E-mail reveals Arizona law was designed to maximize harassment

How to get cops to ask the highest possible number of brown people their legal status?

Published May 3, 2010 12:30PM (EDT)

I was once privy to a conversation between a couple of middle-aged lefties, one white, one black. The white guy was remembering his early hippie days, and said, "You know, I think what first taught me to be afraid of the cops was smoking pot. That's when I lost my childhood innocence about the power of the state." The black woman looked at him, rolled her eyes, and said, "That's because you’re white -- that's why it took you so long."

It's a funny story, but it contains a point that can't be made often enough right now: The arguments coming from conservatives in defense of Arizona's controversial new immigration law tend to claim that it only empowers police officers to demand documentation after "lawful contact," and hence doesn’t constitute racial profiling or harassment. (See this coming from Ramesh Ponnuru, of the National Review, here.) This idea reveals thoroughgoing ignorance about what profiling is, and how it works.

When conservatives like Ponnuru think of racial profiling, they seem to think of a straw man. The image is something like an evil officer out of the Jim Crow South, full of "prejudice" (itself a fairly silly and inaccurate way to describe racism), enacting his hatred by stopping black people or Latinos arbitrarily. Although it is arbitrary and unfair in terms of who gets targeted, racial profiling also fits into a set of structures guiding police behavior. If cops want to stop someone, they'll be able to cite some legitimate-sounding suspicion, whether it is actually legitimate or not. Profiling doesn't need to feel like profiling to the police, and they don't need to be secret Klansmen to enforce racial discrimination. It shows up way before you get to that point, among ordinary officers who probably just think they're doing their duty.

Ta-Nehisi Coates, for example, tells a story about being stopped in Chelsea on the way back from an NPR interview, on suspicion that he was a Latino male who had robbed someone; he also notes that discriminatory policing can end up much, much worse than it did for him that day. This is also the basic point made by Pima County sheriff Clarence Dupnik, in his announcement that he wouldn’t enforce the Arizona law. Said Dupnik, "If I tell my people to go out and look for A, B, and C, they're going to do it. They'll find some flimsy excuse like a tail light that's not working as a basis for a stop, which is a bunch of baloney."

Apparently in response to criticism from out of state, the Arizona Legislature has amended the law to change "lawful contact" to "lawful stop, detention or arrest." Although a "lawful stop" really doesn't seem like it would have excluded, say, Coates in Chelsea, that's not the worst of it. The amendment also requires officers responding to city ordinance violations to inquire about immigration status, again if they have reasonable suspicion.

The Center for American Progress recently obtained an e-mail sent by Kris Kobach, a lawyer for the Immigration Reform Law Institute, the group that claims it drafted the bill, to Arizona state Sen. Russell Pearce, who was its sponsor. The e-mail was sent as the Legislature prepared the amendment to the law that was signed by Gov. Jan Brewer last Friday. Kobach wrote,

When we drop out "lawful contact" and replace it with "a stop, detention, or rest, in the enforcement a violation of any title or section of the Arizona code" we need to add "or any county or municipal ordinance." This will allow police to use violations of property codes (ie, cars on blocks in the yard) or rental codes (too many occupants of a rental accommodation) to initiate queries as well.

I have not received anything from the people on the phone this afternoon. Please ensure that they make this addition as well. Thanks!

I have no real complaint with lawyers in Washington writing laws for state legislators. Both sides do that kind of thing, and there's nothing inherently wrong with turning to out-of-state experts. But what Kobach dictated to Pearce here was a recommendation to broaden the scope of police power to maximize the probability of racial profiling. Coates' point, and Dupnik's, that police can find a reason to stop someone when they want to stop someone, probably held true for Arizona before the bill's new amendment. It certainly still does after. The crucial thing that Kobach revealed in this e-mail is that questioning people with brown skin under essentially trumped-up pretexts isn't just a bug in the law. The legislation doesn't accidentally risk the possibility of a campaign of harassment. It builds it in. It's what it was written to do.

By Gabriel Winant

Gabriel Winant is a graduate student in American history at Yale.

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