Those supporting Arizona SB 1070 have rushed to defend the immigration bill that allows for police to essentially profile anyone believed to be in this country illegally and have shot back that the bill does not encourage profiling based on race. Unfortunately for Arizonans and the nation the state’s history suggests quite the opposite.
Historically Arizona has struggled to find a balance between a lawful exercise of its police powers and respecting the rights and humanity of Latinos and Native Americans in its state. This tension played out in two historic Supreme Court decisions, both of which detailed police disregard and callousness for the individual rights, particularly if those individuals happen to be minorities.
The most famous of these decisions, Miranda v. Arizona stands as one of the landmark Warren Court decisions reigning in the power of the government over the individual. Ernesto Miranda was arrested on a suspicion of robbery and while in police custody, questioned by officers and detectives in a room cut off from the outside world. He was never given a full and effective warning of his constitutional rights at the outset of his interrogation. Miranda eventually confessed to an unrelated crime of rape, and that confession was used at trial to convict him of rape.
While routinely criticized by the right, the Miranda decision should be embraced by those claiming to support reigning in the power of the government over the liberty of the individual. The Warren Court recognized the inherently coercive power of the government over the individual, a power the Bill of Rights was specifically drafted and implemented to counteract.
Some thirty years later comes another decision describing the lengths Arizona offers feel they are entitled to go while on the job. In Arizona v. Gant. Respondent Gant was arrested for driving on a suspended license, handcuffed, and locked in a patrol car. Only after Gant was securely in custody and away from his vehicle did officers decide to search his car where they found cocaine in a jacket pocket. At trial Gant argued the search was per-se unreasonable but the Arizona court disagreed and allowed the evidence of the drug possession in. The United States Supreme Court disagreed, reiterating the constitutional standard for police searches that are incident to an arrest.
Warrantless searches are per se unreasonable, subject to only a few specific exceptions. Katz v. United States, 389 U.S. 347. For a search incident to a lawful arrest like in Gant, officers may only search the area from which an arrestee might gain possession of a weapon or the destruction of evidence. Safely secured in police custody in their cruiser, there was simply no way this exception applied to Gant. The officers would have or should known that and either chose to ignore Gant’s constitutional rights or were not trained to properly understand and respect the line between lawful police activity and unlawful police activity.
So it comes as little surprise then that Governor Jan Brewer’s after-the-fact proposal for law enforcement training to implement SB 1070 has fallen on skeptical ears. Prior to its enactment officers were already requesting birth certificates and proof of residency on traffic stops with no clear, articulable reason or need for such documentation.
It should also come as no surprise that passage of this bill has alarmed many civil rights advocates and moderate Americans who are frustrated with a ballooning immigration crisis but still respectful of the humanity of many who are simply looking to the chance to earn a living and maintain a productive life.
Two of the bills most vocal proponents are notorious civil rights violators. In the case of Maricopa County Sherrif Joe Arpaio, he faces a federal investigation by the Department of Justice for violations of civil rights after repeated complaints that he racially profiled arrests and coordinated activities with the nativist Minute Men who routinely patrol the Arizona border.
Worse is Sen. Russell Pearce, author of the legislation who has open and unapologetic ties and friendships with Arizonans tied to neo-Nazi movements like J.T. Ready. In 2006 Pearce was even caught forwarding an anti-Semitic email to his supporters from the neo-Nazi National Alliance, a move that cost him most Republican support, but not his seat in the Arizona legislature.
There is no doubt that Arizona is struggling with an immigration problem out of control. Phoenix mayor Phil Gordon laid bare this problem eloquently in the Washington Post just after enactment of SB 1070, all but pleading with the American public to neither judge his state for the actions of an extremist legislature nor to follow in its footsteps. And in a time of crushing financial problems this bill threatens to bankrupt the state while it spits on the constitutional principles that are meant to protect us from overreaching and abusive government.
It’s worth noting that perhaps the only domestic policy initiative of the Bush administration was immigration reform, an initiative killed by members of the hard right who who refuse to acknowledge the economic benefits of finding a path to legal residency for those who are seeking nothing short of the ability to take care of themselves and their families. Yes the federal government needs to act on this issue, and it needs to act immediately. So it is time the hard right gets out of the way.
SB 1070 will most likely be found unconstitutional on the basis of federal preemption, but until then Arizona and this country must face the ugly truth of hate and racism that drives this bill. A narrative by supporters that this bill is anything short of that is disingenuous given the nativist impulses driving the state and fueling Arizona law enforcement. A mainstream media that simply refers to this bill as “tough” enables and empowers those who believe that only certain individuals are entitled to the protection of our Constitution. But just like the civil rights struggles of fifty years ago, it is time to speak truth to power and fight for the recognition that civil rights are human rights and not the entitlement of a privileged few, and the Constitution is not a tool of the privileged to advance an agenda of hate.
photo courtesy of olycopwatch via Flickr