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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“What powers have not specifically delegated to the Federal government are reserved to the respective and individual states. Or something like that. I think Immigration is one of those powers the Federal Government exclusive providence. I think the state may have a problem.”
I’ve read that Az’s law mirrors existing federal law, so that this will not be an issue.
As to reasonable suspicion: most of the criticism I’ve seen is predicated on the (straw man) argument that police will violate people’s civil rights and base their determination on skin color or ethnic origin. I’ll acknowledge that police officers do violate the law or people’s rights at times, but I think it unlikely that this will happen with great frequency here because the police officers will have too much to lose by engaging in such transparent violations.
I guess that probable cause will be a case by case determination (as it is in 4A matters) but I frequently see news stories the facts of which might show when there would be probable cause, e.g., 57 people crammed into the back of a u-haul moving north from the border; people being held captive in drop houses; people who were working based on submission of forged documents. All three examples are from the last month.
Elaine,
That’s because kilts are “spacious”. 😀
Gyges–
But you’re only likely to get a glimpse of their logical fallacies when they’re wearing kilts.
Elaine,
And here I thought you could only tell true Scotsmen by their logical fallacies.
If you want to write the International Criminal Court.
Following is the email address for the Office of the Prosecutor at the Hague to request investigation and prosecution of Barack Obama for War Crimes.
otp.informationdesk@icc-cpi.int
BVM:
Unlike Dorothy, even if you stamp your feet and click your heels together three times you can’t make what you say real, and you can’t go home to Kansas — though I wish you would.
Obama must feel like a long-tailed cat in a room full of rocking chairs – and the walls are closing in.
Obama is a War Criminal of Mass Murders / Maiming in Iraq, Afghanistan and Pakistan. Obama is guilty of innumerable War Crimes in violations of U.S. and International laws. Afghanistan is a State Party in the International Criminal Court for his possible trial at the Hague.
Kenya also is a signatory to ICC. “According to members of the Kenyan parliament Obama was born in Kenya, he is a citizen of Kenya, and can be prosecuted by the International Criminal Court in Hague.”
http://marjoriecohn.com/2009/12/obamas-af-pak-war-is-illegal.html
Former Federal LEO–
Add to the above: the Scotsmen in their tartan kilts…and any pasty English folks who look like they are in dire need of a tasty meal.
Mike A.
You forgot the Dutch with those wooden shoes and their distinctive twolips…usually red in color
I’m beginning to think that BVM is on drugs, just not the ones he should be taking.
With regard to the Arizona law, it’s purely a case of pandering for reelection purposes. On the other hand, Gov. Brewer has promised that the police will be “trained” to properly implement the new law. They probably already have enough information to spot illegal Mexican-Americans (look carefully for donkeys and sombreros), so I’ve decided to offer clues on other nationalities. For example, you can always tell illegal Germans by their lederhosen. Illegal Italians frequently are accompanied by music boxes and those tiny monkeys. The smell of whiskey is a dead giveaway when looking for illegal Irish. And you can recognize illegal Scandinavians because they’re the only people who’ll ask you for directions to North Dakota.
This person BVM is certifiable. Unfortunately is views are reflected by many self-described Americans. It’s a scary landscape.
“And lest we forget, 53% of the electorate wants what he campaigned on and is accomplishing.” -rcampbell
I doubt that can be an accurate statement. I know many people who voted for him just because he was a Democrat. I know many others who voted for him because he is charismatic. And I know others who voted for him because they weren’t sure when they would have another chance to put a person of color in that office.
I doubt 20% of those who voted for him could tell you what he wrote about in his book or campaigned for. Most voters have one or two things they focus on. Beyond that, most don’t care.
rcampbell,
Truer words were never spoken.
BVD
All Obama has done is just about everything he outlined in his book “The Audacity of Hope” and campaigned and got elected on. He’s certainly NOT an extremist by any stretch of the imagination. And lest we forget, 53% of the electorate wants what he campaigned on and is accomplishing.
I understand the empty feeling you can get when your side loses an important election as we had in Nov ’08. But, the fact is, your side lost. I remember so well waking each day for eight torturous years to that sinking and sickening feeling that George Bush was still the President.
You’ll get used to it and if you’re young enough you may see a day someday in the distant future when Americans will have forgotten the terrible deeds done to them by conservatives since 1980 and the devistated economy they left in their wake and they’ll elect a conservative. Be encouraged, son. It could happen in your lifetime.
Tootie:
Would you care to enlighten us on how to defeat ‘Obama the Liar’ and his regime?
What powers have not specifically delegated to the Federal government are reserved to the respective and individual states. Or something like that. I think Immigration is one of those powers the Federal Government exclusive providence. I think the state may have a problem.
mespo,
You forgot “Sig Heil My future Fuhrer.
Professor, is the immigration law unconstitutional?
Buena Vista: you undermine your argument with the nutter birther stuff. You don’t need it to defeat our usurpatious, extremist President and his commie friends in congress.
It is irrelevant.
mespo,
That sounds like a great argument that reasonable suspicion is much harder to acquire than some people have been assuming. Here’s hoping that the courts agree.
….the President is a naturalized citizen of the United States of America just like you…please get some help and stop dishonoring your service to this country with this conspiracy bullshit…your energy is needed in helping your brothers of the wars you guys have fought…not wasting your time with this so called birther bunk…Michael P