Fox & Friends claims Obama smeared police when he expressed concerns about AZ law

Malkin: Obama “casting each and every” law enforcement official in this country as “a potential bigot.” On the May 20 edition of Fox News' Fox & Friends, during a discussion of Obama's remarks, Fox News contributor Michelle Malkin called them a “galling smear of every law enforcement officer in this country at the local, state, and federal level, casting each and every one of them as a potential bigot.”

Carlson asks, "[W]as that a slap in the face to our law enforcement?" Previewing the segment with Malkin, co-host Gretchen Carlson said, “President Obama standing with Mexico's president and then slamming America's new immigration law.” After airing a clip of Obama saying, “I think the Arizona law has the potential of being applied in a discriminatory fashion,” Carlson asked: “So, was that a slap in the face to our law enforcement?”

Doocy: Obama's remarks are “kind of embarrassing if you're in law enforcement.” After airing a clip of Obama saying, “I think the Arizona law has the potential of being applied in a discriminatory fashion,” and that “a fair reading” of the law “indicates that it gives the possibility of individuals who are deemed suspicious of being illegal immigrants from being harassed or arrested,” co-host Steve Doocy said, “That's kind of embarrassing if you're in law enforcement.”

Doocy: Calling the bill “racial profiling” is “a damning indictment of the law enforcement officers.” During a segment with New Mexico Gov. Bill Richardson, who called the Arizona law “unconstitutional,” a “bad bill,” and “racial profiling,” Doocy said: “For you to continue to say that it, you know, has the potential to be racial profiling, I mean, that's a damning indictment of the law enforcement officers who are out there on the front lines.” Richardson later responded: “What I am criticizing is the Arizona legislature putting this very, very bad bill. In fact, I sympathize with the law enforcement officers, many of which are against this bill, because you're giving them an impossible task. These are good law enforcement officers; now you're making them immigration officers asking people for their papers, and I believe racially profiling, which I think is wrong.”

Law enforcement officers have said the law could encourage racial profiling

Phoenix Police chief: "[V]ery difficult not to profile" in implementation of this law. Phoenix Public Safety Manager and Police Chief Jack Harris has reportedly said, “The problem with this legislation is it puts my officers in a very difficult position with litigation.” The Associated Press also reported on May 17 that Harris said “it's very difficult not to profile” when implementing “a law that leads a state down this path, where the enforcement is targeted to a particular segment of the population”:

Several Arizona police chiefs and sheriffs say, as hard as officers try not to profile, enforcing the law will inevitably lead to it. They say it will end up taking time away from solving crimes in their cities and towns.

“When you get a law that leads a state down this path, where the enforcement is targeted to a particular segment of the population, it's very difficult not to profile,” said Phoenix Police Chief Jack Harris, a critic of the law.

Tucson police officer lawsuit: "[T]here are no race neutral criteria or basis to suspect or identify who is lawfully in the United States." The Arizona Republic reported on May 15 that Phoenix police officer David Salgado and Tucson police officer Martin Escobar have separately filed lawsuits to stop the immigration law. According to the Republic, Salgado “says that to enforce the law, he would violate the rights of Hispanics,” and that “Escobar's suit claims the new law compels him to engage in racial profiling to prove legal status.” Escobar's complaint states that “there are no race neutral criteria or basis to suspect or identify who is lawfully in the United States” and that in his experience, proximity to the Mexican border, clothing, language, and other factors do not provide such race neutral basis for suspicion.

Pima County sheriff reportedly said law could lead to racial profiling. In a May 14 Orange County Register column, David Whiting reported that Pima County Sheriff Clarence Dupnik “says his department already arrests undocumented aliens, and that the law could lead to racial profiling and costly lawsuits by both advocates and opponents.” Whiting also reported that Dupnik said that “the bill will encourage citizens to sue police departments for not enforcing the statute while, at the same time, it will prompt others to sue because it encourages racial profiling.”

Sacramento police chief: Law is “discriminatory.” A May 18 Arizona Republic article reported that “law-enforcement leaders from Maryland, California and Nevada said ... that they oppose Arizona's new immigration law” and stated that Sacramento Police Chief Arturo Venegas Jr., “who founded the Law Enforcement Engagement Initiative last year to encourage discussion about immigration enforcement, said the Arizona law is 'discriminatory' and targets Hispanic populations.”

Legal experts have also expressed concerns about possible racial profiling, civil rights violations

AILA: How can police “differentiate between an undocumented alien, documented alien, or U.S. citizen who happens to be brown skinned and speak with an accent?” David Leopold, president-Elect of the American Immigration Lawyers Association told Media Matters for America that “on its face,” the amended language “appears to address concerns” about racial profiling, but in fact “hardly addresses the problem” because the drafters of the law omitted “any guidance or definition of what criteria are to be used in determining whether a person is an unauthorized alien. Thus, Governor Brewer and Arizona Legislature have put Arizona law enforcement agencies (including non-police civil servants enforcing municipal civil codes) in an untenable position. How are they supposed to form a 'reasonable suspicion' of unauthorized immigration status?” Leopold further stated:

The legal definition of “reasonable suspicion” arises from the Supreme Court's 1968 decision in Terry v. Ohio. There the Court said that an officer may “stop and frisk” a person if the officer observes “articulable facts” that make it “reasonable to assume” that the person is violating the law. But what “articulable facts” could arise that would make it reasonable to assume that someone is in violation of the immigration law? How are hard working honest police officers supposed to differentiate between an undocumented alien, documented alien, or U.S. citizen who happens to be brown skinned and speak with an accent? In many cases the only “articulable facts” would be, as even many of the proponents of the law have admitted, style of dress, skin color, accent, language etc. The clear probability of racial profiling under the Arizona law directly offends the Constitution, in particular the Fourteenth Amendment, which states that “no state...shall deny to any person within its jurisdiction equal protection under the laws”.

[...]

It also must be emphasized that the law does not prohibit law enforcement from enforcing the law based on racial profiling by private citizens. As a result, if a person is suspicious that his browned skinned Spanish speaking neighbor is an unauthorized immigrant, all he need do is report a violation of a city ordinance, such as the neighbor's failure to cut his grass or remove a yard sign from his lawn. The police, applying the clear provisions of the Arizona law, are then placed in the position of either having to inquire into the neighbor's immigration status or, if they don't, risk a lawsuit filed by the complaining citizen claiming that the official or law enforcement agency has adopted a policy which restricts the enforcement of federal immigration law.

Northeastern University criminal justice associate dean: “training” will not eliminate use of “the shortcut of race.” The AP reported on May 17:

Designing a training courses that prevents officers from using “the shortcut of race” will be difficult, said Jack McDevitt, associate dean of criminal justice at Northeastern University who studies racial profiling.

“No training you give police officers is going to change all of the officer's behavior,” McDevitt said. “Unfortunately, the shortcut will be: 'What does this person look like? What kind of accent does he have? And what kind of car is he driving?'”

MALDEF: “Police are put in an impossible situation.” The Arizona Republic reported on May 18 that “Nina Perales, with the Southwest Regional Counsel of MALDEF, said the law will lead to racial profiling of Latinos 'and anyone else the police suspect looks or sounds foreign-born.” It quoted her as saying, "[p]olice are put in an impossible situation because an officer cannot form reasonable suspicion of an individual's immigration status just by looking at that person."

Kyrsten Sinema: Law open to broad interpretation, potential for racial profiling. The Arizona Republic reported on May 17 that “Kyrsten Sinema, a Democratic state representative and an attorney who opposes the law, said the law does not state what officers can consider when determining reasonable suspicion, which opens the door to broad interpretation and the potential for racial profiling.” The Republic further quoted Sinema as stating: “Arizona courts describe (reasonable suspicion) as requiring only a minimal, objective justification based on the totality of circumstances. These can include such basic factors as a person's conduct or appearance, the characteristics of the area, the time of day and the experience of the officer.”

James Doty: Supporters of law “haven't articulated any other grounds for suspecting that someone is an unlawful resident.” Lawyer James Doty wrote on April 26 that “no one has come up” with an answer to the question, “What do illegal immigrants look like?” that doesn't invoke ethnicity. Doty further wrote: “The new law, on its face, doesn't make racial distinctions, but its supporters haven't articulated any other grounds for suspecting that someone is an unlawful resident.”

National Immigration Law Center legal counsel: “It leads to the racial profiling that is inevitable.” The AP reported on May 17 that Linton Joaquin, general counsel of the National Immigration Law Center, which is supporting a challenge to the legislation, said that the law “is a greater and more explicit intrusion into the regulation of immigration” and that "[i]t leads to the racial profiling that is inevitable."

Chief Justice Earl Warren Institute: Similar program “tacitly encourages local police to arrest Hispanics for petty offenses.” The Christian Science Monitor reported on May 18 that "[i] n 1995, the Immigration and Nationality Act's Section 287(g) allowed US immigration officials to train local law enforcement officers and authorize them to identity and - if necessary - detain immigration offenders," adding that "[i] n many ways, 287(g) has become a litmus for the issues now playing out in the Arizona immigration law debate: specifically, the desire to rein in illegal immigration versus concerns about the potential for abuse and racial profiling." The article further noted:

A chief concern of critics of both 287(g) and Arizona's new law is that such programs lead to racial profiling.

A 287(g) program run by US Immigration and Customs Enforcement - called the Criminal Alien Program - seeks to ensure that “criminal aliens” serving time in federal, state, or local jails are not released into the community upon completion of their sentences, notes a September report by the Chief Justice Earl Warren Institute on Race, Ethnicity & Diversity at the University of California at Berkeley.

The 287(g) program “tacitly encourages local police to arrest Hispanics for petty offenses,” the report concludes.

The Justice Strategies study comes to similar conclusions: that 287(g)'s central targets were traffic violators and day laborers - suggesting that it was less a crime-fighting tool then a means of rounding up illegal immigrants based on ethnicity.

“The 287(g) program rests on a faulty assumption that the civil immigration mandate can be seamlessly absorbed into the crime-control mission shared by criminal-justice agencies,” writes [New York University immigration expert Aarti] Shahani.

AZ law professor: Modification to language did not eliminate the “consideration of race as a factor”

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, signed by Gov. Jan Brewer on April 23, 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, signed by Brewer on April 30, 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.

U of A 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.”