Another Round with Reppert on AZ SB 1070: Reasonable Suspicion

In his most recent post on this topic, Victor Reppert tells us that his "main concern is with the 'reasonable suspicion' clause. That strikes me as horribly vague."  Here is the relevant SB 1070 passage as amended by HB 2162 which contains the clause in question:

For any lawful contact stop, detention or arrest made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the person is an alien who and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. 

Reppert continues:

In our state, most illegals are Hispanics, but most Hispanics are not illegals. If you define your conception of what it takes to have reasonable suspicion, and on my blog I made an un-remarked-upon recommendation that we have reasonable suspicion just in case we have objective criteria leading to the conclusion that it is more likely than not that the person is illegal, then you could at least eliminate the worst of the profiling problems. You can't just stop a Hispanic and make an immigration status inquiry, because being Hispanic is not sufficient for it to be more than 50% likely that the person is here illegally. (Emphasis added)

I believe Reppert is missing the point here.  I agree with the last quoted sentence.  But the  1070 law does not mandate that Hispanics be stopped at random to have their status checked.  The law clearly states the conditions under which an immigration inquiry may proceed:

1.  There must be a lawful stop, detention, or arrest.

2. The stop, detention, or arrest must be made in the enforcement of a law other than 1070.

3.  There must be reasonable suspicion that the person is an illegal alien.

4.  The immigration inquiry must be practicable.

5.  The immigration inquiry must not hinder or obstruct an investigation.

I should think that Reppert's 50% rule is satisfied if all the conditions are observed.  For example, during a lawful traffic stop, the cop has the right to ask for a driver's license.  If the Hispanic driver has no license, no proof of insurance, no registration, has a campesino sticker on his bumper, is driving a junker, etc.  then the the chance that he is illegal is way over 50%.

There is a distinction I made earlier which is very important and which Reppert may be ignoring, the distinction between a law and its enforcement.  If a law is reasonable and just, it is these things whether or not some cowboy of a cop oversteps his legitimate  authority in its enforcement.  It would be absurd to argue that a particular law should be repealed because there may be abuses in its enforcement.  For any such argument would 'prove too much': it would prove that every law ought to be repealed.  For every law is such that an abuse can occur in its enforcement.

Comments

[Victor Reppert]

Many lawful stops do involve a request for identification as part of ordinary routine. The failure to produce the documents required to drive a motor vehicle would then, perhaps along with other factors, provide the basis for reasonable suspicion. However, the case might be a little more difficult to make with passengers in the car, who have not been required to produce such documentation. If I get pulled over, my wife doesn't have to show her driver's license, but I do. So lack of vehicular ID could get factored in in assessing reasonable suspicion, but it would only apply to drivers, and not to passengers.

There is a class of police engagements, however, that are do not require identification. These involve such things as calling the police to ask someone to turn their music down, calls that I have made myself. I don't want the police asking for immigration documentation in those cases where the people are lower-class Hispanics and the music is in Spanish, if they aren't going to ask for it generally.

Finally, there is a difference between a law and its enforcement. But we have to ask whether this law can effectively be enforced without profiling, and we have to ask whether the law invites abuse through its vague language.

Can we agree on what profiling would look like, if it were to take place? Could law enforcement, in its eagerness to find illegal immigrants, cause harm to the ethnic group that contains the majority of illegal immigrants, including those who are here legally. Can we agree that IF Joe Arpaio is guilty of what he is accused on being guilty of by Robb and by the piece I linked to on him, that that WOULD be racial profiling in the sense that it dangerous and should be avoided?

[Bill Vallicella]

1. Your wife is unlikely to be an illegal alien, but the wife of an illegal alien is likely to be one.

2. One difference between us is that I want the immigration laws enforced especially given the horrendous crimes being committed by illegal aliens (carjacking, kidnapping, human trafficking, drug smuggling, gang activity in general) whereas you don't seem too concerned whether they are enforced. If the cops are called on a loud party and the place looks like an illegal alien dropoff point then I want inquiries made into their status. It is not that difficult to distinguish between Hispanic citizens and illegal aliens.

3. The word profiling is thrown around, but I have yet to see a definition or an explanation of what exactly is wrong with it. Being Hispanic does not make one an illegal alien, but how could anyone deny that, here in the Soputhwest, an Hispanic is more likely to be an illegal alien than a black?

[Dave Walker]

What is pernicious about this statute is not the way it is written on its face, which, after the amendments made shortly after passage, sound reasonable. It seems suspiciously as if the legislation was purposely written with enough ambiguity to allow law enforcement sufficient wiggle room to abuse the law without much recourse for those who suffer from said abuse.

As my constitutional law professor used to say, "The slippery slope is not a legal argument". But it sure is a policy argument. It seems more than likely (from a 'gut feeling' point of view, not an evidential point of view) that the Arizona legislature has perhaps irretrievably corrupted the law-making process by cynically manipulating language. That, more than any other aspect of this whole mess, is disturbing.

[Victor Reppert]

People at drophouses are not going to play loud music. That's just not going to happen.

[Bill Vallicella]

Gut feelings aren't worth a damn. You are making scurrilous allegations with no basis in fact. You sound like a typical leftist who cannot take anything at face value but must impute unsavory motives. But thanks for illustrating just how empty-headed are the objections to SB 1070.

[Bill Vallicella]

Tell me Victor, do you support open borders?

[Victor Reppert]

No. But I strongly suspect that barriers to legal immigration are probably excessive. We do have to keep out people with criminal records.

I think it's probably a false dilemma, or a straw man, to claim that anyone who wants to reform the immigration system simply wants open borders. It also doesn't follow that all "path to citizenship" programs are simply amnesty. Those that I have heard proposed involved paying a penalty, and earning citizenship. (I realize there are a wide range of fairness issues involved in all of this, but the idea that such plans involve our just forgetting that people are here illegally doesn't seem right to me at all).

This is an Ed Montini column which discusses the effort of Tyson Nash, the hockey player (not related to the Suns Steve Nash, apparently), who, in spite of being a model citizen, came close to being deported. It seems to me that I could ask whether we could make immigration easier without advocating open borders.

http://www.azcentral.com/arizonarepublic/local/articles/2010/05/21/20100521Montini0521.html

I am also convinced that we've have to combine a partial immigration reform with an increase in border security. I'd rather stop them before they come in than send them back after they've settled in and started contributing to our community.

As for the illegal immigrants that are already here, there are questions in my mind about what the economic impact of their removal from our community would be. The departures from Prince William County in Virginia, which was the basis for the movie 9500 Liberty, showed that it resulted in a lot of economic harm, and an increase in the rate of foreclosures. In short, illegal immigrants are a mixed curse, since they become part of our community and do contribute to its economy, pay taxes, etc. I'm not even sure it's physically possible to deport all of them, anyway. That flaming liberal Michael Medved said that in order to send all of the back you'd need buses that, laid end to end, would stretch from Tijuana to Seattle.

On the other hand, the people that actually do transport these desperate people over the border are, so far as I can tell, the worst sorts of criminals, and surely we can hit them as hard as possible.

I seriously doubt that 1070 is going to result in very many deportations. The cost in ill will between the Hispanic community and the rest of us, to my mind, far outweighs the improvement in will provide in law enforcement, which I suspect will be minimal.

So, without actually having done a full cost-benefit analysis on all of this, I would say start with security at the border, make the process of immigration more rational but don't just throw it wide open, and then provide some path to citizenship that involves a serious penalty and isn't just simple amnesty.

A fence? Yes, if it would work, no, if it wouldn't.

[Victor Reppert]

I should add that I have mixed feelings about sending someone back to Mexico who crossed illegally, but worked, paid taxes, contributed to the community, and obeyed the law in every respect except for their immigration status. This especially if deporting them would break up their family. Criminals, of course, belong in jail.

[Bill Vallicella]

Victor,

We may not in the end be that far apart. But talk of 'immigration reform' or 'comprehensive immigration reform' is mostly empty blather as emantating from Obama and those of his stripe. It either means nothing or it amounts to a refusal to do Job One, which is stop the influx of illegals with a physical barrier together with manned and unmanned surveillance. Listen to most liberals -- O'Reilly has them on his show regularly -- they will never come clean with a definite proposal and they never agree that the border must be sealed.

What to do about productive, (otherwise) law-abiding illegals with families who are more or less established here, having been allowed in by our non-enforcement of the border and by their being hired by here -- is another question entirely. I disagree with those conservatives like Coulter who talk of rounding them up and deporting them. There are several good moral and other arguments against that extreme plan. They will have to be integrated into our society is some manner after paying some sort of penalty for having broken our laws in the first place.

But this problem can only be tackled after Job One is completed.

[Dave Walker]

Of course I don't have facts; did you think the legislature was going to admit it if they had meant for this law to be abused? That's just the thing, Mr. Vallicella, I'm not a leftist of any type, and I don't as a rule impute motivations without evidence. But I know the difference between precise writing and ambiguous writing, and even after the modifications made by the legislature after passage, the law seems written in such a way as to leave the door open for abuse. What is scurrilous about pointing this out? But thanks for assuming unsavory motives on my part.

[Victor Reppert]

As it happens, I just covered immigration reform today.

http://dangerousidea.blogspot.com/2010/05/is-comprehensive-immigration-reform.html

[Victor Reppert]

The vagueness in the law has to be clarified one way or another. That is why I brought up the 50% rule. You will sometimes have a request for ID, and sometimes you don't, what do you do in those cases. This has to get precise, and it should have been made precise in the law.

Last I heard, law enforcement budget were having to be cut. Local law enforcement cannot do the job of immigration enforcement. They might be deputized to help out in certain ways, but any proposal that diverts their resources from the pursuit of major crime to immigration enforcement has to be regarded as problematic. Maricopa County Attorney Rick Romley has argued consistently that Sheriff Arpaio's focus on illegal immigration has taken his attention away from serving outstanding felony warrants.

[Bill Vallicella]

Victor,

Actually, 1070 is working very well two months before it goes into effect and thus without any enforcement at all. Illegals are leaving the state in substantial numbers; the irresponsible hyperbole of 1070's detractors is scaring away others; and last I checked 18 other states are considering similar legislation. And all of this without any of costs of enforcement.

Dave Walker writes, "the law seems written in such a way as to leave the door open for abuse." That's an empty claim that you fail to support with any analysis of the bill's language.

[Victor Reppert]

Whether the law is open to abuse or not depends crucially on whether clarifications of the crucial term, "reasonable suspicion" exist which are sufficiently strong to make the bill effective while at the same time excluding, at the very least, the most pernicious forms of racial profiling.

The fact that some people are scared away by misinterpretations of the bill is hardly testimony to the bill's effectiveness. To maintain this level of fear, the bill is going to have to be implemented in precisely the way that the bill's detractors fear that it will be. That means blatant racial profiling. That means treating one class of persons differently, based on the color of their skin combined with their socioeconomic status. Do we want that.

[Bill Vallicella]

Victor,

You complain about vagueness, but you still haven't told us what racial profiling is and what is wrong with it. I hope you appreciate the fact that the vast majority of illegal aliens are Hispanics.

>>The fact that some people are scared away by misinterpretations of the bill is hardly testimony to the bill's effectiveness. To maintain this level of fear, the bill is going to have to be implemented in precisely the way that the bill's detractors fear that it will be.<<

You are not making much sense. The fear is caused by the journalistic crapweasels who have told lie after lie about the content of the bill. Even the bums at the AZ Republic were doing this until just recently, though in the last week they've cleaned up their act some. I am getting the distinct impression that you simply do not want immigration laws enforced. 1070 simply mirrors the Federal law.

I take it you were OK with the Federal law as long as it wasn't being enforced, but now you protest when AZ decides to do what the Feds have been failing to do.

Honestly, I don't see that you have presented one solid reason to oppose 1070.

[Victor Reppert]

Let's try to generate a racial profiling scenario to see what is wrong with it. Profiling can take on different levels. Local law enforcement is expected to be a main player in the fight against illegal immigration. What that results in, is that anyone who looks like a lower-class Hispanic is targeted for what I call "fishing expeditions." Being Hispanic, perhaps along with evidence that the Hispanic is lower-class, is considered sufficient for "reasonable suspicion." People who look like lower-class Hispanics are pulled over on "tickytack" violations, other groups are not. When there is a loud music call about white people playing the Stones too loud, the police ask them to turn the music down. If the music is in Spanish, and the people look like lower-class Hispanics, papers are asked for. Whites get that 10 mph cushion with the speed limit, Hispanics are pulled over if they are so much as 1 mph over the limit. Everyone knows the police don't pursue every possible offense; they pick their battles. But in the hope that they will be able to get an illegal immigrant deported, they pick their battles with Hispanics differently from the way they pick their battles with the rest of us. "Legitimate stops" are generated on other ostensible grounds, but their real purpose is to ask a Hispanic about his immigration status.

What this means is that, not just the immigration laws, but many other laws are enforced differently depending on the whether or not a person looks Hispanic. Or, perhaps only those police officers who harbor anti-Hispanic prejudices will enforce the law in this way, but citizens will have no protection against that kind of special treatment. That's the sort of thing I'm concerned about. I'm not willing to pay THAT price to enforce the immigration law. We are entitled equal protection under the law, and there should not be different rules for different racial groups or social classes. Can you agree that the above scenario would be a bad one? The fourteenth amendment guarantees equal protection under the law.

Please note that I am concerned about how our citizens are treated. One group of citizens will be treated differently because of the color of their skin.

Now, remember that Brewer says that the bill will be enforced without profiling, so I take it she thinks that there is such a thing as profiling, and that 1070 won't involve that. We are still waiting to see the specifics on how the law will be enforced. The question I have is whether the law won't result in a whole lot of undue litigation, whether it will be interpreted in such a way as to avoid the above scenario, and if it doesn't involve profiling, will it be an effective law at all, or just a symbolic gesture.

Yes, some of the worst fears about the law are generated by its opponents, and that has resulted in the departure of some people. Whether those people are only illegals, or whether Hispanic citizens have left because they fear unequal treatment by law enforcement, is not completely clear. However, that doesn't make the law effective. Assuming that the law is implemented in a way consistent with the Constitution, will it continue to be effective?

I have no problem with the immigration law being enforced at the border, where it should be enforced, and at the workplace, where some sort of workable ID will be more effective. I just hate the idea of a whole class of people, most of whom are law-abiding citizens, being treated differently by law enforcement because of the color of their skin.

[Victor Reppert]

Most illegals are Hispanic, but let's remember that most Hispanics are perfectly legal. To treat them as if they were probably illegal is an injustice.

[Bill Vallicella]

No one denies that most Hispanics are legal. You are failing to grasp the simple point that an immigration inquiry is perfectly just when the other conditions (which I have detailed more than once) are met.

[Victor Reppert]

You have outlined some cases where ethnic evidence COMBINED WITH a failure to produce identification would be sufficient for reasonable suspicion. If I could be sure that law enforcement would stick to those cases, I would probably not oppose the bill. So police would be instructed not to conduct an immigration inquiry unless the stop ordinarily involved a request for identification. They are not to go looking for possible illegal immigrants, and no fishing for illegal immigrants is permitted. You pull over the cars you would ordinarily pull over. Only when a stop that would have taken place otherwise occurs, and there is a failure to produce a DL or some other kind of identification, does the officer have a responsiblity under 1070 to consider immigration status. And at this point, yes, race and class related factors should play a role. This is profiling, but it is profiling of a benign sort.

There are other possible cases of reasonable suspicion, such as 55 people jammed into a 3-bedroom house acting suspiciously, but in ordinary contact between people and law enforcement, the application of 1070 is restricted to cases where an ordinary request for identification is requested and not produced.

If it is going to be implemented in this way, and we make sure that it does, then my counterarguments can be set aside.

But will it work that way. I have tried to show that there are things that law enforcement can do that would take profiling beyond the benign level and result in people being treated differently by the law than they otherwise would be, and on a broad-scale basis. Would law enforcement stick to using racial information only after a ID request has failed, or would they go looking for people to deport, using initiating immigration inquiries based on racial information alone, and/or deliberately seeking out opportunities to stop Hispanics in the hopes that might be illegal.

It's the difference between racial profiling sub-1, and racial profiling sub-2. RP1 might be acceptable given the demographic information concerning who illegal immigrants are, RP-2 perpetrates an injustice on law-abiding citizens.

[Victor Reppert]

Apparently the law is chasing law-abiding citizens out of the state.

"The immigration law creates a difficult situation for both legal and illegal residents," said Jay Butler, director of realty studies at Arizona State University. "Some illegal residents may have planned on leaving the Valley anyway because they can't find jobs. But I have talked to young Hispanics who are residents and so are their parents and grandparents. And those Hispanics plan on moving to other states because they don't want to be perceived as second-class citizens."

Read more: http://www.azcentral.com/community/pinal/articles/2010/06/14/20100614arizona-immigration-real-estate-foreclosures.html#ixzz0qruahfqy

http://www.azcentral.com/community/pinal/articles/2010/06/14/20100614arizona-immigration-real-estate-foreclosures.html

[T. Hanson]

"Apparently the law is chasing law-abiding citizens out of the state."

Do you think it is the the law itself perceived clearly by rational, intelligent people that is doing the chasing, or the bogey- man version of the law perpetuated by hysteria and politicizing on the Left? Given that our Harvard educated President and Attorney General did not bother to read the law before rashly speaking about it, it is entirely reasonable to think ordinary Joe's, (or should I say Jose's?) might form ill-founded opinions about the law and act accordingly.

[Victor Reppert]

That's a good question. But the law does a bad job of being clear about what it does entail. It is almost deliberately set up to make people think it allows for across-the-board profiling and treatment of Hispanics as second-class citizens, while being open to alternative interpretations which may end up being more benign. So it can seem really tough on immigration and scare the heck out of the average Jose, while at the same time, when the law is questioned from a civil rights perspective, it gets spun as something a great deal less Draconian than Jose thinks it is. Something screwy is going on when the legislature has to amend a bill after it has been written an signed.

This is from another article on SB1070 in the Sunday Republic:

"This is not a statute that was designed to give people the ability to read it and figure out what's permitted and what's not," Chin said. "No clear rules means that people who want to be safe basically have to have no contact with undocumented people."

Read more: http://www.azcentral.com/news/election/azelections/articles/2010/06/13/20100613immigration-
law-wording.html#ixzz0qxKyo0MB

Scary, huh, if you so much as have friends who are here illegally, or would like to get your lawn mowed by someone this weekend.

Every law is going to cause problems for the way it is implemented, and a certain amount of judicial interpretation is always going to be necessary. But legislatures have a responsibility to make their laws as clear as possible, so as not to overburden the judiciary. SB 1070 is clear as mud.

And this just in from the Republic: The law looks as if it's going to overwhelm the court system if something isn't done. And to think this law is being defended by conservatives who hate judicial activism and are suspicious of "trial lawyers." What you have is a law that is subject to all sorts of spin doctoring. Like Joe Arpaio, it is all show and no substance.

http://www.azcentral.com/community/nephoenix/articles/2010/06/15/20100615arizona-immigration-law-may-overwhelm-court-system.html

[T. Hanson]

I see no evidence that SB 1070 is any more unclear than many other laws of a similar nature, including federal immigration laws. As one of the attorneys in your aticle says,

"One of the things that's always true about laws is how they actually affect people depends as much on how they are enforced and interpreted by the court as on how they are written."

Further, the section on when a suspected illegal can be questioned and detained - the part of the law that you seem to think makes people second class citizens, or feel like second class citizens and the part of the law that generates most of the hyperbole about discrimination and injustice - is very clear, and at the least no less clear than enforcement criteria for other crimes. "Reasonable suspicion" for example, is a time-honored, Supreme Court ratified and defined basis for an officer's pursuing further investigation.

The fact that some activist lawyers say the law has the potential to generate law suits says nothing about the inherent justice or injustice of the law. And if this is the argument opponents are finally reduced to, after all the hyperventilating over racism, etc., then that is very telling.

So, if your sensitive ordinary Jose leaves Arizona because he misreads the law and feels like a second class citizen, then the collective I.Q. of the people of Arizona would increase, since he is too stupid to understand the law, and if his rights are violated by the abuse of the law, he has a lot more to gain by suing the state with the aid of activist lawyers you cite, than leaving it.

[Bill Vallicella]

Tony,

Exactly right. And well said.

[Victor Reppert]

It may be that these terms are used in other laws. But there is a way of implementing 1070, which I have outlined, which will create a differential pattern of enforcement for anything from speed laws to disturbing the peace, which to my mind is discriminatory. Sheriff Joe Arpaio's department, trained by FAIR, have, according to some accusations, been doing just that. So we need some implementation rules that rule out the discriminatory use of 1070. We don't have them, yet.

[Victor Reppert]

These implementation rules would have to be what I call "No Fishing" rules. You make the same stops you would make, regardless of 1070. You don't pull a car over for a broken tail-light in a car that looks to be driven by a lower-class Hispanic unless you would pull the same car over if the driver were white. If you go to a house with loud music, and unless it actually looks like a drop-house, as oppose to just a Hispanic house, you tell them to turn the music down and that's it. Nothing can be done to enforce the law until, for completely independent reasons, you engage the person and make an identification request. Once a failed request for ID takes place, you then may have enough for reasonable suspicion. Not before.

With that interpretation, the "reasonable suspicion" part of the law would be tolerable. (I am somewhat bothered by the fact that the bill provided no funding for the training of police officers to enforce the law, or for cameras in cars to keep a more adequate record.

[T. Hanson]

The problem you outline is not distinctive to 1070. Any laws can be enforced in a discriminatory fashion. Fishing can be done and has been done in many big cities against blacks and hispanics and which is not related to immigration status. And where it can be shown to occur the appropriate federal civil rights laws apply. This has nothing to do with the justice of the specific laws being enforced -traffic laws, drugs laws, whatever. And no new "implementation rules" need to be attached to those specific laws. You are outlining a general issue with administration and law enforcement in general - the challenge of, maintaining the ideal of equality under the law, whatever that law might be.

[Victor Reppert]

In Arizona we have examples already of biased enforcement using differential enforcement of other statutes with the purpose of fishing for illegal immigrants. Joe Arpaio regularly targets the Hispanic community with "crime sweeps" which are aimed at catching illegal immigrants. He's already been sued for profiling.

The Arizona Republic has article after article discussion various scenarios for 1070, and every time the experts disagree as to what the law will do. I have one simple question: Can't legislators do their jobs and make the law as clear as it is possible to make it? When I write a philosophy paper, I am expected to be clear. I can't be perfectly clear, but I have to be as clear as I can be. Peer reviewers and editors get one my case if I am not clear. Why do we expect less of legislators?

If you have a law the requires police not to fish, improves the criteria for when you have reasonable suspicion, and also clearly prohibits Arpaio-style profiling, I don't think I'd have a problem with it.

[T. Hanson]

"In Arizona we have examples already of biased enforcement using differential enforcement of other statutes ... He's already been sued for profiling."

Which is good support for my two points. 1)There is nothing distinctive about 1070 that makes it discriminatory since all laws including the statutes you mention can be applied in a discriminatory fashion. 2) There is already a remedy. Just as in any other case of unjust discrimination, parties can be sued under civil rights laws, providing good incentive not to discriminate (unjustly). Of course, this is assuming Arpaio is actualy doing these things.

Further, Section 2 of 1070 provides that a law enforcement official “may not solely consider race, color or national origin” in making a stop. So, stopping someone using race as a criterion, which is what fishing does, is not permitted.

Pundits often argue about the effects and application of any new law, for example the new health care legislation. This does not mean it is unclear. No law can be written that covers how it will be applied in all possible circumstances. Give me any law and I will outline a scenario where its application is unclear. As a philosopher, you should know that.

Re reasonable suspicion, to quote Kris Kolbach, "over the past four decades, federal courts have issued hundreds of opinions defining those two words. The Arizona law didn’t invent the concept: Precedents list the factors that can contribute to reasonable suspicion; when several are combined, the “totality of circumstances” that results may create reasonable suspicion that a crime has been committed."
http://www.nytimes.com/2010/04/29/opinion/29kobach.html