Well, sort of. But not really. The issue of police requiring an individual to provide identification was solved decades ago in the Supreme Court case of Brown v. Texas (1979). The case surrounded the appellant, Brown, who was stopped by police after walking away from an alley in a high-crime area. Brown was arrested by two officers and charged with a violation of a Texas statute that required citizens to identify themselves if requested by a law enforcement officer. Sound familiar?
The Supreme Court held that the statute violated the Fourth Amendment protection against search and seizure, due to the fact that the officers lacked "reasonable suspicion to believe that appellant was engaged or had engaged in criminal conduct".
"The Fourth Amendment requires that such a seizure be based on specific, objective facts indicating that society's legitimate interests require such action, or that the seizure be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers," wrote Chief Justice Burger in the opinion, "Absent any basis for suspecting appellant of misconduct, the balance between the public interest in crime prevention and appellant's right to personal security and privacy tilts in favor of freedom from police interference."
Considering that the Arizona law must operate within the restrictions outlined by the Supreme Court, it is wholly unlikely that any individual, brown skin or not, will have their rights abused by law enforcement arbitrarily. In order for identification to be required, the officers must establish probable cause, the prerequisite for which is the test of reasonable suspicion. If the officer fails to establish reasonable suspicion, and thus probable cause, it is an illegal search.
The Court has already established a formula for reasonable suspicion, and the new law itself forbids police from investigating individuals based solely on race or ethnicity. How, then, will police enforce the law? How can they search individuals suspected of being illegal if such a search is not based on race?
Mark Spencer, head of the Arizona Law Enforcement Association and supporter of the law, dismissed such questions. He firmly maintained that the enforcement of the law will be based, as always, on whether the individual is engaged in suspicious activity. If a person is stopped for a traffic violation and fails to provide a valid driver's license, it may be reasonable suspicion. If the officer searches for warrants based on a name and address, and no record of such a person exists, it may be reasonable suspicion. In the end, the question that must be answered is "Are they engaged in suspicious activity?".
Simply being of Hispanic origin does not, and has never, constituted reasonable suspicion. Nothing will change in this regard. It will be no more difficult or easier to establish probable cause than before, and law enforcement is quite aware of their outer boundaries. Obviously, there is always a possibility for abuse. There's abuse by police all the time, and not just directed towards minorities. But a mechanism for accountability is always in place to deal with the outliers.
It is easy to see how the media can characterize the law as a gross violation of civil rights. Indeed, on the surface, it would appear to be the case. But examining the issue at depth provides a different picture altogether. Being an illegal immigrant, after all, is already a federal crime. The only thing this law does is make it a state crime, too.
Linda Greenhouse of The New York Times declared "Breathing while undocumented, without a civil liberties lawyer at hand, is now a perilous activity anywhere in Arizona."
"This has less to do with breathing in Arizona," Fox News contributor Brit Hume fired back, "and more to do with hyperventilating in Washington."
Tom Bortnyk is a columnist for the political blog Informed-Dissent.
