As has been discussed previously on this blog, no one can really can say what gives rise to a reasonable suspicion that a person is undocumented.  This lack of a non-racial basis for determining what raises reasonable suspicion renders the ban on racial profiling dead letter.  Without articulable standards, an officer has broad leeway to invent whatever reasons he chooses for finding a particular person suspicious, and as long as he avoids saying, “Well, doesn’t she Mexican to you?” it will be nearly impossible to prove that the ban on racial profiling has been violated.  The lack of articulable standards also means that enforcement of the law will be imprecise, and many people will be asked for papers who are American citizens or legal residents.  Because being Latino is a baseline requirement for suspicion of being undocumented in Arizona, whether we admit it or not and regardless of whatever other factors may or may not exist, this burden will be borne solely by the Latino community even if police officers act in good faith and do not target anyone solely for being Latino.

The “the bill doesn’t allow racial profiling because we say it doesn’t allow racial profiling” argument follows similar logic to the infamous John Yoo “what we’re doing isn’t torture because I’m telling you it isn’t torture, and in any case the United States doesn’t torture anyone ’cause that would be illegal” memos.  Given the racial dynamic to this issues, perhaps a better analogy would be the “separate but equal” fiction that American law recognized in the nine decades between the adoption of the 14th Amendment and Brown v. Board of Education.  Much like the Arizona bill’s “no racial profiling, honest” provision, the separate but equal doctrine lent segregation a sheen of neutrality that was completely detached from the reality of what motivated Jim Crow laws and how they were actually experienced.   Sure, blacks can’t go to white schools, but whites can’t go to black schools either, so who really gets to complain?  Fortunately, the Warren Court intervened in Brown, saying, in essence, “Jesus Christ, you fucking assholes!”

In full disclosure, I myself have not read the entirety of the Arizona’s immigration law.  Nor have I read the actual text of, for example, Mississippi’s pre-Brown school segregation laws.  I have no hesitation about condemning either.

-AR