Saturday, May 15, 2010

No fishing, please: a conservative Arizona Republic columnist challenges SB 1070

Here is that Robert Robb column from the Republic again. Again please note he's a conservative columnist who supports border enforcement, you will find that he thinks that so long as the "reasonable suspicion" arises in the course of ordinary police investigation of other crimes. That is what the law intends. However, he thinks the law doesn't provide adequate protection against what I would call "fishing expeditions," such as the ones Joe Arpaio has been engaging in.


Consider the following:

Case 1: An officer sees a car with a broken tail light. He stops the car, asks for a DL, notices that the people look Hispanic and don't speak English, and can't produce a license. The officer calls ICE.

Case 2: The officer sees a older-model car with a Spanish-language radio station bumper sticker. He notices the people look Hispanic. He THEN looks at the car closely for an onstensible violation and finds one, one that he would let pass if the people in the car looked like Anglos. He makes the stop, and if the DL is not produced, he calls ICE.


The trouble here is that, from the point of view of public record, these two stops are indistinguishable. The first officer is not fishing, but the second is.

Fishing expeditions are going to harm citizens and legal immigrants, because a group of people (and actually this could include Hispanic-looking people who aren't Hispanic at all, such as Bhutanese refugees). I consider that unacceptable.


Another set of cases I'm concerned about, which Robb doesn't talk about, are cases with pedestrians or passengers, not to mention cases where the police are called to a home but ordinarily ID is not required. If an officer comes to a home to tell them to turn their music down, he doesn't normally ask for a license. But if the music is in Spanish, and the people look like lower-class Hispanics, should he ask for papers? To me, that's fishing also.

Please notice that Robb makes a distinction between a disproportionate affect on Latinos, which he thinks is inevitable given any attempt to enforce immigration laws, and inividious enforcement, which he thinks the law either allows for or fails to effectively prevent.

One test of a law would be that if a law results in a group of law-abiding citizens being systematically treated differently by government and law enforcement as opposed to other groups of law-abiding citizens in virtue of the color of their skin, then something is wrong with the law. You should be able to go about your business, and if you obey the law, your should be treated just like everybody else.

17 comments:

Anonymous said...

Self governance is difficult. We debate, analyze, emotionalize, and then we pass a law according to processes we agree to. Next, as in immigration, we say "to hell with it" the law means nothing because Mexico is a mess.

What's the point of having the people's law?

Anonymous said...

One test of a law would be that if a law results in a group of law-abiding citizens being systematically treated differently by government and law enforcement as opposed to other groups of law-abiding citizens in virtue of the color of their skin, then something is wrong with the law.

Actually, in the example you gave, something is wrong with the enforcers of the law; namely that they're ignoring what the law clearly says. The law doesn't allow them to consider race. That the two cases can't be distinguished is immaterial; if you can't prove that someone is guilty of something then they aren't punished for it. This is not a problem. If a person is made to show ID at a place where ID normally isn't required, then that's decent grounds for a legal challenge. What more do you want?

You're just desperately trying to find something wrong with this, but it's not holding up. So why the obsession? Are you opposed to the deportation of illegal aliens? Do you think the US, or at least Arizona, should have open borders? That would at least make your position sensible. Maybe it would help if you told all of us exactly what the law needs to contain to would assuage your fears yet wouldn't make it completely ineffective.

Victor Reppert said...

Actually, the law doesn't allow them to consider race exclusively.
But, of course, speaking broken English isn't, strictly speaking a matter of race, so a smart lawyer could sneak it by on that kind of consideration.

My point, which you seem to have overlooked, is the fact that of course the officer could say he didn't exclusively use race in case 2. No, he noticed a violation, he pulled the car over, and lo and behold, they were illegal. The difference between the two cases have to do with facts about the mental state of the officer that are not publicly verifiable. For any given stop like that, there are no publicly available criteria that can determine whether an officer is guilty of invidious profiling or not. Somebody could engage in a fishing expedition, and there would be no way of proving that the officer was really fishing. The difference between the two scenarios that I mentioned is all a matter of the privately accessible mental states of the officers. It might make things easier to detect if you had cameras in all the squad cars, but state and local budgets are strapped something fierce, so don't expect that any time soon.

This "you just don't want the law enforced" is absurd. Since you have me pegged as a liberal who doesn't want the law enforced, why don't you try that claim out on Robert Robb. He's NOT a liberal (look up his columns), he DOES believe in a distinction between legal and illegal immigration, and he DOES want the laws enforced. That's the whole point. I was trying to answer the question of whether it is possible to argue against 1070 if you believe in all those things.

One could support greater border enforcement, more efficient employer sanctions, and even support what McCain calls "the danged fence," and still oppose 1070, and the Robb article tells you why you might.

Victor Reppert said...

There is something that would assuage my fears, and that is uniform, non-racial criteria for immigration inquiries. Just call ICE every time someone doesn't have their driver's license. White, black, Hispanic, it doesn't matter.

Ken Pulliam said...

Vic,

I am no fan of Joe Arpaio. I lived in Maricopa County from 1986-2000 and I am very familiar with his tactics.

I agree that we must be very careful not to violate anyone's constitutional rights. Law enforcement has a difficult task. They often are damned if they do and damned if they don't. I don't envy their job.

I am of the opinion that we need a national identification card. I know many will say its an invasion of privacy but I don't see that it is any different than requiring a driver's license. If a person does not have their card or cannot give law enforcement their number, then they should be reported to ICE regardless of their race or language.

Blue Devil Knight said...

I'm starting to agree with Victor on this one. Inconenience everyone equally. There should be a recipe for them to decide when it is required to check for immigration status (e.g., routine traffice stops).

Sound too inconvenient, whitey? Yeah, that's sort of the point. Also, all these Eastern Europeans here trafficing prostitutes need to be stopped!

Blue Devil Knight said...

Some things that should be in that universal algorithm:

1. Subject speeding? Yes--go to 2.
2. Subject has skin darker than color square 204, provided to each officer? Yes--go to 3.
3. Subject has a soccer ball in car--Yes go to 4.
4. Ask for proof of citizenship.


Seriously, anyone that wants to leave it up to police discretion is being naive. I love cops in general, but here in the South there's a lot of good ol' boys that are cops (if you want to go back in time, read about the Greensboro Massacre, when the Klan, in collusion with the police, were able to murder people protesting the Klan as the cops conveniently left the protest during a prespecified time).

Blue Devil Knight said...

Hmm, it seems it isn't clear whether the police left at a prespecified time, or just didn't show up at all. Regardless, look into it for some really disturbing facts.

Anonymous said...

What is to prevent the fishing expedition below from happening just as often?

-----------------
Case 3: The recently passed law is no longer on the books. The officer sees a older-model car with a Spanish-language radio station bumper sticker. He notices the people look Hispanic. He THEN looks at the car closely for an onstensible violation and finds one, one that he would let pass if the people in the car looked like Anglos. He makes the stop, and if the DL is not produced, he calls ICE.

Victor Reppert said...

If cops can do that anyway, what does the law actually do?

You have a point, though. Arpaio has been profiling for years, before the law was passed.

Blue Devil Knight said...

Can illegal immigrants (legally) get a driver's license in Arizona?

Victor Reppert said...

No.

Shackleman said...

With numbers like these, is racial profiling really all that unreasonable?

"Our preliminary estimates for the March 2007 CPS indicate that there were between 11 and 11.5 million illegal aliens included in the survey, with 11.3 million as our best estimate. It must be remembered that this estimate only includes illegal aliens captured by the March CPS, not those missed by the survey. By design, this estimate is consistent with those prepared by the Census Bureau, DHS, Urban Institute, and Pew Hispanic Center."

"We estimate that
57 percent of the illegal alien population comes from Mexico, 11 percent is from Central America, 9 percent is from East Asia, 8 percent is from South America, and Europe and the Caribbean account for 4 percent. Of all immigrants from Mexico, 55 percent are illegal; for Central Americans it is 47 percent; and it is 33 percent for South Americans. Again these figures do not adjust for undercount of the legal or illegal populations in the CPS. If we did make this adjustment, it would mean that an even larger share of all immigrants from these regions are illegal because the undercount of illegal immigrants is much larger than the undercount of legal immigrants."

Source: http://cis.org/immigrants_profile_2007

Victor Reppert said...

Well, that's the question. Do you treat a whole class of legal immigrants and citizens differently because there is such a large number of people who look like them who are here illegally? Do we cease giving people law-abiding citizens the presumption of legality because of statistics of this type? If we do the sort of profiling that Sherrif Joe Arpaio does with his crime sweeps, we may get some people deported who are here illegally, but what is the collateral damage? What is the cost of using state and local police to control illegal immigration, taking their limited time and resources away from other criminal activity?

Is it worth it?

Go back to Robb's column. Robb seems OK with some disproportionate impact based on the immigration statistics, but he finds the kind of profiling Arpaio engages in to be invidious.

Anonymous said...

Actually, the law doesn't allow them to consider race exclusively.

It doesn't allow them to consider it at all; it was amended soon after passing to remove the 'solely' modifier.

My point, which you seem to have overlooked, is the fact that of course the officer could say he didn't exclusively use race in case 2.

I didn't overlook it, I mentioned that if it can't be proven that the officer is breaking the law, then he can't be punished for it. You admit that it can't be proven, so what's the problem? It's the price of living in a society that presumes innocence that sometimes people get lesser penalties than they deserve, or no penalty. If your concern is that people will be profiled and charged with frivolous violations that are normally not enforced, then maybe it's time to clean up the laws to remove these frivolous violations.

Just call ICE every time someone doesn't have their driver's license. White, black, Hispanic, it doesn't matter.

Sending ICE frivolous cases because we're too afraid of even sensible discrimination would probably annoy them, and understandably so. What your proposal would likely require is another bureaucracy set up at the state level to sort through all the cases and only send the ones that can reasonably be said to merit an investigation. No appearance of profiling at the interpersonal level, so no one's feelings are hurt.

I don't know why we're assuming that there is no detectable difference between an illegal immigrant and an illegal alien. I know a Mex-Am family, and no one in their right minds would mistake them for illegals.

Victor Reppert said...

Anon: I don't know why we're assuming that there is no detectable difference between an illegal immigrant and an illegal alien. I know a Mex-Am family, and no one in their right minds would mistake them for illegals.

VR: Yes, a highly assimilated Hispanic family who has largely abandoned Spanish, and is upper middle class, probably doesn't seem like an illegal alien. I don't think that helps with profiling, however.

Ergo Latin said...

1) Is Case 2 hypothetical or is there a report of it actually happening.

2) How does ICE respond in a situation where Spanish-speaking drivers do not produce an ICE?