State law professor claims SB1070 'expressly authorizes racial profiling'

PHOENIX - Professor Gabriel Jackson Chin argues that Arizona's immigration law doesn’t just create a probability of racial profiling, but authorizes it.

Chin is a professor of Law at the University of Arizona’s James E. Rogers College of Law.

The reason for his stance on SB1070 is due to his legal interpretation of this line, “A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not solely consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the Unites States or Arizona constitution.”

He points to the last 12 words of that sentence, “…except to the extent permitted by the Unites States or Arizona constitution.”

Chin told ABC15, “There is an exception which points to the United States and Arizona constitution and as examples there are decisions in both the United States and Arizona Supreme Court that authorize consideration of appearance, Mexican ancestry in the enforcement of immigration law.”

He is referring to 1982’s State V. Graciano decision in the Arizona Supreme Court and the 1975 United States Supreme Court Case United States V. Brignoni-Ponce.

Chin explains, "It says that law enforcement officers can build probable cause to investigate whether someone is an illegal entrant based on their apparent Mexican ancestry and there's an Arizona Case called Graciano that's the same effect. Now both of these cases say law enforcement agencies can't act based on race alone, but it never is race alone, it's always race under the circumstances. So the location, other aspects of the appearance, the license plate of the car, but all of those non-racial factors can be considered along with the person's race and that's true as a matter of Arizona and Federal constitutional law and those exceptions are brought in through SB1070, through the text of the statute."

Chin goes on to say that the U.S. Supreme Court and the Arizona Supreme Court have essentially authorized consideration of race as a factor.

"Not for other crimes, it can't be considered for other crimes," he clarifies. "You can't look at a person and say 'Well you are of a particular race and so therefore I'm going to take that into account in suspecting you of burglary or armed robbery,' but on suspicion of being an undocumented person in the United States race is a permissible factor.”

ABC15 contacted Governor Jan Brewer's Office, Arizona State Senator and co-sponsor Russell Pearce, and the state’s attorney defending SB1070 in federal court, John Bouma. None of them returned our phone calls.

ABC15 also called one of the bill’s authors, University of Missouri–Kansas City Law School professor Kris Kobach. Kobach is an attorney who also helped author Arizona’s employer sanctions law and has done work for the Federation for American Immigration Reform group. His is currently running for Secretary of State in Kansas.

Kobach agreed to an interview Monday night, but when ABC15 contacted him by phone, text, and e-mail he did not respond. This is uncommon for Kobach who is generally accessible.

Earlier in the day he said that Chin’s interpretation is incorrect. Kobach is familiar with the 1975 U.S. Supreme Court case but said that is not the intent of the exception.

He said it was included in the case race is a consideration, such as a suspect description. Or if a case arises where law enforcement notice a person’s legal documents don’t appear to match the individual’s race.

Chin added, “SB1070 expressly authorizes racial profiling and maybe it requires racial profiling because it says that law enforcement agencies can be sued if they don't enforce federal immigration or if they prohibit enforcement of federal immigration law to the full extent permitted by federal law. So if a police agency said, ‘Don't consider race when you are considering make an arrest for an immigration crime,’ then there would be an argument that they are violating SB1070 which says you can't restrict enforcement to less than the full amount permitted by federal law.”

Chin said, “The text of the law says law enforcement agencies and officials cannot consider race, color, or national origin except as permitted by the United States and Arizona constitution. It's in there four times and so the question is, if somebody says this absolutely prohibits consideration of race then the question to them is, why is there an exception in there? What is the purpose of saying 'except as permitted by the United States and Arizona constitution' if this is meant to flatly prohibit consideration of race? If you meant to flatly prohibit consideration of race wouldn't you just have said you can't consider race, color or national origin period?”