Judge blocks most controversial parts of AZ SB1070 law

[Boris Godunov]

It is a little more complicated than that. For example, take Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir. 1983) (reversed on other grounds):

Lower court rulings are not consistent on the issue of Federal preemption (Gonzales never made it past the 9th circuit). Proposition 187 in CA was vacated by a judge on the grounds that the Federal government has preemption in all immigration-related matters, and that ruling also stands. Furthermore, earlier SCOTUS rulings on Federal preemption issues seem to go the Feds way. Also, didn't the 1996 Immigration law stipulate that states can only enforce the Federal statutes if the U.S. Attorney General deputizes local officials to do so? And it can only be done for a specific emergency situation, IIRC.

On top of that, Gonzalez does say that there are two aspects of its ruling that must be true for local officials to enforce Federal laws: it refers only to criminal immigration statutes, not civil ones, and the state must have laws that support the enforcement (but they can't go beyond what Federal law says). While it could be argued whether or not SB 1070 steps outside the bounds of Federal law, it's undeniable that it runs afoul of Gonzales in that it requires officials to enforce the civil statutes. As I mentioned earlier, being in the U.S. illegally is not itself a crime. It is covered under the civil violations of immigration law, not the criminal ones. Merely being in the U.S. illegally does not prove that one has violated the criminal laws, either.

So by my understanding, Gonzales says that local officials can act upon such things as catching someone in the act of crossing the border, which is a criminal violation, but they can't do anything about someone who they just discover is in the country illegally but hasn't committed any other offense, since that's a civil violation.

Also see Farm Labor Organizing Committee v. Ohio State Highway Patrol, 991 F.Supp. 895 (N.D.Ohio 1997).

Er, I read that--how does this support local authorities enforcing Federal statues? It doesn't seem to me to address that issue at all. It wasn't a factor in the plaintiff's suit against the trooper.

[Boris Godunov]

Ah, so there are no real problems caused by illegal immigration in Arizona. Good to know.

Well, it's certainly caused the state to enact an unwise and unconstitutional law that is resulting in crippling financial losses at a time they can ill-afford it thanks to lost business and organized boycott.

[Boris Godunov]

I'd written a response earlier to this that Apolyton ate, and it made me mad.

Wow. That so answers the question as to what exactly *is* racial profiling. Ok. we get it that it's a problem, but what *is* it?

Am I not being clear enough in these questions, Boris. You don't seem to be understanding what I am asking.

No, I just was surprised anyone needed to explain it to you. I guess I shouldn't have been.

How does the statement, illegal immigrants are more likely to commit traffic violations, consist of racial profiling? Illegal immigrants are not a race. Or is there a new race of 'illegal'?

I didn't say it constituted "racial" profiling, just that it was profiling. Making an unwarranted assumption about a group of people (i.e., immigrants are more likely to be bad drivers) is profiling. "Someone who looks Mexican is likely illegal" is racial profiling.

Then I have no problem trusting them to their reasonable judgement just as they do with traffic stops. If they have the authority to use their reasonable judgment to stop people to check their driver's license and registration, then they should also be able to ask for their passport.

Except that it's illegal to require people to produce a passport, and it's really illegal to detain them if they don't provide one. And society has pretty much dispensed with the idea of leaving enforcement of the law to the "reasonable judgment" of officials, which is why we have strict regulations on what law enforcement officials can and can't do. Nobody except an authoritarian fanatic would really think police officers should have carte blanche to enforce laws as they see fit.

So I shouldn't be expected to keep my passport on hand when I travel to the US?

I believe foreign visitors to the U.S are required to maintain either their I-94 or I-551 info at all times, and people with green cards have to have those with them at all times. But the issue is, who can demand to see those things? Answer: the feds, not state officials. Furthermore, U.S. citizens aren't under any such requirement. If cop stops me for no apparent reason and demands to see proof of my citizenship, I can tell him to **** off and he can't detain me unless he's got another charge, as we are not required to have proof of citizenship--or any ID--on us.

Asking for your passprot is not the same as searching your vehicle.

Let's clarify something: police can generally "ask" for whatever they want. That's not the issue, so stop using that work when it doesn't really have meaning. The correct word here is "demand" or "require." Local authorities can't demand you produce a passport any more they can demand to search your vehicle without probable cause. It is, in fact, the same principle of privacy that applies. Both demanding a passport without probable cause and searching a vehicle without probably cause constitute unreasonable search and seizure and are prohibited.

How is not having a license plate at all indicative that the driver might be an illegal?

First, that's not what you said, so I take it you concede the point that merely having non-AZ tags isn't reasonable suspicion, which was a retarded thing to say. Second, why would not having a plate indicate it's an illegal? I'd bet you that most cases of such infractions involve legal citizens. Do you have any evidence to support your implication it's predominantly indicative of the driver being an illegal? No, of course you don't.

Why shouldn't the police officer also confirm the immigration status of an unknown driver who was arrested without a valid license?

If someone is driving without a valid license, they've committed a crime and can be arrested. At that point the police can endeavor to confirm the identity of the person, and if they can't do so, I imagine they'd contact immigration. That's fine, as has been said all along. But the AZ law goes well beyond that idea, saying a local official has to demand papers if he suspects someone is illegal, regardless of whether or not that person has been arrested for another crime. That's a big difference.

In your eyes, is there anything that would reach the threshold?

If someone freely admits to an officer that he's an illegal, then they can certainly remand the case over to the INS. But otherwise, local officials can't detain people on mere suspicion of being in the U.S. illegally, which isn't a crime.

Most americans have drivers licenses. Those who don't have a license are more likely to commit traffic violations either because they do not understand the signs, they do not know the area or they have never actually passed a driver's exam.

This isn't a particularly diffiicult argument.

It's not a difficult argument, it's just a retarded one. The overwhelming number of traffic violations in the U.S. are committed by legal U.S. citizens. So claiming violating traffic regulations is somehow indicative of a driver being in the country illegally is just stupid and wrong. One could easily make the counterargument that since illegals would be more wary of being picked up by officials, they'd be more likely to take extra care while driving and thus avoid violations more than more careless drivers.

Never said this. Pulling someone over because they hit a lamppost isn't profiling. It's called due diligence. Asking for the immigration status of said driver when they fail to produce a license and appear to be sober, and don't appear anywhere in your records, is just plain common sense.

You still are incapable of recognizing the difference between an initial infraction and then having probable cause to investigate further suspected infractions. God damn it, Ben. No, the issue isn't the hitting of the lamppost. The issue where profiling would come into play would be the officer, after having investigated the hitting of the lamppost, deciding demand the driver present his papers... based on what? It can't be the hitting of the lamppost, since traffic accidents are not indicative if illegal status. So what is it? His accent? His skin color? His English skills? You tell me.

That's not my argument either. My argument is that the local authorities do have the authority to turn them over to immigration and customs enforcement.

Yes, if they've lawfully detained them. The problem is, they can't lawfully detain them for any reason they want. There actually has to be an offense for which they can be arrested. This rules out most traffic violations, including speeding tickets. They cannot detain someone because he can't or won't produce proof of his citizenship, which is the main point: State authorities cannot arrest people for failure to prove citizenship.

This is of particular importance in the non-driving issues I mentioned. States can't detain you for not having ID on you. If a police officer sees someone littering, he can get his name and write a citation, but he can't arrest him just because he doesn't have ID. That would be illegal.

[flash9286]

Lower court rulings are not consistent on the issue of Federal preemption (Gonzales never made it past the 9th circuit). Proposition 187 in CA was vacated by a judge on the grounds that the Federal government has preemption in all immigration-related matters, and that ruling also stands. Furthermore, earlier SCOTUS rulings on Federal preemption issues seem to go the Feds way. Also, didn't the 1996 Immigration law stipulate that states can only enforce the Federal statutes if the U.S. Attorney General deputizes local officials to do so? And it can only be done for a specific emergency situation, IIRC.

On top of that, Gonzalez does say that there are two aspects of its ruling that must be true for local officials to enforce Federal laws: it refers only to criminal immigration statutes, not civil ones, and the state must have laws that support the enforcement (but they can't go beyond what Federal law says). While it could be argued whether or not SB 1070 steps outside the bounds of Federal law, it's undeniable that it runs afoul of Gonzales in that it requires officials to enforce the civil statutes. As I mentioned earlier, being in the U.S. illegally is not itself a crime. It is covered under the civil violations of immigration law, not the criminal ones. Merely being in the U.S. illegally does not prove that one has violated the criminal laws, either.

So by my understanding, Gonzales says that local officials can act upon such things as catching someone in the act of crossing the border, which is a criminal violation, but they can't do anything about someone who they just discover is in the country illegally but hasn't committed any other offense, since that's a civil violation.

You said local officials have no power to enforce any federal immigration laws. I merely suggested that the question is a little more complicated than you were making out. I don't disagree about the civil v. criminal distinction (although there are some 10th Cir. cases that don't draw that distinction).

As I mentioned earlier, being in the U.S. illegally is not itself a crime.

Can you provide a link to this info. I remember reading a supreme court case a while back that seemed to suggest that remaining unlawfully in the U.S. was a crime, but cannot look it up right now to see if I am remembering it correctly.

[Ben Kenobi]

No, I just was surprised anyone needed to explain it to you. I guess I shouldn't have been.

I'd rather not assume we see the issue in the same way.

I didn't say it constituted "racial" profiling, just that it was profiling.

You said racial profiling Boris.

Making an unwarranted assumption about a group of people (i.e., immigrants are more likely to be bad drivers) is profiling. "Someone who looks Mexican is likely illegal" is racial profiling.

Saying that illegal immigrants are less likely to possess a valid driver's license is not an unwarranted assumption. Neither is the fact that those who lack a valid driver's license are more likely to commit traffic violations if they were to drive. Put both together and there you have it. Not knowing the rules of the road is a dangerous combination when associated with the operation of a vehicle, which is why they have mandatory licensing in the first place.

Except that it's illegal to require people to produce a passport

Like hell it is. I was asked twice to provide one just travelling by the Texas state troopers.

it's really illegal to detain them

Again, they have the legal authority to turn them over to ICE.

And society has pretty much dispensed with the idea of leaving enforcement of the law to the "reasonable judgment" of officials

Wow, maybe on your planet. The whole point of having police officers is to rely on their reasonable judgement. Bad police officers are not worthy of the force. If we didn't trust police officers, why have them at all?

police officers should have carte blanche to enforce laws as they see fit.

As you've been shown numerous times already in the thread, 'reasonable judgement' is not carte blanche. Maybe in your head it is, but it's never been interpreted that way.

I believe foreign visitors to the U.S are required to maintain either their I-94 or I-551 info at all times, and people with green cards have to have those with them at all times.

Thank you. This is a complete non-issue. Foreign visitors can be expected to have their documentation. Same with legal immigrants.

But the issue is, who can demand to see those things?

Obviously not the case. It's clear that state officials can and do insist on proper documentation, and have been doing so for some time.

U.S. citizens aren't under any such requirement.

And illegal immigrants are not US citizens.

If cop stops me for no apparent reason and demands to see proof of my citizenship, I can tell him to **** off and he can't detain me unless he's got another charge, as we are not required to have proof of citizenship--or any ID--on us.

Which is why the AZ law as written applies only to those cases where another charge applies.

Let's clarify something: police can generally "ask" for whatever they want.

And if I decline to provide identification documents I'm getting a ride in the paddy wagon.

Local authorities can't demand you produce a passport any more they can demand to search your vehicle without probable cause.

State authorities along the border can and have been doing precisely this for some time. Searching your vehicle is not the same as asking for your passport. Askling someone for their passport is a reasonable request.

It is, in fact, the same principle of privacy that applies. Both demanding a passport without probable cause and searching a vehicle without probably cause constitute unreasonable search and seizure and are prohibited.

If asking for your passport is a violation of privacy, then so is asking for your driver's license. It's part of the identification process and a legitimate request for a public authority to make and doesn't constitute unlawful search.

First, that's not what you said

That's exactly what I said. You distorted my argument.

so I take it you concede the point that merely having non-AZ tags isn't reasonable suspicion

All I said was lacking an AZ plate was an issue. I said nothing about possessing a different state plate.

Second, why would not having a plate indicate it's an illegal?

It's like why would the smell of cigarettes indicate a smoker. It's just commonsense. Someone driving without a plate is very, very unusual, and the most likely situation, especially in arizona, is someone who is an illegal immigrant and unable to obtain lawful plates. Now it is true that someone who smells of cigarettes might not be a smoker, but it's the less likely option.

I'd bet you that most cases of such infractions involve legal citizens. Do you have any evidence to support your implication it's predominantly indicative of the driver being an illegal? No, of course you don't.

People not having a valid plate at all is an unusual circumstance. Do you agree with me? I'm frankly shocked that you don't think the most common reason for doing so is the inability to acquire a legal plate.

But the AZ law goes well beyond that idea

No, it doesn't. It only permits the police to ask if they have already stopped them for something which is a valid reason to stop them for, speeding, etc. They can't go on a fishing expedition. That's the reason the bill is worded the way that it is, that the officer can pull them over for speeding, and in the process of confirming their identity, can ask for immigration status.

It's not a difficult argument, it's just a retarded one. The overwhelming number of traffic violations in the U.S. are committed by legal U.S. citizens.

Well of course, because there are far more legal than illegal drivers. As a proportion, illegal drivers are more likely to commit traffic violations than legal drivers.

In many areas of Arizona, something like 80 percent of all crimes are committed by illegal immigrants. This is why they want a crackdown, and want to see the immigration laws enforced.

One could easily make the counterargument that since illegals would be more wary of being picked up by officials, they'd be more likely to take extra care while driving and thus avoid violations more than more careless drivers.

They are more likely not to possess a driver's license at all, which is why as a proportion of the population, they are more likely to commit moving violations. Again, if you don't understand the rules of the road, you can't really follow them, can you?

The issue where profiling would come into play would be the officer, after having investigated the hitting of the lamppost, deciding demand the driver present his papers... based on what?

Based on hitting the lamppost. It's really that simple, I'd want police officers to do due diligence and be able to indentify the perpetrator. Part of that means their immigration status if they are not a citizen.

Yes, if they've lawfully detained them. The problem is, they can't lawfully detain them for any reason they want.

I agree, but they can be lawfully detained for things like speeding, which is why the AZ law only permits them to investigate into immigration status when they have already been lawfully detained.

[DinoDoc]

Can you provide a link to this info. I remember reading a supreme court case a while back that seemed to suggest that remaining unlawfully in the U.S. was a crime, but cannot look it up right now to see if I am remembering it correctly.

8 U.S.C. § 1325

1st offense is civil. Repeat offenses get jacked up to criminal if I'm reading this correctly.

[Ming]

They are more likely not to possess a driver's license at all, which is why as a proportion of the population, they are more likely to commit moving violations. Again, if you don't understand the rules of the road, you can't really follow them, can you?

Prove it Ben... instead of just making crap up as usual.

The argument that they are less likely to have moving violations because they are in FAR MORE TROUBLE if they get pulled over makes logical sense as well. And you make it sound like the "rules of the road" are a difficult thing to understand. They aren't as proven by the fact that even morons in the US can get a license. It is very easy to know the rules of the road and not have a valid license.

You ask most people if they drive differently when they have forgotten their license, or if their insurance has lapsed, and most will probably tell you they drive more carefully because they know they will be in trouble if they get pulled over. I would hazzard a solid guess that most illegal immegrints drive VERY carefully since they are affraid to deal with the authorities in any given way. But, I have no FACTS to support that opinion, and you have NO FACTS EITHER. So stop making up crap and presenting them as facts.

[giblets]

The really annoying thing about Ben is that he splits people's posts into dozens of little snippets and writes a response to each. He's up to 23 now. Not only does it waste tons of time, it also buries the original disagreement in a sea of fallacies.

[Jon Miller]

I have heard, and it makes sense, that illegal immigrants are more likely to run instead of waiting for the police after an accident.

JM

[rah]

In many areas of Arizona, something like 80 percent of all crimes are committed by illegal immigrants. This is why they want a crackdown, and want to see the immigration laws enforced.

I'd love to see any documentation on this one.
Using words like "many" and "something like" are quite scientific.

[flash9286]

8 U.S.C. § 1325

1st offense is civil. Repeat offenses get jacked up to criminal if I'm reading this correctly.

Yep illegal presence isn't a crime per se, but failure to carry registration documents is a crime.

[Darius871]

but IANAL

Seriously, is anyone AL on this thread besides Flash? The boundless ignorance exhibited here on BOTH sides of both the Arizona statute and Fourth Amendment law in general is too much to even begin to wade through again. Just see the old thread and save some time, folks.

[Caligastia]

Well, it's certainly caused the state to enact an unwise and unconstitutional law that is resulting in crippling financial losses at a time they can ill-afford it thanks to lost business and organized boycott.

Crippling financial losses? Evidence please.

[Ben Kenobi]

I think he means the loss of taxes obtained from those who self-deport. Odd, because they don't have to pay income taxes.

Using words like "many" and "something like" are quite scientific.

http://www.jwpcivitasinstitute.org/media/publication-archive/perspective/illegal-immigration-drugs-gangs-and-crime

[Ben Kenobi]

The argument that they are less likely to have moving violations because they are in FAR MORE TROUBLE if they get pulled over makes logical sense as well.

It doesn't take very many without a license to rack up the moving violations. I agree that some who are qualified will be more careful, but there are others who simply don't have a clue, and have never passed an exam.

And you make it sound like the "rules of the road" are a difficult thing to understand. They aren't as proven by the fact that even morons in the US can get a license. It is very easy to know the rules of the road and not have a valid license.

It takes time to learn them. You've taught kids how to drive. You don't just give them a car and away they go.

You ask most people if they drive differently when they have forgotten their license, or if their insurance has lapsed, and most will probably tell you they drive more carefully because they know they will be in trouble if they get pulled over.

If they do have a foreign license, I would say this would be the case. Unfortunately, many don't even have this training and attempt to drive in the US with very poor results.

I would hazzard a solid guess that most illegal immegrints drive VERY carefully since they are affraid to deal with the authorities in any given way. But, I have no FACTS to support that opinion, and you have NO FACTS EITHER. So stop making up crap and presenting them as facts

Illegal immigrants are far more likely to drive without ever having earned a license, and are thus far more likely to commit moving violations.