Most of the important provisions of Arizona's controversial new immigration law were blocked by a Federal district court judge early Wednesday morning, just a day before it was set to go into effect. What does this ruling mean for the future of the law, and assuming it eventually goes into effect, what impact would it have on a California resident vacationing or otherwise travelling in Arizona?

U.S. District Judge Susan Bolton issued an injunction early Wednesday, preventing the key immigration-enforcement provisions of Arizona's Senate Bill 1070 from taking effect. The ruling, which was immediately appealed by the State of Arizona, means the judge saw a strong likelihood that the federal government would prevail in court on their challenges to those provisions dealing with immigration enforcement, but left other provisions, like those prohibiting law enforcement officers from inhibiting federal immigration enforcement in any way, or amending the requirements for checking employment eligibility, intact.

The impact on California residents is complicated, and to understand it the text of the challenged law should be analyzed. Senate Bill 1070 is vast and expansive, but the most relevant portion, causing the most controversy, reads: "[f]or any lawful contact made by a law enforcement official or agency of this state or a county, city, town or other political subdivision of this state 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. The person's immigration status shall be verified with the federal government pursuant to 8 Unites States Code section 1373(c)." Police officers are directed to inquire as to an individual's immigration status, as long as they have reasonable suspicion that the person is an alien unlawfully present in the U.S., and as long as such an inquiry is practicable.

This entire interaction, however, is predicated on the officer initiating "lawful contact" with the individual he wishes to question. Those two words specifically make it impossible for a police officer to stop (or at least to say that he stopped) a person solely because he suspects they may be an immigrant. Critics of the law have foreseen an attitude of: "that person looks like an immigrant, I will question them" in Arizona's law enforcement community, following passage of the law. But this phrase means a police officer must have a valid reason--unconnected to their immigration status--to be interacting with a person before he can even reach the question of whether he is suspicious of the person's immigration status.

Officers can initiate lawful contact in a variety of ways and for a variety of reasons. The most prevalent, and the most common way this law will take shape is a routine traffic stop. Other ways to initiate lawful contact are if an officer observes suspicious behavior, or if police are called to respond to a disturbance. In all these cases, officers are empowered to approach, question, and if necessary, detain individuals for questioning.

A police officer pulling over a car already has substantial latitude in what he can do regarding the occupants of the car. Not only can he question the driver and occupants, but he can demand proof of identity, if he feels his safety may be in jeopardy he can detain and remove some or all of the occupants from the vehicle, and he can perform a cursory search of areas of it accessible to passengers. Given this expansive police power, adding one more question ("what is your immigration status?") seems hardly significant. Additionally, since the law spells out that holding an Arizona driver's license, or a state-issued card from any other state which requires proof of citizenship--all states but Utah require citizenship or lawful presence to obtain a driver's license-- makes the suspect presumed NOT to be in the country illegally, most traffic stops will never reach this threshold. As long as a person stopped by police can produce a driver's license, they should not be asked about their immigration status.

"Reasonable suspicion" is a legal term of art referring to a level of suspicion an officer must have before performing an act. Its usual application is in searches and seizures--it is sometimes used as the standard an officer must reach before he performs a warrantless search of school lockers or backpacks, for example. When a person has a lesser expectation of privacy, reasonable suspicion can sometimes be used to justify detention and search of a suspect in some states. The usual standard for warrants--the one found in the Constitution as well as in most search and seizure jurisprudence--is "probable cause," which is a much higher level of required proof than that of reasonable suspicion. In general, if an officer has a mere suspicion, however reasonable, he may not perform a search, because without probable cause, a warrant would never be issued. Arizona's law injects this lower standard of proof into the most important area of immigration enforcement contemplated and discussed by this law: whether to ask a citizen for proof of citizenship. That is troubling to some legal observers, if for no other reason than that it makes the law ripe for challenge.

To the California resident, driving in Arizona, the effect of the law should be minimal. If one is stopped by an Arizona police officer, the first question they should ask is for a driver's license. As long as that can be produced, there should be no inquiry about immigration status made. If someone travels to Arizona and does not have a driver's license, they should be prepared to show some sort of identification proving their citizenship. A birth certificate, social security card, or passport are the main documents one would be expected to show. Once someone shows their driver's license (as long as it appears valid), they are presumed to be in the country legally, which means an Arizona officer cannot, as a matter of law, have a reasonable suspicion that they are here illegally.

One interesting aspect of this law is the preponderance of elephants in the room. The most significant is that this law was written, either obliquely or intentionally, to address the specific problem of Mexican, or other South and Central-American, immigration. Technically, a person of French or Irish descent in this country illegally is just as implicated by this law, but the reality is they will likely be safe from enforcement. Several elements of this law point to the intent to forbid, or at least accost, this particular type of immigration. For instance, a whole section of the law takes steps to make illegal the common practice of hiring day-laborers for home improvement or other jobs. The law makes it illegal for a motorist to "attempt to hire or hire and pick up passengers for work at a different location." This portion of the law was left intact by the judge's ruling. Another provision, though, made it illegal for anyone "unlawfully present in the United States" to "apply for work, solicit work in a public place, or perform work as an employee or independent contractor in this state" (this provision was blocked).

It is sections like this that lead critics of the new law to point to the racial implications of it and suggest it will lead to racial profiling. If an officer dispersing a group of men on a corner looking for work must make a snap judgment whether a person's immigration status is suspicious, what criteria may he possibly use? A limited use of the English language? Dark skin? Work in an industry typically propagated by illegal labor? Any of these criteria would necessitate a racial element, may constitute profiling, and would presumably affect both citizens and those here illegally alike. Especially in Arizona, where in the 2000 census more than a quarter of respondents identified as "Hispanic or Latino," is this aspect of the law troubling.

That is not to say that critics of the law are giving it a fair shake. Critics point to the exclusive role the Federal government has always had in the area of immigration enforcement, but the wall between federal and state authority when it comes to immigration is not absolute. Many police departments and state law enforcement agencies in all 50 states cooperate with Immigration and Customs Enforcement; an arrestee will frequently have his or her immigration status checked at the police station, some agencies will move prisoners, upon completion of their sentences, straight from their cell to the immigration authorities if they are not citizens (a practice the Arizona law would make mandatory), and in some communities ICE and local law enforcement share information and cooperate on investigations and raids, something else the Arizona law encourages. While Arizona's police participation in such cooperative acts may have been scattered before, this new law would make it uniform.

Critics of the law, most importantly, seem to envision a drastic revision of, and broad strengthening of, police power in Arizona. But the attitude in the legal community to this point of view is a puzzled one, as courts and legislatures have recently trended towards imbuing police officers with more and more power. At least 4 of the current U.S. Supreme Court justices have what could best described as a skeptical attitude towards some of the protections citizens have against police in the Constitution and in case law. The Supreme Court has recently stopped just short of disposing of the exclusionary rule--the distinctly American legal doctrine holding that evidence obtained as the result of a search which was illegal is inadmissible in court--but has frankly eviscerated it and other protections citizens have against unreasonable search, seizure, and arrest. Arizona's law adds another element to the authority of police, but does not fundamentally change the nature of it.

So, if the law doesn't fundamentally change anything, why is the controversy surrounding it at such a boiling point? The federal government challenged this law on the grounds that it intrudes on their traditional role, but why? If it merely makes official the unspoken policy of countless other states and local police departments, and lessens the burden on the federal government for immigration enforcement, what about it deserves this much attention?

It could be that citizens are just now realizing the true nature of their relationship with the state. When certain unwritten policies are spelled out in new legislation like this, and areas of history and policy relegated to dark corners are suddenly thrust into the limelight, there tends to be a significant backlash. Because this legislation focuses the arm of the state on one minority group, it calls attention to the startling lack of protections citizens enjoy against over-zealous police officers and bureaucrats, and the disproportionate power citizens hold when forced to interact with police and courts. The lawsuit by the U.S. will probably prevail, because immigration law does affect foreign policy and international relations, which are exclusively the realm of the federal government and have been since the Constitution was written. But their legal challenge seems a bit like a burglar chiding a mugger for using a gun--both commit the same crime, the burglar is just harder to catch in the act.

Fred S. Peters is a local attorney. He can be reached at attorneyfredpeters@gmail.com