Thursday, May 10, 2012

Racial Discrimination By Any Other Name: Connecticut vs. Arizona

Connecticut state legislature passed a bill on Monday, May 7th, providing a system for citizen complaints regarding possible racially motivated traffic stops.  “The Act Concerning Traffic Stop Information,” SB 364 mandates that local and state agencies develop their own policies prohibiting the stopping and detention of persons motivated solely by race, color, ethnicity, age, gender or sexual orientation.  The bill is expected to be signed by Gov. Dannel Malloy and go into effect January 1, 2013, after which those pulled over will get a copy of a standardized form filled out by the police and which can be used to file a complaint for prompt review by the police department and a state agency.  The bill comes months after four East Haven police officers were arrested for allegedly targeting and harassing Latinos during traffic stops.

SB 364 is in direct opposition to another ethnic profiling law currently before the Supreme Court – Arizona’s SB 1070 or “Support Our Law Enforcement And Safe Neighborhoods Act.”  SB 1070 makes it a misdemeanor crime for an alien to be present in the state without the proper paperwork, allows law enforcement officers to inquire as to the person’s status during a lawful stop or detention, bars restrictions on federal immigration laws, and reproaches harboring of illegal immigrants. 

On April 25, 2012, the Supreme Court heard arguments on whether federal law pre-empts SB 1070 – essentially, whether the Arizona law can be reconciled with federal laws and policies.  The main issue before the eight Justices – with Justice Kagan recusing herself due to working on the matter in her previous position as a Solicitor General – was the provision requiring law enforcement officials to determine the immigration status of people they stop and suspect are not in the U.S. legally.  Based on their questions, the Justices seemed inclined to uphold the controversial parts of SB 364, but by noting that the Solicitor General, Donald B. Verrilli, did not address the possibility of a challenge that the law discriminates on the basis of race and ethnic background, the Court left open the possibility of an equal protection challenge in the future.  Paul D. Clement, counsel for Arizona, argued that Arizona only borrowed the federal standards and was more assertive in applying them.  But Mr. Verrilli contended that regulation of immigration matter is vested exclusively with the federal government.

The two opposing laws address essentially the same question – can states set radically different racial/ethnic discrimination laws, provided they meet the minimum standards set forth by the federal government?  At first glance, Arizona’s law concerns immigration status of aliens residing in the state but it can be argued, and which the Supreme Court alluded to, the possibility of considering the argument that the law as applied would discriminate against Latinos.  In that case, would it be no different the illegal actions taken by the East Haven police officers and, as such, unconstitutional?

Elena Gekker
Blogger, Criminal Law Brief

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