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:

• 14^th 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.

• 5^th Amendment protection from self-incrimination and requirement of due process. This and the 6^th 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 14^th 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 a 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 4^th, 5^th and 14^th 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.

For more on what else the law does, read the House’s Fact Sheet:

SB 1070 makes changes to laws relating to the enforcement on immigration laws, failure to carry an alien registration document, day laborers, harboring or transporting illegal aliens and employer sanctions.

History

8 U.S.C. § 1373(c) requires Immigration and Customs Enforcement (ICE) to respond to inquiries by federal, state, or local government agencies seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

Laws 2007, Ch. 279 enacted the Legal Arizona Workers Act (Act).  The Act: expands aggravated taking the identity of another person or entity to include the intent to obtain employment; prohibits an employer from intentionally employing an unauthorized alien or knowingly employing an unauthorized alien; requires the Attorney General (AG) or county attorney to investigate complaints and classifies filing a false and frivolous complaint as a class 3 misdemeanor; provides for license suspension for the first violation; requires license revocation on a second violation during a probationary period; and after December 31, 2007, requires every employer to utilize E-Verify to verify employment eligibility.  Laws 2008, Chapter 152 further amended the Act.

Provisions

Enforcement of Immigration Law

• Prohibits law enforcement officials and law enforcement agencies of this state or counties, municipalities and political subdivisions from restricting or limiting the enforcement of the federal immigration laws to less than the full extent permitted by federal law.
• Requires officials and agencies to reasonably attempt to determine the immigration status of a person involved in a lawful contact where reasonable suspicion exists regarding the immigration status of the person, except if the determination may hinder or obstruct an investigation.
• Stipulates that if the person is arrested, the person’s immigration status must be determined before the person is released and must be verified with the federal government.
• Stipulates that a law enforcement official or agency cannot solely consider race, color or national origin when implementing these provisions, except as permitted by the U.S. or Arizona Constitution.
• Specifies that a person is presumed to be lawfully present if the person provides any of the following:

Ø        A valid Arizona driver license.

Ø        A valid Arizona nonoperating identification license.

Ø        A valid tribal enrollment card or other form of tribal identification.

Ø        A valid federal, state or local government issued identification, if the issuing entity requires proof of legal presence before issuance.

• Requires that if a person is convicted of any state or local law, on discharge from imprisonment or on the assessment of any monetary obligation imposed, ICE or U.S. Customs and Border Protection (CBP) must be immediately notified.
• Authorizes a law enforcement agency to securely transport an unlawfully present alien to a federal facility.
• Requires a law enforcement agency to obtain judicial authorization before securely transporting an unlawfully present alien to a point of transfer that is outside of Arizona.
• Prohibits, except as provided in federal law, officials and agencies of counties, cities, towns or other political subdivisions from being prevented or restricted from sending, receiving or maintaining information relating to the immigration status, of any individual or exchanging that information with another governmental entity for the following official purposes:

Ø        Determination of eligibility for any public benefit, service or license.

Ø        Verification of any claim of legal domicile if legal domicile is required by law or judicial order.

Ø        If the person is an alien, determination of the person’s compliance with federal registration laws.

Ø        Pursuant to federal laws regarding communication between government agencies and federal immigration agencies.

• Stipulates that these provisions does not implement, authorize or establish and cannot be construed to implement authorize or establish the REAL ID Act of 2005, including the use of Radio Frequency Identification (RFID).
• Allows a person who is a legal resident of this state to bring an action in superior court to challenge officials and agencies of the state, counties, cities, towns or other political subdivisions that adopt or implement a policy that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law.
• Requires the court to order any that a violating entity pays a civil penalty of at least $1,000 and not to exceed $5,000 for each day that the policy has remained in effect after it has been found to be violating these provisions.
• States that the court will collect the penalty and transmit the collected monies to the state Treasurer for deposit in the Gang and Immigration Intelligence Team Enforcement Mission (GIITEM) Fund.
• Authorizes the court to award court costs and reasonable attorney fees to any person or any official or agency that prevails in a case brought under these provisions.
• Indemnifies officers against actions brought under these provisions, except if the officer has been adjudged to have acted in bad faith.
• Stipulates that these provisions are to be implemented consistent with federal immigration law protecting the civil right of all persons and respecting the privileges and immunities of US citizens.

Willful Failure to Complete or Carry an Alien Registration Document

• Specifies that in addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. § 1304(e) or 1306(a).
• Stipulates that the immigration status may be determined by:

Ø        A law enforcement officer who is authorized by the federal government to verify or ascertain an alien’s immigration status.

Ø        ICE or CBP pursuant to 8 U.S.C. § 1373(c).

• Prevents a person convicted of the new offense from being eligible for suspension of sentence, probation, pardon, commutation of sentence, or release from confinement on any basis except for as authorized by the Director of the Arizona Department of Correction until the sentence imposed has been served or the person is eligible for release due to early release credits.
• Requires the court to order the person to pay jail costs and an additional assessment of:

Ø        At least $500 for a first offense.

Ø        Twice the amount the person was ordered to pay for the first offense if this is the second or subsequent offense.

• States that the court will collect the assessments and transmit the collected monies to the Department of Public Safety for deposit in a special sub-account of the account established for GIITEM.
• Stipulates that monies in the sub-account are subject to legislative appropriation for distribution for gang and immigration enforcement and for county jail costs relating to illegal immigration.
• Stipulates that any record that relates to the immigration status of a person is admissible in any court without further foundation or testimony from a custodian of records if the record is certified as authentic by the government agency responsible for maintaining the record.
• Makes a first offense a class 1 misdemeanor.
• Increases the penalty to a class 3 felony if the person commits the offense while in possession of:

Ø        A dangerous drug (A.R.S. § 13-3401).

Ø        Precursor chemicals used to manufacture methamphetamine (A.R.S. § 13-3404.01).

Ø        A deadly weapon (A.R.S. § 13-3101).

Ø        A dangerous instrument (A.R.S. § 13-105).

Ø        Property used for committing an act of terrorism (A.R.S. § 13-2308.01).

• Makes violations a class 4 felony if either:

Ø        It is a second or subsequent violation.

Ø        Within 60 days, the person has been removed from the U.S. either under 8 U.S.C. § 1229a or 8 U.S.C. § 1229c.

Unlawfully Picking up Passengers for Work

• Specifies that it is a class 1 misdemeanor for an occupant of a motor vehicle that is stopped on a street, roadway, or highway to attempt to hire or hire and pick up passengers for work at a different location, if the motor vehicle blocks or impedes the normal movement of traffic.
• Specifies that it is a class 1 misdemeanor for a person to enter a motor vehicle that is stopped on a street, roadway or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location, if the motor vehicle blocks or impedes the normal movement of traffic.
• Specifies that it is a class 1 misdemeanor for a person who is unlawfully present who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor.
• Defines solicit and unauthorized alien.

Unlawfully Transporting or Harboring Unlawful Aliens

• Stipulates that it is unlawful for a person who is in violation of a criminal offense to:

Ø        Transport or move an alien in a means of transportation, or attempt to do so, if the person knows or recklessly disregards the fact that the alien is here unlawfully.

Ø        Conceal, harbor or shield an alien, or attempt to, if the person knows or recklessly disregards the fact that the alien is here unlawfully.

Ø        Encourage or induce an alien to come to this state if the person knows or recklessly disregards the fact that doing so would be a violation of law.

• Specifies that a means of transportation used in a violation of these provisions is subject to mandatory vehicle immobilization or impoundment.
• Specifies that these provisions do not apply to a Child Protective Services worker acting in the worker’s official capacity or a person who is acting in the capacity of a first responder, an ambulance attendant or an emergency medial technician and is transporting or moving an alien in relation to emergency medial services.
• Stipulates that violators are guilty of a class 1 misdemeanor and subject to a fine of at least $1,000.  However, a violation involving 10 or more illegal aliens is a class 6 felony and subject to a fine of at least $1,000 for each alien involved.
• Requires a peace officer to immobilize or impound a person’s vehicle if the officer determines either that:

Ø        In furtherance of the illegal presence of an alien and in violation of a criminal offense, the person is transporting or moving, or attempting to do so in a vehicle if the person knows or recklessly disregards the fact that the alien is here unlawfully.

Ø        The person is concealing, harboring or shielding an alien in this state, or attempting to do so in a vehicle if the person knows or recklessly disregards the fact that the alien is here unlawfully.

Employer Sanctions

• Provides employers with the affirmative defense that they were entrapped, but they must admit the substantial elements of the violation.
• Stipulates that the employer has the burden of proof proving the following by a preponderance of the evidence:

Ø        The idea of committing the violation started with the officer or their agents.

Ø        The officers or their agents urged and induced the employer to commit the violation.

Ø        The employer was not predisposed to commit the violation before the law enforcement officer or agents urged and induced the employer to do so.

• Stipulates that an employer is not entrapped if the employer was predisposed to violate the law and law enforcement merely provided the employer with the opportunity.  Additionally, it is not entrapment for law enforcement to use a ruse or to conceal their identity.
• Requires employers to keep a record of the employment verification from E-verify for the duration of an employee’s employment, or three years, whichever is longer.

Miscellaneous

• Authorizes peace officers, in the enforcement of human smuggling laws, to lawfully stop a person if they have reasonable suspicion to believe the person is in violation of any civil traffic law.
• Authorizes a peace officer to arrest a person 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 U.S.
• Establishes the GIITEM fund (fund) and directs monies collected from penalties resulting from policies limiting the enforcement of federal immigration law to the fund.
• Requires the Arizona Department of Public Safety to administer the fund, which is subject to legislative appropriation and is to be used for gang and immigration enforcement and for county jail reimbursement for costs relating to illegal immigration.
• Contains intent and severability, implementation and construction clauses.
• Specifies that this act may be cited as the “Support Our Law Enforcement and Safe Neighborhoods Act.”
• Makes technical and conforming changes.

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