In response to critics, Arizona tweaks new immigration law 

In recent days, some critics of the new Arizona immigration law have said the measure will lead to Arizona becoming a police state.  Many of the criticisms — some including the words Nazi and fascist — have been based on a general objection to the law and to the enforcement of the country’s immigration laws.  But some have been specifically focused on a few key phrases in the law.

Now, Arizona lawmakers have made some changes intended to clarify their intent and, perhaps, silence some of the critics.  The changes were first reported by Phoenix television station KNXV, better known as ABC15.

The first concerns the phrase “lawful contact,” which is contained in this controversial portion of the bill: “For any lawful contact made by a law enforcement official or a law enforcement agency…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…”  Although drafters of the law said the intent of “lawful contact” was to specify situations in which police have stopped someone because he or she was suspected of violating some other law — like a traffic stop — critics said it would allow cops to pick anyone out of a crowd and “demand their papers.”

So now, in response to those critics, lawmakers have removed “lawful contact” from the bill and replaced it with “lawful stop, detention or arrest.” In an explanatory note, lawmakers added that the change “stipulates that a lawful stop, detention or arrest must be in the enforcement of any other law or ordinance of a county, city or town or this state.”

“It was the intent of the legislature for ‘lawful contact’ to mean arrests and stops, but people on the left mischaracterized it,” says Kris Kobach, the law professor and former Bush Justice Department official who helped draft the law.  “So that term is now defined.”

The second change concerns the word “solely.”  In a safeguard against racial profiling, the law contained the phrase, “The attorney general or county attorney shall not investigate complaints that are based solely on race, color or national origin.”  Critics objected to that, too, arguing again that it would not prevent but instead lead to racial profiling.  So lawmakers have taken out the word “solely.”

“There were misstatements by the opponents of the law that this was written to permit some consideration of race in the enforcement of this law,” says Kobach, “and that’s not the case at all.”

There is another part of the law which uses the word “solely,” and that is the section which says, “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.” Given the clear limitation of actions to those allowed by the Constitution, there was no need to change that phrase.

The legislature made a few other changes.  It reduced some penalties, with smaller fines and shorter jail sentences.  But the other changes are quite small.  “These are clarifications more than anything,” says Kobach.  “They are minor changes to clarify some of the terms the ACLU and others had been distorting in public.  In an abundance of caution, the legislature and the governor’s office have made a few minor adjustments to respond to the mischaracterizations.”

So will the changes satisfy the critics who have made some rather amazingly intemperate charges about the bill?  Kobach is doubtful.  “I have a feeling that even though it will be virtually impossible to mischaracterize the law with any honesty, that’s what they will do.”

NOTE: This post has been expanded and updated throughout.

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Staff Report

Staff Report

A daily newspaper covering San Francisco, San Mateo County and serving Alameda, Marin and Santa Clara counties.
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