It Appears We’re In the Desert: A Conversation about Arizona, Immigration Law, and Race: Part 2

{NB: None of the following is intended as, nor should it be construed as, legal advice to any person, persons, or group. If you or someone you know requires legal assistance, contact an attorney in your area. The statements made below represent only the personal opinions of this essay’s author}.

In practice, what is known as a Terry stop—an investigative detention of a citizen to confirm or deny an officer’s “reasonable suspicion” that a crime may just have been or be in the process of being committed—is the launching pad for more or less whatever judicial orbit the officer wants to send you into. If the officer orders you to stand in one spot but you move to another you can be arrested (never mind that the very definition of “arrest” is having your freedom of movement curtailed, so a non-arrest Terry stop is already a contradiction in terms). If you run away, regardless of whether you’ve done anything wrong, you can be arrested. If you disobey the officer’s order to produce identification you can, in many states, be arrested. If you start swearing at the officer and there are other people around you can be arrested. If you touch the officer, no matter how lightly or even cordially, you can be arrested. If you hinder, in any way, the officer’s attempt to speak to another citizen you can be arrested. And on and on it goes; the number of ways for an “investigative” stop to end in a citizen being arrested for something having nothing to do with the original reason for the stop numbers in the hundreds or even thousands, not the dozens. Many criminal cases begin with minor traffic violations or minor civilian complaints. And if any of these complaints-cum-investigative stops-cum-arrests should befall an individual who is not a legal denizen of the United States, that individual can, despite not being charged with any criminal offense, be held in a federal ICE (formerly INS) holding cell for months and then deported following an administrative (not criminal) hearing.

So again, originally the Arizona statute merely added to officers’ literally endless stock of “reasonable suspicion” cover stories—which is not to say officers always use such stories, merely that they’re always available and are as numerous as, say, any lie you could think of for being late to a business meeting. Given that one can’t tell from mere visual observation whether or not any individual is an illegal immigrant—the law is so sketchy on this point that it more than implies, but indeed allows, that an individual getting into a truck on a roadside with a large number of other people can be interrogated (but would that interrogation really happen, if all the gentlemen looked, say, Irish?)— the statute in its initial conception was merely pretextual. It did, and was intended to, make racial profiling even easier for the police than it already is. And most such instances of profiling, it should be noted, can result in a form of detention ineligible for state-level judicial review; an officer could initiate contact with someone dark-skinned hanging around in a neighborhood known for harboring illegal immigrants (shades of Arvizu), make a bad or simply weak arrest either on the basis of a failure to produce identification or any of the hundreds of other options available to that officer, and then sit back and watch ICE place an immigration hold on the suspect as soon as he entered the criminal justice system. Whether or not the individual ever saw a judge on the original charge ICE would come (under U.S. law, it would have to come) and whisk them away. Problem solved; except, of course, for the 31,000 illegal immigrants now sitting interminably in U.S. lockups who’ve committed no crime, and for the hundreds and thousands and tens of thousands of false positives which could ensue from such procedures, in which citizens are stopped on the basis of an officer’s inarticulable, inscrutable “hunch” that they might be illegal or “look” illegal. It’s worth noting, too, that if a Terry stop based on the Arizona statute results in a weak arrest of an individual who turns out to be a citizen, the police will then be doubly committed to getting a conviction on that weak arrest in order to avoid a civil suit from the citizen (as a non-immigration-status-related criminal conviction would establish, beyond a reasonable doubt, a reason for the arrest beyond the skin-color of the suspect; this evidence could then be used in the police department’s defense at a civil trial).

Recently, the Arizona law was amended—not an admission of wrongdoing in the initial writing of the law, the statute’s authors and conservative pundits hastened to tell us—so that immigration status can only be investigated during investigation of another potential crime. That is, a Terry stop initiated for any of the hundreds of reasons an officer may initiate one, which reasons no judge is in a particularly good institutional position to question, and which cases like Arvizu tell us will be upheld by the U.S. Supreme Court whatever cockamamie basis for them an officer provides. Indeed, the same amended Arizona statute which allows investigation into immigration status only during the course of another criminal investigation also allows, in the first instance, just such a criminal investigation if a car pulls over to the side of the road and picks up a large number of dark-skinned persons. Or then again, of course, if, as in Arvizu, kids in the back of a car wave to a police officer in a way the officer believes is “odd.” Can you imagine a judge trying to adjudicate what an “odd” wave would look like? Can you imagine a criminal defendant or civilian witness trying to convince a judge, through testimony at a motions hearing, that in fact no one waved “oddly”? If you can picture a bench trial in which the judge has never seen the defendant before in his life, but lives down the street from and is friendly with the police officer-cum-witness, and in which the officer says the wave was “odd” based on his ten years of experience in law enforcement and the unknown-to-the-court defendant swears under oath it was a “normal” wave, you have a better sense of our criminal justice system than you will ever get from any Dick Wolf production.

So the Arizona statute now at issue makes a crime what was not a crime, expands further the definition of “reasonable suspicion,” which was already a term of infinite dimension in practice, and implicitly provides a mechanism for officers to make bad or weak arrests intended, in fact, to force ICE to issue concurrent federal immigration holds on state-detained suspects. In the balance, hundreds if not thousands of dark-skinned citizens will be subjected to intrusive Terry stops by government officials. And some of those will get arrested on petty offenses and then find themselves, despite having no prior criminal record, in no-deal criminal prosecutions because police departments are afraid (as well they should be) of civil litigation under this new statute. Perhaps this is why most law enforcement officials are against the new Arizona statute, both in Arizona and elsewhere. (And you early-career patrolmen who think it will be easier, not harder, to do your job under this new statute really, really need to talk to your “rabbis”) Perhaps this is the same reason so many in law enforcement have told conservatives for years, to no evident effect, that torture doesn’t work. That racial profiling doesn’t work. That incarceration rather than rehabilitation for non-violent, petty drug offenses doesn’t work. That draconian community policing, rather than interactive community policing, doesn’t work. That using a brutalization paradigm for the punitive detention of petty criminals doesn’t work. Perhaps this is why America is beginning to ask why conservatives support so many criminal justice policies that disproportionately intrude on the lives of our nation’s most vulnerable populations—the poor, minorities, urban-dwellers, the under-educated, the mentally ill—and also, as significantly, show no signs of ever having been effective. Arizona legislators claim that illegal aliens commit a disproportionate number of crimes; what they don’t say is that communities with suspected concentrations of illegal aliens are also policed with exponentially more ferocity than suburban communities, that in this country dark-skinned persons are (studies have shown) more likely than white people to be arrested and prosecuted and incarcerated for identical offenses, that the poor (and illegal immigrants are almost always this, understandably) have always received different treatment from law enforcement than the rich, and that there is a distinction between crimes related to the drug trade and the immigration status of immigrants who come here to work. Indeed it would be far more accurate to say that an illegal immigrant is by definition a working person and/or one who desires to work, rather than a fancifully-denominated “criminalien.” Now if only the Arizona legislature would get to work on some real laws that promote real policing and produce real results. If only Dick Wolf would start producing real accounts of real people in our real criminal justice system. Maybe then—then—we could have a real conversation about real justice in this country.

One Response to “It Appears We’re In the Desert: A Conversation about Arizona, Immigration Law, and Race: Part 2”

  1. Well said. Have you seen the recent Mexican ad campaign about tourism in Sonora? It spins profiling on its head: