The Arizona Republic has posted a video of lawyer and chief architect of Arizona’s likely unconstitutional immigration law, Kris Kobach, instructing Maricopa County (Arizona) officers on what constitutes “reasonable suspicion” that someone is unlawfully present in the country — one of the most controversial elements of Arizona’s new immigration law SB-1070. According to Kobach, the criteria he recommends are “common sense.”
When listing the factors that police officers should consider to determine whether a person they come in contact with is undocumented, Kobach vaguely notes that law enforcement must take into consideration the “totality of circumstances.” According to Kobach, “one factor is not enough.” From there, he simply advises officers to just “rely on more than one.”
Some of the factors Kobach lists, such as an individual taking flight or passengers attempting to hide, certainly do raise suspicion that some sort of unlawful activity is taking place. However, most of the criterion — even when combined — add up to a set of relatively common circumstances that could lead to a series of unreasonable stops, and in the case of SB-1070, wrongful arrests and detentions. Those factors are:
The individual has no English skills or speaks English poorly and does not comprehend English instructions. Indications from dress or appearance of the person that he is an illegal alien. The appearance of the individual is unusual or out of place in a particular locale. The individual appears to be in transit or traveled a significant distance. Indications that the passengers and/or the vehicle have been on a long trip. The vehicle is overcrowded or riding heavily. Evasive maneuvers taken by the driver of a vehicle, such as abruptly exiting from the highway. The individual has no identification on his person.
Watch the video:
According to Kobach, a couple of these factors are probably enough to raise “reasonable suspicion” that an individual is not legally present in the U.S. and justify a warrantless interrogation as part of an attempt “to determine the immigration status of the person.” But let’s say a Mexican American family passes through Arizona on a “long” cross-country road “trip” this summer. They’ve already traveled a “significant distance,” and with two parents, a couple children, camping gear, suitcases, a puppy, and grandma, the vehicle is “riding heavy” and “overcrowded.” The air conditioning broke after they got back from the Grand Canyon and the individuals have been sitting in a hot, sticky van for hours so their clothes are dirty, smelly, and a bit “out of place.” One of the kids gets carsick so the father, who is driving, has to “abruptly exit” the highway. When an Arizona police officer pulls him over and tells him he was speeding, he has trouble hearing the officer over the sound of heavy traffic. In addition, English is a second language for him and his wife. The grandmother, meanwhile, can only speak a few words. No one in the vehicle can produce identification except for the driver. Everyone except the dog is looking down at their laps and “avoiding eye contact” because the police officer is being a condescending jerk.
Based on the criteria Kobach provides, the “totality of circumstances” in the situation described above could land the whole family — particularly grandma — in jail. At the very least, they’d be slapped with a big fine for not thinking to pack their passports. In fact, Kobach’s explanation suggests that just two or three of the eight factors listed should raise “reasonable suspicion.”
Kobach’s advice also hasn’t helped Maricopa County officers stay out of trouble. Local Sheriff Joe Arpaio, who has been pursuing undocumented immigrants since before the bill was even written, is under investigation by both the Department of Justice and the FBI, in addition to facing over 2,700 lawsuits in relation to civil rights violations. Arpaio has repeatedly mistook Kobach’s organization’s legal analysis for code law.