MATTERA: If you were in the Arizona state legislature, would you have voted for the law?
RUBIO: The second one that passed hit the right note. Yes.
MATTERA: The first time around, would you have?
RUBIO: Well, I would have wanted to see changes like the ones that were made because I know that that’s not the intent of the bill. We’re always concerned. I mean no one is in favor of a bill that would force American citizens to have to interact with law enforcement in a way that wasn’t appropriate. And the first bill I thought held that door open.
Since then, the changes that have been made to the bill I think greatly improve it.
The changes that Gov. Jan Brewer (R-AZ) recently signed into law include replacing the phrase “lawful contact” with “lawful stop, detention or arrest” to “apparently clarify that officers don’t need to question a victim or witness about their legal status.” The word “solely” was also removed from the sentence, “The attorney general or county attorney shall not investigate complaints that are based solely on race, color or national origin.”
However, many have referred to the revisions as purely “cosmetic” changes that have made the bill “minimally less racist.” One reason is a third change that was made to the bill that has been described as “frightening.” As part of the amended bill, a police officer responding to city ordinance violations would also be required to determine the immigration status of an individual they have “reasonable suspicion” of being an undocumented immigrant. One of the bill’s architects, lawyer Kris Kobach, said himself that it essentially means police can use violations such as “cars on blocks in the yard” as an excuse to “initiate queries” in light of the “lawful contact” deletion. In other words, the law will still cast a wide net that gives Arizona a police an excuse to start knocking on the door of what will undoubtedly be mostly poor brown people and demand documentation.
In addition, as the president of the American Immigration Lawyer’s Association, David Leopold, points out, “‘reasonable suspicion’ under S.B. 1070 is based on a subjective notion of a person’s status.” Ultimately, despite the changes, the law still “gives police license to determine a person’s immigration status based on their appearance,” writes Leopold. While Terry v. Ohio established a “reasonable suspicion” standard, that standard is based on the notion that “criminal activity” is “rapidly unfolding.” Other than when an undocumented immigrant has immediately crossed the border and entered into the country, it’s difficult to establish “reasonable suspicion” and separate immigrants without documents from immigrants with documents who belong to same culture, wear the same clothes, and speak the same language. Chances are that unless a police officer is pulling over a van overpacked with foreigners covered in desert sand, that officer is going to have to determine “reasonable suspicion” almost entirely based on how that person looks — and that leaves a lot of room for error.
Perhaps the most damning evidence that the law hasn’t really changed is the fact that its main sponsor, state Sen. Russell Pearce (R) admitted himself that the new wording won’t alter how the law is enforced. The changes also do not address the fact that the new law is likely unconstitutional on the grounds that it allows the state to regulate immigration — a power which the Constitution explicitly assigns to the federal government.
Crossposted with permission from the Wonk Room.