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Monday, July 19, 2010

The Mystery of Arizona's Racial Profiling Provision-Solved

Kevin Johnson and I wrote an op-ed in the Washington Post reflecting our surprise that anyone who has read SB1070, Arizona's new immigration law, and is familiar with the relevant cases, would read it to prohibit racial profiling when it clearly allows for it.  SB1070 provides that law enforcement officers “may not consider race, color or national origin  . . . except to the extent permitted by the United States or Arizona Constitution.” (italics added)  A.R.S. 11-1051(B) (e.g., p. 1, lines 32-36; the language also appears elsewhere, e.g., A.R.S. 13-1509(C), p. 4, lines 1-4).  The exception invokes the Supreme Court holding that "The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor" in evaluating reasonable suspicion under the Fourth Amendment. United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975).  Arizona courts agree that "enforcement of immigration laws often involves a relevant consideration of ethnic factors." State v. Graciano, 653 P.2d 683, 687 n.7 (Ariz. 1982).  That the exception is in SB1070 when it could have been omitted seems to preclude a claim that SB1070's policy is not to consider race.

So how can UMKC Law Prof Kris Kobach, a principal drafter of SB1070, argue that "S.B. 1070 expressly prohibits racial profiling"?  By misquoting it. He simply omits the key language.  He writes:

In four different sections, the law reiterates that a law-enforcement official "may not consider race, color or national origin" in making any stops or determining an alien's immigration status.

Kris W. Kobach, Defending Arizona, National Review, June 7, 2010, at 31, column 2, para. 2 of the PDF on his website, or on line. The critical exception is not included the description of the statute, thereby implying that a law that adopts Brignoni-Ponce instead rejects it.  Arizona's Governor, certain legislators and perhaps others who also mistakenly claim that SB1070 prohibits racial profiling may well have relied on the expert opinion of a professor-drafter for the meaning of complex terms.  This mistake may be at the root of widespread misunderstanding about SB1070.

Undoubtedly, the misleading quotation reflects Prof. Kobach's honest recollection of the law, and is what he expected to be enacted into law.  If so, it should be simple to arrange for his clients to announce that this error will be corrected.  On the other hand, on the off chance that the law was actually intended to codify rather than repudiate Brignoni-Ponce and Graciano, it would be candid for those involved to acknowledge that.

Posted by Marc Miller on July 19, 2010 at 08:06 AM | Permalink


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Problem solved!

Posted by: Brian | Mar 28, 2021 2:43:34 PM

This is a very impressive article. Valuable information and ideas are presented here.

Posted by: secretary | Aug 27, 2010 5:29:27 AM

"many people are referring to in discussing "racial profiling" is something far more nefarious than the type of racial profiling already permitted under the law"

The typical case of racial profiling many people worrying about is of the "DWB" run of the mill type -- a person is stopped for some offense that lots of people do, like going ten miles a mile over the speed limit, because of some "profiling" that is in some significant part a matter of race.

What sort of "benign" racial profiling should we focus on? We aren't told; so, why is this any more useful than the "bloviating" being opposed? As to "racist cops," the problem is that the legislation encourages going over the line in borderline cases and so forth, so the situation still isn't the same as before. Nothing "funny" there.

Mr. Chin, fine, but you clearly are against the law, so no reason to be too cute about it.

Posted by: Joe | Jul 25, 2010 6:12:01 PM

az resident,

I didn't say, in this post at least, that SB1070 was objectionable. I said that it allowed racial profiling and that someone who supported it claimed that it did not. My reading of the statute is that the part of the statute that he left out 1) is legally operative, 2) conveyed the opposite of the impression created by his quotation, and 3) will be meaningful to some people in their evaluation of the wisdom of this law. I don't think any of those points are arguable, or that it is a trivial matter to have the law considered based on what it actually does.

Posted by: Jack Chin | Jul 21, 2010 12:28:54 AM

If SB 1070 simply allows what federal law and state law already permit, why is it so objectionable? The criticism that SB 1070 actually allows racial profiling -- because it incorporates federal and state law -- strikes me very much as a "Gotcha! Ha Ha!" type of argument. And, like humblelawstudent points out, what many people are referring to in discussing "racial profiling" is something far more nefarious than the type of racial profiling already permitted under the law. So, I'm not convinced by all the bloviation about how SB 1070 really does permit racial profiling.

The funniest (saddest?) thing about all of this is that if a corrupt cop wishes to racially profile someone beyond what the law allows, it would be very easy for her to do so, regardless of what SB 1070 says.

Posted by: az resident | Jul 21, 2010 12:15:19 AM

the article link doesn't work for me

Posted by: Joe | Jul 20, 2010 10:43:56 AM

Moreover, if racial profiling were by definition illegal, Prof. Kobach could quote the whole language of the statute and still claim that the statute did not permit racial profiling. But for some reason he chose not to.

Posted by: Anon | Jul 20, 2010 9:15:51 AM

Maybe, but then it is tautological, yes?

Posted by: Jack | Jul 19, 2010 10:07:39 PM

I believe "racial profiling" is used in a colloquial sense to mean the illegal use of a person's race or ethnicity by law enforcement.

Posted by: humblelawstudent | Jul 19, 2010 9:35:33 PM

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