Driving While White, Arizona's Immigration Law

| by Reason Foundation

During the height of L.A.'s Rampart scandal–in which a rogue unit of anti-gang cops orchestrated the deportation of hundreds of illegal immigrants and then used deportation threats to elicit all kinds of phony informant testimony and to cover up their own brutally criminal behavior in a heavily immigrant neighborhood–I happened to take a slow drive through the Rampart area to gawk at the few remaining Victorian mansions still standing amidst the graffiti-strewn stucco and open-air smack dealers. Through distracted confusion at a semi-tricky intersection I ended up running a red light, right in front of an LAPD patrol car.

"What are you doing in this neighborhood?" one of the cops asked. I told them, apologized for my mistake, and they...sent me on my way. "Be more careful next time!", etc. It was the most memorable data point in something I've noticed ever since cutting off my hippie hair and losing all the terrible earrings: When you look "normal," interaction with police–or "lawful contact," in the Arizona parlance–tends to go much smoother. Better yet, it rarely takes place at all.

You can observe this phenomenon not just behind the wheel, but out on the street. I jaywalk probably every day (though only when the coast is totally clear), and frequently do so right in front of The Man (him being so prevalent in the District of Columbia). Though I got ticketed once during the longhair days, the only time a cop has said boo ever since was when I blatantly crossed over to the D.C. Convention Center in front of a half-dozen policemen standing there looking at me. "Use the light next time," one said, and I was on my way. Good thing I wasn't some dude walking in L.A.'s Skid Row.

I mention this trivia because Steve Chapman had an important point this morning about the question over what could constitute "legal contact" or probable cause in Arizona. "On the average car," Chapman said a cop once told him, "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." When you have thousands upon thousands of criminal laws, chances are non-trivial that you're breaking one of them as we speak, or at least can be seen as possibly breaking one of them, in case you happen to cross paths with a motivated law enforcement officer. The "driving while black" phenomenon is not some Al Sharpton urban legend.

Of all the misguided apologia I've seen for Arizona's papers-please law, chief among them has been the notion that somehow, some way, this won't lead to selective enforcement based on personal appearance. For instance, American Spectator writer (and Reason contributor) W. James Antle III:

Far from authorizing local police officers to pull Hispanics from crowds at random and demand to see proof of legal residency, the law requires a prior "legal contact" -- that is, there needs to already be something going on, like an arrest or a traffic stop. The law specifically bans race and ethnicity as the sole grounds for a "reasonable suspicion" of illegal presence in the United States.

Or the American Conservative's Daniel Larison:

[T]he only people who have reason to complain about this law are those who are here illegally and those who believe that immigration laws should simply not be enforced.

The whole only-people-with-reason-to-fear argument, to put it mildly, has not been a historical friend of liberty. Nor is it usually accurate. If you are a legal resident immigrant from Mexico, you have plenty of "reason to complain" about this law, because now it's more likely that you are going to be pulled over by an Arizona cop. And every transaction with a cop, especially if you are viewed as non-normal, is an opportunity for a negative outcome, from detainment to car impoundment (even if you're never charged with a crime!) to something worse. 

For those clinging to the fantasy that the law's "may not solely consider race, color or national origin" provision will somehow prevent profiling of Mexican-looking people, three points: 1) Steve Chapman's six likely infractions by every driver is a built-in workaround for that "may not solely." When you have thousands of laws, it's not hard finding one that justifies the profiling. 2) Even in jurisdictions that didn't just pass new laws targeting illegal immigrants, when you lower the bar for "legal contact" you increase the likelihood of targeting minorities. In the police empowerment zone that is New York City, a "stop-and-frisk" policy that has averaged 1,260 legal contacts per day has been enforced thusly: "A disproportionate 84 percent of [...] stops involved blacks or Hispanics; only 10 percent involved white people."

But the biggest blind spot in conservatives' trust-the-government approach concerning Arizona is the easily discoverable fact that local law enforcement has already been engaging in the behavior that the apologists say won't happen. Here's a Phoenix New Times from two years ago:

[Maricopa County Sheriff Joe] Arpaio began sponsoring "crime suppression sweeps" earlier this year, bringing hundreds of deputies and volunteer posse members to heavily Hispanic areas. Residents were pulled over for minor traffic offenses and questioned about their immigration status.

I have sympathy for people who are freaked out by desperate immigrants and ruthless smugglers trampling over their property in southern Arizona, and as I've said elsewhere, us pro-immigrant types too easily skate over rule-of-law objections. Federal immigration policy is a failure, and poses real public policy challenges that no amount of righteous indignation and/or handwaving makes disappear.

But anti-illegal immigration crackdowns almost always end up restricting freedom for the rest of us. And giving cops more power is almost always felt more on the receiving end by people–including people just as law-abiding as you and I–who don't look like the norm. Remember, the stated goal of the new law is "to make attrition through enforcement the public policy of all state and local government agencies in Arizona." Those who think you can surgically accomplish "attrition" without inflaming and driving out legal residents, too, are kidding themselves. I doubt that many Arizonans themselves believe it.