Opponents of the new Arizona immigration law, including President Obama, paint a wild picture of jack-booted Nazis stopping innocent folk on the street for no reason but their race, to demand their “papers.” The critics– either ignorantly or knowingly– criticize a legal principle that is well established in law and court precedence.

Nothing new is happening in Arizona.

Reasonable Suspicion, which is at the center of the debate over the Arizona law, is a level of proof that justifies a certain level of force by the government (usually as represented by police officers). The detention of a suspected illegal immigration in Arizona– or any state, for that matter– cannot be based on a mere whim or just because the suspect is Hispanic. That protection from unreasonable search and seizure existed long before the Arizona law, even for illegal aliens.

There are three primary levels of proof:

• Reasonable Suspicion
• Probable Cause
• Proof Beyond a Reasonable Doubt

The latter is the level of proof required to deprive someone of their freedom for a period of days or years; in other words, to throw a person in jail. It is a more than Probable Cause but less than “Proof Beyond All Doubt.”

Probable Cause is the level of proof that is required to deprive a person for a temporary period, as in an arrest. It is less than Proof Beyond a Reasonable Doubt but more than Reasonable Suspicion. Probable Cause is defined as a set of facts and circumstances that lead a reasonable person to believe that a crime has been committed and that the person being arrest is the one who committed the crime.

Reasonable Suspicion is the lowest level of proof required to deprive a person of their freedom for a minimal period of time. Reasonable Suspicion is a set of facts and circumstances that lead a reasonable person to conclude that criminal activity is afoot and that the person being detained may be involved in the activity.

Because Reasonable Suspicion is a lower level of proof, it can justify the temporary detention (“seizure”) of a person for only as long as it takes to either dispel the officer’s suspicion or to confirm it.

Race is a legitimate component of reasonable suspicion. As a former law enforcement officer, I often used race in building the reasonable and articulable (meaning that I could explain it) suspicion required to stop someone. Here is a court-tested example of the dozens of reasonable suspicion stops that I made:

I am an officer monitoring car traffic, late at night, in a housing project that is known for street-level sales of cocaine. The area is “one way in, one way out,” meaning that there is no legitimate reason for someone to simply pass through the neighborhood on the way to somewhere else. The project is inhabited almost 100% by black families; what white folks that live in the project are in another area. A white male drives through the project slowly, even stopping in the middle of the road at one point. I stop (seize) that person with a reasonable suspicion that a crime is or is about to occur. In court after the subsequent arrest, I can explain the facts and circumstances that justified my limited “reasonable suspicion” stop:

1. A white male in a black neighborhood (race);
2. The project is a known area for drug sales;
3. Late at night, not a common time for a white male to drop off a co-worker (a legitimate reason for being there). It is not a neighborhood with through-traffic;
4. Driving slowly and stopping in the roadway which, from my experience, is common for people looking for a cocaine dealer.

As you see, race is one of four primary factors justifying the temporary detention of the suspect for further investigation. As soon as my suspicion is dispelled, I have to turn him loose. If my investigation uncovers additional evidence, I may then have developed probable cause (the next level of proof) to arrest the person.

Also, my experience is a key element of reasonable suspicion. The above circumstances might not mean anything to the lay-person, but to someone who has been trained in what constitutes a crime and made numerous arrests (resulting in convictions) under similar circumstances, the four circumstances above are typical of a street-level drug deal in that area.

The Arizona law simply makes being in the country illegally a state crime and codifies the authority that officers already have to investigate criminal activity. The new law does not give Arizona law enforcement any more authority than they already have.

More About the Arizona Law

The new law recently signed by the governor of Arizona, SB 1070, makes it a state crime to violate some federal immigration statutes. While the law is extremely popular in the state, with 70 percent of Arizona voters approving of it and just 23 percent opposed, it has raised controversy. Below is a brief summary of the relevant information on illegal immigration in Arizona, followed by a short analysis of SB 1070’s major provisions.

Illegal immigration in Arizona:

* The federal government estimated that Arizona had one of the fastest growing illegal immigrant populations in the country, increasing from 330,000 in 2000 to 560,000 by 2008.

* Arizona has adopted other laws to deter the settlement of illegal immigrants in the state in recent years. The federal government estimates that the illegal immigrant population dropped by 18 percent in the state from 2008 to 2009, compared to a 7 percent drop for the nation as a whole. This may be evidence that the state enforcement efforts are having an impact.

* The Maricopa County Attorney’s Office has found that 22 percent of felonies in the county are committed by illegal immigrants. Illegal immigrants are estimated to be 10 percent of the county’s adult population.

* Analysis of data from State Criminal Alien Assistance Program showed that illegal immigrants were 11 percent of the state’s prison population. Illegal immigrants were estimated to be 8 percent of state’s adult population at the time of the analysis.

* Approximately 17 percent of those arrested by the Border Patrol in its Tucson Sector have criminal records in the United States.

* The issue of illegal immigration and crime is very difficult to measure, and while in Arizona there is evidence that illegal immigrants are committing a disproportionate share of crime, it is not clear this is the case nationally.

* In 2007, the Center for Immigration Studies estimated that 12 percent of workers in the Arizona are illegal immigrants.

* In 2007, the Center estimated that illegal immigrants and their U.S.-born children (under 18) comprise one-fifth of those in the state living in poverty, one-third of those without health insurance, and one out of six students in the state’s schools.

* In 2007, the Center estimated that one-third of households headed by illegal immigrants in Arizona used at least one major welfare program, primarily food-assistance programs or Medicaid. Benefits were typically received on behalf of U.S.-born children.

* The new law (SB 1070) is extremely popular among Arizona voters. A Rasmussen poll found that 70 percent of voters approve of the new bill, and just 23 percent oppose it.

Among the new law’s provisions:

* The new Arizona law mirrors federal law, which already requires aliens (non-citizens) to register and carry their documents with them (8 USC 1304(e) and 8 USC 1306(a)). The new Arizona law simply states that violating federal immigration law is now a state crime as well. Because illegal immigrants are by definition in violation of federal immigration laws, they can now be arrested by local law enforcement in Arizona.

* The law is designed to avoid the legal pitfall of “pre-emption,” which means a state can’t adopt laws that conflict with federal laws. By making what is a federal violation also a state violation, the Arizona law avoids this problem.

* The law only allows police to ask about immigration status in the normal course of “lawful contact” with a person, such as a traffic stop or if they have committed a crime.

* Estimates from the federal government indicate that more than 80 percent of illegal immigrants come from Latin America. Thus, there is concern that police may target only Hispanics for enforcement.

* Before asking a person about immigration status, law enforcement officials are required by the law to have “reasonable suspicion” that a person is an illegal immigrant. The concept of “reasonable suspicion” is well established by court rulings. Since Arizona does not issue driver’s licenses to illegal immigrants, having a valid license creates a presumption of legal status. Examples of reasonable suspicion include:

• A driver stopped for a traffic violation has no license, or record of a driver’s license or other form of federal or state identification.
• A police officer observes someone buying fraudulent identity documents or crossing the border illegally.
• A police officer recognizes a gang member back on the street who he knows has been previously deported by the federal government.

* The law specifically states that police, “may not solely consider race, color or national origin” when implementing SB 1070.

* When Arizona’s governor signed the new law, she also issued an executive order requiring the Arizona Peace Officer Standards and Training Board to provide local police with additional training on what does and what does not constitute “reasonable suspicion.”

(Information about the new law furnished by The Center for Immigration Studies, an independent non-partisan research institution that examines the impact of immigration on the United States. It is not involved in drafting legislation and has not formally endorsed or opposed SB 1070.)