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Reaction to Immigration Law Worse than Law Itself

By Robert Robb

The new state law making illegal immigration a state crime is badly drafted, poorly thought out and goes too far. It shouldn't have been enacted.

However, the hyperbolic reaction to the law is actually much worse than the law itself. The most despicable and irresponsible reaction came from Phoenix Mayor Phil Gordon.

According to a column Gordon wrote for the Washington Post (republished in Monday's Arizona Republic), the new law "requires" the Phoenix Police Department to profile "people with brown skin . . . based on stereotypes and insufficient information."

The only way the law will have that effect is if the Phoenix Police Department decides to violate rather than implement its provisions.

The law adopts by reference two provisions of federal law making failure to complete or carry an alien registration document a federal misdemeanor. The new law makes them state misdemeanors as well.

However, as an example of its poor draftsmanship, the law then nullifies the state misdemeanor for failing to carry a registration document by declaring that it doesn't apply to "a person who maintains authorization from the federal government to remain in the United States."

So, that leaves being in the country illegally as a new state offense.

The law then requires that local police officers, in the context of a "lawful contact," follow up on "reasonable suspicion" that someone is in the country illegally, unless that would jeopardize an investigation, such as by inhibiting the cooperation of victims or witnesses.

The mandatory nature of the follow-up is where the law goes too far. It in essence prioritizes illegal immigration over other claims on the time and attention of local law enforcement, rather than leaving that to the judgment of the beat cop based upon real-time circumstances.

However, the law is carefully sculpted to remain well within the limits the Supreme Court has established to ensure that investigative stops and inquiries don't exceed the boundaries of the Fourth Amendment. Contrary to Gordon, it is not permission, much less a mandate, to conduct ethnically-based fishing expeditions.

In virtually all cases, for people of all races legally in the United States, encounters with the police will not materially change. The law specifically states that an Arizona driver's license, the first thing the police ask for in most stops, creates a presumption of lawful presence.

Gordon is hardly alone in his hyperbolic reaction to the law. Claims that Arizona has become a police state or the new segregated South have become commonplace.

Now, all power is abused. It's the nature of power.

So, there will be some beat officers who will misuse this new authority to follow up on suspected illegal status. And there is a real danger that the Maricopa County Sheriff's Office, under Joe Arpaio, might systematically misuse the authority.

In fact, Arpaio is the real problem with the law. The other law-enforcement agencies in the state can be trusted to implement the law in good faith and in a way that most legal residents of all races wouldn't notice a difference.

But even with the worst that Arpaio can do, and with the regrettable occasional misuse of the authority by other law-enforcement agencies, Arizona will not be a police state or the segregated South. Such claims can only be made by either the historically ignorant or those who simply don't care about maintaining important distinctions.

There are honorable arguments to be made that local police departments shouldn't be involved in enforcing federal immigration laws. The vast majority of the people of Arizona, however, disagree with them.

In his column, Gordon boldly claims that a majority of Arizonans oppose the new state immigration law. If that's so, then the logical reaction should be to mount a referendum campaign to put it on the ballot. It would not go into effect until voters decided.

There is such an effort under way, but my bet is that it will get little support. Instead, opponents will continue to rely on protests, boycotts, lawsuits, calls for federal intervention and hyperbole.

My suspicion is that opponents don't really want the voters of Arizona consulted.

Robert Robb is a columnist for the Arizona Republic and a RealClearPolitics contributor. Reach him at robert.robb@arizonarepublic.com. Read more of his work at robertrobb.com.
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