UPDATE:
Please click here to urge Arizona Governor Jan Brewer to veto anti-immigrant/constitutional/freedom S.B.1070.
There has been a wealth of solid reporting on S.B. 1070,(scroll down), which is the most anti-immigrant/freedom/constitution bill that has been created.
Most reports indicate that the SB 1070 will become the law in Arizona very shortly. The only hope of it not passing is if the Governor of Arizona, Jan Brewer, vetoes it. If she is a reasonable individual, who takes her duties towards the U.S. constitution, and to basic decency, more seriously than those of being re-elected, she will veto the bill. There is some hope from a statement Brewer made recently to the Hispanic Chamber of Commerce in Arizona:
“In regards to Senate Bill 1070,” she stated, “I will tell you that I never make comment, like most governors throughout our country, before a bill reaches my desk. But I hear you, and I will assure you that I will do what I believe is the right thing so that everyone is treated fairly.”(emphasis added)
Here is a irrefutable rationale for SB 1070 to be vetoed by Jan Brewer: It is unconstitutional.
The two following parts, in particular, from its summary:
Requires a reasonable attempt to be made to determine the immigration status of a person during any legitimate contact made by an official or agency of the state or a county, city, town or political subdivision (political subdivision) if reasonable suspicion exists that the person is an alien who is unlawfully present in the U.S. and
The 4th amendment of the United States Constitution is as follows:
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 or things to be seized.
SCOTUS’s interpretation of the 4th amendment has only lessened the “probable cause” element for a specific public-safety concern; it is referred to as the “stop and frisk” doctrine, from Terry v. Ohio, held “that police have the authority to do a limited search for weapons based on a reasonable and articulable suspicion that the person stopped is “armed and dangerous”. In other words, if the police officer stops someone and has no reasonable suspicion that the person stopped is armed and dangerous, he is not permitted to perform a frisk.
S.B. 1070 allows police officers to, in effect, conduct a search–for immigration status –if an officer develops a “reasonable suspicion” that the individual stopped is not lawfully within the United States. The Terry v. Ohio doctrine is, admittedly by the SCOTUS, a public-policy oriented divergence from the strict text of the 4th amendment. The “dangerous” public policy concerns in Terry are not present in S.B. 1070’s concerns: unlawful presence does not by any means create an imminent danger to the public or the officer. Moreover, the “reasonable suspicion” for a police officer to believe an individual is unlawfully present in the United States is doomed from being articulable in any concrete way other than ethnicity.
In 2005, the Pew Hispanic Center estimated that there were 500,000 undocumented individuals residing in Arizona. In 2008, the Census showed that approximately 2 million of Arizona’s residents were Hispanic. The census claims that undocumented are included within the population count. So, for argument’s sake, let us say that 25% percent of the Hispanic population is undocumented, assuming that most of the undocumented in Arizona are of Hispanic descent.
Therefore, the most effective means for a police officer to develop “reasonable suspicion” as to an individual’s lawful presence in Arizona is whether that individual is Hispanic. Other factors, based on ethnicity, would factor in, such as ability to speak English, accent, dress, etc.
From a basic police stop context, I do not see any other significant factors that would lead to “reasonable suspicion” of an individual’s lawful presence. In other words, the S.B. 1070 encourages, mandates even, racial profiling, which should never be acceptable anywhere in the world, let alone the United States which prides itself on the liberties that our constitution has created for its people.
This bill, like a Sheriff Ralph Ogden of Arizona stated, could result in civil rights violations:
If I stop somebody,” he wondered, “how long can I sit there and detain him while I try to determine whether he’s an undocumented alien? And if it takes a long period of time and he’s a U.S. citizen, what am I doing to him? Because as a citizen, you don’t have to carry your documentation with you.”
This “papers-please” legislation will be struck down, but for the sake of moral decency and respect for the U.S. constitution, it is preferable that Governor Jan Brewer vetoes it and crushes S.B. 1070’s evil existence immediately.
Put differently,
El Gringo Gigante 
April 21, 2010 at 6:38 pm |
This “papers please” legislation is reminiscent of the days of Hitler. This country just seems to be flirting with both political extremes lately: fascism (this bill) and socialism (ObamaCare). This has got to be the worst identity crisis the US has ever faced!
April 21, 2010 at 6:40 pm |
I don’t know about the worst(mccarthyism?), but certainly one of the worst within my recent memory.
April 21, 2010 at 6:44 pm |
Oh yeah, McCarthy…how could I forget that?!?! Ok, I stand corrected: second worst overall.
April 21, 2010 at 7:21 pm |
Police officers already have this ability, AZ is only re-iterating Federal Law.
http://www.projo.com/news/courts/content/LAWSUIT_DISMISSED_01-01-09_D7CQK9I_v11.37578a2.html
Judge Lisi, in a 20-page decision available on the ACLU’s Web site (riaclu.org), rejected claims that the stop was tainted, that the driver should not have been repeatedly searched, and that the trooper had no business acting on his suspicions that the passengers in the van were illegal aliens.
She said a 2005 U.S. Supreme Court case found that “an officer did not need independent reasonable suspicion to question an individual about her immigration status during the execution of a search warrant,” and the rule applied in this case as well.
Inquiring about a person’s name, date and place of birth, or immigration status does not constitute unreasonable search and seizure under the Fourth Amendment, she said.
Lisi said the trooper had a right to inquire about immigration status after all but four of the occupants of the van “had failed to provide any identification and Chabot’s suspicions reasonably escalated.”
She said that under two Supreme Court decisions, “It is permissible for officers to inquire into the immigration status of individuals without triggering the Fourth Amendment or requiring independent reasonable suspicion.”
Don’t forget that if the Governor veto’s the bill, it can still be passed with a 2/3’s majority vote in the States Congress. The rest of your argument is mere mis-information based simply on what your opinion is.
April 21, 2010 at 7:24 pm |
I also suggest you look into the Criminal Resource Manual 1918.
http://liquidsreign.blogspot.com/2009/01/n-287g-required.html
April 21, 2010 at 8:52 pm |
On another note, I’ve spoken with an individual with far more expertise than you or I on the issue(an immigration law professor) and the conclusion was this: certainly will fall on constitutional grounds. There are several avenues of attack on the bill. But as it will fail, I don’t think it worth the time to research in-depth.
April 21, 2010 at 9:23 pm
But as it will fail, I don’t think it worth the time to research in-depth.
And yet the AZ congress can override any veto with a 2/3’s majority, which it already passed with in both the House and the Senate, getting those numbers again will be no problem.
April 21, 2010 at 8:37 pm |
Your cite is misleading because it mentions the Supreme court decision during the undertaking of a search warrant.
First, it is only a district court opinion; it may very well be overturned. It was one judge’s opinion.
Second, it is in regards to a traffic stop. The illegal driving maneuver is what gave the officer the right to stop the van, then subsequently ask for identification, which then led the officer to more suspicion.
The Arizona Law crosses the line in several ways, especially given the criminal “trespassing” law that it proposes. That, certainly, would trigger the 4th amendment protection. There are a plethora of other things wrong with it, like how it will divert law enforcement resources from dealing with violent crime(i.e. drug-related violence), create an atmosphere of fear, and also if it were to reach its stated goals of “attrition through enforcement”, there would not be enough public defenders for all those arrested.
If you state that what I wrote was “mere misinformation based on my opinion”, then so is your argument based on one federal district court decision.
April 21, 2010 at 9:22 pm |
Your cite is misleading because it mentions the Supreme court decision during the undertaking of a search warrant.
But you failed to thoroughly read the link, where in it clearly states: In the absence of a specific federal statute, the validity of an arrest without a warrant for violation of federal law by local peace officers is to be determined by reference to local law. See Miller v. United States, 357 U.S. 301, 305 (1958); United States v. Di Re, 332 U.S. 581, 589 (1948).
In approving a state trooper’s arrest of persons who appeared to be illegal aliens, the United States Court of Appeals for the Tenth Circuit held, simply, as follows: “A state trooper has general investigative authority to inquire into possible immigration violations.” See United States v. Salinas-Calderon, 728 F.2d 1298, 1301, n. 3 (10th Cir. 1984).
…
The disappointing aspect of Gonzales is the statement that an alien’s “inability to produce documentation does not in itself provide probable cause (to arrest).” See Gonzales v. City of Peoria, supra, at 16. Pursuant to 8 U.S.C. § 1304(e), aliens are issued registration cards and must carry such cards with them at all times. Aliens who gain entry without the requisite inspection, and who therefore are not issued such cards, violate 8 U.S.C. § 1325. Consequently, a law enforcement officer confronting an alien who is unable to produce documentation arguably has probable cause to believe that a violation of 8 U.S.C. § 1304(e) (failure to possess documents or 8 U.S.C. § 1325(a) (entry without inspection) has occurred. (If the alien is undocumented and has been in the United States for longer than 30 days, he or she has also violated 8 U.S.C. § 1306(a)).
More cases for you to research with.
“Law enforcement officers do not violate the Fourth Amendment’s prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen.” United States v. Drayton, 536 U.S. 194, 200 (2002).
Quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). “Even when officers have no basis for suspecting a particular individual, they may generally ask the individual questions and request to examine his or her identification.”
Even if a conversation is not consensual, police officers may have reasonable suspicion when “that the officer’s suspicion be based upon particularized, objective facts which, taken together with rational inferences from those facts, reasonably warrant suspicion that a crime is being committed.” United States v. Jones, 269 F.3d 919, 927 (8th Cir. 2001)
specially given the criminal “trespassing” law that it proposes.
So because the state of AZ is going to jail and fine them for being here in violation of Federal Law, you don’t like it? (http://www.azleg.gov/legtext/49leg/2r/bills/sb1070s.pdf page 3 – 4, lines 40 – 43)
That, certainly, would trigger the 4th amendment protection.
Please explain how it triggers the 4th Amendment.
Again the rest is your mere opinion, have you actually read the Bill? (link above)
If you state that what I wrote was “mere misinformation based on my opinion”, then so is your argument based on one federal district court decision.
You need to do much better research.
April 21, 2010 at 9:36 pm
I have read the bill; I do not have the time to do check every case that might be possibly related to the bill.
I am against it for more reasons than its unconstitutionality and that’s why I wrote the post. I’m under no obligation to do an exhaustive legal analysis. My basic understanding of 4th amendment jurisprudence and information that has been relayed to me by an attorney has led me to the basic conclusion that the bill is unconstitutional. If you want me to respond to the conclusion that I drew on my blog, write a legal memo, not just random case law citations.
April 21, 2010 at 10:00 pm
My basic understanding of 4th amendment jurisprudence and information that has been relayed to me by an attorney has led me to the basic conclusion that the bill is unconstitutional.
So you are relying on someone else’s mere opinion in order to form yours.
If you want me to respond to the conclusion that I drew on my blog, write a legal memo, not just random case law citations.
The legal memo would still include the very case laws I cited, which now only shows your lack of desire to debate your assumptions.
April 21, 2010 at 10:04 pm
As a “law Student” you should think your arguments through much better, and research your assumptions to ward off any direct conflict with your claims. This topic seems to merely be you following the rhetoric of all the other advocates.
April 21, 2010 at 10:08 pm
You are wrong, Liquid. Discussion over. On another note, why have you not cited to your blog in the past? I am quite disturbed by your “legal fund” advertisement of the Piekarsky kid from Pennsylvania, as well as the omission of coverage of the 2009 federal indictment of Piekarsky and police officers in covering up what the feds describe as a “hate crime”.
April 21, 2010 at 10:17 pm
You will also note I haven’t kept up with my blog, as my last topic was Oct. 20, 2009.
As for Piekarsky, and the others, my topics are very detailed and to the points of their not going to have been found guilty of murder, as the death of Ramirez shows that his own aggression to confront the boys a second time was clearly his own doing. As for the Federal case against him and the others, they will be found guilty of ethnic intimidation for their part. As for the officers and the “cover up” that is still but mere allegations, especially when officers from other jurisdiction arrived first. The entire argument is based on one phrase from Piekarsky’s moms boyfriend, “for the boys to get their story straight” which can be construed and read both ways.
April 21, 2010 at 10:56 pm
Man died at the hands of piekarsky and co. whether it was hate crime or not, I cannot say with finality.
Anyway, if Brewer vetoes it, it will be dead; the senate voted for sb1070 17-11. That’s not 2/3rds.
April 22, 2010 at 10:35 am
Yeah, but in a small town in Pennsylvania it’s not at all unreasonable, given the totality of the evidence, that there was a cover-up. Either way, you should keep your blog updated! I suggest switching to wordpress, buying your own domain(10 dollars for a year to wordpress; 22 dollars for two years to godaddy); Since I’ve switched from blogspot to wordpress, my blog has grown exponentially(i.e. from less than 10 hits a day to over 100 per day this month).
Given the loads of garbage on the net on immigration, from both sides, it couldn’t hurt.
April 22, 2010 at 1:20 pm |
I’m worried because I have a sister-in-law who’s a Mexican-American living in Phoenix along with her three half-Hispanic children. Two of them are adolescent boys, the kind of people who would be just ripe for any kind of legalized police harassment (which is what this bill is).
April 22, 2010 at 1:42 pm |
Hey Sagittarius,
I’ve been looking at some case law on the subject, and it appears that the law itself–specifically the reasonable suspicion component–is not any different than the current standards according to the 4th amendment. Race, alone, does not give the police a right to stop people for questioning immigration status:
“In this case the officers relied on a single factor to justify stopping respondent’s car: the apparent Mexican ancestry [*886] of the occupants. 11 We cannot conclude that this furnished reasonable grounds to believe that the three occupants were aliens. At best the officers had only a fleeting glimpse of the persons in the moving car, illuminated by headlights. Even if they saw enough [**2583] to think that the occupants were of Mexican descent, this factor alone would justify neither a reasonable belief that they were aliens, nor a reasonable belief that the car concealed other aliens who were illegally in the country. Large numbers of native-born and naturalized citizens have the physical characteristics identified with Mexican ancestry, and even in the border area a relatively small proportion of them are aliens. ”
But the problem is that in Immigration enforcement, there are a host of other factors that officers need to take into account. It is not likely that the every police officer in Arizona will be sufficiently trained to carry out enforcement duties without conflicting with the 4th amendment in carrying out their duties.