Arizona S.B. 1070/ H.B. 2162

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Forums > All Posts > Arizona S.B. 1070/ H.B. 2162

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2010-11-22 07:01 AM

CARLITOS BAM-BAM
Dallas, TX
Posts: 897

On Tuesday, I will debating the constitutionality of Arizona S.B. 1070/ H.B. 2162

My assigned focus is the 5th Amendment and my overall argument is "Void for Vagueness"

Ultimately, if an individual is not subject to an arrest, during a lawful stop....and there is no probable cause to indicate they are illegal, even with a suspect's compliance with Arizona's stop and identify statue.....
an assertion of one's 5th amendment right to silence and to counsel during the subsequent mandated immigration check, constitutionally stops the encounter right then and there......

Why? By criminalizing...what the federal government chooses to handle as a civil matter....Arizona has afforded illegal immigrants the full force of their 5th amendment rights....
Huh?
Because the federal government chooses to handle certain immigration offenses as a matter of administrative law....fed. immigration authorities can arrest those that it only has reasonable suspicion to believe are illegal....
You cannot arrest individuals for criminal offenses on account of reasonable suspicion alone....you need probable cause.

Indeed, Arizona has made it harder to police immigration...constitutionally...for both the feds and the state of Arizona.....
To be Continued...later today

please share your thoughts

2010-11-22 03:35 PM

Schmidt
Colorado Springs, CO
Posts: 1058

Wow, EPK...you take on some interesting assignments. Of course asking us "ordinary citizens" to weigh in on the constitutionality of this law with respect to the 5th Amendment is pushing the envelope of our knowledge of the intricacies of the law. This is more in LLBarry's domain. Nevertheless since you asked I'll go ahead and join the crowd of the millions of Americans who have responded to public opinion polls to render "expert" opinions...kind of like everyone has an expert opinion on the great global warming debate.

I did some superficial homework on wikipedia and other websites, and will make the following observations.

1) the original Arizona law, SB 1070, seems to have put together rather hurridly without much regard to the finer aspects of federal law. The fact that they had to put together a patch that Governor Brewer signed into law just five days later suggests to me that the whole effort was political rather than grounded in case law. For example, the original SB 1070 had the words, "for any lawful contact made by a law enforcement official..." It was updated five days later in HB 2162 with the words, 'for any lawful stop, detention or arrest made by a law enforcement official..." That's just one of the many places where vagueness existed in the original law...and still exist. They also had to update the penalties to be consistent with federal law. I don't have to be a legal scholar to see that the effort was unprofessional and amateurish.

2) Public opinion seems to be supportive of this law. But I question whether the general public is really that into the finer aspect of the constitution and this law. Rather they are at the mercy of the media pundits who cherry pick parts of it or politicize it to pander to an audience that just hasn't taken the time to understand. Again amateurs rendering professional opinions.

3) Anyway, I'm preaching to the choir on those points. You asked specifically for us to chime in on the 5th Amendment aspects, and Googling that point I found these websites: the Identity Project, Papers Please!, New Arizona Immigration Law and ID Demands and Arizona Immigration Law Overreach. For those not familiar with the 5th Amendment it is like other amendments with several clauses:

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.

If I understand this correctly, the essence of your contention and also that of the above websites is that the new law allows a person to exercise his Miranda rights (as per bolding above) something that wasn't previously a part of Arizona law with respect to illegal immigrants.

The Arizona Immigration Law Overreach websites states:

Given these Supreme Court rulings regarding the application of the 5th amendment to compelled testimonial statements from individuals being detained or arrested, the catch 22 created by Arizona's state legislature with the signing of S.B. 1070 into law by Governor Jan Brewer should be obvious.

This means that unlike Hiibel's case where providing a name did not tend to incriminate him, compelling an individual to provide a name in Arizona is now self-incriminating thanks to S.B. 1070. As such, ARS 13-2412 no longer meets Constitutional muster given the fact that it will be used extensively by the police to determine if an individual is trespassing, unlawfully seeking employment or doesn't have all of his/her papers in order.

I wouldn't hang my hat on it, but superficially at least it makes sense to me. And given that this whole law was slapped together in an amateur fashion, I would think that this challenge to the law would stand up under appeal in a higher court of law. However, knowing how political the Supreme Court has become, I wouldn't wager on it.

Just thinking about some of the practical aspects for implimentation, could a police check point for drunk drivers be construed as "a lawful stop?" If that is the case, the police could set up check points almost anywhere where Mexicans travel, obstensibly looking for drunk drivers but invoking their mandate of "where reasonable suspicion exists that the person is an alien" to go much further than just checking for drunk drivers.

Considering that some 30 pecent of Arizona's legal population is of Hispanic or Latino origin, does it mean that they could be arrested for not carrying papers proving their citizenship at all times? These are, of course, valid points raised by the Hispanic community. Using reasonable suspicion as a basis for checking papers means that 30 percent of the legal residents are in for harrassment. Will legal residents be arrested for chosing to remain silent???

Finally, I share the frustrations of Arizonans in that they have to take the law into their own hands when the federal government seems to be dragging their feet on comprehensive immigration reform. In trying to understand all the stumbling blocks, I came across this 2007 Washington Post article, Issues and Influentials in the Immigartion Reform Debate. It lists all the twists that have blocked reform to date, but for even those Republicans that supported reform then, they are now part of the Republican collective that cannot support Obama on anything, no matter their past positions on the subject. Republicans and some Democrats have backed themselves into a corner, and I don't see them doing an about face anytine soon.

Thanks EPK for raising the issue and argument, but I'm still rather dumbfounded.

2010-11-22 06:13 PM

CARLITOS BAM-BAM
Dallas, TX
Posts: 897

Yeah...my post before....requires a lot of explaining.....

I'm not arguing along Hiibel's open possibility that stop and identify statues could be self incriminating and thus a violation of the 5th amendment...I'm arguing on even narrower grounds......
I'm saying that stating your true name (in accordance with Arizona's stop and identify statue) may not be enough to make a determination about one's legal status.....and if probable cause does not exist to arrest the individual for reasons related to the initial stop and probable cause evidence of one's illegal status is not found or discovered over the course of a Terry stop and frisk.....one's 5th amendment rights protect them from having to answer or face questions related to their immigration status (when the accused invokes the right)...Why? .because they face criminal penalties in Arizona....indeed, the police are required by law to pursue criminal charges...

Sure...federal law does in fact provide criminal penalities for not carrying your immigration papers....except in U-Visa (Amnesty cases)....
however...and here's what the authors of the bill and its proponents ignore......the federal government does not categorically pursue criminal immigration charges against all those to whom they might apply.....why? Because criminal law...provides protections to the accussed that civil law or administrative law does not, .namely the right to invoke the 5th amendment's right to silence .....not to mention that the standard of evidence for a conviction in a criminal offense is beyond a reasonable doubt.....

So basically.....given the above mentioned scenario (which is not oft-chance).....how is a local police officer supposed to perform a immigration check without consensual compliance from the accussed? You might think...well why don't they just call CBP or ICE and have them come to the scene...investigate and arrest on reasonable suspicion of a civil immigration violation (which the feds can do)

well how is custody of the accused supposed to tranfer mid-course during a Terry stop (unlike any Terry stop before).....without the subject first being put under arrest?

Reasonable suspicion is not grounds for an arrest....Indeed, even if Arizona can enforce federal civil immigration violations.....because they are criminalizing these violations, (remember, the police are forced by law to purse criminal charges) they cannot arrest the accused on reasonable suspicion alone.

Hope this makes sense.

P.S. I've revised a few of my statements...since initial posting

2010-11-22 10:29 PM

CARLITOS BAM-BAM
Dallas, TX
Posts: 897

Nobody knows what the police are going to do....if Miranda is invoked...

The police are being told to issue miranda before immigration questions for those already in custody -pg 3
The key question here .is if someone who gives a police officer reasonable suspicion that they are an illegal, but for whom no probable cause evidence was acquired during a Terry stop, or beforehand, in regards to athe underlying reason for the stop, itself, or in regards to their legal residency status.....what are the police going to do, if said person invokes their 5th amendment rights, before, or during the immigration interrogation?

Is it practical to continue interrogating someone...to acquire probable cause evidence...that they are under no constitutional obligation to submit?

Is it reasonable to let local police departments figure this all out for themselves?
If not....then Sb.1070/H.R. 2162 should be void for vagueness....

2010-11-23 07:30 AM

Schmidt
Colorado Springs, CO
Posts: 1058

Thanks EPK...it clarifies it....mostly. The handout for the police provides more detail on how the arresting officers should proceed, but in effect isn't it somewhat similar to the guidelines issued to real border agents? For anyone traveling in southern Texas, New Mexico, or Arizona, it is not uncommon to come across check points where all vehicle traffic is stopped and a border agent looks in the car windows and then waves you on your way.

But suppose two Hispanic-American citizens were traveling and the passenger just didn't happen to have his identification with him and spoke poor English. Could he be detained by border agents if he didn't have identification with him, and if so would he normally be read his Miranda rights first? Is the lack of an ID grounds to be detained? Actually I think at that point he should be read his Miranda rights. But then could the driver also be arrested and read his Miranda rights for allegedly transporting an illegal alien?

So the Arizona police in taking on the role of the border agent at a traffic stop, would go through the same check list, and if he suspected the passenger to be illegal, both he and the driver could be arrested and read their Miranda rights. Or am I stretching this too far?

The process beyond the arrests is still unclear to me. I've read of instances where true American citizens have been arrested by federal immigration officers and mistakenly deported because they couldn't provide the necessary documentation to prove their citizenship. Those may be isolated cases.

2010-11-23 08:42 AM

CARLITOS BAM-BAM
Dallas, TX
Posts: 897

Well a check point...is a check point.....everyone has to show id....

CBP can stop and arrest you on reasonable suspicion.....in accordance with administrative law....
or they can arest you with probable cause for criminal violations.....

For Arizona police....there is no difference....they have criminalized what the federal government chooses to pursue as a civil process...
as such they need probable cause evidence to arrest.....
So even if Arizona has a right to enforce federal civil violations......they have messed this up...because they have criminalized the process.

.

2010-11-23 10:54 AM

Schmidt
Colorado Springs, CO
Posts: 1058

OK then are you suggesting that all American citizens need to carry IDs at all times? No...I know the answer to that. It's not practical or even required. Nevertheless, if you are a US citizen and Hispanic and living in a border state, whether it be Arizona or some other, it would be advantageous to carry proof of citizenship because you might be hassled by the CBO, and if not them, then the police in Arizona if you haven't moved away from the state by now.

Jaquline Stevens had a Huffington Post article last year that addressed that point:

"Immigration and Customs Enforcement (ICE) has been deporting over a million people each year. Most are Mexican citizens residing here without legal status. But thousands of those being detained and even deported are US citizens.

"This sounds unbelievable, and it should. ICE has no authority over US citizens. Nonetheless, a systematic examination of thousands of individual case files for detainees in southern Arizona between 2006 and 2008 revealed that just over one percent were deemed US citizens by an immigration judge. Almost all were held for more than two months."

Whether one is deported or not, just being hauled into their custody and going through the bureaucratic process of proving your citizenship can take valuable time...whether it be hours, days, weeks or months. Racial profiling isn't confined to just the Arizona police. And the reading of Miranda rights might be a moot point if you choose to remain silent and are confined for an indefinite period anyway.

This is off the topic you were were specifically addressing...the criminalization of the law in Arizona. But I can certainly understand now with the vagueness in the law, why so many American citizens of Hispanic origin have chosen to leave Arizona because of the extra focus in that state now on racial profiling. No matter what they call it, that's what it amounts in practice, if not legally...and both the CBO and the Arizona police apply it, or will be applying it.

Arizona's loss is Colorado's gain. Colorado will remain a blue state thanks to our Hispanic citizens...and Arizona a red state thanks to Governor Brewer, John McCain and John Kyl...and the Tea Party.

2010-11-24 12:26 AM

CARLITOS BAM-BAM
Dallas, TX
Posts: 897

Frank it was awesome.....

"Each point that my classmates has just made....individually... is enough reason to overturn SB 1070/HB 2162....taken together the law is radioactive. It's not just unconstitutional. It is an act of war on the Constitution, American citizens, all immigrants, and even the local Arizona police departments....due to its unfunded mandates and onerous requirements."

That was my opening statement.....

Some highlights....."because the law targets those who appear to be aliens for scrutiny for reasonable suspicion of illegal status....Equal Protection is out the window!"

"This is what we have always feared"

"Whatever they call it"..."you can't keep people at the same location... hour upon hour and still call it a Terry Stop"....."it's an unlawful arrest, when the person is not free to leave and the police officer has exhausted his legal constitutional means to uncover probable cause, which is automatic in terms of unanswered questions regarding the identity of individuals not required by law to show id, or state anything else but their name, when an individual invokes their 5th amendment rights..and you certainly can't move or transfer custody of the individual without him or her, me or you being under-arrest.. "

"Arizona has screwed up the ability of the federal government to move more quickly to deport individuals, because the state intends to criminalize what the federal governmemt simultaenously pursues as a civil matter "

"If someone is not free from criminal prosecution.....then the government cannot pursue simultaneous administrative investigative/detention for the same offense...indeed in regards to his or her illegal status, the detainee has an interest in remaining silent that cannot be impeached on accout of criminal charges hanging over the head"

Mahalo,
Kaboom

2010-11-25 08:27 AM

Schmidt
Colorado Springs, CO
Posts: 1058

Congratulations are in order...and thanks again for sharing your class work with us. It has been educational, and now I will be keenly watching how this plays out in the courts. I note that in reading Wikipedia, SB 1070, in addition to the Justice Department's lawsuit against the law, there are six other lawsuits filed and pending in the courts that challenge the constitutionality of the law, not only on the basis of the 5th Amendment rights, but also that it:

1) violates the federal Supremacy Clause by attempting to bypass federal immigration law,
2) violates the Fourteenth Amendment and Equal Protection Clause rights of racial and national origin minorities by subjecting them to stops, detentions, and arrests based on their race or origin;
3) violates the First Amendment rights of freedom of speech by exposing speakers to scrutiny based on their language or accent;
4) violates the Fourth Amendment's prohibition of unreasonable searches and seizures because it allows for warrantless searches in absence of probable cause;
5) violates the Fourteenth Amendment's Due Process Clause by being impermissibly vague;
6) and infringes on constitutional provisions that protect the right to travel without being stopped, questioned, or detained.

The Justice Department lawsuit does not mention racial profiling. Perhaps that one is too controversial.

So will these lawsuits somehow be combined and eventually reach the Supreme Court? Will the court rule 5-4 in favor of the plantiffs? And on what specific basis...the 5th Amendment...or one of the others? If it is a split vote and not 9-0, it will further demonstrate just how politicized the Supreme Court has become. Dare I use the "f-word?' First it was the Citizen's United ruling on a 4-5 vote...and now we can anticipte this ruling sometime in the future on what should be a slam dunk.

2010-11-25 11:56 AM

CARLITOS BAM-BAM
Dallas, TX
Posts: 897

Well as far as racial profiling....being unconstitutional....what matters is that race does not form the sole basis for reasonable suspicion.....
.....that would be racism.....no real profiling necessary.

Race, location, and circumstance can form the basis of reasonable suspicion.....

What I argue is that because the law dictates immigration checks on those who the police officer reasonably assumes to be an alien AND illegally present....the law categorically violates the 14th amendment........because aliens would be subject to greater police inquiry on account of their physical features and appearances.
Indeed the law would suggest,....that one could appear to be native born.... and yet still give reasonable suspicion that they are illegally present...but the police officer cannot pursue an immigration check. Some might argue this is a good built in saftey check, but fact is......anyone who looks foreign is now subject to higher levels of police scrutiny in Arizona. They have something to fear that others don't, based solely on their appearance, irrespective of the particularities of their race, ethnicity, or accent.

And worse is to be expected upon implementation..when it comes to specific identifying particularities.

Fact is though, an American citizen can give reasonable suspicion that they are an alien and illegal.....and they should not face the presumption that they are guilty of violating immigration laws. They should not have to prove their innocense of a criminal violation or face the prospect of an arrest. (Inability to prove who you are is not probable cause for an arrest, and fact is Arizona police simply don't seem to all understand this, and on present course many departments will violate the 4th and 5th amendments, as well as the 14th amendment's due process clause - hence due process and unreasonable search and seizure are fail-safe facial challenges of the law, aside from the federalist supremacy arguments, and the 14's equal protection)

At some point ( if Hiibel's implications regarding 5th amendment protections against stop and identify don't hold) the police will need more than a name to identify someone.....to be sure, providing a name but no other information, could concievably result in a probable cause arrest should someone provide a name, shared by someone else, who they also share similar identifying features with, and there is a warrant for that person's arrest, or they are known to be in violation of immigration laws...
However a name is not always enough to result in probable cause evidence...and absent more information...an investigatory stop/Terry detention is over, once nothing else can be done, constitutionally to uncover probable evidence.....obviously the police cannot torture people into confessing their information...or threaten them with physical harm.
Arizona police seem to think differently..indeed many departments plan on arresting ..those who can't or refuse with the 5th amendment to prove who they are....when the police have reasonable suspicion to believe they are illegal....but no probable evidence, as a result of their name, or legal search. If they can't identify you as an American citizen, they plan on arresting you....the innocent would be guilty until they prove themselves innocent with irrefutable documentation, at the discretion of the officer in determing its validity* For example: a bent up driver's license or discrepancies in the photo id with the actual physical appearence of the person presenting it, could be rejected by the officer as enough evidence to prove their innocense. Indeed, ability even to provide spoken identifying information is not enough, the officer has to believe you; not to mention that not all records may match up.....provide the wrong address than the one listed in their computer(or the police officer hears anything different than what you actually say) and you could have a problem, which is all the more reason to invoke the 5th amendment, after you have fufilled your obligation to state your name (which you may not have to do if Hiibel's implications hold).

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