Fox News' Steve Doocy accused Mexican President Felipe Calderón of telling "a gigantic lie" by saying that Arizona's new immigration law introduces racial profiling into law enforcement. However, law enforcement officers have also expressed this concern and legal experts have rejected the claim that modifications made to the law eliminate the risk of racial profiling.
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Doocy: Calderon "told a gigantic lie" by saying AZ law introduces "racial profiling as the basis of law enforcement"
Doocy: Racial profiling "is forbidden in Arizona law." From the May 21 edition of Fox News' Fox & Friends:
DOOCY: Let's talk a little bit about some big doings at the joint session of Congress yesterday. Felipe Calderón, the president of Mexico went to the well of the House, stood there in front of everybody, told a gigantic lie and the Democrats in the House and the Congress gave him a standing ovation. Watch this.
CALDERÓN: I strongly disagree with the recently adopted law in Arizona. It is a law -
It is a law that not only ignores a reality that cannot be erased by decree, but also introduce[s] a terrible idea, using racial profiling as the basis for law enforcement. And that is why I agree -- I agree with the president who say[s] the new law carries a great amount of risk.
DOOCY: The specific part that was a gigantic lie is that he said that the Arizona law introduces the terrible idea of racial profiling as the basis of law enforcement. That simply is not true. It is forbidden in Arizona law.
Modification to language did not eliminate the "consideration of race as a factor"
AZ law says race, color, national origin cannot be considered by police "except to the extent permitted by the United States or Arizona Constitution." The original law, signed by Gov. Jan Brewer on April 23, stated that law enforcement may not "solely" consider race, color or national origin when determining whether to question someone about their immigration status, "except to the extent permitted by the United States or Arizona Constitution." HB 2162, signed by Brewer on April 30, modified that section to remove the word "solely" but did not remove the exception:
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. [emphasis added]
U of A law professor: "The law still allows the consideration of race as a factor." CNN.com reported on May 1 that University of Arizona law professor Gabriel Chin said that the law "still allows the consideration of race as a factor," but that race cannot be the only factor:
Arizona's law originally said that the attorney general or a county attorney cannot investigate complaints based "solely" on factors such as a person's race, color or national origin. The changes enacted Friday remove the word "solely" to emphasize that prosecutors must have some reason other than an individual's race or national origin to investigate.
But Chin dismissed the significance of that change. Both the federal and state constitutions make it clear that you can "never stop someone exclusively on account of race," he said.
Racial profiling would still occur, he said. "It's always 'race plus' in these situations. ... The law still allows the consideration of race as a factor."
NAU criminology professor: Language change was a for "public-relations." The Arizona Daily Star reported on May 2 that Raymond Michalowski, an Arizona regents professor of criminology at Northern Arizona University "said the removal of 'solely' was a 'public-relations' maneuver that likely won't change anything," and quoted him saying, "With or without that one word the law increases the number of instances in which officers inclined to racially profile can do so."
Politifact: "Legal experts" said amended language does not make it "crystal clear and undeniable" that profiling will not occur. Politifact.com stated on May 4 that legal experts reject the notion that the amended language puts to rest the question of whether racial profiling will result from the implementation of the Arizona law:
While the new phrasing on racial profiling seems straightforward -- and while the new language will provide opponents of racial profiling a useful weapon in court -- legal experts we spoke to said that it's not "crystal clear and undeniable" that racial profiling will be impossible under the law.
Rather, the Arizona law, even in its revised version, sets up a clash of constitutional principles that could be fought over in the courts for years to come. Indeed, the law almost demands court involvement by expressly authorizing police to consider race "to the extent permitted by the United States or Arizona Constitution" -- something that is far from nailed down.
In the meantime, even if racial profiling is officially banned, the new Arizona law continues to permit non-racially based profiling, such as profiling based on clothing or behavior. Yet many legal experts we spoke to saw a hazy, and perhaps unenforceable, line between permissible profiles and illegal ones.
Law enforcement officers have said the law could encourage racial profiling
Phoenix Police chief: "[V]ery difficult not to profile" in implementation of this law. Phoenix Public Safety Manager and Police Chief Jack Harris has reportedly said, "The problem with this legislation is it puts my officers in a very difficult position with litigation." The Associated Press also reported on May 17 that Harris said "it's very difficult not to profile" when implementing "a law that leads a state down this path, where the enforcement is targeted to a particular segment of the population":
Several Arizona police chiefs and sheriffs say, as hard as officers try not to profile, enforcing the law will inevitably lead to it. They say it will end up taking time away from solving crimes in their cities and towns.
"When you get a law that leads a state down this path, where the enforcement is targeted to a particular segment of the population, it's very difficult not to profile," said Phoenix Police Chief Jack Harris, a critic of the law.
Tucson police officer lawsuit: "[T]here are no race neutral criteria or basis to suspect or identify who is lawfully in the United States." The Arizona Republic reported on May 15 that Phoenix police officer David Salgado and Tucson police officer Martin Escobar have separately filed lawsuits to stop the immigration law. According to the Republic, Salgado "says that to enforce the law, he would violate the rights of Hispanics," and that "Escobar's suit claims the new law compels him to engage in racial profiling to prove legal status." Escobar's complaint states that "there are no race neutral criteria or basis to suspect or identify who is lawfully in the United States" and that in his experience, proximity to the Mexican border, clothing, language, and other factors do not provide such race neutral basis for suspicion.
Pima County sheriff reportedly said law "encourages" racial profiling. In a May 14 Orange County Register column, David Whiting reported that Pima County Sheriff Clarence Dupnik "says his department already arrests undocumented aliens, and that the law could lead to racial profiling and costly lawsuits by both advocates and opponents." Whiting also reported that Dupnik said that "the bill will encourage citizens to sue police departments for not enforcing the statute while, at the same time, it will prompt others to sue because it encourages racial profiling."
Sacramento police chief: Law is "discriminatory." A May 18 Arizona Republic article reported that "law-enforcement leaders from Maryland, California and Nevada said ... that they oppose Arizona's new immigration law" and stated that Sacramento Police Chief Arturo Venegas Jr., "who founded the Law Enforcement Engagement Initiative last year to encourage discussion about immigration enforcement, said the Arizona law is 'discriminatory' and targets Hispanic populations."
Legal experts have also expressed concerns about possible racial profiling, civil rights violations
AILA: How can police "differentiate between an undocumented alien, documented alien, or U.S. citizen who happens to be brown skinned and speak with an accent?" David Leopold, president-elect of the American Immigration Lawyers Association told Media Matters for America that "on its face," the amended language "appears to address concerns" about racial profiling, but in fact "hardly addresses the problem" because the drafters of the law omitted "any guidance or definition of what criteria are to be used in determining whether a person is an unauthorized alien. Thus, Governor Brewer and Arizona Legislature have put Arizona law enforcement agencies (including non-police civil servants enforcing municipal civil codes) in an untenable position. How are they supposed to form a 'reasonable suspicion' of unauthorized immigration status?" Leopold further stated:
The legal definition of "reasonable suspicion" arises from the Supreme Court's 1968 decision in Terry v. Ohio. There the Court said that an officer may "stop and frisk" a person if the officer observes "articulable facts" that make it "reasonable to assume" that the person is violating the law. But what "articulable facts" could arise that would make it reasonable to assume that someone is in violation of the immigration law? How are hard working honest police officers supposed to differentiate between an undocumented alien, documented alien, or U.S. citizen who happens to be brown skinned and speak with an accent? In many cases the only "articulable facts" would be, as even many of the proponents of the law have admitted, style of dress, skin color, accent, language etc. The clear probability of racial profiling under the Arizona law directly offends the Constitution, in particular the Fourteenth Amendment, which states that "no state...shall deny to any person within its jurisdiction equal protection under the laws".
It also must be emphasized that the law does not prohibit law enforcement from enforcing the law based on racial profiling by private citizens. As a result, if a person is suspicious that his browned skinned Spanish speaking neighbor is an unauthorized immigrant, all he need do is report a violation of a city ordinance, such as the neighbor's failure to cut his grass or remove a yard sign from his lawn. The police, applying the clear provisions of the Arizona law, are then placed in the position of either having to inquire into the neighbor's immigration status or, if they don't, risk a lawsuit filed by the complaining citizen claiming that the official or law enforcement agency has adopted a policy which restricts the enforcement of federal immigration law.
MALDEF: "Police are put in an impossible situation." The Arizona Republic reported on May 18 that "Nina Perales, with the Southwest Regional Counsel of MALDEF, said the law will lead to racial profiling of Latinos 'and anyone else the police suspect looks or sounds foreign-born." It quoted her as saying, "[p]olice are put in an impossible situation because an officer cannot form reasonable suspicion of an individual's immigration status just by looking at that person."
Kyrsten Sinema: Law open to broad interpretation, potential for racial profiling. The Arizona Republic reported on May 17 that "Kyrsten Sinema, a Democratic state representative and an attorney who opposes the law, said the law does not state what officers can consider when determining reasonable suspicion, which opens the door to broad interpretation and the potential for racial profiling." The Republic further quoted Sinema as stating: "Arizona courts describe (reasonable suspicion) as requiring only a minimal, objective justification based on the totality of circumstances. These can include such basic factors as a person's conduct or appearance, the characteristics of the area, the time of day and the experience of the officer."
James Doty: Supporters of law "haven't articulated any other grounds for suspecting that someone is an unlawful resident." Lawyer James Doty wrote on April 26 that "no one has come up" with an answer to the question, "What do illegal immigrants look like?" that doesn't invoke ethnicity. Doty further wrote: "The new law, on its face, doesn't make racial distinctions, but its supporters haven't articulated any other grounds for suspecting that someone is an unlawful resident."
Northeastern University criminal justice associate dean: "training" will not eliminate use of "the shortcut of race." The AP reported on May 17:
Designing a training courses [sic] that prevents officers from using "the shortcut of race" will be difficult, said Jack McDevitt, associate dean of criminal justice at Northeastern University who studies racial profiling.
"No training you give police officers is going to change all of the officer's behavior," McDevitt said. "Unfortunately, the shortcut will be: 'What does this person look like? What kind of accent does he have? And what kind of car is he driving?'"
UC Davis law school dean: "My fear is that" law enforcement officers will rely "on racial and/or class stereotypes." Politifact.com reported that Kevin Johnson, dean of the law school at University of California-Davis "said he worries that local police inadequately trained in immigration law could engage in profiling, either unwittingly or intentionally. 'My fear is that, with the new addition to the law or not, racial profiling will result, with untrained local law enforcement officers - perhaps unconsciously - relying on racial and/or class stereotypes' when determining whether there's 'reasonable suspicion' about one's immigration status."
National Immigration Law Center legal counsel: "It leads to the racial profiling that is inevitable." The AP reported on May 17 that Linton Joaquin, general counsel of the National Immigration Law Center, which is supporting a challenge to the legislation, said that the law "is a greater and more explicit intrusion into the regulation of immigration" and that "[i]t leads to the racial profiling that is inevitable."
Fox & Friends has repeatedly misrepresented the Arizona law
Purporting to correct misconceptions, Luntz misrepresents AZ immigration law. On the May 12 edition of Fox & Friends, Frank Luntz falsely suggested that under Arizona's new immigration law, police can only ask about the immigration status of someone "if they believe that they're in the process of committing a crime." In fact, the law directs police to check the immigration status of those stopped for non-crimes including violations of city and county ordinances and civil traffic violations if the officer suspects those individuals are undocumented.
Kilmeade falsely claims AZ law enforcement "up until now ... could not ask" about immigration status of people committing crimes. Fox & Friends host Brian Kilmeade stated on May 18 that "there has to be a reason for a law enforcement official to walk up to you. So you got to be knocking off a bank, stealing a 7/11, running away with an ATM on your shoulder, for them to say, by the way, put the ATM down and can you just show me some paperwork that proves you belong here. Because up until now, they could not ask if you belong in this country or not." In fact, police could reportedly already question the immigration status of those suspected of committing a crime, and contrary to Kilmeade's suggestion, the new law will not apply only to those committing crimes.
Fox lets Kobach misrepresent Arizona immigration law. On May 3 Fox & Friends allowed Kris Kobach, the Republican law professor who helped draft Arizona's new immigration law, to falsely claim that the law "only comes into play after another crime is being investigated."