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Abstract

Arizona's Support Our Law Enforcement and Safe Neighborhoods Act (the Act or the Arizona Act), otherwise known as SB 1070, is a patchwork set of laws that makes it a misdemeanor to lack proper immigration paperwork in Arizona. More controversially, the Act also enables officers who develop a “reasonable suspicion” to believe that someone is undocumented to stop that individual and determine the person’s immigration status. An individual’s inability to provide government-issued identification proving legal residency, such as a driver’s license, subjects that individual to twenty days in jail for the first violation (thirty for subsequent violations) and a fine of up to $100 plus jail costs. In an effort to soften the Act’s obvious ethnic and racial implications, it expressly states that “[a] law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not solely consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution.”

The Arizona Act merely serves to continue an effort—this time at the legislative level—to broaden the discretionary power of law enforcement. Yet, a fascinating question lies at the base of the public’s pervasive criticism of the Act: where have all of you people been? Numerous Supreme Court cases already allow for law enforcement to engage in the very practice—racial and ethnic profiling premised on “reasonable suspicion”—that has incited the emotions of so many citizens nationwide. Thus, regardless of whether the Act is preempted, the very conduct codified by the Act and objectionable to so many is already condoned by a series of Supreme Court cases.

This Article therefore argues that the Arizona Act, while notable for the public response to it, is merely emblematic of a much larger and systemic problem that exists because of the collective core holdings from several Supreme Court Fourth Amendment cases. Indeed, law enforcement stops of persons lawfully present in the United States using an “illegal immigrant” profile existed before the Act and will remain permissible regardless of the Act’s ultimate fate. Part I of this Article compiles and synthesizes varied Supreme Court cases that bestow upon local law enforcement an inordinate amount of discretionary law enforcement power both on the street and in an automobile. Part II offers a primer on immigration law in order to thereafter explain what exactly is illegal about being an “illegal immigrant.” It also considers the available law enforcement agencies—both federal and state—charged with enforcing immigration law. Part III contends that the combination of law enforcement tools and immigration consequences provides law enforcement with a level of power and discretion comparable to that bestowed by the Arizona Act. That power, Part III asserts, allows for the pervasive de facto or express creation of an “illegal immigrant” profile and a corresponding propensity by law enforcement to stop individuals or cars using that profile.

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