As debate over SB1070 continues to rage, The Arizona Republic convenes a panel of experts to parse its practical applications. It should come as no surprise that when and how the controversial new law should be enforced remains open to interpretation. The five-person panel included two Arizona legislators: a Republican who sponsored the House version of the bill, and a Democratic state rep who opposed the measure. Predictably, the Republican disputes suggestions that the measure facilitates racial profiling, while the Democrat notes the law’s lack of hard guidelines, which opponents say leaves it susceptible to abuse. The other panelists’ answers aren’t much more illuminating; there is little agreement on basic questions, like how the context of an encounter — e.g., the neighborhood, time of day or a suspect’s appearance — should inform the officer’s decision, or what recourse someone has after they’re stopped. (The law prohibits law enforcement from considering race “except to the extent permitted by the United States or Arizona Constitution.”) By underscoring these uncertainties, the piece gives heft to the argument that the law’s ambiguity could create a host of problems–both for Arizonans who might be unfairly ensnared and the cops charged with carrying out the law. An excerpt:
Scenario: At 9 on a weekday evening, a police officer comes across three men ages 18 or 19 playing basketball in a south Phoenix neighborhood park. The neighborhood has a large illegal-immigrant population. All three appear to be Latino. There have been no recent crimes or complaints that might be connected to these three men. The men are wearing torn T-shirts, shorts and basketball shoes. They have no identification with them.
• Question: Can the officer approach the men and ask them their legal status?
John Kavanagh: No. Nor could the officer approach them for any other law-enforcement reason, assuming the park is still open to the public. They are doing nothing that is illegal or even suspicious.
To be contacted, they would have to be observed committing an unlawful act (other than being in the U.S. illegally). Even then, additional facts that create a “reasonable suspicion” they are here illegally would have to be present before the officer could question them about their immigration status.
Andy Silverman: A police officer can talk to anyone he or she wants to and ask them anything. The issue is whether the person is free to go. If the person is not accused or suspected of a crime, they should be free to go and thus not answer the question. If the police officer has a legitimate criminal reason to detain the person, then of course they are not free to go.
A person doesn’t need to answer any question by a police officer whether detained or not except maybe their name – that is, people have a right not to incriminate themselves or answer questions from a law-enforcement officer.
Kyrsten Sinema: The new law does not prohibit the officer from questioning the men about their status. Reasonable suspicion depends on the totality of circumstances and can include a person’s conduct or appearance, characteristics of the area and time of day.
The new law does not give guidelines that define what police can use in deciding who to question about immigration status.
Mark Spencer: No. There is no suspicious conduct and the law presumes everyone is in the country legally.
The officer could question the men if there was suspicious or criminal conduct (i.e. calls complaining about fighting, urinating in public, odor of marijuana, etc.) along with reasonable suspicion to being in the country illegally. Even with suspicious or criminal conduct, the person contacted is presumed to be a citizen.
While there’s no consensus over the law’s practical applications, what is abundantly clear is that it will force Arizona cops to make murky judgments. Law enforcement officials are deeply divided over the law, as TIME’s Nathan Thornburgh reported a few weeks back.
