Arizona's Common Sense Approach to Racial Profiling

Critics of Arizona’s new immigration bill contend that it unfairly allows police to detain anyone looking Hispanic. But for the U.S. to be able to enforce its immigration laws, officials must pay common sense attention to ethnicity.

The new Arizona law making it a state crime to be an illegal immigrant and empowering state and local police officers to arrest the aliens is provoking hysterical criticism.  Generally, the critics contend that the law allows the police to detain anyone looking Hispanic, demanding to see “their papers, ” and if none are produced, arresting them.  This has been described as “un-American” or, evidence of totalitarianism, like Nazi Germany.  These criticisms are wrong because federal law already permits Immigration and Customs Enforcement (ICE) to detain Hispanic- looking people who also appear to be illegal.  When Gov. Jan Brewer signed the Arizona law, she stated she did not know what an illegal immigrant looks like.  She could not have been serious.  Everyone in Arizona knows what an illegal immigrant looks like.  It’s not necessary to take police training on the demographics of Arizona’s illegal immigrant population.  According to the Pew Hispanic Center, 94% of them are from Mexico.  We start with that fact and then look for other telltale signs of illegal status: the inability to speak English, the dirty clothes, the type of vehicle, the proximity to the border or places where illegals work (agriculture, fast food, construction sites, etc.)

The Supreme Court held in a unanimous 1975 decision, when it had a more liberal cast, that federal officials could pull motorists over for questioning, without a warrant,  if they have ”reasonable suspicion” they are illegal immigrants.  And, at least in areas near the border,  Hispanic ethnicity can be one of the factors in forming the reasonable suspicion.  Other factors include the type of vehicle the person is driving, the number of passengers in the vehicle, a dirty/muddy appearance, etc.  While Hispanic appearance cannot be the sole factor, there is no doubt that it can be a significant one.

All the Arizona law does is give state and local police the same authority as federal officials have had since 1975.  Any Arizona law enforcement official carrying out the mandate of this law should begin with the correct assumption that nearly all illegal immigrants in the state are Hispanics from Mexico.   Given this fact, it makes no sense to even begin amassing sufficient information to form a reasonable suspicion as to a non-Hispanic person.  Critics call this “racial profiling.”   Supporters of the law have not yet found a rhetorical shorthand way of responding.  Common sense might suffice.  Any member of the public who is not wedded to the open borders agenda and wants immigration law enforced would not object to focusing efforts of enforcement on Hispanics.  The numbers make this unavoidable.  And the Supreme Court has upheld this “profiling,” or common sense narrowing of the population for immigration enforcement, as long as the police also have other grounds to form reasonable suspicion.

If I could turn the tables on the critics of the Arizona law, I would start by asking them if they believe the Constitution forbids, as the Rev. Al Sharpton said on ABC this Sunday, any consideration of ethnicity in forming a reasonable suspicion that someone is an illegal immigrant.  If they agree with Sharpton, then they should be asked to cite the Supreme Court case supporting that view.  There is none.  And if I’m wrong, then anyone reading this should email me the decision immediately.  I’ll post it here.  Sharpton does not know what he’s talking about, and he should take an hour out of his media schedule to read United States v. Brignoni-Ponce, 422 U.S. 884 (1975) and I.N.S. v. Delgado, 466 U.S. 210 (1984)(reaching the same conclusion about warrantless questioning of suspected illegal immigrants in a mostly Hispanic workplace).

It’s fair to ask what Sharpton and his like-minded critics of the Arizona law want in the way of enforcement of our immigration laws.  If ethnicity is not a factor, then immigration laws cannot be enforced.  Again, the Pew Hispanic Center confirms that 76% of the 11.9 million illegal immigrants in the U.S. are Hispanic.  Should all Hispanics be suspected of being illegal?  Certainly not.  But should law enforcement take that into account?  How can they not?  Suppose an ICE agent pulls over a van filled with 20 Hispanics and learns from the driver that he is on his way to a chicken processing plant, and it is early in the morning.  If the driver can produce a valid drivers’ license, the ICE agent should still be allowed to question the other passengers because it is common knowledge that illegal immigrants tend to be Hispanics, tend to be driven in crowded vans, and tend to work in chicken plants.  The racially blind approach would draw no suspicion from these factors and simply let the driver of the van proceed despite the fact the passengers are likely illegal immigrants.

We cannot have immigration law enforcement without common sense attention to ethnicity.  If our southern border were not Mexico, but another Canada, then things would be different.  But as its stands, criticism of common sense immigration enforcement is just a proxy for open borders- nonenforcement.