Many right-wing pundits like Byron York have been defending Arizona's new immigration law by saying that there is a great deal of case law that deals
May 4, 2010

Many right-wing pundits like Byron York have been defending Arizona's new immigration law by saying that there is a great deal of case law that deals with 'reasonable suspicion,' so what's all the fuss?

Anonymous Liberal writes a nice piece that strips their arguments to the bone.

Ramesh Ponnuru makes a similar point, arguing that critics "ignore the fact that the 'reasonable suspicion' standard already exists in case law and is not the invention of the Arizona statute." He writes that "[s]peeding and being Hispanic wouldn't be enough to do it."

This is true, but it ignores some important realities. I completely agree that a judge would interpret "reasonable suspicion" in this context very narrowly. A situation like the one described by York, where the circumstances strongly point toward human smuggling, is just about the only situation I can imagine that would survive judicial scrutiny. Certainly looking Mexican or speaking Spanish would not be enough.

The problem with this logic, however, is that it's hard to see how these decisions will be subjected to judicial review. The reason there is extensive case law interpreting what "reasonable suspicion" means is because defense attorneys routinely move to suppress any evidence procured by way of an illegal stop or frisk, at which point the police must articulate the basis of their reasonable suspicion. If they can't do so to the judge's satisfaction, the evidence is suppressed and the charges are often dismissed. Police quickly learn to follow the rules if they want their charges to stick.

In the immigration context, however, there is no evidence to suppress. Defense attorneys will not have an obvious mechanism for contesting the reasonability of the request for documentation. I can see an occasional civil rights complaint filed by the ACLU or a similar group, but I don't see what circumstances would lead to any kind of routine judicial review of these decisions. The police will largely be on the honor system.

And that's why this law is so problematic. It a recipe for police abuse, for unchecked racial profiling. And even if the police generally do a good job of controlling themselves, the mere spectre of such abuse will only drive the undocumented community farther underground. There will be no cooperation with the police. No reporting of crimes. More fleeing the scene of accidents. More children not getting medical care because their parents are afraid to take them to the hospital. It's just really bad policy.

it's tough to win when there's no evidence to suppress, I confess. (Bad rhyme) A judge is almost always going to side with a police officer except when there's insurmountable evidence to support your claim. In these situations that's never going to happen.

Have you ever been to court on a traffic ticket after you dispute it? You might be completely right and did stop at that red light or signaled before you made that right hand turn, but as long as the officer shows up to court---you're guilty as charged.

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