material amends for the harm they did to working Arizonans by their boycott-inducing exaggeration.

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