Today, if I were driving, walking, shopping, or standing on a corner anywhere in Arizona, the police can stop me without cause, demand my identification and conduct an immigration status check on me. If I am standing on the street waiting for a ride from a friend, that friend drives up, rolls the passenger window down to say hello, I lean over and nod my head saying hi, a police officer witnessing this can stop me if he/she believes that my nod was a gesture indicating I was soliciting employment. If I am driving and a police officer sees me and has suspicion that I am an “alien who is unlawfully present in the United States,” I can be stopped in order to determine my citizenship status. If I am driving and have passengers that look like they could be illegal immigrants and I break a traffic law (like stopping on the crosswalk line instead of behind it, making too wide of a left turn, going too slow, over the speed limit by one or two miles per hour, not using my turn signal at the proper distance from the turn), a police officer can use that traffic violation as a reason to stop me to see if I am transporting illegal immigrants.
What are the police looking for in the above situations in order to fulfill their duty to capture illegal immigrants? Who fits the profile of a potential illegal immigrant? Who will they be trained to spot and stop? Someone with brown skin and dark hair.
Governor Jan Brewer of the State of Arizona has just signed a law that will result in the profiling of brown people and the eroding of our civil and constitutional rights. The intent of this law is to “discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States” (Arizona State Senate Bill 1070). Although the targets of this law are illegal immigrants, in reality the true targets will be people with brown skin, dark hair, and dark eyes, regardless of their citizenship status in the United States.
Many are calling this law racist and calling the people who authorized it and support it racist as well. Debates under the theme “is it racist or not” are spreading like wildfire all over the nation. Debating racist intent is a waste of time and puts the focus in the wrong place. Am I disturbed that there are racist lawmakers, political leaders, and lobbyists? Do I wish we could be rid of all racist individuals in power? Of course. However, it does not really matter if the authors and supporters of this law are racist; it doesn’t matter if their intent was racist or not. Focusing attention there is a distraction to the issue and a no-win strategy. There is no way anyone can prove that these lawmakers are racist; engaging in that debate only polarizes communities and distracts us from the real issues of concern with this law and limit our strategies to successfully intervene.
What matters most is not the intent of this law or the intentions of the lawmakers, but the impact it will have. Our focus and our attention should be on the impact. Our debates, analysis, and decisions as to whether or not to support such a law should be based on impact. When focusing here, there is no doubt in my mind that the impact of this law will be racial profiling of brown people and the violation of civil and constitutional rights. Just ask any black man about the existence of racial profiling and you will know that “driving while black” is real, meaning all a black man has to do to get pulled over by the police is drive. Now, at least in Arizona, we will have not only driving while brown but also standing while brown, nodding while brown, and walking while brown.
How can I be so sure of this impact? Because history and current societal practices and attitudes predict the future.
There is more than one precedent in the United States allowing racial profiling for the safety and well being of U.S. citizens. Nearly 70 years ago, Japanese Americans were profiled and interned in “camps” (aka prisons) and lost rights, property and life. Long before that, Native Americans were profiled, rounded up, and put on reservations for the safety and benefit of the country. In the past 30 years up to present day, blacks have been and are currently racially profiled, specifically black males. Michelle Alexander’s brilliant new book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, presents unquestionable evidence that the War on Drugs begun in the Reagan era and continuing to operate today has resulted in racial profiling of African Americans (and other black people).
Alexander teaches us about impact. Who knows what the intentions were behind the lawmakers who designed the War on Drugs, but we now know what the impact is – and it is a racial one where black people were and continue to be targeted and profiled for drugs just like brown people will be profiled for illegal immigration under the new Arizona law. Alexander shows that the impact of the laws supporting the War on Drugs was to create a new caste system where today’s black people are in worse shape in terms of their livelihood than those who lived in the Jim Crow days following slavery. Even though white people use drugs at far higher rates than black people, the targets of this war were black folks and the results are mass incarceration, low educational attainment, high poverty, and loss of civil and constitutional rights. Impact.
Alexander also teaches us something about how the system works to produce racial discrimination. She says the criminal justice system achieves racial discrimination by:
- granting law enforcement officials extraordinary discretion regarding whom to stop, search, arrest, and charge for offenses, and
- closing the doors to all claims by defendants and private litigants that the criminal justice system operates in a racially discriminatory fashion.
And guess what, the new Arizona law in full force accomplishes number one and if this law is not stopped or significantly amended, number two is soon to follow.
Brown people will now lose their rights under the Fourth Amendment of the Constitution. The Fourth Amendment was adopted by the Founding Fathers in the United States to prevent arbitrary stops and searches, to protect us from unreasonable search and seizure. This Amendment states,
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.
This Amendment has been weakened over the past 30 years, not for everyone, but for those who are black and brown under the War on Drugs and now for brown people under Arizona’s new law.
Police have the authority to conduct what is called pretext stops. As Alexander writes, “a classic pretext stop is a traffic stop motivated not by any desire to enforce traffic laws, but instead motivated by a desire to hunt for drugs in the absence of any evidence of illegal drug activity… Police officers used minor traffic violations as an excuse to search for drugs, even though there is not a shred of evidence suggesting the motorist is violating drug laws.” In Arizona, the police can do this same thing when suspicious about someone’s immigration status – and that someone will not be a Canadian, European, Swiss, or Russian immigrant, it will not be someone who looks White, it will be someone who is brown.
If you fail to use your turn signal, exceed the speed limit by a mile or two, touch the yellow line in the middle of the road, turn too sharply at a left turn and cross into the other lane, stop too far away from the line at a stop sign, or stop on top of a pedestrian walkway…and you are brown, the police can use these minor traffic violations as a pretext to stop you and check your citizenship status. Or, if you simply raise the suspicion of the police because you look like an “alien,” you can be stopped. The new law says that racial profiling and violation of civil rights is not acceptable, and Governor Brewer said that police would be trained to not profile. However, the law says that when “a reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made to determine the immigration status of the person.”
Let’s pause here and take a moment to imagine the new police academy training or the special police in-service training on enforcing this new law. This training will involve painting a picture, creating a profile of someone who is “suspicious looking” in that they could be “unlawfully present in the United States.” This training will focus first on how one looks not on what they are doing. Will this person look White? Of course not. Police in Arizona will be trained to look for a brown face and only a brown face. Will they receive training that will help them look at the driver and passengers of a moving vehicle and spot the illegal immigrants inside and leave all others who fit the profile alone? Will they receive training that will help them distinguish citizen from non-citizen when observing someone walking down the street? Absurd. There is no training that does that – it is absurd to think that anyone can be trained to tell the difference between a brown face that is illegal and one that is not. Instead, the police will be trained to come up with any excuse they need to stop someone and go fishing for “illegal aliens” and not be held accountable for profiling. Governor Brewer, the very profession of law enforcement is built on profiling and in fact, the best officers are able to spot potential criminals. You cannot train officers to not profile and you cannot tell them to not violate the civil rights of citizens while at the same time giving them directions and legal authority to do just that. The law contradicts itself in this respect and so do your directions.
If history is repeated as it so often is, here’s what will happen in the near future:
- The media will increasingly portray images of the border being overrun by brown people, jobs being taken, health care and education abused by illegal immigrants.
- Polls will show an increase in the number of people who believe our economic problems, unemployment and the recession are due to illegal immigrants being in the country.
- State sanctioned unwarranted searches of brown skin people will lead to increases in arrests and incarceration of legal citizens for minor, non-violent offenses that are discovered during the process of “legal” searches.
- Media produced hysteria about illegal immigrants fueled by reports of higher arrest rates of brown people (due to unwarranted searches and arrests) will produce public pressure for the police to increase patrols in the “crime ridden” areas thereby further increasing arrests of brown skinned people and reinforcing the myth that illegal immigrants are a threat to homeland security.
- State and Federal legislation will soon follow to fund law enforcement in a War on Illegal Immigrants to take back our borders and protect the United States citizens from the dangerous aliens.
- Police will kill unarmed, legal Latino citizens of the United States who look like an illegal immigrant and are a perceived threat.
- Lawsuits will be filed against the State for civil rights violations and violations of the Fourth Amendment, which protects citizens from illegal search and seizures. These cases will eventually go to the Supreme Court and the court will follow precedent from the War on Drugs where black defendants were denied claims for civil rights violations because they could not prove the police targeted them because they are black. Brown people will not be able to prove they were targeted for being brown and will lose the lawsuit.
Our greatest risk at this time is the by-stander mentality where many stand around watching an injustice unfold before their eyes but do nothing about it. The next risk are those who notice what is happening, are upset about it, and then say “someone ought to do something about this.” Well, you are someone – so do something. For those whowish to do something to prevent my predictions from coming true, here’s what you can do:
- Study and learn about the Fourth Amendment and how the United States routinely violates our rights.
- Educate yourself on the facts of the so-called “illegal immigrant” problem and be prepared to challenge what others say about the negative impact of illegal immigrants on this country. Is it true that illegal immigrants are causing massive problems in the U.S.? What benefits do we derive from illegal immigrants? What would happen to our businesses, services, etc. if all illegal immigrants boycotted work for one week?
- Talk to as many people as you can about the IMPACT of this law rather than the intent.
- Call for allies to speak up and take action. Ask allies to talk about the IMPACT rather than labeling the law or the lawmakers as racist.
- Use your ingenuity and imagination to come up with innovative ideas on how to turn this law around. The use of Facebook to spread the word and creative boycotts of business in Arizona are a couple of examples.
- Work to pressure the government to repeal this law, but short of that, petition the State of Arizona to amend the law as follows:
- Mandate a citizen’s watch and evaluation team to observe police actions and report on whom they stopped under this law and why they profiled someone as suspicious.
- Mandate that law enforcement gather and produce data on their stops to show that they had probable cause.
- Eliminate all “enforcement without cause” sections of the law.
- Mandate police inform people of their right to refuse a search and conduct a media campaign targeted to the Latino community to inform them of their rights.
This essay was spirit inspired, meaning I could not sit back and watch injustice unfold before my eyes without taking action in some way. The spirits of my Mexican grandparents and of the many allies who are no longer here gave me strength to speak out. I am taking action not only for my sake but also for the sake of many others, and I expect you will do so as well.
Follow Hugh at @hughjvasquez.