Hannity, Palin dismiss concerns that AZ law could lead to civil rights violations

Hannity: "[R]acial profiling is explicitly prohibited." Hannity stated on the April 27 edition of his Fox News program: “Now, [if] protesters actually sat down to read the law, they would find that racial profiling is explicitly prohibited.” Hannity later added, “It does not encourage profiling. It specifically prohibits it.”

Palin: “There is no ability or opportunity in there for the racial profiling.” Appearing on the April 27 edition of Hannity, Fox News contributor Sarah Palin stated that "[t]here is no ability or opportunity in there for the racial profiling. And shame on the lame stream media again for turning this into something that it is not." Palin added, “I think it's shameful, too, that the Obama administration has allowed, too, this to become more of a racial issue by perpetuating this myth that racial profiling is a part of this law.”

Kobach: "[T]he law actually reduces the likelihood of racial profiling." University of Missouri law professor Kris Kobach, who helped draft SB 1070 and is running as a Republican for Kansas secretary of state, wrote in a April 28 Washington Times op-ed that by requiring officers “to contact the federal government to verify a person's immigration status,” the law “takes any consideration of race out of the equation.” From the op-ed:

Myth No. 2: The law will encourage racial profiling. The terms of the act make clear that such profiling cannot occur. Section 2 provides that a law enforcement official “may not solely consider race, color, or national origin” in making any stops or determining an alien's immigration status. In addition, all of the normal Fourth Amendment protections against racial profiling still apply.

Moreover, the law actually reduces the likelihood of racial profiling by forcing police officers to contact the federal government to verify a person's immigration status when they suspect a person is an illegal alien. It already was permissible for police officers across the country to make arrests for violations of federal immigration law where reasonable suspicion existed that a violation had occurred. Now, in Arizona, officers will have to make a phone call to Immigration and Customs Enforcement's (ICE) 24/7 hot line to confirm that any aliens in their custody really are present unlawfully. Officers can no longer proceed based solely on their own assessment of a person's immigration status. In this way, the Arizona law takes any consideration of race out of the equation - strengthening the protections against racial profiling.

AZ law allows police to take race into account

AZ law: Law enforcement “may not solely consider race, color or national origin...except to the extent permitted by the United States or Arizona Constitution.” SB 1070 states:

For any lawful contact made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state 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, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person's immigration status determined before the person is released. The person's immigration status shall be verified with the federal government pursuant to 8 United States code section 1373(c). 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 United States or Arizona Constitution.

Gov. Brewer: “I do not know what an illegal immigrant looks like.” As Newsweek reported on April 27, “the statute fails to specify any characteristics or behaviors that law enforcement should focus on to determine whether there's a reasonable suspicion that someone is in the country illegally.” During a press conference, Arizona Governor Jan Brewer stated, “I do not know what an illegal immigrant looks like.” She added that “I know if AZPOST (Arizona Peace Officer Standards and Training Board) gets theirselves together, works on this law, puts down the description, that the law will be enforced civilly, fairly, and without discriminatory points to it.” AZPOST is tasked with creating guidelines for law enforcement to use when implementing SB 1070.

No consensus on a definition for racial profiling

Janet Napolitano: Some define “any reliance on race/ethnicity” as racial profiling; others say “sole reliance on race/ethnicity” constitutes profiling. In a 2001 report, then-Arizona Attorney General Janet Napolitano stated:

It is essential to first define racial profiling as a legal term of art in order to seek recommendations for its eradication. There are essentially two views among law enforcement agencies and civil rights organizations in defining prohibited conduct in stopping or arresting an individual: any reliance on race/ethnicity (the broad definition); or sole reliance on race/ethnicity (the narrow definition).

ACLU: Narrow definition of racial profiling is “unacceptable” because it “would eliminate the vast majority of racial profiling now occurring.” The American Civil Liberties Union stated in 2005 that defining racial profiling “as relying 'solely' on the basis of race, ethnicity, national origin or religion” would “eliminate the vast majority of racial profiling now occurring”:

Defining racial profiling as relying “solely” on the basis of race, ethnicity, national origin or religion can be problematic. This definition found in some state racial profiling laws is unacceptable, because it fails to include when police act on the basis of race, ethnicity, national origin or religion in combination with an alleged violation of all law. Under the “solely” definition, an officer who targeted Latino drivers who were speeding would not be racial profiling because the drivers were not stopped “solely” because of their race but also because they were speeding. This would eliminate the vast majority of racial profiling now occurring.

Many legal experts question how law will be enforced without some form of racial profiling

James Doty: New law is “vulnerable to the argument that it essentially criminalizes walking while Hispanic.” 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. It is, therefore, vulnerable to the argument that it essentially criminalizes walking while Hispanic,” and that "[t]he law seems to require that officers demand documentation from suspected aliens based on mere hunches -- a clear violation of the Constitution."

U.S. Civil Rights Commissioner: "[I]t is reasonable to presume that the first threshold test will be whether a person looks to be of Mexican or Latino descent. Period." Michael Yaki, an attorney and member of the U.S. Commission on Civil Rights, wrote on April 26:

What kind of “suspicious” characteristics will law enforcement be looking for? Judging by the zealous defense offered by commenters that Arizona shares a border with Mexico, it is reasonable to presume that the first threshold test will be whether a person looks to be of Mexican or Latino descent. Period. Argue against it all you want, but the undeniable, irrefutable fact is that skin color and ethnic heritage is the numero uno feature that will trigger further inquiries by Arizona cops. Doesn't matter if you've been here 30 years or 30 seconds -- you are fair game under the law. And give me any other “characteristic” of the so-called typical illegal immigrant, and I can show you a red-blooded native-born American who will fit the same bill.

University of Arizona law professor: “If you look Mexican or Hispanic or Asian or Black, then you should carry ID.” University of Arizona law professor Gabriel Chin responded to the question, " Do I need to have my ID card on me at all times in case an officer suspects I'm in the country illegally?" by stating:

If the person was born in Mexico and doesn't have satisfactory identification, I would think there is probable cause to arrest that person for violation of this section: There is evidence they are not a U.S. citizen (foreign birth), they do not have any evidence they are authorized to live in the United States. . . . I would say the answer is: If you look Mexican or Hispanic or Asian or Black, then you should carry ID because there's already some evidence that you could fall into this category.

Immigration attorney William Sanchez: “How do you determine that you have reasonable suspicion that someone may have violated an immigration law?” During the April 24 edition of CNN Newsroom, immigration attorney William Sanchez stated, “How do you determine that you have reasonable suspicion that someone may have violated an immigration law?” Sanchez added, “The color of the skin and the way they dress and the actions and places they go, the language that they speak. It allows for racial profiling, unquestionably.”

ASU law professor: SB 1070 “is almost inevitably going to be enforced in a racially discriminatory way.” The Arizona Republic reported that Paul Bender, a professor of law at Arizona State University's Sandra Day O'Connor College of Law stated, “That is almost inevitably going to be enforced in a racially discriminatory way, because how are the police going to have a 'reasonable suspicion' that you're here illegally?” Bender further said, “They're not going to ask every Anglo that they stop for speeding to show their immigration documents. If they did, we wouldn't have them and we'd all go to jail. They're going to ask the people who look Hispanic. Some of them are not going to have them, and they are going to be arrested.”

Arizona attorney: SB 1070 allows “racial profiling and discrimination, as long as the government is not 100 percent racially motivated.” The New York Times reported, “Julie Pace, an Arizona lawyer who brought suit challenging the 2007 law, issued, with her colleagues, an analysis of the new law arguing that 'the word 'solely' makes this purported anti-discrimination provision an authorization to allow racial profiling and discrimination, as long as the government is not 100 percent racially motivated.'”

Georgetown law professor: “In practice, it is inevitable that this law will lead to racial profiling.” Newsweek reported that David Cole, Georgetown University Law Center professor said, “In practice, it is inevitable that this law will lead to racial profiling.” Cole further stated, “People don't wear signs saying that they are illegal immigrants, nor do illegal immigrants engage in any particular behavior that distinguishes them from legal immigrants and citizens. So police officers will not stop white people, and will stop Latinos, especially poor Latinos.”

Conservatives, including several on Fox News, have expressed concerns about the law leading to racial profiling

Jeb Bush: “It's difficult for me to imagine how you're going to enforce this law.” Politico reported on April 27 that former Florida Gov. Jeb Bush stated of the Arizona law: “I think it creates unintended consequences,” and that “It's difficult for me to imagine how you're going to enforce this law. It places a significant burden on local law enforcement and you have civil liberties issues that are significant as well.”

Marco Rubio: SB 1070 could “unreasonably single out people who are here legally, including many American citizens.” Florida Senate candidate Marco Rubio stated, “From what I have read in news reports, I do have concerns about this legislation. While I don't believe Arizona's policy was based on anything other than trying to get a handle on our broken borders, I think aspects of the law, especially that dealing with 'reasonable suspicion,' are going to put our law enforcement officers in an incredibly difficult position. It could also unreasonably single out people who are here legally, including many American citizens.”

Huckabee: "[T]here is no such thing" as “American looking.” During the April 24 broadcast of Fox News' Fox & Friends Saturday, Mike Huckabee stated, “They're going to get sued. I predict they're going to lose. Because if you stop somebody and say, you know, he just doesn't look American to me, what does that mean? Walk the streets of New York and tell me, how do you know who's the American-looking, because there is no such thing.”

Krauthammer: "[I]t could lead to a lot of civil rights abuses." Conservative commentator Charles Krauthammer stated on the April 21 edition of Fox News' Special Report with Bret Baier that states are “trying to pass laws where you catch somebody already in the U.S. and it's really hard to discern who is and who is not illegal. Look, if you're at the border and somebody is climbing over the fence, you have a pretty high certainty it's an illegal. Now if somebody is standing outside a Home Depot who doesn't speak English, well he could be or he could not be. So it could lead to a lot of civil rights abuses. But the problem is ultimately that the feds haven't acted.”

Andrew Napolitano: “The law has to have standards in it” or “there would be a different standard for each police officer.” During the April 27 edition of Fox News' Fox & Friends, Fox News legal analyst Andrew Napolitano stated, “Think about it. The police are going to stop somebody on the basis of where they look and say I think you're here illegally, give me your papers.” He added, “The problem with the law is that it's subjective. What's reasonable suspicion to you might be unreasonable suspicion to me. The law has to have standards in it. Otherwise police could stop people for any reason they wanted and there would be a different standard for each police officer. That's the importance of that question to the governor. Can you tell and illegal alien from a legal alien by looking at them? She said of course I can't. Neither can the police.”

Fox News figures and others have endorsed racial profiling

Cafferty: "[C]ritics say that would lead to racial profiling. Well, so what?" During the April 20 broadcast of CNN's The Situation Room, Jack Cafferty stated, “The state senate has passed a tough new immigration law that will force police to arrest people who can't prove they're in the country legally. Now critics say that would lead to racial profiling. Well, so what?” Cafferty added, “The state's governor has five days to either veto the bill or sign it into law. Do the right thing, governor.”

Crowder: Nothing wrong with law's racial profiling. During the April 23 edition of Fox News' Hannity, Fox News contributor Steven Crowder said that there's racial profiling in the law and “I don't think there's really anything wrong as far as racial profiling, stopping people who are coming in illegally. I mean, you're not looking for a blond haired, blue eyed Swede most of the time.”

Gutfeld: Racial profiling a no-brainer. On the April 21 edition of Fox News' Hannity, Red Eye host Greg Gutfeld said of the law: “A lot of the critics are saying this is racial profiling. Duh! They're coming from another country. That's what you do. You have to look at them and see who they are before you know they're legal or illegal. I don't think that's a fair criticism.”

Gallagher dismisses racial profiling concerns. On the April 23 edition of his Salem Radio program, radio host and Fox News contributor Mike Gallagher told Fox News Sunday host Chris Wallace, “Sign it, baby, sign it” and that the Arizona legislature is his “new hero.” After Wallace noted concerns about civil liberties, Gallagher said that “it's racial profiling, to be sure, cops know if there's a van full of dark-skinned men with lawnmowers packed into the back of a pick-up truck...that's what they're talking about.”