OK, It's time I chime in on this one. When deciding how I would respond to this bill which is now law I did something most did not. I read the bill. I read it a couple times. I then read it again looking for the racism, the authority to racial profile given to police, the new powers police had to stop vehicles and people based solely on a hunch that it is occupied by illegal aliens. I also looked for a place where it "requires" Officers to take action taking away discretion. Oh, I must have missed it the first three times, lets read it again....nope still didn't find it.
What I did find is a bunch of familiar verbage that law enforcement uses, applies and can in most cases quote the definition of (Sheriff Dupnick excluded.) So lets run through some of the definitions as defined by the supreme court and recorded by The Merriam-Webster's Dictionary of law.
Reasonable Suspicion - ":an objectively justifiable suspicion that is based on specific facts or circumstances and that justifies stopping and sometimes searching (as by frisking) a person thought to be involved in criminal activity at the time"
in the explanations under this definition as given by the Supreme Court the expanded for clarification to say :
"A police officer stopping a person must be able to point to specific facts or circumstances even though the level of suspicion need not rise to that of the belief that is supported by probable cause. A reasonable suspicion is more than a hunch."
Probable Cause - "Probable cause is a level of reasonable belief, based on facts that can be articulated, that is required to sue a person in civil court or to arrest and prosecute a person in criminal court. Before a person can be sued or arrested and prosecuted, the civil plaintiff or police and prosecutor must possess enough facts that would lead a reasonable person to believe that the claim or charge is true."
Probable cause - is a term that has been around since the building of our constitution. it is referenced in the Fourth Amendment which reads "it is 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 searched."
Ok, you may look at the definition of Probable cause and the fourth amendment and determine that requiring identification is a search therefore raising the necessary criteria necessary to ask for it to the level of Probable Cause. Not so fast. It's been tried before and guess what? There was a ruling brought down by the Supreme Court.
Courtesy of Wikipedia:
Different obligations apply to drivers of automobiles, who generally are required by state vehicle codes to present a driver’s license to a police officer upon request.
A lot of legal terms, but bear with me.. They all come into play in this new law.
There are three types of Police/citizen contacts:
Consensual
At any time, a police officer may approach a person and ask questions. The objective may simply be a friendly conversation; however, the officer also may suspect involvement in a crime, but lack “specific and articulable facts”[3] that would justify a detention or arrest, and hope to obtain these facts from the questioning. The person approached is not required to identify herself or answer any other questions, and may leave at any time.[4] Police are not usually required to tell a person that she is free to decline to answer questions and go about her business;[5] however, a person can usually determine whether the interaction is consensual by asking, “Am I free to go?”[6][7]
Detention
A person is detained when circumstances are such that a reasonable person would believe he is not free to leave.[8]
Police may briefly detain a person if they have reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Many state laws explicitly grant this authority; in Terry v. Ohio, the U.S. Supreme Court established it in all jurisdictions, regardless of explicit mention in state or local laws. Police may conduct a limited search for weapons (known as a “frisk”) if they reasonably suspect that the person to be detained may be armed and dangerous.
Police may question a person detained in a Terry stop, but in general, the detainee is not required to answer.[9] However, many states have “stop and identify” laws that explicitly require a person detained under the conditions of Terry to identify himself to a police officer, and in some cases, provide additional information.
Before Hiibel, it was unresolved whether a detainee could be arrested and prosecuted for refusing to identify himself. Authority on this issue was split among the federal circuit courts of appeal,[10] and the U.S. Supreme Court twice expressly refused to address the question.[11] In Hiibel, the Court held, in a 5-4 decision, that a Nevada “stop and identify” law did not violate the United States Constitution. The Court’s opinion implied that a detainee was not required to produce written identification, but could satisfy the requirement merely by stating his name. Some “stop and identify” laws do not require that a detainee identify himself, but allow refusal to do so to be considered along with other factors in determining whether there is probable cause to arrest.
As of January 2010, the Supreme Court has not addressed the validity of requirements that a detainee provide information other than his name.
Arrest
While detention requires only that police have reasonable suspicion that a person is involved in criminal activity, an arrest requires that the officer have probable cause to believe that the person has committed a crime. Although some states require police to inform the person of the intent to make the arrest and the cause for the arrest,[12] it is not always obvious when a detention becomes an arrest. After making an arrest, police may search a person, her belongings, and her immediate surroundings.
Whether an arrested person must identify herself may depend on the jurisdiction in which the arrest occurs. If a person is under arrest and police wish to question her, they are required to inform the person of her Fifth-Amendment right to remain silent by giving a Miranda warning. However, Miranda does not apply to biographical data necessary to complete booking.[13][14] It is not clear whether a “stop and identify” law could compel giving one’s name after being arrested, although some states have laws that specifically require an arrested person to give her name and other biographical information,[15] and some state courts[16][17] have held that refusal to give one’s name constitutes obstructing a public officer. As a practical matter, an arrested person who refused to give her name would have little chance of obtaining a prompt release.
Arizona has a stop and identify statute under ARS Tit. 13, §2412
Ok, If you read the bill you may not need any more clarification so I have included a link to the bill here. SENATE BILL 1070
Go ahead, read it. I'll wait...
Done, or have you still not read it. Did you read it before? Great!
Lets start by looking at what new powers this Law gives law enforcement. They are few, but there are some.
When the law goes into effect it will be a class 1 Misdemeanor under this law to be an illegal alien. Law Enforcement can (but are not required to) arrest you if they have Probable Cause to believe you are in the country illegally. They can Detain you if they have reasonable suspicion for the means of an investigation. Race can not be a factor in the circumstances which are used to reach Probable Cause (it's in the law.)
Under current laws Law Enforcement can hold a person under reasonable suspicion of illegal immigration for a reasonable period of time until Border Patrol (or ICE) can respond to conduct an investigation of their own. Different departments interpret a reasonable period of time differently the courts defined it simply as "Reasonable time is that amount of time which is fairly necessary, conveniently, to do whatever is required to be done, as soon as circumstances permit." The courts have found on numerous occasions that drive time from the Border Patrol Officer's location to the location of the detaining Officer is a reasonable time. This definition is however admittedly vague and this is why different departments choose to interpret it in their own way often erring on the side of caution with specific time restraints.
Since this new law makes it a crime to be an illegal alien it relieves that requirement if the contact rises to the standard of probable cause. Because the person is now under arrest, law enforcement Officer's can detain the person with less restrictions. They can transport them to the Jail for detention under the law where ICE can put a hold on the prisoner restricting their release only into their custody. They can Cite and release them although this would be in violation of the intent of the law. They can transport them to Border Patrol and cite and release the alien into the custody of Border Patrol or the same can be done by Border Patrol responding to the Officer. Once deported to their country of Origin (or even before) an arrestee can petition the US Government through the US Consulate for a Visa under the pretense of fulfilling their promise to appear in court for the underlying offense.
Sheriff Dupnick is all concerned about the cost to Pima County for the costs of detention these folks cause. Under ARS13-1509D it states "IN ADDITION TO ANY OTHER PENALTY PRESCRIBED BY LAW, THE COURT SHALL ORDER THE PERSON TO PAY JAIL COSTS AND AN ADDITIONAL ASSESSMENT IN THE FOLLOWING AMOUNTS:
1. AT LEAST FIVE HUNDRED DOLLARS FOR A FIRST VIOLATION.
2. TWICE THE AMOUNT SPECIFIED IN PARAGRAPH 1 OF THIS SUBSECTION IF THE
PERSON WAS PREVIOUSLY SUBJECT TO AN ASSESSMENT PURSUANT TO THIS SUBSECTION."
Further more it should be noted that the response time for Border Patrol is usually reasonable (usually drive time from their Tucson branch) and if they are not available, a deputy can simply transport the arrestee to them. This means the arrestee never stays in Jail and therefor never undergoes a fee to Pima County for their detention there. It should also be noted that the law allows the Officer/Deputy to use his/her discretion as to when they will enforce to law. If it is not practical to enforce the law due to low man power or a high priority response necessary to another event the subject would be let off with a warning in hopes to catch them another day.
Another action that can be taken by Law Enforcement is impoundment of a vehicle driven by an illegal alien. This is simply an amendment to the 30-day-impound requirement currently mandated by the state. Currently anyone pulled over for an offense found driving will have their car towed at the driver's expense if certain criteria are met. Such criteria are: The driver's driving privilege is suspended, cancelled or revoked for any reason, The driver is under arrest for extreme DUI or if the driver is under 21 and arrested for DUI the last criteria is if the driver has never been issued a Driver's license in any jurisdiction (including foreign countries.)
These are the nuts and bolt differences that the typical law enforcement Officer will see with this law. Most jurisdictions will release their arrestees directly to Border Patrol. Some agencies may have geographic limitations which restrict this so they will be forced to detain the arrestee in jail so that Border Patrol can respond for them.
No legal immigrant should ever be deported under this new law if they are following the laws already established under federal law. Under Federal law, any person issued a VISA or passport SHALL have it under their immediate control at all times. Simply present the valid VISA and you have nothing to fear of this law. If you are driving a motor vehicle in Arizona you are required to carry a Driver's License in your possession. Failure to do so is a class 1 Misdemeanor and you can bee booked into jail on that offense alone. Once in Jail they will determine your identity and ultimately your status and if you are here illegally you will be turned over to ICE.
Illegal immigration threatens the safety of this nations citizens. Request for help from the Federal government have not been denied, but rather ignored completely. It was necessary to enact this kind of enforcement to keep the people of Arizona safe. This law is not intended to be a fix all, it is simply a step in the right direction.
Updated viewpoint on recent reactions:
OK, will illegal aliens be apprehensive about approaching police? Of corse they will. All criminals are, not just them. The drug dealer doesn't want to see the cops, neither does someone who has warrants for their arrest. Do we make drug dealing legal or cancel the warrants just so they will have that warm and fuzzy feeling when they see a cop? NO!, we don't. Thats part of it isn't it? They get legal or live constantly looking over their shoulder. The guilt is sometimes a motivator for someone to pay fines or bonds on a warrant. That is the way the legal system works. The truth is, the illegal alien already apprehensive of police contact. They already don't approach police. They are reluctant to be witnesses. To make things worse they come from a country where their form of police are corrupt. They bring with them to this country the mistrust in Law Enforcement they had there. This law will not change a thing. You are kidding yourself if you think it will.
The Feds are arguing that law enforcement officers are interfering with Federal law and have no power to enforce the law in their recent suit. What they call interfering I call aid. They would be getting help from law enforcement not interference. The only thing law enforcement may be interfering with is the Obama Administrations policy of non-enforcement. Well hello Laws are made to be enforced.
Be careful, no power to enforce Federal law. If you push that through it may just balloon on you. Local police enforce federal law all the time. They serve federal warrants, they respond to bank robberies, they arrest suspects for mail theft, they arrest for illegal weapon sales, and many other offenses. That all could stop if this is pushed through. The only reason local law enforcement would need to respond is when the public well being is an issue. In other words, if that bank gets robbed and the suspect is no longer on scene police will not respond to even look for them. think about it folks. Most banks don't call until they leave any more. Most don't even call until they have a chance to clear their lobby of customers because most often the other customers are unaware that the bank was even robbed and they want to keep it that way. They want their customers to feel safe in the bank. The truth is, the state has the authority to make laws that do not violate the state and nations constitution or the freedoms given the people by them. You will notice that the Federal suit does not contend that as an issue. The Police/Sheriff can enforce the law and the suit is nothing more than an attempt at a stall tactic. They want to stall the law until after November's elections or if they are really good until after the next presidential election. It is a political ball. This is why they waited so long for the suit, so they could stall as long as possible.
The arguments against the bill are all flawed. There is not one valid argument presented. This is nothing more than those that are proponents of open borders and the illegal aliens themselves scared that the law will be enforced. Stop crying and get legal!
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well done! (@kking85743)
ReplyDeleteThanks for sharing the "nuts and bolts" of how this bill looks in practice.
ReplyDelete