Legal Precedent Could Complicate Potential Case Against Racial Profiling in Arizona

On Sunday’s Face the Nation, Attorney General Eric Holder left open the possibility of another lawsuit against Arizona’s SB 1070 if it goes into effect, in this case to target potential racial profiling under the law. Responding to a question about why the DOJ’s lawsuit primarily focused on federal vs. state rights, Holder reemphasized his concern over racial profiling. “It doesn’t mean that if the law, for whatever reason, happened to go into effect that six months from now, a year from now, we might not look at the impact the law has had and whether or not — see whether or not there has been that racial profiling impact,” Holder said Sunday. “And if that was the case we would have the tools and we would bring suit on that basis.”

But that case might be harder to win, according to an op-ed in today’s Washington Post. Law professors Gabriel J. Chin and Kevin R. Johnson explain how a 1975 Supreme Court decision allows law enforcement to use “Hispanic appearance,” if combined with other factors, to make immigration stops:

Supporters and opponents of S.B. 1070 assume that racial profiling is unconstitutional, largely because many Americans believe that it ought to be. In fact, the U.S. Supreme Court has approved the racial profiling permitted — indeed encouraged — by S.B. 1070.

In a 1975 case regarding the Border Patrol’s power to stop vehicles near the U.S.-Mexico border and question the occupants about their citizenship and immigration status, United States v. Brignoni-Ponce, the high court ruled that the “likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.” In 1982 the Arizona Supreme Court agreed, ruling in State v. Graciano that “enforcement of immigration laws often involves a relevant consideration of ethnic factors.” …

Brignoni-Ponce has resulted in immigration enforcement that many contend is race-based and in violation of the U.S. Constitution. In case after case, in states including Florida, Iowa and New York, defendants arguing that Border Patrol stops constituted unlawful searches and seizures under the Fourth Amendment have encountered claims by the U.S. government — including the current administration — that “Mexican” or “Hispanic” appearance, along with other factors, justified an immigration stop. Border enforcement officers regularly admit in court that “Hispanic appearance” is one reason for an immigration stop.