In wake of the Arizona illegal immigrant law, the terms “probable cause” and “reasonable suspicion” have been bandied about with respect to racial profiling. So what I would like to do in the post is to explain what these terms mean from a legal perspective, along with other “standards of proof.” You can take a look for yourself here at Wikipedia for more details. Basically, these are graded standards based on having a certain degree of epistemological certainty as it applies to law.
Below are the standards for detentions, searches, arrests or warrants:
Reasonable suspicion is a low standard of proof in the US to determine whether a brief investigative stop or search by a police officer or any government agent is warranted. It is important to note that this stop and/or search must be brief; its thoroughness is proportional to, and limited by, the low standard of evidence.
Probable cause for arrest means a "substantial chance" or "fair probability" of criminal activity.
Below are the standards for conviction in civil and criminal cases:
Preponderance of the evidence is met if the proposition is more likely to be true than not true. Effectively, the standard is satisfied if there is greater than 50 percent chance that the proposition is true.
To prove something by "clear and convincing evidence," the party with the burden of proof must convince the trier of fact (person who determines facts in a legal proceeding) that it is substantially more likely than not that the thing is in fact true.
Beyond reasonable doubt means that the proposition being presented by the government must be proven to the extent that there is no "reasonable doubt" in the mind of a reasonable person that the defendant is guilty. This would mean you have 95% or greater certainty, to my knowledge.
As this applies to the AZ immigration bill SB1070, which can be found here, here is an excerpt of the actual text so you can decide for yourself if this bill supports racial profiling (please note my highlights):
B. FOR ANY LAWFUL STOP, DETENTION OR ARREST MADE BY A LAW ENFORCEMENT OFFICIAL OR A LAW ENFORCEMENT AGENCY OF THIS STATE OR A LAW ENFORCEMENT OFFICIAL OR A LAW ENFORCEMENT AGENCY OF A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE IN THE ENFORCEMENT OF ANY OTHER LAW OR ORDINANCE OF A COUNTY, CITY OR TOWN OR THIS STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN AND IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON, EXCEPT IF THE DETERMINATION MAY HINDER OR OBSTRUCT AN INVESTIGATION. ANY PERSON WHO IS ARRESTED SHALL HAVE THE PERSON’S IMMIGRATION STATUS DETERMINED BEFORE THE PERSON IS RELEASED. THE PERSON’S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c). A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE MAY NOT CONSIDER RACE, COLOR OR NATIONAL ORIGIN IN IMPLEMENTING THE REQUIREMENTS OF THIS SUBSECTION EXCEPT TO THE EXTENT PERMITTED BY THE UNITED STATES OR ARIZONA CONSTITUTION. A PERSON IS PRESUMED TO NOT BE AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES IF THE PERSON PROVIDES TO THE LAW ENFORCEMENT OFFICER OR AGENCY ANY OF THE FOLLOWING:
1. A VALID ARIZONA DRIVER LICENSE.
2. A VALID ARIZONA NONOPERATING IDENTIFICATION LICENSE.
3. A VALID TRIBAL ENROLLMENT CARD OR OTHER FORM OF TRIBAL IDENTIFICATION.
Clearly, a law enforcement officer cannot stop any person, regardless of race, color, or national origin, for standing on a street corner, or coming out of an ice cream shop with their kids (as President Obama argues), unless they have broken the law in some manner. Even if there is legal contact, a law enforcement officer must have reasonable suspicion to ask any person about their legal status in Arizona. Now some say this can be abused, but this is a red herring. If a law enforcement office wants to abuse the law, they can do so already. Abuse has nothing to do with the law, and has no place in the law, so if a law enforcement office abuses his or her position under any circumstances then they are subject to discipline or termination. And this would certainly be in force in Arizona if there is any element of racial profiling by law enforcement officers wantonly abusing the law.
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