A few years ago, David and Jessica Rodriguez were leaving Arizona's Bartlett Lake with their two children when they accidentally took a road that had been closed because of rain damage. They were stopped by deputies from the Maricopa County Sheriff's Office, who demanded documentation from David Rodriguez, including his Social Security card, and cited him for failing to obey a road sign.
Although several other motorists made the same mistake around the same time, the deputies simply warned them about the washed-out road and let them go. Unlike David and Jessica Rodriguez, who are U.S. citizens of Latino descent, the other drivers were white.
This sort of experience, poisonous to the principle of legal equality, is bound to become more common as a result of Arizona's new law requiring police to investigate the immigration status of people they encounter in the course of their work. The law encourages police to emulate Maricopa County Sheriff Joe Arpaio by seizing upon any excuse to hunt for illegal immigrants.
A 2008 quote gives you an idea of Arpaio's approach. The self-described "toughest sheriff in America" complained that concerns about probable cause were preventing arrests of Latinos who might be illegal residents. "I wish that the Phoenix police would arrest everybody," he said, "even if they're not sure."
The Rodriguez family was detained during one of Arpaio's "crime suppression" sweeps, in which his deputies use traffic stops as a pretext for checking Latinos' immigration status. The state legislature has invited more use of this technique by amending the immigration law to specify that police should demand proof of legal residence only during "a stop, detention, or arrest" related to enforcement of another law.
If speeding, broken tail lights, cracked windshields, and unfastened seat belts do not provide enough opportunities for immigration checks, police can use local ordinances regulating things like noise, yard upkeep, and residential occupancy. Reports about violations of such rules, even if unfounded, trigger the obligation to do an immigration check when there is "reasonable suspicion" that someone is "unlawfully present in the United States."
Another trick favored by Arpaio is to stop people based on "reasonable suspicion" that they are engaged in criminal activity (which in his view includes living in the U.S. without permission). The Supreme Court has approved such investigatory stops, which can include pat-downs aimed at finding weapons.
According to the Court, "reasonable suspicion" requires "specific, articulable facts which, when considered with objective and reasonable inferences, form a basis for particularized suspicion." By itself, driving (or walking) while Latino is not enough. But the standard leaves considerable room for police discretion, subject to legal review only if a lawsuit or criminal case ensues.
Recognizing the potential for racial profiling, the Arizona legislature originally said immigration checks should not be based "solely" on "race, color or national origin." The revised law says police "may not consider race, color or national origin …except to the extent permitted by the United States or Arizona Constitution."
What extent is that? The answer is uncertain enough that Gov. Jan Brewer surely exaggerated when she claimed the amendments "make it crystal clear and undeniable that racial profiling is illegal and will not be tolerated in Arizona."
David and Jessica Rodriguez are plaintiffs in a federal lawsuit arguing that Arpaio's sweeps rely too much on race. The lead plaintiff is Manuel de Jesus Ortega Melendres, a Mexican who was detained for nearly nine hours even though he presented several forms of ID, including a valid visa.
Arpaio, who also faces a federal civil rights investigation, is unrepentant. "My office has been enforcing federal immigration law for three years," he bragged in May. "The new law just gives us a little extra tool."
Senior Editor Jacob Sullum (email@example.com) is a nationally syndicated columnist.
© Copyright 2010 by Creators Syndicate Inc.