On Arizona's Immigration Bill

It seems like many people aren’t entirely certain what’s going on with the bill recently signed into law in Arizona. I thought it might help to explain some of the concern with the law and its enforcement, concerns shared by Arizona Association of Police Chiefs and several Arizona sheriffs who have come out in opposition to this law.

Let’s consider a couple things that I see as potential problems, first. The law itself is purportedly drafted to enforce federal laws. The law then dictates when inquiry into legal status comes into play: Title II, Ch. 7, Art.8 Sec. 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. The operative language here is the term “lawful contact” where “reasonable suspicion” exists. I’ve been searching and have been unable to find a definition for “lawful contact,” so for lack of a better term, or until someone can provide me with a codified definition, I will write from the premise that lawful contact is any contact that isn’t unlawful.

The law does require “reasonable suspicion” that the person is an alien who is unlawfully present in the U.S, however, the language is unbelievably broad. This places a burden on the police officer to determine even in passing, if practicable, if a person is here illegally if the person looks illegal. Contrary to common talking points, the plain language of the bill does not restrict this to stops based on violations of other laws. This language is even broader than the already broad Terry Stops based on reasonable suspicion of unlawful behavior, as it confers the power to determine on lawful contacts that are based on appearance, not limited to behavior.

Further, this law allows, after a stop based on appearing to be illegal, a police officer to arrest an individual “without a warrant if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States.” (Sec. E). Note that this provision allows arrest for removal if the police officer develops probable cause AFTER the stop based on lawful contact based on appearance. Not only that, but this clause allows warrantless arrest for LAWFUL immigrants who appear illegal, not just undocumented immigrants.

The law in question creates a further burden on law enforcement, as it requires the diversion of resources to the enforcement of this law. This law includes the following provision (Sec. G): 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 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, and/or 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 after the filing of an action pursuant to this subsection.” Note that the law does not require a written policy, it allows for a lawsuit if a person believes a policy has been implemented that limits enforcement.

There are a few causes for concern here. The most glaring one, of course, and the one focused on by the most people, is that this law does not appear to be enforceable without profiling. Now, Arizona does not have any laws against Racial Profiling, unlike some other states, so perhaps there’s nothing facially illegal, however, from a Constitutional standpoint, there might be an issue with regard to the Fourteenth Amendment Equal Protection clause. The fourteenth amendment reads: “All persons born or naturalized in the united States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United Sates; nor shall any State deprive ANY PERSON of life, liberty, or property, without due process of law; nor deny to ANY PERSON within its jurisdiction equal protection of the laws (emphases mine). While some may argue that the people who are going to be deported are illegals, that’s missing the point. Even with the best of intentions, police officers are going to be targeting one racial group over the others with their lawful contacts and their stops. This detention, based not on reasonable suspicion of criminal activity, poses a burden on citizens of Hispanic descent that is not present to those of other national origin. Not only that, but the Equal Protection clause does not limit itself to protecting CITIZENS of the state equal protection, rather it protects ANY PERSON. This would include the lawful immigrants who would be subject to arrests based on probable cause developed after a search based on appearance, vice reasonable suspicion of criminal activity. Remember, this law allows warrantless arrests, which brings us to the 4^th Amendment. The 4^th amendment reads “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons of things to be seized. Of course, we know that warrantless protective searches are lawful based on Terry (supra), but this law needlessly expands upon the rights of police to conduct warrantless searches and arrests for, in essence, looking illegal (i.e. Hispanic).

I understand that people argue that police aren’t just going to randomly stop people on the street for looking like an illegal immigrant, but consider a couple things. For one thing, the law requires inquiry into legal status on lawful contact. This could mean that a witness to a crime, or a victim of a crime would be put at risk for an inquiry if a police officer determines he or she looks illegal. If we recognize how difficult it is to get domestic violence charges reported already by victims, imagine how hard it will become with passage of this law. Further, the police possess very broad powers to stop individuals as it is. Pretext stops are very simple for a police officer because it becomes a case of one person’s word against the cop’s. I’ve been the subject of a stop where a police officer accused me of crossing a median when I hadn’t, and I know I’m not the only one who’s had that happened to him. How many people are stopped for malfunctioning taillights that work just fine after the cop leaves? To create a situation where police are encouraged to profile and expand upon their already broad powers runs contrary to what I would determine our nation’s reason for existence, which was the right of individual liberty. For those who have argued that it’s a small inconvenience in the name of security, I would counter with the notion that our Declaration of Independence noted an unalienable right to “Life, Liberty, and the Pursuit of Happiness.” Further, the Constitution sought to secure the Blessings of Liberty to ourselves and our Posterity.

I apologize for the length of this post and the clarity. I've written this in a style similar to Ulysses, so it may not be the easiest read.