Arizona Gov. Jan Brewer has signed that state’s new immigration bill despite widespread questions over its constitutionality. Shortly before Brewer announced the signing, President Barack Obama ordered the Justice Department to monitor possible civil rights violations, here.
The new law allows police to demand papers from individuals to provide that they are legally in the country when they have reasonable suspicion that the person may be undocumented. It allows for the arrest of anyone without such proof. It is hard to imagine how police can look at two individuals and have reasonable suspicion that one lacks a card in his wallet without racial profiling. Of course, there are circumstances that would lend itself to such reasonable suspicion, such as suspect fleeing a business or other such conduct. However, police already have authority to ask for such documentation and confirm there immigration status in such a circumstance.
President Obama’s statement references the most likely basis for a challenge. While a facial challenge could be made, the strongest would be a lawsuit based on “as applied’ data showing racial discrimination and civil rights violations. Notably, when asked what an illegal immigrant looks like for purposes of reasonable suspicion, Brewer admitted that she did not know. The bill seems to invite racial profiling and is ripe for abuse. It also abandons our long opposition to laws requiring citizens to present papers upon demand by police.
Here is the Senate bill: Arizona law
The law states:
B. FOR 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. 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 SOLELY 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 TRIBAL ENROLLMENT CARD OR OTHER FORM OF TRIBAL IDENTIFICATION.
4. A VALID UNITED STATES FEDERAL, STATE OR LOCAL GOVERNMENT ISSUED IDENTIFICATION.
Obviously, a “lawful contact” is any contact that it is not a violation of law which would include the vast majority of encounters with police.
The law also allows for lawsuits for a failure to fully enforce the law:
A PERSON MAY BRING AN ACTION IN SUPERIOR COURT TO CHALLENGE ANY OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE THAT ADOPTS OR IMPLEMENTS A POLICY OR PRACTICE THAT LIMITS OR RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW. IF THERE IS A JUDICIAL FINDING THAT AN ENTITY HAS VIOLATED THIS SECTION, THE COURT SHALL ORDER ANY OF THE FOLLOWING:
While this provision wisely excludes federal agencies (which would violate a different part of the Constitution), it is a poorly crafted provision. What constitutes the “full extent permitted by federal law” is a highly subjective notion.
There is a federal counterpart to the provision on alien’s not carrying cards:
Sec. 264. [8 U.S.C. 1304]
(e) Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d). Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.
However, the Arizona law appears intended to allow questioning of people based on some undefined reasonable suspicion on their status and to allow for the arrest of those without such identification.
The drafters also seemed to try to deter people from suing over violations with immunity provisions and remitting fines to the state:
PERSON MAY BRING AN ACTION IN SUPERIOR COURT TO CHALLENGE ANY OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE THAT ADOPTS OR IMPLEMENTS A POLICY THAT LIMITS OR RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW. IF THERE IS A JUDICIAL FINDING THAT AN ENTITY HAS VIOLATED THIS SECTION, THE COURT SHALL ORDER ANY OF THE FOLLOWING:
1. THAT THE PERSON WHO BROUGHT THE ACTION RECOVER COURT COSTS AND ATTORNEY FEES.
2. THAT THE ENTITY PAY A CIVIL PENALTY OF NOT LESS THAN ONE THOUSAND DOLLARS AND NOT MORE THAN FIVE THOUSAND DOLLARS FOR EACH DAY THAT THE POLICY HAS REMAINED IN EFFECT AFTER THE FILING OF AN ACTION PURSUANT TO THIS SUBSECTION.
H. A COURT SHALL COLLECT THE CIVIL PENALTY PRESCRIBED IN SUBSECTION G AND REMIT THE CIVIL PENALTY TO THE DEPARTMENT OF PUBLIC SAFETY FOR DEPOSIT IN THE GANG AND IMMIGRATION INTELLIGENCE TEAM ENFORCEMENT MISSION FUND ESTABLISHED BY SECTION 41-1724.
I. A LAW ENFORCEMENT OFFICER IS INDEMNIFIED BY THE LAW ENFORCEMENT OFFICER’S AGENCY AGAINST REASONABLE COSTS AND EXPENSES, INCLUDING ATTORNEY FEES, INCURRED BY THE OFFICER IN CONNECTION WITH ANY ACTION, SUIT OR PROCEEDING BROUGHT PURSUANT TO THIS SECTION TO WHICH THE OFFICER MAY BE A PARTY BY REASON OF THE OFFICER BEING OR HAVING BEEN A MEMBER OF THE LAW ENFORCEMENT AGENCY, EXCEPT IN RELATION TO MATTERS IN WHICH THE OFFICER IS ADJUDGED TO HAVE ACTED IN BAD FAITH.
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