Civil Liberties

Why Law Enforcement Officials Should Hate Arizona's Racist New Law

Arizona's draconian anti-immigration law will create a chilling effect in the very communities police officers rely on to fight crime.

William John Cox has worked as a prosecutor, a public defender, and decades ago, a police officer in El Cajon, California, not far from the Mexico border.

"Sometimes, in the early morning we would see illegal immigrants trudging north carrying their few belongings in the knit shopping bags known as 'Tijuana briefcases,'" he recalled in a posting on Facebook, following the signing of Arizona's draconian immigration law. "We would stop them, ask for the papers, and arrest them if they had none. When the border patrol officers picked them up at the station, they would leave a box of practice ammunition as a reward for each one arrested."

Those were the '60s. A few years later, in the early 1970s, Cox was tasked with authoring the Los Angeles Police Department's new policy manual. He and his colleagues weighed whether this sort of collaboration between police and immigration officials made sense. The answer, they determined, was no: such practices would undermine law enforcement by creating a chilling effect in the very communities police rely on to solve crimes. This logic would be codified in 1979 by the L.A. City Council and then-Police Chief Daryl Gates, who implemented Special Order 40, a mandate that forbids "initiat(ing) police action with the objective of discovering the alien status of a person." Despite attempts by right-wing groups to challenge the order, it has been upheld in court ever since.

In Los Angeles, Cox told AlterNet in a phone interview, "they decided that if you have police officers who are enforcing immigration laws, then what happens is that you cut off that voluntary flow of information that is essential for law enforcement in a free society."

"Say a woman has been raped," he explains. "Is she going to come forward and say, 'Yes, I've been raped,' if she will then get deported for reporting her victimization?" Fear of deportation would not only mean her rapist could get away with his crime, but would be free to go on and victimize someone else. "There is a value to society in having her come forward," Cox says.

Dr. Richard Weinblatt, a former police chief and deputy sheriff who once worked on the border in New Mexico, agrees. Like Cox, he is adamantly opposed to Arizona's new law, for numerous reasons, not the least of which is that it will prove to be counterproductive for police. "[As] somebody who's had his boots in the dirt doing border policing as a local deputy sheriff," he tells me, "you spend so much time trying to get the most vulnerable of our society, particularly women and children who are in pretty brutal domestic violence situations, to trust you -- and you can barely get them to do that. And now with this -- forget it. You've got almost no chance. It disenfranchises them even more."

Signed into law on April 23, Arizona Senate Bill 1070 mandates that local police demand verification of a person's legal immigration status "where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States."

If the person is unable to verify that he or she is in the country legally, "a law enforcement officer, without a warrant, may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States."

According to Weinblatt, this forces the hand of law enforcement in situations where action may not be called for. "This law says that if the officer or deputy sheriff on the local level -- a non-immigration, non-border patrol person -- feels that they have developed 'reasonable suspicion' that a person is an illegal alien, they are mandated -- they must, there is no discretion here -- they are mandated to investigate."

"For most officers in the field, reasonable suspicion is a very gray area," Weinblatt says. In the jump to reasonable suspicion, "police are going to have to be able to articulate certain facts that made them go further. Well, what kinds of facts would make them go further? You can guess it yourself: If the person is darker than me, if a person has more of an accent than me. Well, what is that? That's racial profiling."

Cox agrees that racial profiling -- "behavior that we do not want to encourage" -- will be an inevitable result of the law. "Once you start down that slope of saying it's now okay to stop every Hispanic-looking person and asking for their papers," he says, "then you're just asking for a police state."

This is no exaggeration. In a state where racial profiling is already rampant, the coercive language of the new law "effectively compels Arizona police to make immigration enforcement their top priority," argues National Lawyers Guild president Marjorie Cohn, who wrote an article this week laying out the legal case against the law. "Indeed," she writes, "several law enforcement groups oppose SB 1070."

The Law Enforcement Engagement Initiative, an organization of police officials who favor federal immigration reform, condemned the law, saying it would probably result in racial profiling and threaten public safety because undocumented people would hesitate to come forward and report crimes or cooperate with police for fear of being deported. The Arizona Association of Chiefs of Police also criticized the legislation, saying it will "negatively affect the ability of law enforcement agencies across the state to fulfill their many responsibilities in a timely manner"; the group believes the immigration issue is best addressed at the federal level.

Lawsuits and Frivolous Lawsuits

Less than a week after the law was signed, the Mexican American Legal Defense Fund, along with the American Civil Liberties Union, ACLU of Arizona and the National Immigration Law Center (NILC), announced a plan to launch a legal challenge to SB 1070. In a press conference on the lawn of Arizona's House of Representatives -- featuring civil rights leaders Dolores Huerta and Richard Chavez, as well as singer Linda Ronstadt -- local advocates spoke out against the law, citing its numerous constitutional transgressions. Central among them: the law violates the Supremacy Clause of the Constitution, which gives the federal government sole authority to regulate U.S. borders. It also violates the 14th Amendment's Equal Protection clause, which states that "no state shall … deny to any person within its jurisdiction the equal protection of the laws."

"The Arizona community can be assured that a vigorous and sophisticated legal challenge will be mounted, in advance of SB1070's implementation, seeking to prevent this unconstitutional and discriminatory law from ever taking effect," MALDEF president and general counsel Thomas A. Saenz said. The law takes effect 90 days after its signing.

For the state of Arizona, combating these lawsuits will prove to be costly, swallowing resources that could be allocated to any number of other projects, including effective law enforcement initiatives that do not rely on racial profiling. Even more absurd, Weinblatt points out, is "the way the law is set up, regular citizens can sue local law enforcement agencies if they feel that they are not doing an adequate job in enforcing this." Indeed, a provision within the law states: "a person may bring an action in Superior Court to challenge any official or agency of this state or a county, city, town or other political subdivision of this state that adopts or implements a policy that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law."

As Marjorie Cohn writes, this means that "even if a municipality is innocent, it will still be forced to rack up exorbitant legal fees to defend itself against frivolous lawsuits."

Then there's the "flip side," according to Weinblatt: "People who are stopped and asked to prove their legitimacy, if you will -- they can sue. So now you have a situation where fiscally strapped government agencies are going to be sued whether they do it, and sued whether they don't do it."

For Weinblatt, who is based in Ohio, this is especially alarming given that politicians in his state have already vowed to pursue similar legislation. This week, Republican State Representative Courtney Combs, along with Butler County Sheriff Rick Jones, sent a letter to Gov. Ted Strickland, urging him "to employ your leadership role as Governor to assure legislation is passed that will mirror that of the illegal immigration legislation" in Arizona.

According to the Cincinnati Enquirer, the letter was sent "on the same day Jones was getting ready to lay off 10 more corrections officers, deputies and members of his staff. The layoffs, the second round this year, were prompted by budget cuts in the sheriff's office in the last two years, bringing the number of eliminated jobs to about 50 positions since 2009."

"In Ohio, we've had departments shut down, we've had officers laid off. Ohio has had a long history of fiscal problems," says Weinblatt. "They've got stretched resources to begin with -- and now you want to saddle them with another duty? And if they do it or they don't do it, they're likely to have to defend themselves in a lawsuit?"

Getting police officers involved in immigration work is not like training for traffic stops, says Weinblatt. "There are so many different nuances to immigration law, so many different types of status, classifications of people, different types of visas." In order to do it right, police officers would have to be trained, at considerable cost, in all of these nuances. Such training, he argues, would take place off-site, and departments would have to hire temporary replacements to fill the gap. "From a police chief's perspective, it's a logistical nightmare."

When it comes to local police and immigration enforcement, argues Weinblatt, "they should not be involved at all. And if they want to get involved, they should have discretion."

Must Police Officers Enforce All Laws?

In 1971, President Richard Nixon established a National Advisory Commission on Criminal Justice Standards and Goals. William John Cox wrote the opening chapters of the Police Task Force report for the the commission. At the time, he says, the major discussion that took place posed the question: "Must police officers enforce all laws? Or can police administrators establish policies in which they decide how they are going to allocate their resources?" For example, should police be cracking down on such relatively minor crimes as "corner vendors without permits, or low level narcotics offenses -- or immigration"? The priority, most rational people would conclude, should be more serious or violent crimes.

Ultimately, the new law in Arizona is not about crime at all -- although politicians would like their constituents to believe it is. (The claim that "half of the murders in Phoenix are committed by illegal aliens" is completely spurious, argues Weinblatt. "When they do the crime statistics, they don't report it by illegal alien versus legal alien. So that's a problem right there.") Instead, the new law is tapping into anger and angst over high levels of crime in border states, over devastating economic conditions and rampant unemployment.

"I think this is more related to hard times," says Cox. For an equivalent moment in U.S. history, he says, "you have to go back almost to the Chinese exclusion laws in California at the turn of the century."

"So many Chinese workers came into California and the Western United States to build railroads and so forth -- but then they began to establish themselves into the cities such as San Francisco." When hard economic times presented themselves, "people started saying, 'Wait a minute we have to do something about them.' So in San Francisco, for example, they passed a law that said that in order to operate a laundromat, it had to be in a brick building." (At the time, most Chinese laundromats were not in brick buildings; it was a blatantly discriminatory law.)

Cox cites vigilante groups like the (now-defunct) Minutemen as helping set the stage for Arizona's new law -- "In a way what we're seeing is an extension of that" -- but it is as much about economic distress. "What we're experiencing right now is really high true unemployment … People are getting really antsy they are getting scared -- and it's really easy to turn on immigrants."

Weinblatt agrees that "politicians are tapping into a vein of public sentiment, particularly in the Southwest."

"I'm not saying that the folks in Arizona don't have a legitimate beef with the federal government and with the system the way it's working," he says. "I'm not saying that they don't have real concerns."

"The biggest crime of all this," says Weinblatt, "is that the folks that are suffering and are the saddest of victims, they become victimized even further. Because now where do they turn? They can't even turn to the police now can they?"

As a police officer in New Mexico, "I used to go to eight to ten domestics a night," he says. (A "domestic" is police slang for domestic violence.) "Now the people who can come to the house to save them are also the enemies. To me that's horrible. That absolutely goes against everything that we in local policing are supposed to stand for."

In fact, the situation he confronted with domestic violence calls serves as a useful analogy for the new law, he says. "It's like, I'm going to walk into a domestic and I'm going to try to solve in 20 minutes what took maybe 20 years to develop. This is a simplistic, knee-jerk reaction. You can't expect local law enforcement officers to try to go in there with a Dirty Harry kind of approach of crime control and try to solve a problem on a simple level. This is a complex political problem, it needs a political solution that comes out of Washington DC."

Liliana Segura is an AlterNet staff writer and editor of Rights & Liberties and World Special Coverage. Follow her on Twitter.