Oklahoma Senate’s HB 3341: We Persecute on Account of Immigration Status

by

Oklahoma politician willing to waste taxpayer money on legislation likely to be found unconstitutional

I’ve written of Oklahoma’s immigration policies in the past; and this one, HB 3341, earns 1st prize in the category of demonizing undocumented individuals.

Here is what the law calls for:

The bill, House Bill 3341, would make it unlawful for undocumented residents to possess “any pistol, imitation or homemade pistol, altered air or toy pistol, machine gun, sawed-off shotgun or rifle, or any other dangerous or deadly firearm.

Residents found violating the measure would face a fine of $5,000 and up to 10 years in prison.

The supporters of this bill claim that the bill is to target gang activity. Granted, there is a nexus between Central America/Mexico and violent gangs in the United States, but the substance of the bill entirely belies the purported gang motive.

It is overbroad. Although the bill may be attacked on several levels, including on constitutional grounds, I will focus on a realistic outcome of its enforcement that is irrefutably absurd.

Marisa Trevino, at Latina Lista, highlighted the most extreme possible outcome:

“the technicality exists that an undocumented child found with a toy gun would be charged as a felon”

Given that it is hard to imagine a police officer arresting an 8 year old on their front lawn for playing cops and robbers with toy guns, the technicality that Marisa mentions is not likely to become reality. However, a slight deviation from the latter situation could certainly occur. My friend and neighbor owns several “airsoft” guns, which are gas or electric powered guns that shoot small, plastic pellets. He uses these guns to play in the sport of “airsoft”, which is similar to paintball. In other words, mock gun battles. It is a harmless and a healthy outdoor activity. In fact, the guns are probably less dangerous than paintball guns.

Here is the example as it would play out in Oklahoma if HB 3341 passed into law.

John, who is undocumented, was brought to Oklahoma when he was 5 years old. In High School, his friends invited him to play airsoft the upcoming weekend. At this point, he was 16 years old. John’s friend let him borrow one of his airsoft pistols for the upcoming game.

They played in an isolated area, where no one was around. John, while playing, tripped and fell,  badly injuring his ankle. An ambulance was called, which was accompanied by a police officer. The police officer realized that John was undocumented, and saw that he had a pistol lying by where fell. John was treated, arrested, and charged with a felony, receiving the minimum one year jail sentence. He was deported after he served the year.

Playing a game does not warrant jail time for anyone, regardless of the individual’s immigration status.

As this law will not likely ever become law(unconstitutional), the motive behind it is clear: appeal to a voter base in love with the “all-out immigration enforcement and subsequent attrition theory”, but with a more vindictive twist.

The explanation of the author of the bill, Mike Christian,  further illuminates the motive:

“Under current law, convicted felons caught with guns face these same charges…Why would we treat illegal aliens differently?”

I don’t know, Mike, maybe because “illegal aliens”, as a whole class, are not convicted felons? The purpose behind having increased penalties for possession of firearms by felons is distinct from the purported purpose behind the increased penalty for “illegal aliens”. Convicted Felons are, more times than not, already proven to be more of a danger to society. Thus, the logic goes, it is important for them not to possess firearms. “Illegal Aliens”, on the other hand, are not  proven to be dangerous to society. Most, I would assume, are peaceful, law-abiding citizens(please spare the “they are all law-breakers crap”; I mean imminent physical danger).

Therefore, Mike Christian is not being an honest man; he should just say what he means: Undocumented, or “illegal aliens”, are not welcome in Oklahoma, so much that he and others are willing to incarcerate them for 1-10 years for a crime that is not a crime if applied to a legal resident.

If Oklahoma was serious about tackling gang issues, a much more narrow piece of legislation would have been proposed.

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22 Responses to “Oklahoma Senate’s HB 3341: We Persecute on Account of Immigration Status”

  1. Liquid Reigns Says:

    Although the bill may be attacked on several levels, including on constitutional grounds,

    Illegal immigrants to include LPR/GC holders are not allowed to own firearms, it is in direct violation of their status agreement.

    My friend and neighbor owns several “airsoft” guns, which are gas or electric powered guns that shoot small, plastic pellets.

    And to a law officer, if confronted with one of these weapons by a perp, would not know if the weapon had been modified in any way to change its projectile from a “soft pellet” to a “hard bullet”.

    As this law will not likely ever become law(unconstitutional)

    See my first statement above. It is by no means unconstitutional as illegal immigrants are not granted Constitutional Liberties. And there is no Civil Right allowing them to carry a firearm either.

    • bjohns15 Says:

      Contrary to what you say, “illegal immigrants” are entitled to many of our constitutional Liberties.

      Instead of refuting your points on a logical basis, let me ask you this question: Do you think the Oklahoma Legislature is truly interested in addressing gang issues, or is more interested in making a statement that undocumented individuals are not welcome in Oklahoma?

      • Liquid Reigns Says:

        Illegal immigrants are not covered by our Constitutional Liberties, they fall under the UN Charter of Human Rights, they are granted some Civil Rights because of it. Legal immigrants due fall under some of our Constitutional Liberties, in a limited capacity, and enjoy all of our Civil Rights.

        Do you think the Oklahoma Legislature is truly interested in addressing gang issues, or is more interested in making a statement that undocumented individuals are not welcome in Oklahoma?

        Criminals are going to obtain guns one way or another, law or no law. Undocumented individuals, by Federal Law, already are denied the Liberty to own, purchase, or carry a firearm in the USA. All Oklahoma is doing is stating the Federal Law and incorporating it into their own Laws. It now allows them to prosecute and convict those that break the law locally and Federally. Undocumented individuals are not welcome in Oklahoma or any other State, that is why once they are found to be here undocumented they are deported.

      • bjohns15 Says:

        Liquid,

        I believe you are misstaken; Undocumented individuals are entitled to many of our constitutional liberties. Due process is one of them, both in criminal courts and immigration courts. Look at Plyler v. Doe, which held that the equal protection clause of the constitution makes no mention of immigration status, and therefore granted undocumented students the right to be educated in our public schools.

        An example of the high level of due process given unto undocumented individuals is the immigration court process. First, undocumented are entitled to defend their deportation at the immigration court level. If they lose there, they can appeal to the Board of Immigration Appeals. If they lose there, they can appeal to the federal court of appeals circuit in which they reside. And, if the case is imporant enough, the Supreme Court can grant certiori.

        This is not the first bill that Oklahoma has passed that is dubious on constitutional grounds. In fact, 2 provisions of HB 1804 were held to likely be unconstitutional. Either way, the bottom line is this: Undocumented are entitled to some constitutional rights, not all, but some.

      • Liquid Reigns Says:

        Due process is one of them, both in criminal courts and immigration courts.

        Granted by UN Charter

        …undocumented students the right to be educated in our public schools.

        Civil Right not Constitutional Liberty

        the high level of due process given unto undocumented individuals is the immigration court process.

        Again, UN Charter. They can sign a waiver and forgo the process as well, expediting their deportation in most cases.

        First, undocumented are entitled to defend their deportation at the immigration court level. If they lose there, they can appeal to the Board of Immigration Appeals. If they lose there, they can appeal to the federal court of appeals circuit in which they reside. And, if the case is imporant (sic) enough, the Supreme Court can grant certiori (sic).

        All based on the due process in the UN Charter. All the Writ of Certiorari does is send the case back down to the lower court based on a mis-interpretation of a cited law or the use of a law that is not justifiable per the specifics of the case. A reversible error in the lower court.

        Undocumented are entitled to some constitutional rights, not all, but some.

        You confuse plausible distinction with Constitutional Liberties. Again, the UN Charter is what grants undocumented immigrants these civil rights.

        The Preface of the US Constitution specifies exactly to whom the Constitution is guaranteed.

      • bjohns15 Says:

        I am not confusing the distinction. The Supreme Court stated, in part, in *Zadvydas v. Davis, 533 U.S. 678, that: *

        But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all “persons” within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. See *Plyler* v. *Doe*, 457 U.S. 202, 210, 72 L. Ed. 2d 786, 102 S. Ct. 2382 (1982); *Mathews* v. *Diaz*, 426 U.S. 67, 77, 48 L. Ed. 2d 478, 96 S. Ct. 1883 (1976); *Kwong Hai Chew* v. *Colding*, 344 U.S. 590, 596-598, 97 L. Ed. 576, 73 S. Ct. 472, and n. 5 (1953); *Yick Wo* v. *Hopkins*, 118 U.S. 356, 369, 30 L. Ed. [**2501] 220, 6 S. Ct. 1064 (1886); cf. *Mezei*, *supra,* at 212(“Aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law”).

        The Supreme Court never mentioned the UN in tthe cited decision. Satisfied?

      • Liquid Reigns Says:

        But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all “persons” within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.

        Basically what this means is that a person can not be held indefinitely. After 90 days the person must be charged with a crime, processed for deportation, or transferred to an allied country willing to take him. It is a procedural right of Civil Rights that is derived from the Due Process Clause.

        Now lets complete your paragraph and add the ending of it which changes your claim to mine: Indeed, this Court has held that the Due Process Clause protects an alien subject to a final order of deportation, see Wong Wing v. United States, 163 U. S. 228, 238 (1896), though the nature of that protection may vary depending upon status and circumstance, see Landon v. Plasencia, 459 U. S. 21, 32-34 (1982); Johnson, supra, at 770.

        The Supreme Court never mentioned the UN in tthe (sic) cited decision.

        Actually they did: In light of this critical distinction between Mezei and the present cases, Mezei does not offer the Government significant support, and we need not consider the aliens’ claim that subsequent developments have undermined Mezei’s legal authority. See Brief for Petitioner in No. 99-7791, p. 23; Brief for Respondent in No. 00-38, pp. 16-17; Brief for Lawyers’ Committee for Human Rights as Amicus Curiae in No. 00-38, pp. 15-20. Nor are we aware of any other authority that would support Justice Kennedy’s limitation of due process protection for removable aliens to freedom from detention that is arbitrary or capricious. See post, at 14-18 (dissenting opinion).

      • bjohns15 Says:

        Also, you cite to this as the reason that undocumented students have the right to be educated in our public schools. If you read the Plyler v. Doe decision, there is no mention of the UN charter. In fact, the SC relied in its holding, in part on the following:

        “Whatever his status under the immigration laws, an alien is surely a “person” in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as “persons” guaranteed due process of law by the Fifth and Fourteenth Amendments. Shaughnessy v. Mezei, 345 U.S. 206, 212 (1953); Wong Wing v. United States, 163 U.S. 228, 238 (1896); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government”

        Granted by UN Charter

        …undocumented students the right to be educated in our public schools.

      • Liquid Reigns Says:

        Just a quick note: Zadvydas was on an order for removal, which allows for procedural rights under civil law. It falls under US Code 8, §1231.

      • Liquid Reigns Says:

        Also, you cite to this as the reason that undocumented students have the right to be educated in our public schools. If you read the Plyler v. Doe decision, there is no mention of the UN charter.

        No, I did not, I said it is a Civil Right, not a Constitutional Right, “Manifestly, the obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. It is there that the equality of legal right must be maintained. That obligation is imposed by the Constitution upon the States severally as governmental entities, – each responsible for its own laws establishing the rights and duties of persons within its borders.” Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 350 (1938).

        I never implied the UN Charter had anything to do with Plyler vs Doe, re-read my comments.

        I agree with the findings of the court: The children who are plaintiffs in these cases are special members of this underclass. Persuasive arguments support the view that a State may withhold its beneficence from those whose very presence within the United States is the product of their own unlawful conduct. These arguments do not apply [457 U.S. 202, 220] with the same force to classifications imposing disabilities on the minor children of such illegal entrants. At the least, those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation. But the children of those illegal entrants are not comparably situated. Their “parents have the ability to conform their conduct to societal norms,” and presumably the ability to remove themselves from the State’s jurisdiction; but the children who are plaintiffs in these cases “can affect neither their parents’ conduct nor their own status.” Trimble v. Gordon, 430 U.S. 762, 770 (1977). Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.

  2. cookie Says:

    As for most illegals not being felons already, I wonder how many have committed I.d. and S.S. number fraud or how many have been deported only to come back again? I imagine a good many of them. All of these offenses are felonies.

  3. cookie Says:

    Who cares what the motivation is by the Oklahoma Legislature is? Both reasons are valid.

  4. Liquid Reigns Says:

    As for the 14th Amendment, it refers to the States themselves and what there responsibility is. Thus you have the laws Arizona and Oklahoma are indeed proposing and passing.

    The Bill of Rights, the first 10 Amendments are for the Liberties of the Citizen, basically the Constitutional Liberties, the remaining Amendments are pointed at the states themselves and the limitation on states power. Again this grants undocumented persons with some Civil Rights at the State level, not Constitutional Liberties at the Federal level.

  5. bjohns15 Says:

    Liquid, show me one place in Zavydas that mentions the word “civil right”.

    • Liquid Reigns Says:

      Show me where it grants Constitutional Liberty.

      Basically the BOR limits the Federal Government, it is a bar on the actions of the federal government. The remaining Amendments are limitations on the States.

      When the Supreme Court cites the Amendments of the US Constitution, they do so pointing to the limitations of either the Federal Government or the limitations of the State, as in Plyler vs Doe. The 14th was cited as to the inability of the States legislative action to be inconsistent with elemental constitutional premises, thus, while recognizing that like all persons who have entered the United States unlawfully, these children are subject to deportation. 8 U.S.C. §§ 1251 1252 (1976 ed. and Supp. IV). But there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in this country, or even to become a citizen. See, e.g., 8 U.S.C. §§ 1252 1253(h), 1254 (1976 ed. and Supp. IV). In light of the discretionary federal power to grant relief from deportation, a State cannot realistically determine that any particular undocumented child will in fact be deported until after deportation proceedings have been completed. It would, of course, be most difficult for the State to justify a denial of education to a child enjoying an inchoate federal permission to remain.

      • bjohns15 Says:

        You talk of “civil rights” but cite no supreme court decision. The decisions that I cited are clear and I am right that even unlawfully present aliens are entitled to rights under the U.S. constitution. This argument is over.

      • Liquid Reigns Says:

        And you cite no Supreme Court decision granting Civil Liberties.

        The decisions you cited are relevant to the limitations of either the Federal Government or the State itself. Your argument should be that undocumented immigrants may fall within limited protections of our Constitution, not that they are granted Constitutional Liberties.

        Now, the argument the Feds and the States use in most instances is Plausible Distinction, unless they can some how certify that a person is here in violation of immigration laws they must be treated as either a Citizen or legal resident. But, once their status is derived, it further limits any protections they may have through either the Federal Government or the State itself.

        This argument is over.

        Sorry to hear that, but I digress, it is your blog and your decision.

      • Liquid Reigns Says:

        Directly from the Decision of Plyler vs Doe:

        http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=457&invol=202

        (a) The illegal aliens who are plaintiffs in these cases challenging the statute may claim the benefit of the Equal Protection Clause, which provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.”

        The key words are “claim the benefit”, which provides that “no state shall”. this means they are reaping the benefit of the limitation of the State as defined by the Constitution.

        It doesn’t get any clearer than that.

  6. Alonzo Says:

    Marisa’s assertions are preposterous as much as they’
    re more of her imaginings than anything else. If she had bothered reading the bill instead of just aping someone else’s article, she’d know better. She and others have made fools of themselves in their failure to fact check:

    The summary for Oklahoma HB3341 reads as follows:
    (http://webserver1.lsb.state.ok.us/WebApplication2/WebForm1.aspx?Bill=HB3341)

    “The measure prohibits illegal aliens from possessing any kind of firearm or being in a vehicle or living in a residence where there is any kind of dangerous or deadly firearm. Persons who have been issued a concealed handgun license and intentionally allow an illegal alien to possess or have control of a handgun will be charged with a felony and subject to a fine and revocation of their handgun license.”

    Furthermore, the Fiscal Summary reads as follows:

    “The penalty for non-citizens and illegal aliens convicted of possessing a firearm is 1-10 years imprisonment. Illegal aliens must serve at least one-third of their sentence before being eligible for transfer to the custody and control of the United States Immigration and Customs Enforcement (ICE) for deportation. The cost of incarceration is approximately $56 per day. The fiscal impact of the proposed committee substitute for HB3341 would be dependent upon the number of adjudicated cases and the length of the sentence imposed by the court.”

    I see no intent to prosecute anyone for carrying a toy pistol in the course of child’s play. I suggest that you’re exaggerating this for the purpose of stirring up sympathy. Such exaggerations do nothing for your credibility as a journalist. If I’m wrong, and you’re just accepting hyperbole from other sources as fact, I suggest that you do your own research instead of relying of others.

    • bjohns15 Says:

      I’m not a journalist(fact check, alonzo?) and as you copy and pasted your comment from marisa’s blog to mine, your credibility is wanting. .

  7. Alonzo Says:

    Copying and pasting notwithstanding, BJ, your scenario of a policemen just out of the blue realizing that your hapless victim was undocumented is laughable. Again, anyone actually reading the legislation and not just relying on his imagination, would come to the conclusion that the law is directed to adults in the commission of a crime. And I see no unconstitutionality in the law as it stands.

    I note that you never respond to the substance of my comment, only the fact that I re-posted it without modifying it to fit into your blog.

    • bjohns15 Says:

      I did not respond to the substance of your comment because you did not respond to the substance of my post.

      It is pointless to argue with someone, like yourself, whose response is condescending and shows a predisposition to disagree regardless of the merits.

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