Mysteries of an Immigration Law

Is Arizona's new law a menace?


After signing the new law requiring police to check out people who may be illegal immigrants, Arizona Gov. Jan Brewer was asked how the cops are supposed to know when someone should be screened. "I don't know," she replied. "I do not know what an illegal immigrant looks like."

No kidding. But she has a lot of company in her ignorance. 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. Not to worry, says Kris Kobach, a law professor at the University of Missouri-Kansas City who helped draft the text.

He told The Washington Examiner that cops can ask for immigration information only when they have "lawful contact" with someone—when "the officer is already engaged in some detention of an individual because he's violated some other law."

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.

When I went to traffic school years ago, the officer teaching it strongly advised us never to argue when being issued a ticket. On the average car, he said, he could find half a dozen reasons to write up additional citations if provoked. Any of those would serve equally well to justify a stop.

Of course, even if they have reason to pull someone over, police are not supposed to demand documents unless they have "reasonable suspicion" that someone is here illegally. But—aside from instances of guys hiding in trunks—what does that mean if it doesn't mean checking anyone who looks or sounds Latino? Illegal immigrants don't normally wear shirts that say "Fence Jumpers Local 302."

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.

That may be what some officials would prefer. The Arizona Association of Chiefs of Police opposes the policy. Winslow city administrator Jim Ferguson told The Los Angeles Times, "If we enforce this new law, we are not going to be able to afford to take care of some other pressing law enforcement issues."

So the measure could mean that overaggressive cops will put legal Hispanic residents in chronic fear of arrest. Alternatively, police may not do their jobs much differently from before.

Maybe the new law is a menace. Or maybe it's more of a hoax.