Arizona's Immigration Law: fascist or business as usual?

Arizona’s new law (SB 1070) which, among other things, authorizes detention and questioning of suspected illegal aliens, is a political hot potato.

The law which has the overwhelming popular support of Arizona citizens has been labeled as fascist and Nazi by non-constitutional scholars such as Keith Olbermann and Cardinal Mahoney. "Let me see your papers," cable comic Jon Stewart accurately recalls, was the familiar chilling phrase repeated in all those black and white movies of the 1940's that depicted Gestapo inquiries inevitably leading to concentration camps.

The other side of the argument, represented by equally hyperbolic, but openly xenophobic Fox commentators and the Arizona governor, is that this measure is needed because of a "dire emergency" in the state.

The porous border with a near failed drug state is intolerable, dangerous to Arizonans, especially in these fragile economic times of high unemployment and limited government resources.

[As a footnote, I am currently re-reading Barbara Tuchman’s "The Zimmermann Telegram", which summarizes U.S. relations with Mexico circa 1916, when President Wilson sent General Pershing and thousands of U.S. soldiers in a "punitive expedition" to capture or kill General Pancho Villa, after his soldiers raided a New Mexico border town and killed American citizens. Mexico, it seems, was as unstable and poor as it is a hundred years later.]

Adversaries on either side display ignorance of the current state of the law and the demands of our Constitution as they are interpreted by our courts. In the following post, I am going to try to calm the waters a bit, while showing what my legal training leads me to believe is the basic problem with this kind of law.

Note: I’m going to use quotes to denote language of the statute and cases; I’m going to use italics to denote words or phrases that need further definition. Notice how vague these terms of art are, and how much leeway their vagueness gives to police and the courts in their enforcement.

First, these are excerpts of the law, which is titled: "Support Our Law Enforcement and Safe Neighborhoods Act." [Now, who can oppose that?]

"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.

"E. A LAW ENFORCEMENT OFFICER, WITHOUT A WARRANT, MAY ARREST A PERSON 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.

"...NOTWITHSTANDING ANY OTHER LAW, A PEACE OFFICER MAY LAWFULLY STOP ANY PERSON WHO IS OPERATING A MOTOR VEHICLE IF THE OFFICER HAS REASONABLE SUSPICION TO BELIEVE THE PERSON IS IN VIOLATION OF ANY CIVIL TRAFFIC LAW AND THIS SECTION.

"F. For the purposes of this section:
"A. IT IS UNLAWFUL 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.

"B. IT IS UNLAWFUL 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.

"C. IT IS UNLAWFUL FOR A PERSON WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES AND 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 IN THIS STATE.

"Impounding a vehicle is authorized if:
"... 4. THE PERSON IS IN VIOLATION OF A CRIMINAL OFFENSE AND IS TRANSPORTING, MOVING, CONCEALING, HARBORING OR SHIELDING OR ATTEMPTING TO TRANSPORT, MOVE, CONCEAL, HARBOR OR SHIELD AN ALIEN IN THIS STATE IN A VEHICLE IF THE PERSON KNOWS OR RECKLESSLY DISREGARDS THE FACT THAT THE ALIEN HAS COME TO, HAS ENTERED OR REMAINS IN THE UNITED STATES IN VIOLATION OF LAW."

Even without this statute, our current law is generous to police in their contacts with suspicious people. These are the rules as reflected in the language and reasoning of cases from the U.S. Supreme Court and high state courts:

1. Police can ask anyone for identification.
Law enforcement officers do not violate the Fourth Amendment in approaching an individual on the street or in another public place and asking if he is willing to identify himself. (Florida v. Royer, U.S. Supreme Court, (1983) .)

2. If Police have cause to stop a vehicle [eg,any traffic violation], they can ask the passenger [who has done nothing suspicious] for his identification.

Once the privacy of a car has been intruded upon by a lawful traffic stop, the courts find no reason to expand the rights of passengers in vehicles beyond those afforded travelers in airports; employees in garment factories; or fishermen on public streets. All can be asked for identification.

3. But what if a person refuses to provide identification? May he be detained [defined as prevented from departing] further for identification purposes?

The lawful request by a police officer of anyone on the street for identification does not in and of itself turn the otherwise consensual encounter into a detention.

However, a passenger in a stopped car is not in the same situation as a person standing or walking on the street. When the police stop the car, the passenger is detained.

When a police officer asks a detained passenger for identification, no reasonable person would feel free to refuse that request. Thus, such a request is in fact a demand and thus is unlawful without further cause.

4. When is a detention [a temporary seizure of a person] constitutional?
"The Fourth Amendment prohibits detentions of persons by law enforcement if they are unreasonable." (Terry v. Ohio U.S. Supreme Court (1968).)

A detention is reasonable under the Fourth Amendment if the detaining officer, at the time of the detention, can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.

5. The courts recognize the wide variety of necessary police functions of modern life.

The community caretaking exception to the warrant requirement derives from the expanded role undertaken by the modern police force. Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office.

Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.

In addition to their investigative tasks, police officers regularly perform community caretaking functions—helping stranded motorists, returning lost children to anxious parents, assisting and protecting citizens in need.

There are other exceptions recognized by courts, which free police from constitutional restraints. The emergency aid component of the community caretaking exception requires specific, articulable facts indicating the need for swift action to prevent imminent danger to life or serious damage to property.

In addition, "circumstances short of a perceived emergency may justify a warrantless entry, including the protection of property, as ‘where the police reasonably believe that the premises have recently been or are being burglarized.’

The appropriate standard under the community caretaking exception is one of reasonableness: Given the known facts, would a prudent and reasonable officer have perceived a need to act in the proper discharge of his or her community caretaking functions? . . .

In determining whether the officer acted reasonably, due weight must be given not to his unparticularized suspicions or hunches, but to the reasonable inferences which he is entitled to draw from the facts in light of his experience; in other words he must be able to point to specific and articulable facts from which he concluded that his action was necessary.’

As I see it, the problem with this law is the same problem we have been coping with for fifty years or more. The standards of police contacts are so vague that they are almost meaningless. Police are free to be "creative," i.e., to lie. They claim to "see" suspiciious acts, smell odors, hear words and acts that their "experience and training" gives cause to suspect criminality over the denials of indepependent witnesses. Courts (made up of judges who are former prosecutors elected or appointed to enforce popular laws) will not wish to negate police activity intended to, in the words of the title of the statute: "support law enforcement and safe neighborhoods."