On May 3 Fox & Friends allowed Kris Kobach, the Republican law professor who helped draft Arizona's new immigration law, to falsely claim that the law "only comes into play after another crime is being investigated." In fact, the law directs police to check the immigration status of those stopped for violations of city and county ordinances, civil traffic violations and other non-crimes.
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Fox & Friends lets Kobach falsely claim "law only comes into play after another crime is being investigated"
From the May 3 edition of Fox News' Fox & Friends:
KOBACH: The law doesn't allow for someone to walk up and say I have a reasonable suspicion that you are here illegally. The law only comes into play after another crime is being investigated. So if you're speeding down the highway at 90 miles an hour, then the officer could pull you over and then if the officer develops reasonable suspicion factors like maybe you have no identification whatsoever, you look like you've been on a long journey, you've got a backpack from the desert and you've got 15 people crammed into your vehicle, then he could start asking you questions.
In fact, "another crime" is not required under the law for police to check immigration status
AZ law directs police to question immigration status of those they "stop." On April 30, Arizona Governor Jan Brewer signed HB 2162, which made changes to the immigration law (SB 1070) that she signed on April 23. The Arizona Republic reported that these changes include the clarification "that law-enforcement officers shall inquire about the immigration status only of those they 'stop, detain or arrest.'" Police officers "stop" individuals for numerous reasons other than suspected crimes, including non-criminal speeding, expired registration, running a stop sign, and other civil traffic violations.
AZ law directs police to question immigration status of those involved in a "municipal or county code violation." The Arizona government also modified the original law to specify "that a law-enforcement officer would be required to determine the immigration status of a person involved in a municipal or county code violation." According to the Arizona Republic, "City ordinance violations vary by municipality but could include things like loud parties, barking dogs, cars on blocks in the yard or too many renters." The Wonk Room blog recently posted an email reportedly written by Kobach, a law professor and Republican candidate for Kansas secretary of state, to Arizona Republican State Senator Russell Pearce on April 28, which stated:
When we drop out 'lawful contact' and replace it with 'a stop, detention, or rest, in the enforcement of a violation of any title or section of the Arizona code' we need to add 'or any county or municipal ordinance.' This will allow police to use violations of property codes (ie, cars on blocks in the yard) or rental codes (too many occupants of a rental accommodation) to initiate queries as well.
Fox & Friends obscures fact that the law was changed in response to criticism. Fox & Friends hosted Kobach to respond to critics of the Arizona law but neither the Fox hosts nor Kobach mentioned that the law had been modified in response to criticism. As Media Matters for America noted, the law originally required law enforcement officers to check the immigration status of those they suspect of being undocumented during "any lawful contact," which included "victims, witnesses or just people who are lawfully interacting with the police officer," according to a research analyst for the Arizona House Majority. The law as modified by HB 2162 states that the individual must be stopped, detained or arrested by law enforcement for a separate violation before being questioned about immigration status.
Police could reportedly already question immigration status of those suspected of "another crime." The Christian Science Monitor reported on April 15, "Currently, officers can inquire about a person's immigration status only if that person is a suspect in another crime." CNN similarly reported on April 20:
The Arizona state Senate on Monday passed an extensive immigration bill that is widely considered to be some of the toughest immigration legislation in the nation, requiring police officers to determine whether a person is in the United States legally.
Currently, officers can only take that route if a person is suspected in another crime.
Fox & Friends lets Kobach falsely claim "the law expressly forbids any reference to race ... in the enforcement of this law"
From the May 3 edition of Fox News' Fox & Friends:
DOOCY: So if they just look illegal, whatever that looks like, they can't just say hey come here I want to see your papers.
DOOCY: They got to do something wrong to start with.
KOBACH: No and of course a lot of have been claiming that the law will sometime - somehow allow or promote racial profiling. On the contrary, those people should read the law. The law expressly forbids any reference to race, ethnicity or national origin in the enforcement of this law. It was very carefully drafted to avoid that.
In fact, the law allows consideration of race "to the extent permitted by the United States or Arizona Constitution"
AZ law says race, color, national origin cannot be considered by police "except to the extent permitted by the United States or Arizona Constitution." The original law stated that law enforcement may not "solely" consider race, color or national origin "except to the extent permitted by the United States or Arizona Constitution." HB 2162 modified that section to remove the word "solely" but did not remove the exception:[emphasis added]
A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution.
Arizona law professor: "The law still allows the consideration of race as a factor." CNN.com reported on May 1 that University of Arizona law professor Gabriel Chin said that the law "still allows the consideration of race as a factor," but that race cannot be the only factor:
Arizona's law originally said that the attorney general or a county attorney cannot investigate complaints based "solely" on factors such as a person's race, color or national origin. The changes enacted Friday remove the word "solely" to emphasize that prosecutors must have some reason other than an individual's race or national origin to investigate.
But Chin dismissed the significance of that change. Both the federal and state constitutions make it clear that you can "never stop someone exclusively on account of race," he said.
Racial profiling would still occur, he said. "It's always 'race plus' in these situations. ... The law still allows the consideration of race as a factor."