Saturday, May 8, 2010

Arizona Bill 1070, a “probable cause” based on race and ethnicity

I remember an argument that the late David Brudnoy, a well-known and respected WBZ Boston talk radio host, made in support of profiling back in 2002. The issue then was terrorism. He analogized profiling with the story of a midget who robbed a local gas station. The police radio dispatch confirmed the perpetrator to be a midget. The police observed a midget a few miles away and arrested him for the crime. Brudnoy’s conclusion, if the police had not used profiling they would not have made the arrest.

The problem with Brudnoy’s analogy is that the profiling was in association of a midget with a particular crime. The police were not assuming that all midgets are armed robbers and, therefore, they are suspects in armed robberies, giving them authority and a responsibility to stop, search, and interrogate midgets.

The Arizona Law, Bill 1070, mandates that illegal immigration, which heretofore has been adjudicated under civil law, now will be adjudicated under criminal law. And, so, by making undocumented immigration a criminal offense, it requires law enforcement to take action when there is “probable cause” that someone has committed a crime. Under criminal law, “probable cause” is the standard by which a police officer with reasonable suspicion has the authority to conduct a personal or property search, and to make an arrest.

The Bill 1070 problem is that it’s not about Greeks, Italians, Poles, or New Zealanders -- it’s about Hispanics! It’s not about illegal immigration, per se, it’s about brown skinned, dark haired, Spanish-speaking people who easily can be identified (profiled) and thereby giving a police officer sufficient “probable cause” to detain, search, interrogate, and make an arrest.

Elena Letona, the associate director of the Massachusetts’s chapter of the National Alliance of Latin American & Caribbean Communities, put it succinctly when she told a noisy crowd of demonstrators on Boston Common: “It means not looking white. It means not sounding white. It means those who do not conform to a certain idea of what Americans should look like.’’

Arizona’s problem with illegal immigration, human trafficking, and drug smuggling is understandably acute. However, Arizona does not need to change the law when there are laws in place for the criminal behavior of human trafficking and drug smuggling. Evidently, what Arizona does not understand is that there are civil liberty laws that are in place and a U.S. Constitution that defends those liberties.

Traveling as a road musician in the Deep South of the early 60’s, it was common to see black Americans detained along-side any road or highway, some even spread-eagle with police officers standing over them. It was so common that it prompted the question to my fellow musicians who traveled these states for a long time -- why? The answer, they were being harassed and detained because of their race, not because they committed a crime.

At the time, not many northerners condemned the incivility and that outrageous police behavior in the south, and many even supported it.

The Boston Globe reported, “The Boston City Council approved a resolution Wednesday that urges the city to curtail economic ties with Arizona by pulling investments, ending city contracts and halting purchasing agreements to protest the state's recently passed immigration law.”

I support that resolution. I only wish Massachusetts and other states would follow suit. My fear is that, like my experience in the Deep South, Arizona will be harassing and detaining Hispanics along her streets, roads, and highways, with police officers standing over them, without any “probable cause” other than their race and ethnicity that may be adopted by other states, as well.