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April 21, 2010, 3:31 pm
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by Reynold N Mason

Fifty years ago, 69 people were killed and 180 were injured protesting laws that required them to carry “passes” at all times or face arrest.  The place was Sharpsville, Republic of South Africa. The apartheid system had enacted the “pass Law” to limit the movement of blacks in white areas of the country.  Fast forward to 2010.  Arizona enacts a statute known as SB 1070, on April 19.  It now awaits only the signature of governor - Brewer to put it into effect.  In much the same way as apartheid, this bit of legislative chicanery is designed to limit the movement and numbers of Hispanics in the state. Sounds familiar? 

According to the U S census Bureau, 30 million Hispanics, 11 per cent of the population, called the US home in 2000.  By 2007, that number had reached 45 million, 15 per cent of the population.  In 16 states, the Hispanic population exceeds 500,000.  The irony is the very people who thought the apartheid pass laws oppressive and discriminatory, who used economic sanctions, demonstrations and boycotts to bring an end to apartheid, have now taken a page from the apartheid law books.  Like pass laws, the Arizona statute makes it a crime for an undocumented person to simply be in the state, on either private or public property.  It is now a crime to invite a known illegal alien into the state or perhaps sit down to dinner with such a person.  The law forbids teaching undocumented persons in schools, harboring them or conferring any state benefits upon the unfortunate souls.  This provision mints new criminals out of law abiding citizens who may sit down to dinner with their newly- arrived sibling.  As repugnant as this legal prohibition might appear, more invidious still, is the provision of the Arizona “pass law” that gives police the authority to question people about their immigration status and, to arrest them for trespassing should they fail to show, the sacred piece of officious paper that says:  “’you have the right to be here” 

Let’s not forget that failure to produce the pass on demand was a crime in Sharpsville too, for which thousands were arrested and jailed.  And to be sure the law is carried out to the fullest extent, it grants every citizen the right to bring suit if he/she feels the authorities are not enforcing the law to the fullest extent. (Section 11-1051) In addition, the police are indemnified by the state, should they be sued for acts done in enforcing the law.  Have no fear we got your back.  The “Houdini Hispanic” who evades the dragnet however, will be cut off at the pass.  He must eat, and so must work. But when he tries to solicit work on the street corner he risks jail, because it is now a crime for undocumented persons to seek work in Arizona and a crime too, for any one to employ such a person. 

                Will the courts save us?

The 4th Amendment to the US constitution has, for years, been employed by the courts to beat back invidious and hateful discrimination.  The police have been required to prove that they had reasonable suspicion to stop any one perceived to be an illegal alien.  How to tell an undocumented Hispanic from one born in the US…..that’s where the rubber meets the road.  This is “stealth racism”, plain and simple, with “plausible deniability.”  No, we are not racists; we are simply enforcing the law enacted by our august legislature.  This is rank racism masquerading in legal garb, under a policy designed to target Mexicans.  Arizona will have the dubious distinction of being the first state to legalize racial profiling. Previously, overt racism has now taken sophisticated guises. Police will not have to admit their true motives (no need for the KKK) because they can now operate behind a veil of authority conferred by SB-1070, which shields their conduct against the dreaded appellation: “racist cop”. In the shadows, behind their veil of law and authority, police can now heap indignities that bespeak hostile intent toward Hispanics, with impunity.

The new law legalizes ethnic profiling, and targets Hispanics, for suspicion of crimes based on nothing more than their race and ethnicity, or in this instance, group characteristics they believe to be associated with undocumented aliens.  This is nothing if not “the use of ethnicity to determine whom to stop”.  This approach is replete with constitutional peril.  The New York garment workers settlement highlights this conundrum.   After INS agents arrested 2,907 undocumented workers, they testified that they relied on the workers appearance, language… speaking Spanish or, English with a Spanish accent, appearing to be South American, and wearing clothes not typical of America and foreign sounding names. Ninety-six per cent of the workers arrested were Hispanics.

Admittedly, illegal immigration is a problem, and a thorny one at that. But that does not justify racial or ethnic discrimination.   In the Brignoni-Ponce case, in 1975, the US Supreme Court, recognizing the illegal immigration problem, said that it was reasonable for the INS to use Spanish ethnicity near the Mexican border as a basis for detaining a person. But this may not be the only basis.  This ruling may have outlived its usefulness because of the changes in the US population. This limited circumstance does not authorize Arizona to grant its police broad and unlimited power to stop and question Hispanics under the SB-1070 without reason to suspect that they have violated the law. Where would that leave Hispanics who are US citizens or legal residents? 

True, twelve million illegal aliens create economic and social problems, such as increased demands on schools, hospitals and recreational facilities.  But resorting to knee-jerk legal panaceas is not the answer.  We must consider the public interest along with the interference the law will occasion upon  individual liberty, when, for instance, a father is accosted by police at his son’s soccer match, or at the school bus stop or grocery store.  No reasonable person will begrudge the police their privilege of searching someone believed to be armed and dangerous or, to detain a person when there is information that that person is carrying illegal drugs.  But to countenance an affront upon law abiding citizenry, as this law does, without any suspicion that a particular person has  done  something wrong, would permit open season on Hispanics in Arizona, legal or otherwise.  Being Hispanic in Arizona (BHA) would become as precarious as driving while black (DWB).

  Large numbers of Mexicans, both native born and naturalized citizens share ancestry and physical characteristics. This alone cannot be justification for stopping all Hispanics to ask about their legal status.  We need to follow the example of our Sharpsville brethren and stand against this injustice.

“……no man should be required to do what the law does not require; nor to refrain from acts which the laws permit. There are acts which the Federal, or State Legislature cannot do, without exceeding their authority.  There are certain vital principles in our Republican governments, which will determine and over-rule an. apparent flagrant abuse of legislative power” [.....Justice Chase (1798)

Author: Reynold Mason
Reynold N. Mason teaches law courses at Zenover Educational Institute In Atlanta, Georgia. He has been a judge on New York City Civil Court and, a Justice on New York State Supreme Court. Mason has been an adjunct professor of law at Medgar Evers College and Monroe College in New York. He has authored several legal opinions published in New York Miscellaneous Reports and New York Official Reports as well as the New York Law Journal. He lives in Atlanta.
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