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KOBACH: Arizona acts as Washington dithers
On April 23, Arizona Gov. Jan Brewer signed into law S.B. 1070, sponsored by state Sen. Russell Pearce. The law makes it a state crime for an alien to commit certain federal immigration violations while in Arizona. However, based on the hyperventilating reaction of the open-borders left, one would think Arizona had constructed a police state.
Protesters took to the streets in Arizona displaying Mexican flags, chanting “Si se puede” and carrying signs saying, “Legalize Arizona.” Media hound Al Sharpton declared that he would organize “freedom walkers” to challenge the law. Not wanting to miss a chance to play to his liberal base, even President Obama got into the action. He called the Arizona law “misguided” and said that it threatens to “undermine basic notions of fairness that we cherish as Americans.”
Mr. Obama’s reaction was true to form. Just as with the Cambridge, Mass., arrest fiasco last year, he rushed to the microphone without knowing the facts in order to stir up and capitalize on accusations of racial profiling.
However, far from inviting racial profiling, the Arizona law actually makes racial profiling less likely. But that doesn’t fit the story the left would like to tell. There are numerous inaccuracies in what critics of the law are saying, the most prominent of which are the following.
Myth No. 1: The law requires aliens to carry identification that they weren’t already required to carry. On the contrary, the law simply penalizes aliens who fail to carry the registration documents that federal law already requires them to keep on their person. These federal crimes (8 United States Code Section 1304(a) or 1306(e)) have been around since 1940. The Arizona law simply adds a layer of state penalty to what already was a crime under federal law.
Ironically, the open-borders crowd has for years insisted that we use the term “undocumented” when referring to illegal aliens. Now, when a state takes seriously the documentation requirements of federal law, that crowd becomes apoplectic.
As for U.S. citizens, the law does not require them to carry any identification whatsoever. Indeed, the law cannot possibly be applied against U.S. citizens; only an alien can be found guilty under the Arizona statute.
Myth No. 2: The law will encourage racial profiling. The terms of the act make clear that such profiling cannot occur. Section 2 provides that a law enforcement official “may not solely consider race, color, or national origin” in making any stops or determining an alien’s immigration status. In addition, all of the normal Fourth Amendment protections against racial profiling still apply.
Moreover, the law actually reduces the likelihood of racial profiling by forcing police officers to contact the federal government to verify a person’s immigration status when they suspect a person is an illegal alien. It already was permissible for police officers across the country to make arrests for violations of federal immigration law where reasonable suspicion existed that a violation had occurred. Now, in Arizona, officers will have to make a phone call to Immigration and Customs Enforcement’s (ICE) 24/7 hot line to confirm that any aliens in their custody really are present unlawfully. Officers can no longer proceed based solely on their own assessment of a person’s immigration status. In this way, the Arizona law takes any consideration of race out of the equation - strengthening the protections against racial profiling.
Myth No. 3: The law will require Arizona police officers to stop and question people. Here again, critics of the law are failing to read it carefully. The law only kicks in when a police officer already has made a “lawful contact” with a person, such as stopping him for breaking another law. The most likely contact is during the issuance of a speeding ticket. The law does not require the officer to begin questioning a person about his immigration status or to do anything the officer would not otherwise do.
Only after a stop is made, and subsequently the officer develops reasonable suspicion on his own that an immigration law has been violated, is any obligation imposed. At that point, the officer is required to call ICE to confirm whether the person is an illegal alien. Are critics seriously suggesting that local law enforcement officers should ignore the violations of federal law that they see at that point?
In sum, the law doesn’t make any radical changes. Rather, it is a reasonable step that gives Arizona police officers another tool in their toolbox when they come into contact with illegal aliens during their normal law enforcement duties. It also prohibits Arizona cities from implementing sanctuary policies that prevent their officers from contacting ICE.
Arizona police officers need the tool that S.B. 1070 provides. Arizona is at ground zero with respect to illegal immigration and its criminal consequences. Arizona has witnessed hundreds of violent crimes committed by illegal aliens. Most recently, the brutal murder of rancher Robert Krentz on his own property by a suspected illegal alien shocked all Americans. Phoenix is now the kidnapping capital of North America and the hub of human smuggling into the United States. Three Phoenix police officers have been shot by illegal aliens since 1999.
Arizona is in a state of crisis. No wonder 70 percent of Arizonans support S.B. 1070, with rank-and-file police associations voicing their approval as well. Meanwhile, Mr. Obama accuses Arizonans of having racist motivations and declares his intention to push for an amnesty - which would only trigger an even larger flood of illegal immigration.
Will Mr. Obama recognize his mistake and hold a beer summit this time to atone for his rash accusations? I’m not holding my breath.
Kris W. Kobach is professor of law at the University of Missouri at Kansas City. He was Attorney General John Ashcroft’s chief adviser on immigration law and border security and was one of the principal drafters of Arizona S.B. 1070.
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