My Letter to Governor Brewer

The Honorable Jan Brewer
Governor of Arizona
1700 West Washington
Phoenix, AZ 85007

Dear Governor Brewer:

You live in a beautiful state.  I've had the pleasure of visiting southeastern Arizona on two occasions in the 1990s while birding with a college roommate.

I continue to have serious concerns about SB1070 (http://www.azleg.gov/legtext/49leg/2r/bills/sb1070s.pdf).   I realize it's not really my place as a resident of California to be commenting about Arizona law, but I feel I have some first-hand experiences which you may benefit from reading and I hope with some small, but important changes, the law may be made non-discriminatory, as in not treating people differently based on race.

Illegal immigration is an admittedly serious problem and I can see it contributing to unemployment, crime, and other state woes.   I understand Arizona has an estimated 485,000 illegal immigrants which stresses state infrastructure (roads, utilities, hospital emergency rooms, police, fire, etc), and in particular that some immigrants may be enjoying social services or education to which they are not legally entitled.  I can also appreciate that it doesn’t seem fair for U.S. born children of illegal immigrants to receive education or social service benefits based on their parents’ illegal status.  However, for better or for worse, the constitution is clear on the definition of U.S. citizenship and the rights bestowed upon citizens.  In the end, I concur with sentiment of Arizona that the federal government needs to do much more, or empower states to do more, to stop illegal immigration.  And I wholeheartedly agree with portions of SB1070 such as “LAWA requires all Arizona employers to use E-Verify to verify the employment eligibility of new hires.” 

My key points of contention are:

1. Despite all politically correct public statements to the contrary, it seems the amended law still legally allows race as a factor through its exception clause in determining reasonable suspicion of illegal status. 
2. Might the law lead to racial profiling, in practice, in determining reasonable suspicion of illegal status?

I was shocked by the wording in the original SB1070 and your executive order “race, color or national origin cannot solely be grounds for reasonable suspicion”.  The strong implication was that race could be a factor.  While I am happy to see “solely” removed as part of HB2162, the following reasonable suspicion and exception clauses on pp.4-5 - http://www.azleg.gov/legtext/49leg/2r/bills/hb2162c.pdf are of great concern. (The bold is mine.)

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 H.B. 2162 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. Any person who is arrested shall have the person's immigration status determined before the person is released. The person's immigration status shall be verified with the federal government pursuant to 8 United States code section 1373(c).  A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not solely 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.

The clause “where reasonable suspicion exists,” a lower legal standard than probable cause, is ripe for race to be considered as a factor.  Refer to the last sentence of the Opinion of the Court in UNITED STATES v. BRIGNONI-PONCE, 422 U.S. 873 (1975)   http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=422&invol=873

The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens.

If you truly want the law to not treat people, including many U.S. citizens and legal residents, differently based on race, then I humbly request the following three changes to legally and unambiguously state your opinion: 

1. Amend the law to provide explicitly that race cannot and will not be used as a criterion for a lawful stop, detention, or arrest, except that officers may rely on race and ethnicity in a specific suspect description. 
2. Remove the clause “where reasonable suspicion exists that the person is an alien” and instead state that proof of immigration status is required for anyone and everyone during a lawful stop, detention, or arrest.  (While your initial response may be to deem this as impractical or inefficient for law enforcement, my proposal is a straight forward solution to guarantee everyone is treated consistently and that race cannot unintentionally, covertly, or openly be used as a differentiating factor.  And there is precedent.  Everyone is asked at border crossings or when flying in from overseas.  Everyone is asked, or at least should be asked, before starting a job.) 
3. For consistency with item 1 above, remove the clause “except to the extent permitted by the United States or Arizona Constitution”.

I can say from first hand experience that well meaning individuals have rather poor abilities in predicting whether someone is a U.S. citizen or not.  Over the years, so many times it’s been assumed I am from India or I've been asked where am I from (as in what country) vs. white friends, some even born in Europe, who have not been asked.  I was born in the U.S. and am well-educated with a Princeton bachelor’s degree and double-major in electrical engineering and the Woodrow Wilson School of Public and International affairs and a Stanford master’s degree in electrical engineering.  I have no accent, am an Eagle Scout, am athletic, pay my federal and state taxes, tithe to my church and community, volunteer as a Eucharistic minister at Stanford Hospital, and otherwise am as all-American as the next person.  A logical hypothesis might be that I'm asked because my skin color isn't white.  I am a VP of engineering at a $10B market cap Silicon Valley company.  I have witnessed, once as the employee and once as a supervisor, where whether a person was white or not directly influenced whether they were asked if they needed or were inferred to need an export license – something required only for foreign nationals of certain countries.  I took corrective action, but as you can see, even trained managers, erroneously relied on physical appearance or race. Just as when you were asked what criteria will be used to establish reasonable suspicion of someone's legal status, you said, "I don't know. I do not know what an illegal immigrant looks like,” the fact is there are no reliable visible criteria or behavior.  You either have to ask everyone or ask no one.

Extrapolating to bills SB1070 and HB2162, I am certain the good law-enforcement officials of Arizona during lawful stops, detention, or arrest, will struggle to properly identify when reasonable suspicion exists that the person is an unlawful alien and ask for proof of legal residency.  While there are arguably a large number of illegal immigrant Latinos, there are almost certainly vastly more Latinos residing in Arizona who are U.S. citizens and/or legal residents, therefore if race were used as a factor, one could expect the police to make mistakes in their reasonable suspicion more often than they are right.  While you may achieve the goal of dissuading undocumented workers from residing in Arizona, the other likely result will be that legal Latinos in Arizona feel compelled to carry proof of legal residency to avoid a misdemeanor while African Americans, many Asian Americans, and white Caucasians will continue to enjoy no such implicit restriction.  That is not equal protection under the law.

I hope you will consider my three recommended changes to strengthen SB1070 by treating everyone equally.  I would like to see the law, not just rhetoric, written to follow the Department of Justice recommendations pertaining to domestic law enforcement in http://www.justice.gov/crt/split/documents/guidance_on_race.php, in particular section I, subsection A.

Sincerely,
Arjun Prabhu