Arizona Senate Bill 1070

[Darius871]

It seems to me that if a law has been on the books for decades and has been enforced before its a little disingenuous to get hysterical when a state moves to enforce that law as well.

But the concern isn't merely that it's being enforced, but that it would likely be enforced in a manner that relies on racial profiling. Now I'm skeptical as to whether that'd actually happen because it's not the cops' job to define reasonable suspicion; it's the courts' job, and they'll inevitably look to the reasonable suspicion jurisprudence that the bill's drafters clearly meant to invoke. The bill doesn't have to explicitly "prohibit" racial profiling if it's enacted in the midst of (and implicitly incorporates by reference) a well-known constitutional status quo requiring something more than race to justify a Terry stop. So suppose a cop pulls over a guy solely for "driving while brown" (DWB) and consequently finds out he's here illegally - when the state tries to prosecute him, the judge or appellate court would throw out all obtained evidence of illegal status as the "fruit" of a stop that was invalid in the first place because the sole reason for it was DWB. Result: no conviction, no prison, no fine, no nothing. He's free as far as state law is concerned. Whether to then deport him after the dismissal would be up to ICE, not the state.

Assuming the state truly has an interest in enforcing the criminal statute with criminal convictions, then the scenario I just described will force police to stop with justifications above and beyond DWB, which ordinarily would be good enough for me. However, I'm not entirely sure that we should rely in that assumption, because §11-1051(D) provides that officers "may" simply transfer detained illegals to ICE/CBP in lieu of seeking a state criminal conviction, which would circumvent these fruit-of-the-poisonous-tree problems and save a grip on prosecution expenses to boot. It remains to be seen whether (A) this loophole will actually be exploited in practice and (B) local ICE/CBP offices would have both the resources and inclination to actually accept that influx, but if both factors come to pass I'd have no problem calling this a de facto racial profiling bill even though it's not on its face.

What's even more troubling is that should the Supreme Court apply "field" preemption to immigration - which it hasn't yet but probably would - that would only bar "supplementing" federal laws with actual state regulation of immigration, which would invalidate perhaps the criminalizing portions of the bill but wouldn't necessarily invalidate severable portions endorsing the mere act of enforcing federal law by apprehending and transferring those who violate federal law. In fact, §11 of the bill (at http://www.azleg.gov/legtext/49leg/2r/bills/sb1070s.pdf) expresses severability in anticipation of precisely that eventuality. Thus, even if the criminal penalties end up being overturned, the §11-1051(D) loophole would, by operation of the severability clause, remain in place and give police carte blanche to racially profile with no fruit-of-the-poisonous-tree impediments.

[KrazyHorse]

Yeah but you're white

Says who?

[Drake Tungsten]

My first impression is that this thread suffers from a fundamental misunderstanding of what's meant by "reasonable suspicion," which is a clear reference to about 42 years of 4th Amendment jurisprudence that would almost certainly forbid pulling someone over for looking like an illegal tends to look, which means cops are only going to be able to pull over vehicles for articulable suspicion of some other offense (e.g. speeding, ignoring signals, busted taillight, etc.), whether someone later calls it "pretext" or not.

God bless you for explaining this. The furor over this law is completely ****ing ridiculous.

[KrazyHorse]

I actually don't understand his point. If a cop pulls somebody over for legitimate reasons, this law appears, on its face, to give them the power to request documents they wouldn't otherwise be able to. Most importantly, it does so based on a criterion which can't possibly be construed to NOT discriminate
based on "race or national origin". Then again, IANAL.

[KrazyHorse]

dp

[SlowwHand]

Illegal aliens need to be shipped out.

[Darius871]

The "must have papers" law is most certainly not enforced currently. In order to abide by that law I'd need to carry around my passport and a sheaf of papers 20 pages thick

This is simply not true from even a cursory glance at the bill (link); it instead provides that officers must make a "reasonable attempt..., when practicable, to determine...immigration status," which authorizes nothing more than a toothless request, grants no authority to compel you to turn over documentation, and certainly grants no authority to physically detain you for failing to have that documentation on you. The real meat of the statute is compelling the officers themselves to "verif[y] with the federal government pursuant to 8 U.S.C. §1373(c)," a federal statute requires ICE/CBP to promptly disclose to local law enforcement its records of a particular individual's immigration status upon request. In other words, if you're straight with Uncle Sam, you don't have to carry f***all.

I actually don't understand his point. If a cop pulls somebody over for legitimate reasons, this law appears, on its face, to give them the power to request documents they wouldn't otherwise be able to. Most importantly, it does so based on a criterion which can't possibly be construed to NOT discriminate based on "race or national origin". Then again, IANAL.

I was trying to oversimplify, but to get more specific a frequently missed point in the media blitz is that the "reasonable suspicion" language is only the second of four lines of defense painfully obvious in the plain text of this bill, not the only line of defense. To be clear, the first hurdle to get over is that there must be "lawful contact" in the first place, i.e. there must be either a consensual chat à la Florida v. Bostick (which by definition one is free to leave or ignore at any time), some sort of Terry stop with sufficient individualized suspicion of some non-immigration-related offense, or some arrest with probable cause for some non-immigration-related offense. No consensual encounter or independent crime = no valid stop = no valid request for documentation. This stops the majority of racist a**hole cops right out of the gate.

Then there's the second hurdle of "reasonable suspicion" that the person contacted is here illegally, which (pursuant to decades of jurisprudence that the statute's drafters clearly intended to invoke) cannot be solely on the basis of race, or what one's name implies about race, or what one's level of fluency in English implies about nationality. There would have to be some independent, non-racial factor probative of illegal status in particular, such as working in a sweatshop known to be full of illegals, an ICE/CBP record for a past deportation, hanging out in front of the Home Depot to find day work for straight cash, headlong flight à la Illinois v. Wardlow, visible tats from a gang that only exists south of the border, etc. etc. etc. A complexion, name, or language alone would not cut it in any court of law. This stops another huge chunk of racist a**hole cops.

Then there's the third hurdle of the determination of status having to be through a "reasonable attempt, when practicable," which at least tries to ensure that it be done promptly when the proper equipment is available for a 8 U.S.C. §1373(c) check, and would cut loose anyone whom the process would cause undue delay. Even more racist a**hole cops find their hands tied.

Then there's the fourth hurdle that the statute explicitly requires "probable cause" - that's right, you heard it, probable cause - to actually detain someone. So suppose that by some quirk of fate my last name's Martinez and I've been stopped for a broken taillight by a racist a**hole cop in the mood to blatantly violate standard procedure by investigating my immigration status without any articulable non-racial reason to do so. He sits back in the squad car out of my sight to look up ICE/CBP records on his computer or by phone pursuant to 8 U.S.C. §1373(c), finds nothing useful, and asks me if I can provide any documentation as to my immigration status. I politely reply "no officer, all I have is the state-issued driver's license I already showed you. Will there be anything else, baconboy?" He would not have reasonable suspicion to continue questioning, and certainly would not have probable cause to arrest me, so I would be free to go.

So in the end, all I lost was an extra thirty seconds added to my independently justified stop and the rice-grain worth of calories I expended to respond to a simple question. Would I feel harassed or degraded? Not in the least. But then maybe normal people don't have as much fun telling off cops as I do.

[KrazyHorse]

I'm not sure that the protections are as clear cut as you're making them out to be, but once more IANAL so I won't attempt to argue with you. By the way, I think you misread my first post. That post was in reference to DD's post claiming that current law (which has been represented to me by a number of professional sources as requiring nonresident aliens to carry documents proving their status at all times) is actually enforced. It is not, in any meaningful way. It's an unreasonable requirement, and government agents have the good sense to ignore it.

[Darius871]

I'm not sure that the protections are as clear cut as you're making them out to be, but once more IANAL so I won't attempt to argue with you.

Well, I should reiterate that these protections, though as robust as I described them assuming competent defense counsel, only come into play for purposes of (A) applying the exclusionary rule to prevent a conviction under the state's new "trespass" criminalization and (B) sustaining civil suits by non-indicted persons whose rights were violated. To my knowledge constitutional violations are not an obstacle to deportation, so the the §11-1051(D) loophole discussed at the top of the page leaves the door wide open to an all-out Kristallnacht if the sole purpose is to round people up and turn them over to the feds. It remains to be seen whether that is the purpose.

By the way, I think you misread my first post. That post was in reference to DD's post claiming that current law (which has been represented to me by a number of professional sources as requiring nonresident aliens to carry documents proving their status at all times) is actually enforced. It is not, in any meaningful way. It's an unreasonable requirement, and government agents have the good sense to ignore it.

Fair enough, but I'm honestly not seeing anything in the text suggesting a "must have papers" requirement even if every line were vigorously enforced. At most it appears to authorize a toothless request and, far more importantly, a 8 U.S.C. §1373(c) verification. The latter alone is bound to carve huge swaths out of the illegal population, so much so that the former is a mere formality by comparison.

[Darius871]

To my knowledge constitutional violations are not an obstacle to deportation, so the the §11-1051(D) loophole discussed at the top of the page leaves the door wide open to an all-out Kristallnacht if the sole purpose is to round people up and turn them over to the feds. It remains to be seen whether that is the purpose.

Not sure how it slipped my mind, but it was INS v. Lopez-Mendoza where the Supreme Court made abundantly clear that even blatant 4th Amendment violations do not invalidate deportation, because one's identity while being present on American soil is a readily ascertainable fact that can't possibly be the causal "fruit" of the violations. In other words, if the police are willing to (A) sacrifice the potential for state-level convictions and (B) risk civil suits from the innocent (C) in exchange for deportations en masse, they're free to railroad away. That possibility's pretty damned scary, but I think the political pressure's too hot for them to exploit it.

[Wiglaf]

Darius

Worth noting though that, once cops do have reasonable suspicion, an immigrant's inability to provide documentation really ****s them over. It quickly adds to probable cause and can lead to arrest and/or referral to federal immigration.

E.g -- If you are a legal immigrant who happens to hang around at those hot shirtless roofing companies that don't employ people who speak any English and spend all day at Taco Bell eating double stuffed **** gordidas, it's probably good to have your ****ing papers. Telling the cop to **** off baconboy at that point is not smart and will result in a day in the clink.

[Darius871]

Maybe leave out the baconboy part, but the point being I refuse to believe the state district courts, state appellate courts, federal district court, and the 9th Circuit will all endorse the proposition that merely forgetting to have all pertinent papers physically on your person at all times elevates a reasonable suspicion to probable cause, either in the sense that the statute used the phrase or in the sense that constitutional jurisprudence requires anyway notwithstanding the statute. Many an innocent legal resident would make that mistake, and the bill imposes no explicit affirmative duty on their part to avoid that mistake, so elevating from questioning to full-scale arrest for that alone would be tough to justify. Not impossible, but I'll only believe it when I see it.

[Wiglaf]

This is what is so sad about America. Fat old pedophiles like Larry King, who I watch every night on the theory that he will likely die on-air in dramatic fashion, make assumptions out of their ass and no one calls them on it

TRUMP: Well it all starts with the Federal government not coming out with a law. They've been talking about it for years and they still haven't done anything about it. And Arizona is really getting crime-ridden. There's people coming over, there's killings all over the place, there's shootings all over the place.

KING: But do you favor stopping people on the street?

TRUMP: What are you going to do? I mean, are you going to stop people to see if they're supposed to be there? And personally as a citizen I wouldn't mind, I really wouldn't mind.

KING: [to Melania] Would you mind if people from Slovenia were stopped if they looked funny?

M. TRUMP: Well, I think everybody needs to have papers, you know, and be legally here. We need to have papers if we go anywhere else in the world, so people need to have also the papers here.

[Imran Siddiqui]

Larry King isn't fat.

[Wiglaf]

You are probably my favorite poster on this site.