Steve Chapman has a piece over at Reason this morning on Arizona’s new immigration law which, he explains, is either going to turn out to be a threat to individual liberty or a largely symbolic waste of paper:
When I called University of Arizona law professor Marc Miller and told him I wasn’t sure what some of the law’s provisions mean, he replied, “Neither is anyone else on the planet.” We will find out what it means after it takes effect, not before.
The law says cops must inquire anytime “reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.” Since most of the state’s illegal immigrants are Latinos, the natural impulse of police may be to interrogate every Latino with whom they cross paths.
Critics complain that approach would be racist. It would probably be illegal. In any case, Brewer says she won’t allow it.
Maricopa County Sheriff Joe Arpaio, however, sees no problem: “Ten guys in a trunk. I would think that’s reasonable suspicion.” Well, yes. But if cops can ask for evidence of legal status only when they find people secreted in cargo compartments, they will not be catching many interlopers.
The worst-case scenario is that Hispanics will face possible police harassment anytime they venture out of the house.
The bill’s proponents, though, say not to worry, because the law only allows officers to question people about their status when there has been “lawful contact,” the problem is that the law does not define what that means:
In fact, the law doesn’t define the crucial term. One of the dictionary definitions of “contact” is “immediate proximity,” which suggests that anytime a possible illegal immigrant comes in sight of a cop, the cop has a legal duty to check her papers.
Law professor Miller says “lawful contact” could also mean any normal interaction a cop has with ordinary people. If a Hispanic asks a patrolman for directions, she could expose herself to immigration questions. If an officer walks up to someone and starts a conversation without detaining him—something police are allowed to do—he may have established “lawful contact.”
But let’s suppose a cop can get nosy only if he has already intercepted someone for, say, a traffic violation. That’s cold comfort for the innocent. Any officer who wants to make a stop can easily come up with some trivial transgression—improper lane change, going 1 mph over the speed limit, failing to come to a complete stop at a stop sign.
And that may be why the law will largely end up being irrelevant:
Given that even the governor doesn’t know what an illegal immigrant looks like, police may often have trouble articulating a reason for interrogating someone. In that case, the law may be largely irrelevant. If the most obvious grounds for reasonable suspicion are race-based—and thus illegal—cops may elect to do nothing more often than not.
The problem, of course, is that requires putting an inordinate amount of discretion in the hands of police officers and hoping that they use it wisely. That’s usually not a good idea.