In an Op-Ed piece published in today’s New York Times, Kris W. Kobach, who claims that he “helped draft” Arizona’s notorious anti-immigrant S.B. 1070, sets out to “rebut the major criticisms” of the new law individually. However, Kobach offers little more than a recital of the fallacious propaganda espoused by the Federation for American Immigration Reform (FAIR)—a group which has been designated by the Southern Poverty Law Center and the Anti-Defamation League as a hate group—and its legal arm the Immigration Reform Law Institute (IRLI), to which Kobach serves as counsel. Let’s look at Kobach’s central claims:
CLAIM: The Arizona Law simply adds a state penalty to what was already a federal crime—failure to carry proof of immigration status.
FACT: While the federal immigration law requires foreign nationals to carry registration documents with them, Kobach fails to mention that the Arizona law punishes people much more severely than does the federal law. Under S.B. 1070, failure to carry a registration card leads to a prison sentence of six months for a first offense and a $500 fine with substantial enhancements for repeat offenders. In contrast, under the federal law failure to carry a registration document results in up to 30 days in jail and a $100 fine.
Arizona’s new law might sound like a good way to get tough on undocumented immigrants; that is until you consider what would qualify as a crime. For example a mother who leaves her home in a rush to pick up a medical prescription for her sick child and forgets her green card is a criminal under the Arizona law. She is now exposed to a substantial fine and jail—all because she forgot a document. Kobach also fails to note that the federal immigration law prescribes a myriad of registration forms that can be used to show lawful immigration status, including Inspection Records, Arrival-Departure Records, and Crewman’s Landing Permits to name just a few. The Arizona registration provision places local police the untenable position of having to decide whether a particular document is one prescribed by federal law. Incorporating federal registration law into Arizona state law is mistake and an invitation to chaos and abuse.
CLAIM: “Reasonable Suspicion” will not permit police misconduct.
FACT: Kobach tries to convince readers that there is nothing to fear from the notorious “reasonable suspicion” standard because “over the past four decades, federal courts have issued hundreds of opinions defining” the term. He then goes on to claim that under the Arizona law “reasonable suspicion” will only come into play when, under the “totality of the circumstances”, things look suspicious to the police. He offers an example of a car full of passengers speeding on a freeway frequented by drug traffickers.
Frankly, 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.
CLAIM: S.B. 1070 prohibits racial profiling.
FACT: Here, Kobach simply ignores the plain language of the Arizona law. He assures us that there will be no racial profiling under the law because “Section 2 provides that a law enforcement official ‘may not solely consider race, color, or national origin’ in making any stops or determining immigration status. But read carefully, the law doesn’t prohibit the police from using race, color, or national origin in deciding whether or not to stop someone or checking their immigration status. It merely prohibits the police from only considering race, color, or national origin. Thus, a police officer who hears a brown skin person speaking Spanish may take apparent race and national origin into consideration; as long as there are other factors that suggest unlawful immigration status. But what are those other factors? Manner of dress? Hair style? Shoes? In effect, the law will not prohibit a police officer from stopping or checking the immigration status of a person—even a U.S. citizen—based solely on their appearance.
Simply put, S.B. 1070 is hate speech transformed into law. No amount of fancy legal footwork by Kris Kobach or others at IRLI and FAIR can change that. The law is an affront to all Americans who cherish our democratic values.
Yesterday, in an apparent effort to insulate S.B. 1070 from legal challenges, Arizona lawmakers approved several changes to the anti-immigrant legislation signed by Governor Jan Brewer last week. Apparently, even they disagree with Kris Kobach’s assertion yesterday in a New York Times op-ed that lawful contact with the police occurs only after a person is legitimately suspected of being in the country illegally. The lawmakers propose replacing the phrase “lawful contact” with “lawful stop, detention or arrest.” But this change will not rehabilitate Arizona’s anti-immigrant law because it still gives police license to determine a person’s immigration status based on their appearance.