Is Arizona's law really as draconian as its critics say?

Arizona's controversial immigration law does have some legal safeguards.

"When I heard about it, it reminded me of Nazi Germany. It reminded me of South African apartheid." —Hispanic Federation President Lillian Rodriguez Lopez on Arizona's new law to counter illegal immigration.

Racist, Stalinist, Nazi-like (this last from the creator of Family Guy cartoon show, among others). These are just some of the characterizations of Arizona's new law criminalizing illegal immigrants.

Large numbers of protestors march in downtown Dallas, and other large U.S. cities with Hispanic populations, on May 1, 2010 to denouce the controversial Airzona immigration law and urge President Barack Obama to take up a more liberal approach to immigration reform. (L.M. Otero/Associated Press)

The controversial bill, which comes in the run-up to the U.S. mid-term elections in November and has been condemned by President Barack Obama, requires police to question people about their immigration status if they have "reasonable suspicion" they are in Arizona illegally.

It has sparked a flurry of protests, threats of boycotts and lawsuits since its passage on April 19.

Indeed, over 50,000 gathered in Los Angeles alone last week to protest against the new law.

Critics claim the bill is an invitation to racial profiling and will encourage police officers to scour the streets and randomly pluck out tanned-skinned individuals who look like they don't belong.

But are these characterizations of the bill fair?

Safe neighbourhoods

There are an estimated 450,000 illegal immigrants living in Arizona, most doing the kinds of low-wage jobs that are essential to the American economy, which is the case right across the U.S.

But those local law officials and politicians who sought SB 1070, which is also known as Support Our Law Enforcement and Safe Neighborhoods Act, say the impetus for the bill was to quell the rise of violent crime that, these officials say, is linked to the illegal immigrant community.  

Drug trafficking, kidnappings and human smuggling have become a serious problem in the state, which borders Mexico, despite the fact that statistics show the overall crime rate, including violent crime, has actually gone down in Arizona over the past decade.

Mark Gollom is a senior writer with CBC News.

Still, many residents have been clamouring for the federal government to do something to clamp down on illegal immigration.

With neither the former George W. Bush administration nor the current White House having addressed the issue, Arizona's Republican legislators decided to act on their own.

Original wording

The controversy over the new act stems in part from these paragraphs in the original version of the bill:

"For any lawful contact made by a law enforcement official … where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person."

"Any person who is arrested shall have the person's immigration status determined."

Opponents suggested this gives police licence to start harassing all Hispanic-looking people, whether they are illegal or not.

But many critics seemed to have overlooked the fact that the bill stated that "legal contact" had to be made first on an unrelated matter before questions about immigration status could be investigated.

For example, a police officer might stop someone for speeding or running a red light. And only after the stop or detention could police inquire about someone's immigration status.

The key point, which is often overlooked, is that the officer would have needed probable cause, a concept that is well determined in American law, to stop the individual in the first place.

'Lawful contact'

Still, some critics said that the term "lawful contact" was just too vague and that contact could be considered established if someone went up to an officer or some other official to ask for directions.

So, last week, the bill was altered. Lawful contact was taken out and substituted with the phrase "a lawful stop, detention or arrest," with the added proviso that that stop "must be in the enforcement of any other law or ordinance of a county, city or town or this state."

The bill was also changed because the original version stated that complaints can not be investigated if they are based "solely on race, colour or national origin."

Some legislators felt the word "solely" was too ambiguous, that it might be camouflage for certain types of targeting, so that word has now been cut out as well.  

All these changes, however, have done little to cool the overall criticism.

Opponents have slammed a provision in the bill that non-U.S. citizens could be fined and/or jailed if they cannot produce proper documentation.

Obama weighed in on that, saying a Hispanic-American out for an ice cream with his child could be "harassed" if "you don't have your papers."

The proper documentation aspect is what gives this bill its Orwellian feel.

But many overlook the fact that the 1940 Alien Registration Act already makes it a federal crime for non-citizens not to carry proper documentation (as is the case in many Western countries). The new Arizona law simply makes it a state misdemeanor as well.

In fact, Arizona has gone out of its way to mirror the language in the federal act, to ward off law suits in which a judge would be tempted to find the state law in conflict with the federal one. 

Still, the big question remain how one can have a "reasonable suspicion" that someone is an illegal immigrant without the use of racial profiling.

Racial profiling

In an interview with CBC News, Lt. Tammy Villar, a spokeswoman for the Pinal County Sheriff's Office in Arizona, said there are different types of indicators other than using racial profiling.

While the Arizona immigration law was stirring up harsh views, the Arizona Department of Public Safety and other law enforcement officials, including the U.S. Immigration and Customs, arrested nine suspected illegal immigrants and three suspected smugglers at a drop house in Phoenix on April 29, 2010. (Ross Franklin/Associated Press)

She said that seeing a bunch of people crammed into a small vehicle might raise suspicions. As would someone hiding in a trunk or people fleeing the vehicle following a traffic stop.

She said police would also be suspicious if someone, after a traffic stop, was unable to provide an explanation why they couldn't produce a driver's licence or have no record of ever having one.   "I'm not simply going to stop somebody, and I don't have the authority to stop somebody, just because they appear to be of foreign descent," she said.

This law "gives us the ability to further investigate if there's a reason that we might not believe someone is in the country illegally."

Asked whether officers would be just as suspicious, for example, of a bunch of white guys jammed into car, Villar said skin tone is not necessarily a determining feature of someone's origins.

"My kids are Hispanic and their skin is lighter than mine," she pointed out.

Still, it's difficult to see how racial profiling, consciously or not, would not play some role.

But the reality is that all the controversy could end up being moot on constitutional grounds.

The U.S Constitution clearly states that immigration, and the enforcement of immigration, is the responsibility of the federal government, which suggests that Arizona has overstepped its authority — a situation that has led the Obama administration to consider the unusual step of filing its own suit against the Arizona law (as opposed to just letting the courts work this out over time).

What this means is that opponents and even some supporters of the bill, which is slated to go into effect later this summer, three months following the end of Arizona's legislative session, have a "reasonable suspicion" it may never get off the ground.