The first lawsuit challenging the Arizona immigration law was filed in court today by a fifteen-year veteran of the Tuscon police force. Escobar v. Brewer throws a battery of challenges against Senate Bill 1070. Some have a likely chance of success, some less so. But for those looking for a primer on how to approach the argument, here is a summary of the first Arizona attack:
Count One: Due Process
The Fourteenth Amendment guarantees due process when an individual is deprived of their property or liberty. Due process, refers to a lot of different procedural guarantees like understanding the specifics of a charge before being asked to mount a defense or having a charge based on a reasonable suspicion of guilt before being detained by law enforcement officials. Due process is, fundamentally, a guarantee that any deprivation of property or liberty will be fair.
SB1070 authorizes police detention based on the suspicion of illegal presence on U.S. soil and the failure to provide evidence countering that claim. Suspicion of illegal status can be based on skin color as long as that is not the sole factor. In practical terms, this means that an individual can be deprived of their liberty for having brown skin and shabby shoes and then not having, in their possession, proof of citizenship. This is not fair for a number of reasons. First, skin color is not a reasonable basis for suspicion of guilt in any situation. Second, requiring individuals to produce evidence of innocence to avoid detention shifts the burden of proof from the government to the individual. In Arizona, you have to prove you are innocent before you are ever reasonably accused of being guilty of a crime. This is certainly not fair. It is also a violation of due process. Certain exceptions to this burden requirement have been carved out, but only for the Federal government in a limited number of circumstances. Extending this to a State within it's criminal law power is unprecedented and unwarranted.
Count Two: Equal Protection
The Fourteenth Amendment also guarantees equal protection of the laws. This means that the laws of a state must be applied equally to all citizens irrespective of race and gender (other categories are included, but not as highly protected). In the case of race, unequal treatment must be justified by a compelling government interest and the law that discriminates must be narrowly tailored to that interest. It also must be the least restrictive means of achieving the desired result. Racial discrimination gets strict scrutiny and that means that the court is going to be particularly hard on the government.
Though many critics think Arizona's new law is a shoo-in for equal protection violations, one cannot underestimate the compelling government objective exemption. If the government links illegal immigrants to rising crime rates in Arizona, even a non-causal relationship between the two, the government may be granted the right to discriminate.
Furthermore, the law, on its face, does not discriminate on the basis of race. Executive Order 2010-09 specifically directs that race, color and/or national origin cannot be the sole factor that gives police reasonable suspicion that a person is in Arizona illegally. As well, the law contains language directing the Attorney General to refrain from investigating complaints based solely on race when filed by an employer. For more on racial profiling see count five, below. This means that the government may be able to argue that the law, as applied, does not necessarily discriminate on the basis of any protected class. Discrimination, in that case, would have to be handled on a case-by-case basis.
Count Three: Free Speech
Freedom of speech guarantees require that all laws curtailing speech will be applied neutrally to all viewpoints and irrespective of content. This freedom also guarantees that time, place and manner restrictions on speech will be narrowly tailored to serve a legitimate governmental interest. All speech restrictions must leave open alternative channels for communication.
SB1070 doesn't, on its face, concern speech at all. But the broad reasonable suspicion category that forms the basis for police detention under the law could infringe freedom of speech. An individual cannot say anything that might indicate that she is an illegal immigrant. This includes speech that indicates race or national origin. In the case of the Arizona law, individuals won't even have prior notice of what kind of speech is prohibited since that speech could include anything suspicious to a police officer. For day laborers, people who will be singled out for having accents, using routes across the border and looking "Mexican," simply saying anything at all could be grounds for a brief detention and questioning. The brief doesn't indicate what the argument will be under this count, but the chill on political and protected speech that could result from the application of this law may well be unconstitutional. Still it's a hard argument to win.
Count Four: Right to Remain Silent
The pleadings don't specify what part of the Fifth Amendment is being violated by the Arizona law, but it is my best guess that they are referring to the right to remain silent. Generally, when arrested, an individual has the right to refuse to answer questions. This is referred to as part of the Miranda rights and must be explained to an individual upon arrest. Anything said after the Miranda warning is admissible as evidence. Certain violations do not include a right to remain silent (in certain states). These include traffic violations where a police officer is permitted to ask for license and registration and refusal to answer is grounds for arrest.
In the case of SB1070, an individual is required to answer questions (i.e. show I.D.) at any time for almost any action. They do not need to be engaged in a crime to be questioned and arrested for refusing to answer the questions asked. This seems like a clear violation of the Fifth Amendment.
Count Five: Search and Seizure
This one is a no-brainer. The Supreme Court has found that seizure of one's person, i.e. a brief detention, must be reasonable (United States v. Mendenhall). SB1070 authorizes detention on the basis of race or other characteristics that bear no reasonable relationship to criminality. Thus, we have a clear violation of the Constitution.
The only problem with this analysis is that racial profiling for short detentions (presumably the ones that will be used in the application of this law) is permissible as long as the officer can, after the fact, come up with a non-race based pretext for the stop (Whren v. United States). Pretexts for stopping an individual for being a suspected illegal immigrant are boundless. You name any characteristic a human being possesses and I can think of how it could indicate illegal status. For example, you write the word favorite with a "u"? You are clearly a Canadian illegal immigrant and have handed the police a legitimate pretext for detention.
Count Six: Federal Law
The Escobar brief states that, "The City of Tucson has no authorization or agreement with the United States to perform any immigration inquiries of any persons present in the United States." This basically explains the whole game. Immigration enforcement is clearly within the powers allotted to the federal government. States simply aren't allowed to regulate immigration. Criminal law, on the other hand, belongs clearly to the states.
If Arizona can prove that the enforcement of SB1070 is so clearly linked to protecting the safety of its citizens that it falls within the state law and order power, they might just beat this argument. SB1070 also clearly explains that Arizona has passed this law in order to help the enforcement of the federal government's immigration laws. If this enforcement of the laws is in conflict with federal laws in any way, the supremacy clause would render those conflicting parts invalid.
The argument that criminal law covers the new immigration law would require proof that illegal immigrants, by virtue of being illegal immigrants, are detrimental to public safety. It can't just be a correlation between illegal status, poverty and crime, for example. There must be a proven direct relationship between illegal status and crime. This will, I truly hope, be an unsuccessful argument. Logic just doesn't seem to be on Arizona's side for this one.
What the above analysis indicates is that the fight against Arizona's immigration law won't be as easy as many suspect or hope. This is not because SB1070 is lawful or just. It is because constitutional protections in the United States are woefully inadequate when it comes to institutional racism. Our courts allow for racial profiling, they permit "compelling government interests" to justify racism and they cut out exceptions to fundamental rights like the right to remain silent (driving related law disproportionally applies to Black Americans, just check the myriad studies concerning "driving while Black.")
We need to work hard to defeat SB1070 in the court of public opinion as well as the court of law. But we also need to take this opportunity to re-examine the way we protect racial minorities in this country across the board.
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1 - not the case - read the bill and the modifcations. They make specific reference to driver's license which is dea facto proof of legal status and all drivers are required to present this when stopped.
2 - absolutely the law does not mandate discrimination
3 - I think you are stretching it
4 - I think not just for any reason. The burden of proof of reasonable suspicion and probable cause lies on the officer refer to point 2
5- see point 4
6 - many areas of federal law such as kidnapping are enforced at state level. The bill specifically refers to supremicy and enforcement to no less than the full force of federal standards. Not sure as I am no expert but this again will be for the courts to debate.
At least this has people paying attention!
In 2001, the US 8th Circuit Court of Appeals ruled that a defendant's rights were NOT violated when he was questioned regarding his immigration status in U.S. vs. Rodriguez-Arreola, as the question was asked after a lawful stop (for speeding). In 2002, the decision was reaffirmed by US 10th Circuit Court of Appeals, in U.S. v. Favela-Favela. In this case, a state trooper pulled over a vehicle for traffic violation, and noticed there are 20 occupants, so he asked the driver and occupants immigration status questions. Again, the court says it is perfectly legal for state trooper to ask the question, after a lawful stop.
http://hubpages.com/hub/Why-Court-Challenges-to-Arizona-SB1070-will-fail
http://hubpages.com/hub/Why-Court-Challenges-to-Arizona-SB1070-will-fail
This is as close to a winning argument as they have, and I'm not at all convinced that it is going to carry the day. Not with the current composition of the Court. I don't see why Arizona couldn't make illegal presence in the state a crime or at least, illegal employment. The Constitution is silent about immigration, and the Fourteenth Amendment doesn't help the illegal's cause. This might be a case where the Tenth Amendment still retains some vestigial potency, and the RATS wing of the Court is generally friendly to that argument
There's a reason that the difference between liar and lawyer is often just a matter of pronunciation. This law doesn't permit the cop to walk down the street and arrest someone for walking while brown -- if it did, I would have a major problem with it.
As it is, the requirement that the cop investigate in connection with some other lawful contact, and the objective test of reasonable suspicion (it's clear as mud, but so is the concept of due process), eviscerates the DP Clause argument. No chance of this one carrying the day.
Reasonable suspicion has been described as “something more than an inchoate and unparticularized suspicion or hunch. . . . [as a] level of suspicion . . . considerable less than proof of wrongdoing by a preponderance of the evidence. . . . [as a] . . . level of suspicion . . . obviously less demanding than that for probable cause. . . [but a level of] suspicion supported by articulable facts that criminal activity “may be afoot,” even if the officer lacks probable cause,” United States v. Sokolow, 490 U.S. 1, 7 (1989); as “a particularized and objective basis for suspecting legal wrongdoing,”United States v. Arvizu, 534 U.S. 266, 273 (2002); and as “a particularized and objective basis for suspecting the person stopped of criminal activity,” Ornelas v. United States, 517 U.S. at 690, citing, United States v. Cortez, 449 U.S. 411, 417-18 (1981). It has always been vague as mud, and it has been held constitutional time and time again. [cont]
This argument borders on I-wouldn't-make-it-without-putting-a-bag-over-my-head quality. If you say anything indicating that you robbed the First National Bank or raped a four-year-old girl, it would be used against you, too. Illegal immigration is a crime.
The hyperventilating regarding enforcement of a federal law (keep in mind that Eisenhower signed a federal law requiring foreign nationals to carry their papers at all time) by state agents is addressing another problem (racism) when in fact the problem is people breaking the law by entering the US illegally. I suggest those protesting against the Arizona law, instead promote the laws they want regarding legal immigration. I for one, would allow almost anyone in if we didn't have government welfare.
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In my mind this is the big one. Does it apply to citizens only? Yes. However, again it is VERY clear that "due process" applies. So, without a reasonable belief to the contrary, it must be assumed that a person is a citizen. That assumption protects the individual from having their assumed rights infringed upon.
Now obviously this is an oversimplification of things at best. I'm no Constitutional scholar, and certainly there's room to argue these points based on precedents established by Supreme Court rulings etc.. etc... However I do think the overall theme of my argument against the ability to enforce this law is a sound one.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The important part here is the mention of being held without "due process of law". Laws in the United States MUST be enforced with a presumption of innocence in order to adhere to this. If you have no reason to stop a person and ask them to produce papers, then law enforcement must presume that person to be "innocent", in this case it must be assumed that the person is a citizen unless there's legitimate reason to believe otherwise.
Reasonable suspicion and probable cause are established terms and subject to precedent - which will apply in this case. This is no different that existing law enforcement challanges in any area with a skewed demographic such as South Central LA.
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.
Probable cause. Simply walking down the street is NOT probable cause for being stopped and questioned. Neither is being unable (or unwilling) to speak English. Obviously this is not a law that can legally be enforced based on race (I say "legally" but anyone looking at the situation fairly knows in their heart that's exactly how they plan on enforcing it)
Section 2 - State citizens, Extradition
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
If I'm protected from being stopped without cause and forced to produce identification proving my citizenship in one state, there's an argument to be made that it's unfair to impose this restriction upon entering Arizona. While each State can (and does) have their own laws etc... Arizona is the only State to have a law of this nature, one could raise the point that the new law is an infringement of the civil rights of citizens from other states who are merely travelling through