Would SB1070 Really Authorize Racial Profiling?

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Since its inception, opponents of SB1070 have criticized it, amongst other things, for legalizing racial profiling. Supporters of the law say that’s misguided; after all, the law contains clear language that bans the practice. Could there be agreement here? Given that both sides have expressed concern over this practice, here’s rare ground where supporters and opponents may see eye to eye: racial profiling is not an American value nor is it an effective law enforcement technique. Others may defend racial profiling, but they haven’t been key voices in this debate.

So, would the law – should it eventually win in the courts – authorize racial profiling?

Let’s take a quick look back on recent history: Arizona Governor Jan Brewer signed SB1070 into law on April 23, 2010. Seven days later, she signed HB2162 which amended SB1070 and included a supposed ban on racial profiling. If racial profiling had been a true concern of state legislators, as they claimed later, why didn’t they ban it originally and not as an afterthought?

Gov. Brewer said she signed HB2162 to “make it crystal clear and undeniable that racial profiling is illegal, and will not be tolerated in Arizona.” Great, that’s resolved. Until you read the actual language of the amendment:

“A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not 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.” 

That word "except" should raise some alarm bells. If Arizona legislators had sincerely wanted to ban racial profiling they wouldn't have created an exception. It turns out that both Federal court and the Arizona Supreme Court have previously ruled that ethnicity can be used to enforce immigration laws when considered as one of many factors. The Arizona Republic reported that four law professors from the state analyzed SB1070 and concluded that it “authorizes racial profiling” and, if put into effect, police would:

"sweep up an awful lot of people here who are legal residents, who are American citizens, and that is going to be a burden that is going to be disproportionately felt by a particular group here in Phoenix, and that is unfair."

U.S. District Judge Susan Bolton, too, had serious concerns with SB1070 and granted a partial injunction last week. However, the injunction isn’t a ruling on the merits of the cases challenging the law. So let’s be clear: should the portion of SB1070 that requires local law enforcement to check the immigration status of those they suspect are illegal immigrants eventually be allowed to stand by the courts, racial profiling will be authorized by Arizona law. And that just may be as Arizona legislators and Gov. Brewer intended all along.