By Frank James
John Kavanagh, an Arizona state representative and sponsor of the state's new law meant to combat illegal immigration, was on C-SPAN Thursday morning explaining that its critics are wrong about the law allowing racial and ethnic profile.
A former policeman with a PhD from Rutgers University in criminal justice, Kavanagh said the new law actually reinforces a ban on such profiling.
To those who say the new law would require people to produce their immigration papers, Kavanagh said the federal law currently requires non-citizens to carry documents to show they are in the U.S. legally. Arizona law merely incorporates the federal law, he said.
The law authorizes police officers after they stop someone for a perhaps a traffic violation to build on questions they would normally ask.
If the stopped person's answers lead to more questions about legal status, once there's probable cause to suggest the person is in the U.S. illegally, only then could the officer arrest the individual.
Police officers can't stop anybody and say "Are you here legally?" and question them about their immigration status. Under this law the police officer must have reasonable suspicion to believe the person's here illegally. And this will almost always only occur after the person has been lawfully stopped for some other offense, maybe it could be a traffic offense.
So a police officer pulls over somebody who maybe rolls through a stop sign, walks up and says "License and registration."
The individual says "Well, I don't have a driver's license on me."
The officer says "Well, why not?"
Driver says: "It's suspended."
"Well what's your name and date of birth?"
Gives it. The officer goes to his radio. Checks the records because you can cross check licensing information. Discovers there is no such issued license. Goes back to the driver.
"Hey, there's no license issued in your name. What do you mean suspended?"
"Oh, ahh, well, uhh I don't have an Arizona license. It's a Mexican license, I came from there."
"Oh. When did you come? How'd you get here legally? Where'd you go to get the form? Did they give you paperwork? Do you have documents? Oh. you have a green card. What color is that card? Green? Well, you know green cards aren't green."
That's how you build up reasonable suspicion. Police officers, when there are independent observable facts that just create suspicion, all that allows us is a brief questioning about immigration status.
During the questioning, the police officer is going to look for lies, conflicting answers or he may look for evasive answers. And as the person gives those and as he observes other things, each response is another grain of sand. And it goes on a scale.
And the stop occurred because there was reasonable suspicion.
(Actually, Kavanagh said the stop originally took place because of a traffic infraction. The above statement sounds like profiling. Also, police can often find any number of reasons to stop someone, especially for a traffic violation. A brake light that's out, entering an intersection just before the red light, an expired tag, exceeding the speed limit by a mile. Making these stops won't be difficult, especially since some of these reasons are judgment calls by police officers.)
If it doesn't go beyond that level of proof, the person is not going to be detained for immigration status.
But as the lies and the inconsistencies and the evasive answers increase, at some point that scale is going to tip to probable cause that the person is here illegally and the person's detained.
But if the question doesn't yield the additional information to go to probable cause, this person will be released, just like a person who was stopped because there was suspicion that he was burglarizing a store will be released when the cop goes to the back of the store and sees there was no break in.
It's a half century old police tool that police are used to working with. And we're updating every Arizona police officer with training before this law takes effect in 90 days, that will give him good and bad reasons to suspect illegal status in this country.