Civil Rights Groups Ask: Is Arizona’s SB1070 Even Legal?

By Julianne Hing Apr 24, 2010

In the days leading up to Arizona Governor Jan Brewer’s decision today to sign SB1070 into law, many spoke with confidence that if passed the bill would be found unconstitutional. "Lawsuits are going to be filed immediately," Isabel Garcia, co-chair of Coalición de Derechos Humanos, said before Brewer signed SB1070. While activists are planning their next moves on the ground, civil rights groups like the ACLU and MALDEF are poring over SB1070’s language to determine its legality. Many argue that because the bill will allow, and indeed force law enforcement to rely on discriminatory policing and racial profiling, it will be overturned should it face a legal challenge. Yet when Gov. Brewer signed SB1070 into law this afternoon, she said explicitly that even though SB1070 was now law, racial profiling as a practice was still illegal. "Racial profiling will not be tolerated," Brewer said, and repeated again later, "I will not tolerate racial discrimination." SB1070 demands that police officers inquire about the immigration status of every person they have an interaction with who they believe to be undocumented. The law makes it a state crime to fail to register with the Department of Homeland Security, and makes it illegal to hire or give a ride to people who are undocumented. "There are many constitutional problems with the bill and we are exploring litigation," said Annie Lai, a staff attorney with the ACLU of Arizona. MALDEF issued a statement after SB1070 became law:

MALDEF and others will be pursuing all legal avenues to challenge this law. We have every expectation, based upon judicial precedent and unquestioned constitutional values, that SB 1070 will be enjoined before it can ever take effect.

Brewer said that because she cared so much about preventing racial profiling, she had amended the bill’s language recently to include new clauses that would prohibit law enforcement from "solely considering race, color, or national origin." She announced that she had issued an executive order to develop training for the implementation of SB1070. But when later pressed about the profile criteria police officers would be expected to use, Brewer stumbled, revealing that she knows SB1070 relies on racial stereotypes to criminalize people of color in her state. "Back in the day when they were looking at drug couriers it used to be ‘driving while Black,’" said Lai. "Today it’s really like ‘driving while Black, Brown, Indian.’" Lai added that only the most strict policy, like strong and transparent data collection, had proven successful to prevent racial profiling by cops. "But in the context of immigration enforcement, I don’t think any combination of safeguards would ever be enough to ensure that no person would ever be racially profiled." poster design: Edmundo Duran