Volume 31

Arizona’s Anti-Immigration Law and the Pervasiveness of Racial Profiling

by Paige Newman

Arizona’s Senate Bill 1070 (S.B. 1070) was passed in 2010 as an anti-illegal immigration measure and subsequently became known as one of the broadest and strictest laws of its kind at the time it took effect.1 The law, entitled “Support our Law Enforcement and Safe Neighborhoods Act,” requires police to determine the immigrant status of someone arrested or detained when there is “reasonable suspicion” they are not legally in the United States.2 Various civil rights groups and organizations, including the American Civil Liberties Union (ACLU), contested the law, arguing that it is a form of racial bias against immigrants. The federal government challenged the law on the theory that Arizona, through enactment of the law, was infringing upon the government’s superior power to enforce federal immigration law.3 In 2012, the Supreme Court of the United States heard Arizona v. United States, where the Court nullified three of the law’s four provisions, either because they operated in areas controlled by federal policy or because they interfered with federal immigration enforcement efforts.4 However, the Court left one contested provision intact—section 2(B), referred to as the “show your papers” provision, requires police to arrest anyone they believe has committed a crime and whom they think is in the country illegally, and hold the individual until their immigration status can be checked with federal officials.5

Section 2(B) arguably lends itself to rampant racial profiling against Latinos, Asian-Americans, and others presumed to be illegal immigrants solely based on their appearances, by requiring police officers to demand the papers of the people they had “reasonable suspicion” to believe were in the country illegally. In September 2016, through a settlement with the National Immigration Law Center and other immigrants’ rights groups that sued six years ago after the enactment of S.B. 1070, Arizona announced an end to its practice of enforcing section 2(B).6 As part of the settlement, Arizona Attorney General Mark Brnovich issued an informal opinion in which he instructed police officers to ignore the “show your papers” provision of the law.7

This paper argues that despite the decision to stop enforcing the “show your papers” provision of S.B. 1070, rampant racial profiling will likely still take place in Arizona and other border states. Section II will provide a background on S.B. 1070, including its legislative history, the challenges to the law offered in Arizona v. United States, and the settlement over section 2(B). Section III will consider the history of stop-and-frisk laws in New York City and how the various changes to the stop-and-frisk programs set forth to combat the problem of racial profiling in the city have not been as successful as intended. Section IV will compare the racial profiling surrounding stop-and-frisk laws with that stemming from S.B. 1070, and argue that despite the decision to no longer enforce section 2(B), racial profiling against immigrants in Arizona will continue at a high rate, just as it does against African Americans in New York City. Finally, Section V will offer possible remedies to deal with the racial profiling that occurs despite laws like S.B. 1070 and stop-and-frisk programs that are intended and designed to stop a problem, but do not always have that desired effect.

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1. S.B. 1070, 49th Leg., 2d Reg. Sess. (Ariz. 2010); David A. Selden et. al., Placing S.B. 1070 and Racial Profiling into Context, and What S.B. 1070 Reveals About the Legislative Process in Arizona, 43 ARIZ. ST. L.J. 523 (2011).

2. S.B. 1070, 49th Leg., 2d Reg. Sess. (Ariz. 2010).

3. See Ann Morse, Arizona’s Immigration Enforcement Laws, Nat’l Conf. of St. Legislatures (July 28, 2011), available at http://www.ncsl.org/research/immigration/analysis-of-arizonas-immigration-law.aspx.

4. See Arizona v. United States, SCOTUSBLOG, http://www.scotusblog.com/case-files/cases/arizona-v-united-states/ (last visited October 5, 2016).

5. Supreme Court Decision on the Arizona Immigration Law, SS+D Immigration Law Center (Aug. 20, 2012), http://ssdlaw.com/immigration-law/supreme-court-decision-on-the-arizona-immigration-law/.

6. David Schwartz, Arizona Police will No Longer Stop People to Check Immigration Status, REUTERS, Sept. 15, 2016, http://www.reuters.com/article/us-arizona-immigration/arizona-police-will-no-longer-stop-people-to-check-immigration-status-idUSKCN11M05D.

7. Id.