Watching tv last night, I learned that the state of Arizona passed a law granting police the power to stop and verify the immigration status of anyone they suspect of being illegal. Surely people would realize that this law was unconstitutional. To begin with, states have no power to pass immigration laws. More importantly our constitution forbade illegal search and seizure. "The Tea Party would never allow this" I mused. With a leap I jumped on my horse and rode through the night. "The Arizonans are coming. The Arizonans are coming". The familiar pope like hats of the British soldiers were replaced with Diamondback baseball caps. One if by land, two if by sea . I lit one lantern. They were coming through the Arizona desert. I needed to contact my friends in the Tea Party. This was their chance to shine and prove they were not just about sound bites and slogans. This was their moment to truly defend the constitution. This was a chance to prove they were truly a non partisan movement that cared about the constitution. Freedom would be on the march! I lit up the sky with a signal. I had replaced the bat with Glenn Beck's logo.This would be perfect for the Tea Party and the Glenn Beck crowd. They were in the midst of planning a rally on the anniversary of Martin Luther King's "I have a dream" speech. Here was a chance to defend the civil rights of all Americans. Glenn Beck sat in front of cutouts of the founding fathers for Pete's sake. Here was a chance to defend the very principles they cherished. Screw healthcare reform (which by the way is constitutional under the commerce clause), this was a law that challenged one of the very basic tenets of our American way of life. No illegal search and seizure. The authorities needed a reason to detain you. God Bless America, Arizona even had a tea named after the state. The script wrote itself.
No one from the Tea Party came to my defense. "They are trying to pass a law in Arizona that allows Police to stop you just because you look like a foreigner! " I shouted. Where were the misspelled signs. Where were the Winnebagos of Freedom. Where was the Maverick and the Barracuda? Did the teaparty's Rascal scooters run out of juice? Apparently, the copies of the Constitution teaparty protestors carried were just props to them. They had returned their tri cornered hats to the costume shop. There was no sound of fifes and drums. I think the true meaning of the Arizona law glossed over them.
Let's set up a fun hypothetical. You're on vacation in Arizona for the annual Magnum PI convention. Your tan, you grow a mustache and throw on a Hawaiian shirt. With the mustache, some may say you look a little foreign. A police officer stops you even though you have broken no law. You are an American Citizen. Ask yourself, how do you prove you are a US citizen? Your state driver's license won't cut it. It doesn't state your immigration status. You don't have a passport on you. You don't even have a passport. Your taken into custody until you can provide proof you are a citizen. You call Higgins and ask him to send your long form birth certificate from Hawaii. And you know what a hassle that can be. Might as well order one from Kenya.
OK so the Magnum scenario is a little goofy. But let's be serious for a moment. You are stopped by Arizona police simply because they think you are Canadian and here illegally. You have done nothing wrong. You are a US citizen. Empty your pockets. Ask yourself what do you have to prove you are a citizen? Better think quick if you want to stay out of jail. But let's be frank. The police won't be stopping people who look Canadian. They will be focusing much further south.
As Ben Franklin eloquently put "Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety." With that in mind, my modern tea party friends, you may want to stop using that copy of the constitution as just a prop. Open it up and read it some time.
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Your article is full of misleading information and I will clear it up for you.
ReplyDelete..."I learned that the state of Arizona passed a law granting police the power to stop and verify the immigration status of anyone they suspect of being illegal."
Incorrect. It's obvious you have not read the bill. Seriously if you're going to make a blog about the subject matter, at least READ OR RESEARCH the information. Nowhere in SB1070 does it authorize, allow, suggest, nor imply that local or state peace officers may stop anyone they suspect of being illegal. Case law is very well defined that race alone does not surmount to reasonable suspicion. This is common knowledge and it's taught in all police academies nationwide. Next...
"To begin with, states have no power to pass immigration laws."
Incorrect again. Case law has upheld that individual states can create and enforce immigration laws.
Read this:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=424&invol=351
And this:
http://www.cis.org/articles/2004/back604.html
Now on to your fun hypotheticals.
Hypothetical 1:
Police cannot stop you if you have broken no law. OK I'll give you that one. They can, however, detain you if reasonable suspicion arises that you are committing, have committed, or are about to commit a crime. See case law Terry v. Ohio. Again this is basic elementary stuff and taught in all police academies nationwide. Anyway, nearly all states have laws that legally bind people to provide identification to a peace officer when detained. A state issued driver's license or identification is sufficient.
Now here's a little police 101 for ya. Every person detained is run through an NCIC check. What's NCIC you ask? Check it:
http://www.fas.org/irp/agency/doj/fbi/is/ncic.htm
They're checking to see if you have warrants ore are wanted nationwide or worldwide. It has all your info there. Criminal record (if you have one), address, photo, and all types of good stuff. In this case most importantly: Social Security. I'll get to this in a bit. So anyway, you are correct driver's license does not state immigration status. However, it does proclaim that you are a legal resident or citizen because -- get this -- illegal aliens cannot legally obtain driver's licenses! Nice isn't it? The peace officer doesn't even have to check your status. Ownership of a state issued driver's license or identification is indeed enough. Sign this ticket and have a good day. You were right, that WAS a goofy scenario!
Scenario 2:
This is where we start getting "serious." You begin incorrectly yet AGAIN about police stopping you just because they think you are illegal. But this is where this scenario stops so I don't understand what your point was. It's not so "serious" after all. It's kind of pointless really.
Now let me write a fun hypothetical for you. A peace officer stops four adults who match the description of people writing graffiti. He needs to identify all of them and -- if you remember from my lesson -- they are legally required to give me their identification. Adults 1, 2, and 4 have driver's licenses and/or state issued identification cards. Adult #3 doesn't have an identification card. So the peace officer has three adults who have ID, and because the peace officer has extensive training, knows that adults 1, 2, and 4 are U.S. citizens or residents because illegals cannot legally obtain such items. Follow? OK good.
ReplyDeleteNow adult #3 has a problem. You see, the peace officer works in a border state with a very large population of illegal aliens and knows that illegals cannot legally obtain state identification. This raises his suspicion. He continues to investigate because, after all, the man may have left his wallet at home and since he still has to identify the man for his NCIC check (remember from above?), he asks for his name, DOB (that's date of birth), and social security number. Well, adult #3 does not have a social security number. And guess who doesn't have social security numbers? Take a guess go ahead. Right! Illegal aliens! Well Mr. Peace Officer has what he now suspects is an illegal alien. He runs the NCIC check and confirms. But Mr. Peace Officer is not done yet. He calls Immigration and Customs Enforcement (or Border Patrol either one will work) to verify. I.C.E. confirms the peace officers suspicion and he has now collared an illegal alien.
Since the peace officer works in Arizona and a new law has taken effect, he can now book the man into a federal facility for the violation. The peace officer is melancholic. He remembers the good old days when I.C.E./B.P. would send a unit over and pick the man up and do the work for him.
Whew! That was long (and frankly quite exhausting). But I had to do it. I just had to destroy your argument (wasn't much of an argument since you didn't even do any research). But in the end you'll thank me because you wont look foolish any longer. You're welcome.
robsolo
Rob, With references to Magnum PI and riding a horse, obviously I was trying to be humorous. First off, thank you sincerely for reading my post and actually posting comments. As a wiseass myself, I do not take offense to your smug tone.
ReplyDeleteTo clarify, I do not actually own a horse nor do I think people dressed as Magnum are going to be arrested en mass. I was not trying to write a law review caliber article. I was just trying to make a serious point with a little levity. With that said, you do make some good albeit misguided points
Let's take care of one off the bat. Under US Constitution, federal law is the supreme law of the land and states may not pass laws that overshadow federal statutes. That is what I meant regarding states passing immigration laws. If it is determined that the Arizona law merely supports Federal law, you are correct. Many disagree with you. To begin with it is my understanding the AZ law offers up additional penalties not found in the federal statute.
You also stated : "Nowhere in SB1070 does it authorize, allow, suggest, nor imply that local or state peace officers may stop anyone they suspect of being illegal. Case law is very well defined that race alone does not surmount to reasonable suspicion. This is common knowledge and it's taught in all police academies nationwide" and you quote Terry v. Ohio regarding reasonable suspicion. I disagree as the language in SB1070 does indeed allow police to stop anyone they suspect of being illegal as long as there is reasonable suspicion.
I do agree with your statement that case law is very well defined regarding race alone not surmounting to reasonable suspicion. That is one of the reasons I think this law is problematic.
AZ has a problem with illegal Mexicans. Of course they will stop people based on race.
So what is considered enough "reasonable suspicion" so you don't violate the 4th Amendmen's prhibition on illegal search and seizures. You were right to mention Terry v. Ohio in your post. This is the case that helps define reasonable suspicion. The Terry Court determined that a police officer may not be violating the 4th Amendment prohibitions on illegal search and seizure even if the officer stopped a suspect and searched him without probable cause. What you failed to mention is that this is not a free range allowance to police officers to stop anyone they wish. It is limited to situations where the officer has a reasonable suspicion that the person has committed a crime, is committing a crime or is about to commit a crime.
ReplyDeleteWith that said, I do not dispute the scenario you provided. A police officer who sees four adults matching the description of vandals has reasonable suspicion to stop these men. And yes, the officer will do a NCIC check on the person. You fail to see my point and the big picture.
You are giving me a hypothetical situation where individuals are stopped on reasonable suspicion for another crime. My concern is with situations where there is no crime to initiate the initial stop. What give the officer the right to arrest a person in a situation where there is nothing to give a rise to probable cause or even reasonable suspcion. How do you reasonably suspect someone's immigration status simply by looking at them?
In your scenario, the people detained matched descriptions of vandals and there is a reported crime. The cop has a reasonable suspicion the individuals did something illegal. What if the situation was different. What if the police did not have a description of the vandals and those men in your example were nowhere near the grafitti. Even better, what if no crime was even reported. Should the officer still be able to detain those people in your scenario simply on a hunch?
The constitution says no. Reasonable suspicion is when you see a guy hanging out around cars at 3 AM in the morning with a wire hanger. Reasonable suspicion is seeing a gun shaped bulge in a guys jacket. I have no problem with this. Without these Terry court allowances, police would not be able to do anything. But what is reasonable suspicion someone overstayed their tourist visa? How do you tell someone is illegal just by looking?
ReplyDeleteYou can't just have a hunch to arrest someone. To be considered constitutional, the reasonable suspicion must be based on "specific and articulable facts" You see a guy with a spray paint can standing next to graffiti, it is reasonable to suspect that the guy just committed a crime. But tell me? How do you reasonably suspect someone is here illegally? Take a walk around a mall food court. Just by looking at them tell me who is a US citizen? Who is an exchange student? Who is here on a valid work visa? Who has valid paperwork filed and is considered in proper status? Who came here on a fiancee visa or is married to a US citizen? Who snuck in through Canada? Who climbed the fence in Mexico? What about that Chinese guy or the Indian guy? What's his deal? Is that guy Puerto Rican or Dominican?
Let's cut the shit. Realistically, the cop won't be stopping people because they think he or she is a Canadian. The state has a problem with illegals from Mexico. So how do you reasonably suspect someone is here illegally from Mexico. You are obviously going to stop people based on race. Who is going to be detained? Does it rise to the level of reasonable suspicion that someone is hanging out in a Home Depot parking lot that looks Mexican? Or do you just have a hunch? What about a Puerto Rican visiting the Grand Canyon speaking Spanish. That person is more likely to be arrested than a blonde haired girl from Iowa or even Russia. In that case, the Puerto Rican has every right to be in this country. The Russian blonde may have snuck in through Mexico.
Let's forget about illegal aliens for a minute. You don't think this law will affect US citizens? To be safe, American citizens are going to have to pretty much bring their birth certificate and passport with them on visits to Arizona. Yes. Arizona. One of the 50 stars on the flag. If you get stopped, how else are you going to prove you are a citizen? Your out of state driver license may not cut it if your state does not make citizenship a requirement to get one. So empty your pockets. What do you have that confirms your blood runs red white and blue.
ReplyDeleteYou did nothing wrong. Committed no crime. You are not standing next to a spray painted wall with red hands. You just look a little Mexican or Chinese or Indian or Irish or Polish or Jamaican. Now some small town cop just has a hunch that you are illegal. He heard your accent and thinks maybe this guy is foreign. Like most Americans, you don't carry a certified copy of your birth certificate.
Prove you are a citizen. I am sure you will eventually be able to do so. I hear the arguments. So what! I can prove I am a citizen. They ask me for my drivers license. Yes, but the officer doesn't pull you over for no reason. You may have been speeding or weaving. Would you be as glib if the officer had pulled you over simply because he had a hunch you were breaking the law. I am also sure you would be pretty pissed that you were arrested for no other reason than the fact the cop had a hunch you were visiting the country from Canada on an expired tourist visa.
You cannot look at this issue with a narrow point of view. Glenn Beck and Rush Limbaugh are not constitutional scholars. They are college dropout entertainers. Yes, illegal immigration is a problem in Arizona. I acknowledge that. Drug running and kidnapping and whatever other examples you give until you are blue in the face are serious and need to be dealt with. But not at the expense of our constitutional liberties.
It is no different than people that want to get rid of guns to prevent crime. The Constitution gives us the right to bare arms. Would you give up your right to arms because gun violence is a serious issue on the Mexican border? What if Arizona passed a law that said you can't have a gun in the state because of all the gun related crime. Arizonans are fed up. So no more guns. Of course you would object. The Constitution overrides Arizona's wish for no guns. If you are not OK with that, how can you be OK with a state asking you to give up your 4th Amendment rights?
-Sorry about the long winded response LOL
Your response is based on fantasy only because you distrust cops. That's what it boils down to. You fail to read the law where it states lawful contact must already be taking place. Said lawful contact is unrelated to whether or not somebody is legal. You're just speculating what may happen and you have no basis for it other than you just don't trust cops.
ReplyDeleteThis new AZ law is nothing new. Some depts. have a policy almost verbatim to this law. Illegals are encountered daily here during a peace officer's duties. DAILY. And Sheriff Arpaio has been doing it for three years. Nobody goes around picking on someone based on looks. Again it's just speculation because you distrust cops. If you think cops will be doing anything willy nilly, they certainly don't need this law or ANY law to do as they wish.
And I'll repeat again. In AZ you have to be a legal resident or citizen to have a state issued driver's license and ID. That proves your legal status. There is no need to check anything other than that. That's a fact in 42 states. I don't know why you can't follow. And since during a detainment you have to give me your ID, a lack of ID arises suspicion.
Rob,
ReplyDeleteYou obviously did not read my long winded and probably boring response. For the meaning of the statute, lawful contact is considered the police officer having reasonable suspicion the person may be illegal. So again. You are holding a smoking gun next to a dead body with holes in it. Yes. Reasonable suspicion as defined under Terry. You can detain the person. Mexican guy standing on the corner holding a bag of oranges. Reasonable suspicion he is illegal or hunch. Should you be able to arrest that person on the spot? Of course not.
I do not distrust cops. I am very supportive of law enforcement. I have family members who are on the job. In my opinion, this law puts an undue burden on them. How do you reasonably suspect someone is here illegal? Again, the constitution requires more than a hunch. Even the Az governor said she didn't know what an illegal alien "looked like."
You cannot just say something without backing it up. Not to mention your comment on 42 states. We have 50 states. 57 using Obama math. What happens if you have a license from one of states that does not require citizenship.
Again you miss my point. You keep talking about what happens to someone after the person is arrested. Nice try at spin. That is not the issue. The issue is whether the police had the constitutional authority to arrest someone in the first place.
I have no problem with people being deported after a proper arrest shows they are here illegally. My point is that the Arizona law is not on good constituional footing to make that proper arrest. It has nothing to do with trusting cops. It has to due with constitutional liberties. By your argument, we should not have any rules governing arrests. Why bother with Miranda warnings or any of it? Why have something in the constitution about free speech, you trust the government. I am sure they won't take that away.
To Rob: In spite of your research regarding the AZ law, it seems you didn't bother to check the immigration laws.
ReplyDeleteNot only undocumented aliens aren't entitled to a Social Security or a State issued driver's licence, as you wrongly affirm. Someone with a non-immigrant visa, such as F1 or F2 (for foreign students & their spouses/children) DOES NOT have the right to obtain those documents (an F1 can get the SS under SPECIAL circumstances).
And, sure, such a person's passport does have a visa. But the point is not how to prove your immigration status AFTER being arrested. As the Baron says, the real issue are the motivations behind an arrest.
Then again, maybe paranoia might be reason enough for many US citizens to trade their constitutional liberties for "security".