A few years ago, David and Jessica Rodriguez were leaving Arizona's Bartlett Lake with their two children when they accidentally headed down 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. Even with the revisions that the state legislature approved last week in response to concerns about racial profiling, the new law encourages police to emulate Maricopa County Sheriff Joe Arpaio by seizing upon any excuse to hunt for illegal immigrants.
A 2008 quote from Arpaio, reported by The Arizona Republic, gives you an idea of his 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."
David and Jessica Rodriguez were detained during one of Arpaio's "crime suppression" sweeps, which involve traffic stops that provide 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 sufficient opportunities for immigration checks, police can use local ordinances regulating things like noise, yard upkeep, and the number of people living in one residence. 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 being in the country without permission). The Supreme Court has approved such investigatory stops, which can include pat-downs aimed at discovering weapons.
According to the Supreme 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, which may or may not be second-guessed by courts later on.
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 latest version of the 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 Arizona Gov. Jan Brewer surely exaggerated when she claimed that last week's 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 visitor from Mexico who was detained for nearly nine hours even though he presented several forms of ID, including a valid visa.
Arpaio, who also faces a civil rights investigation by the Justice Department, is unrepentant. "My office has been enforcing federal immigration law for three years," he recently bragged. "The new law just gives us a little extra tool."
Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.
© Copyright 2010 by Creators Syndicate Inc.