Earlier this week the U.S. Supreme Court struck down most of Arizona’s tough laws regarding illegal immigration.
The state cannot make it a crime for illegal immigrants to seek work. Nor can it make it a state crime for them to fail to register with the federal government.
The Supreme Court upheld a provision that requires local and state police to question the immigration status of anybody they have stopped or arrested if there is reason to suspect that person is in the country illegally. But Justice Anthony Kennedy, who wrote the majority opinion, warned that “detaining individuals solely to verify their immigration status would raise constitutional concerns.”
Justice Kennedy need not worry. Police officers would never stop individuals for reasons forbidden by the courts. How do I know that?
I know it because of the excellent research done by Judge Jacques Wiener of the 5th U.S. Circuit Court of Appeals.
Judge Wiener dissented in a case from Del Rio, in which lawyers for the driver of a van filled with illegal immigrants argued that the cops didn’t have “probable cause” to stop and search the van. The arrests were based on racial profiling, the lawyers argued, and violated the constitutional prohibition of unreasonable search and seizure.
The lawyers lost their appeal, but in his dissent Judge Wiener documented the legal reality that police always have a rationale that doesn’t involve racial profiling.
Among the actual cases Wiener studied, he wrote, reasons given for searches included these:
- "The vehicle was suspiciously dirty and muddy, or the vehicle was suspiciously squeaky clean."
- "The vehicle was suspiciously traveling fast, or was traveling suspiciously slow (or even was traveling suspiciously at precisely the speed limit)."
- "The (old car, new car, big car, station wagon, camper, oilfield service truck, SUV, van) is the vehicle typically used for smuggling aliens or drugs."
- "The driver would not make eye contact with the agent, or made eye contact too readily."
- "The time of day (early morning, mid-morning, late afternoon, early evening, late evening, middle of the night) is when ‘they' tend to smuggle contraband or aliens."
- "The passengers were slumped suspiciously in their seats, presumably to avoid detection, or the passengers were sitting suspiciously ramrod erect."
By demonstrating that it would accept any of these reasons as constituting “probable cause” for stopping people, the judge wrote, the courts "have now placed the Fourth Amendment's protection of ‘the people' from unreasonable searches and seizures into a state of suspended animation anywhere even remotely close to the Mexican border."
It’s been 12 years since Judge Wiener wrote those words, but we can be confident that both the police and the courts still operate the same way. And that’s why the Supreme Court need not worry that the police will engage in racial profiling.