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Thinking About “Reasonable Suspicion”

Last week, the State of Arizona enacted SB 1070 into law in an effort to deal with the issue of illegal immigration. Aside from the Constitutional problem that regulation of immigration is a federal, not state power, I have grave concerns that the law will be used to harass legal citizens of Hispanic descent, among others.

The backers of this law have attempted to allay these concerns by pointing to this provision (via fact sheet provided by AZ legislature – use link above to access) bolding mine:

Requires officials and agencies to reasonably attempt to determine the immigration status of a person involved in a lawful contact where reasonable suspicion exists regarding the immigration status of the person, except if the determination may hinder or obstruct an investigation.

The phrase “where reasonable suspicion exists” is meant to be soothing, but it’s one of the biggest problems with this bill. How does one get “reasonable suspicion” that someone has an improper immigration status?  Don’t say “Because he didn’t have his birth certificate or AZ driver’s license handy” because that implies you’re already checking the person’s immigration status. Under the new law, that sort of check is only supposed to be allowed “where reasonable suspicion exists.”

There is a place for reasonable suspicion in law enforcement. If a cop notices you have an open container of liqueur in your car,  there’s a reasonable suspicion that you’ve been drinking while driving. If your car smells like marijuana when you’ve been pulled over, there is a reasonable suspicion you are carrying drugs. My favorite case of reasonable suspicion comes from the movie “Dirty Harry” where Harry is asked to explain why he had a reasonable suspicion that a man was guilty of rape with intent to murder – “When I see a naked man with a hard-on and carving knife chasing a woman with torn clothes, that seemed like a good guess.”

The point is that true “reasonable suspicion” requires the possession of objects or behavior that point to a possible crime. This doesn’t exist when it comes to immigration status. How can you tell citizenship status just by looking at someone? Try me. It seems like there is an assumption out there that since most of our illegal immigration comes from Mexico, being a poor looking Mexican ought to be “reasonable suspicion” on the part of police. There are nearly two million people in Arizona of Hispanic origin, according to the US Census Bureau’s Map Stats for Arizona. According to the Department of Homeland Security’s 2006 Estimates of the Unauthorized
Immigrant Population Residing in the United States
report, Arizona was estimated to have 500,000 illegal aliens (tho not all from Mexico).

Doing the math, it seems like police who do citizenship checks on Hispanic looking people will be wrong nearly three times out of four. That does not seem like a reasonable suspicion to me.

Perhaps a different example of where “reasonable suspicion” is hard to come by would help. Let’s say that instead of cracking down on illegal immigration, the State of Arizona wanted to crack down on people behind on their property taxes. The law might read something like:

Requires officials and agencies to reasonably attempt to determine the property tax status of a person involved in a lawful contact where reasonable suspicion exists regarding the property tax status of the person, except if the determination may hinder or obstruct an investigation.

Defenders of the law say, “Don’t Worry! Only when the police have suspicion that someone is a tax cheat will they be asked to verify they are up to date on taxes.” But how are the police suppose to decide whether someone is a possible tax cheat? Maybe they start stopping people in nice suits or who drive a Lexus. Since most well to do people do pay their property taxes, more often than not, the police will be questioning a law abiding citizen and not a tax cheat because of targeting by appearance. In both this hypothetical case and with the real life SB 1070, police are being asked to be mind readers. This is wrong and a waste of resources.

As it is written, SB 1070 is bad law apart from its unconstitutionality. It exposes citizens to random documents checks without providing a reliable way to zero in on undocumented workers and their employers. Fans of liberty and/or efficiency should unite in disapproval of this law.

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2 Responses

  1. “used to harass legal citizens of Hispanic decent”

    Make that “descent,” wouldja? Thanks. : )

  2. Hi Albert, Thanks for the correction.

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