Imagine you're an Arizona cop and your job is now to apply the state's controversial new immigration law, the most stringent in the country. The measure directs you, "when practicable," to check the immigration status of someone you have "reasonable suspicion" is in the country illegally. You cannot "solely consider" that person's race or ethnicity. Presumably you can consider race or ethnicity in combination with other factors. But you cannot engage in racial profiling.
Sounds like a recipe for confusion and disputes over whether race really wasn't the only factor in someone getting questioned. After all, 30 percent of legal Arizona residents are Latino, so you would be harassing a lot of U.S. citizens and legal immigrants unless you had some way to eliminate them and concentrate only on the illegal ones.
Who would trigger your suspicion? A man wearing grease-coated coveralls and driving a jalopy? A guy eating a burrito and standing outside a 7-Eleven? The problem, according to the law's critics, is that these descriptions are not useful predictors of a person's legal status. "The fact of the matter is, undocumented folks are literally from the four corners of the planet," says Arturo Venegas, a former Sacramento, Calif., police chief and the project director of the Law Enforcement Engagement Initiative, which opposes the Arizona measure. Illegal aliens can be blond Brits or black Jamaicans or olive-skinned Mexicans. And while this last description may apply to most of the undocumented in Arizona, it's not very helpful either. After all, the state's large Hispanic population includes many people who might look Mexican, might speak limited English, but reside there legally.
Yet given the meaninglessness of so many of the potential criteria that law enforcement might consider, the one that may end up counting most is race. "In practice, it is inevitable that this law will lead to racial profiling," says David Cole, a Georgetown University Law Center professor who has studied the issue in depth. "People don't wear signs saying that they are illegal immigrants, nor do illegal immigrants engage in any particular behavior that distinguishes them from legal immigrants and citizens. So police officers will not stop white people, and will stop Latinos, especially poor Latinos."
The law's defenders, of course, disagree. Mark Spencer, president of the Phoenix Law Enforcement Association, which supports the new immigration measure, offers the following scenario. Say a patrolman pulls someone over for speeding. The officer asks the driver for his license and registration, but the driver doesn't produce any. Then the officer asks the driver for his name and address, and the driver seems evasive. When the officer runs the name he's eventually given, no record of such a person comes up. "Now reasonable suspicion is building up," says Spencer. He proposed a couple of other scenarios. Maybe the driver presents an ID that the officer determines is fake, he suggests, or maybe the driver "struggles to communicate in the English language." The key issue, he says, is, "Are they engaged in suspicious activity?"
The law's opponents, however, consider such examples irrelevant. "Not having a driver's license and not speaking English doesn't make you an undocumented immigrant," says Venegas. Nor does having a fake ID or acting nervously when a cop questions you (just ask a teenager who wants to buy alcohol). And there's an additional problem: none of the scenarios Spencer cited are contained in the law. In fact, the statute fails to specify any characteristics or behaviors that law enforcement should focus on to determine whether there's a reasonable suspicion that someone is in the country illegally. "Most of the officers out there will try to do the right thing," says Venegas. "But we also know that agencies have some officers who will do dumb things."
In a 2006 New Yorker article, Malcolm Gladwell showed just how dicey the practice of profiling can be. He cited research by Georgetown's Cole that pulled together some of the traits used by Drug Enforcement Administration agents over the years to help determine whether someone might be a smuggler. Among them: "bought coach ticket; bought first-class ticket; used one-way ticket; used round-trip ticket; ... acted too nervous; acted too calm; made eye contact with officer; avoided making eye contact with officer." When the traits that law enforcement seizes on have no predictive value, there is no fair guidepost for it to follow.
Arizona police departments, which are already strapped for cash because of the state's severe budget crisis, will have to implement the law with little direction or training. That worries Bryan Soller, president of the Arizona Fraternal Order of Police, which backed the measure, though not enthusiastically. He says that although the federal government has an immigration-training program for local police, there's practically no funding to take advantage of it. As a result, most officers haven't had it, including him. "I really can't answer whether somebody is here legally or illegally, unless they admit it," he says. "If somebody has the paperwork, I wouldn't know if it was good or bad." Still, he's not concerned that the new measure will lead to rampant racial profiling. "You will have a few [officers] who will become zealots on this," says Soller. But "only a small minority will try to push the limit." That may be more than enough to make life thoroughly unpleasant for many of the legal Hispanic residents of Arizona.