Today begins my discourse on Arizona's immigration law. The goal is for anyone, after reading this, to be able to discuss the law based on the law vice conjecture. Maybe when the discourse is complete, I'll send email to Eric Holder and others who have failed to read the law with a link to this blog. They might learn a thing or two.
I know I've given the link before but here's the link for the Arizona law again:
http://www.azleg.gov/legtext/49leg/2r/bills/sb1070h.pdf
The law amends the Arizona Revised Statutes to add article 8. Title 11 section 1051 para A states:
NO OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE MAY LIMIT OR RESTRICT THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW.
This passage is directing all government entities of the state to enforce federal law. The essence of this is to ensure a San Francisco-esque city doesn't exist in the state. As a total force, the entire state is directed to enforce federal law.
para B:
FOR ANY LAWFUL CONTACT 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 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, EXCEPT IF THE DETERMINATION MAY HINDER OR OBSTRUCT AN INVESTIGATION.
This is the sticking point of the law; the section most opponents are against. First let's define the word lawful. Lawful is "legitimate" (New Standard Dictionary); "being in harmony with the law" (Merriam-Webster Dictionary of Law). So if someone has contact that can only be construed as lawful and nothing else and they are an official of the state or some other entity of the state, then they are bound to follow the rest of this sentence. If the contact is not within the bounds of the law, then the rest of the sentence has no bearing and cannot be followed. The opponents of this law cry that this provision will lead to racial profiling. It would be naive not think there are unscrupulous police officers in our country. Let's face it, every day a news story can be found that documents abuses by the police. Some of these abuses are innocent while some are not. Those that are not are perpetuated by those who are unscrupulous. However the unscrupulous police officers will racial profile without this law so the wording or passage of this law is immaterial to their actions. Those opponents who cry that this law requires racial profiling are also incorrect. The law officers who follow the law know that if the initial contact between the law officer and someone else does not meet the definition of lawful such that the contact would not stand up in a court of law as being lawful if challenged, then the officers will not follow the rest of the passage because they know that if they do, then whatever action occurs after the violation of the statute is inadmissible. Some may argue that the law officer might innocently engage in racial profiling; however, a later sentence addresses this issue, so I'll delay comment.
(Please note: I interchange law officer, police officer, and official. Granted these are separate roles but for the discussion based on who is required to follow Arizona law, they will mean the same.)
So once a lawful contact has been made, the law officer must have reasonable suspicion. This term is defined as an objectively justifiable suspicion that is based on specific facts or circumstances. The legal standard here is that the law officer must be able to point to the specific facts or circumstances. A hunch does not point to specific facts.
So what would constitute a reasonable suspicion that someone might be an alien who is unlawfully present in the United States? Currently case law does not exist to establish this (or at least none that I have come across in my research). Consider the following scenario: a police officer engages a speeding vehicle. After the offender has pulled over, the police officer discovers a driver who does not speak English. This person also presents a foreign driver license. The officer has engaged the speeder via lawful contact and now has reasonable suspicion the person behind the wheel might not be in the country legally (non-US driver license and non-English language). The officer now has a duty to inquire about the immigration status of the individual. Another scenario: a police officer is responding to a domestic dispute. This time the accuser speaks broken English or maybe even zero English. The accuser gives a statement but does nothing else to arise suspicion. The police officer has engaged the accuser via lawful contact; however, facts or circumstances have not arisen to provide reasonable suspicion the accuser is an alien in the country illegally. This means the officer cannot inquire of the accuser's immigration status. I, for one, look forward to reading the case law as it becomes available.
ANY PERSON WHO IS ARRESTED SHALL HAVE THE PERSON'S IMMIGRATION STATUS DETERMINED BEFORE THE PERSON IS RELEASED.
This sentence is straight forward. If someone is arrested, before the police can allow them to walk out of the station, the person's immigration status must be verified. This sentence does not differentiate between a suspected alien here legally and a resident of the state. If someone is arrested, their immigration status will be verified. This provision prevents what has happened in the past where an alien in the country illegally was released only to commit another crime.
THE PERSON'S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).
Another straight forward sentence. 8 USC sec 1373(c) basically states ICE must respond to inquiries from state or local officials about the immigration status of someone.
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.
Here the Arizona government is specifically stating that the facts or circumstances required for reasonable suspicion cannot be based on race, color, or national origin; in essence, racial profiling is not allowed in enforcement of the law. This particular sentence of the law is usually ignored by the opponents of the law.
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.
4. IF THE ENTITY REQUIRES PROOF OF LEGAL PRESENCE IN THE UNITED STATES BEFORE ISSUANCE, ANY VALID UNITED STATES FEDERAL, STATE OR LOCAL GOVERNMENT ISSUED IDENTIFICATION.
Here the Arizona government states that if someone holds one of the identification methods above the automatic assumption is that they are a legal immigrant or resident. No further questions can be asked after this. For me the amusing aspect of this section of the law is "if the entity requires proof of legal presence in the United States before issuance." The city of San Francisco issues city identification cards to anyone who resides in their city, whether that someone is here unlawfully or not (see: http://www.sfgov2.org/index.aspx?page=113). Because San Francisco does not require legal presence for the city (local government) issued identification card, this section of the Arizona law prohibits the city issued ID card from being used as a presumption the card holder is in the United States legally. Good for Arizona!
I'll finish later this week. I'm not sure I will write my blog tomorrow (5/19) as it is my birthday and after spending over twenty years in the service of our Country by being a member of the US Submarine force where my birthday was not a guaranteed day-off, I desire to take a day off!
Mike
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