Key part of new Arizona immigration law not likely to be a law for long

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Key part of SB 1070 not likely to be a law for long

by Mark B. Evans

Gov. Brewer in her SB 1070 signing speech went to great lengths to allay fears that the bill will force Arizona police agencies to racially profile.

She said she has asked the Arizona Police Officer Standards and Training Board to review the law and develop the training standards for officers to enforce the law.

The primary standard that must be developed is the key to the whole bill: What constitutes “reasonable suspicion” that someone is in the country illegally.

I’ve been thinking about that all day and I’m stumped.

Among the legal concerns that officers will be faced with in trying to enforce this law are:

• 14th Amendment’s requirement of equal protection under the law. No person can be treated differently by the law than another, irrespective of their citizenship status. This is the bedrock of the prohibition on racial profiling. You must apply the law equally to everyone.

• 5th Amendment protection from self-incrimination and requirement of due process. This and the 6th Amendment’s right to counsel are the basis of the Miranda law. You don’t have to tell a cop anything.

• Presumption of innocence. It’s the state’s job to prove you violated a law not your duty to prove you didn’t. Federal immigration laws get around this because the Supreme Court has said the government has the right to regulate immigration. But this is a state law that will require people to prove they haven’t violated the state law by being in the country illegally.

• Proof of citizenship. The 14th Amendment and 1798 Naturalization Act establishes who is a citizen of the United States. Neither law, nor any other federal law requires any citizen to carry proof of citizenship.

These all raise enormous difficulties for a police officer in Arizona.

Imagine the following scenario:

A Tucson police officer pulls over a white person driving alone for a cracked windshield. By what standard or metric will the officer use to determine “reasonable suspicion” that the white person in the vehicle is in the country illegally?

You can’t tell by just looking. Right? So there must be some other behavior that an officer must cue on in order to develop a reasonable suspicion. What would that be? Nervousness? Most people are nervous when they’re pulled over? Not in possession of driver’s license? Thousands of citizens are stopped every year and cited for driving without a license.

There is no way to determine citizenship status by just looking at someone. So the officer must ask. And, in order not to run afoul of the equal protection clause, police will have to ask everyone.

So now what if our white driver, who does not speak with a foreign accent, refuses to answer the question? What will the officer do? The law says an Arizona’s driver’s license or state-issued ID card suffice as proof of citizenship. But what if the driver doesn’t have a driver’s license in his or her possession?

Can you imagine any scenario in which the officer would develop a “reasonable suspicion” that the white driver is in the country illegally? I can’t (if this was Vermont, I could).

Now change the white driver to a Hispanic driver. Is refusing to answer the question “reasonable suspicion?” Or is failure to have a driver’s license?

In a state with several hundred thousand illegal immigrants entering it every year, and several hundred thousand more living here, a reasonable person would have to argue that it is “reasonable suspicion.” But it’s reasonable suspicion based on race and that’s just not Constitutionally viable.

If the officer arrests the unlicensed Hispanic driver based on that failure to answer the citizenship question and being unlicensed (which is a civil offense that doesn’t require arrest as long as the person signs a promise to appear) under this law the city, county or state could conceivably hold that person until citizenship or legal immigrant status is proved. That flies in the face of presumption of innocence.

I can’t see how this portion of the law can possibly be equitably enforced. As I’ve stated, it has enormous 4th, 5th and 14th Amendment problems, as well as a near repudiation of presumption of innocence, which has been part of English and American common law for at least 200 years.

The only way to make it equitable is to ask everyone their citizenship status. But citizens are under no obligation to tell the police anything or to carry any proof of their citizenship.

The police can be sued if they fail to enforce the law but if they start rounding up citizens who refuse to provide proof of their citizenship, they’ll get sued for that too (though the law protects officers who wrongly arrest citizens or those in the country legally).

This portion of the law is a legal train wreck and won’t stand.

Other portions of the law, such as making it a crime to knowingly transport illegal immigrants or to hire anyone, a citizen or otherwise, on the side of a road, will likely stand.

The crime of being in Arizona without the legal right to be in the United States is likely to be one of the shortest-lived laws ever enacted in the state.

http://tucsoncitizen.com/mark-evans/archives/240

[natty bumppo 297]

so tell us all ... we await your wisdom ...

"What constitutes "reasonable suspicion" that someone is in the country illegally."

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so tell us all ... we await your wisdom ...

"What constitutes "reasonable suspicion" that someone is in the country illegally."

Read:

She said she has asked the Arizona Police Officer Standards and Training Board to review the law and develop the training standards for officers to enforce the law.

The primary standard that must be developed is the key to the whole bill: What constitutes “reasonable suspicion” that someone is in the country illegally.

The standards are being developed. We shall see.

[natty bumppo 297]

Read:

She said she has asked the Arizona Police Officer Standards and Training Board to review the law and develop the training standards for officers to enforce the law.

The primary standard that must be developed is the key to the whole bill: What constitutes "reasonable suspicion" that someone is in the country illegally.

The standards are being developed. We shall see.

she said she asked ...

wow ... how many times removed is this ??

so you must have married your sister because she said she asked .....

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she said she asked ...

That's official-talk for "she's directed them to". She's the Governor, coming up with these guidelines is her job and the agency in question is who she's delegated the task to.