That beastly Arizona Immigration Law

Well, Arizona’s got a new law. Arizona State Bill 1070 (called the “Support Our Law Enforcement and Safe Neighborhoods Act”) was signed into law by Governor Jan Brewer.

According to Governor Brewer: (PDF link)
This bill, the Support Our Law Enforcement and Safe Neighborhoods Act, strengthens the laws of our state.  It protects all of us, every Arizona citizen and everyone here in our state lawfully.  And, it does so while ensuring that the constitutional rights of ALL in Arizona remain solid – stable and steadfast.
Really?  That's great.  So what does this law say?  Let's take a look at SB1070 (PDF link):

Wow!  That's great.  So what is a "lawful contact"?  It could be a traffic stop, a sobriety checkpoint, an age verification check in a bar, or even a random encounter on the street.  In Arizona it is lawful for a police officer to stop a citizen and ask for his or her name -  as long as that police officer thinks the person is "suspicious".  This is also a "lawful contact", and so the police officer can now ask for proof of citizenship too.

But this law says that the officer must have "reasonable suspicion" that the person stopped is an alien!  But, what does that mean?

During a press conference on Friday, (April 23rd) Governor Brewer was asked, "What does an illegal immigrant look like?"  She answered,
"I do not know.  I do not know what an illegal immigrant looks like.  I can tell you that... I think there are people in Arizona that assume they know what an illegal immigrant looks like.  I don't know if they know that for a fact or not.  But I know that if AZ Post gets their selves together, works on this law, puts down the description, that the law will be enforced civilly, fairly, and without discriminatory... ah... points to it.
"Without discriminatory points" - so, it's not profiling.  After all, who is to say that the illegal immigrant is a brown person from Mexico?  I've known a couple of illegal immigrants from Korea, and another from France.  And we've all heard stories about illegals bringing their children into the country at a young age, who grew up speaking colloquial English.  It is possible that the cute blond-haired girl next door who goes to high school with your son might (just might) be in America illegally!

Just because you are a blond-haired redneck driving a pickup truck with a confederate flag on the bumper, it doesn't mean that you are NOT an illegal alien.  In order to not discriminate, Arizona police should ask for proof of citizenship during ANY "lawful contact".  Racial profiling has been ruled illegal by the Supreme Court, so if a citizen suspects that he or she has been profiled merely because he or she is brown - then they can take the police to court.

Phoenix Arizona Vice Mayor Michael Nowakowski is concerned about possible civil suits that may result over racial profiling.  He has said that he will meet with the Phoenix City Council and the Police Chief in order to discuss his proposal to:  "ask every person that's pulled over by the city of Phoenix Police Department, or called to their homes, to ask for their citizenship"

So what's the harm in that?  If you hate illegal immigrants, it may seem like such a small inconvenience to produce your "proof of citizenship".  The comments from people on Twitter, or in the comment sections of news organizations that are reporting on this law seem to indicate that quite a few people are happy to show their citizenship to police upon demand.

This is a fundamentally bad idea, and is an embarrassing comment on the state of civics education in America.

Do you have proof of citizenship with you right now?  I'd suggest that most Americans do not. 

What qualifies as proof of citizenship?  I was married to a legal non-resident alien for 23 years.  (She had passed her citizenship test but wasn't sworn in.)  As a legal non-resident she had both a driver's license and a Social Security Card.  Personally, I no longer have a social security card, and haven't carried one since slightly after I joined the US Air Force in 1984. 

A legal non-resident can very quickly become an illegal alien who is still carrying a valid driver's license and Social Security Card.  Looking at this on the street, a police officer can't tell a legal from an illegal.

What about a birth certificate?  A piece of paper with an official looking seal on it... but it isn't a photo ID.  Just looking at one will also not prove citizenship.

As far as I can tell, the only documents that a policeman can examine and reasonably determine that you are a citizen or a legal alien are a passport, a military ID card, and (funny enough) a Permanent Resident Card - also known as a "Green Card".

What does a police officer do when you give him your license and registration?  According to the Arizona law, he just follows Section 1373(c) of Title 8 of the United States Code.  (PDF link)  That law merely states that the INS (now USCIS) shall:
respond to an inquiry by a Federal, State, or local government agency, 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.
And how does he do this?  It's simple, he just logs onto the USCIS "E-Verify" website from his patrol car, and makes an inquiry as to whether you can legally work in the United States. 

SB1070 also says that it is lawful to detain someone while the verification is in process, and it allows the officer to arrest, "without a warrant" the suspect if that officer has, "probable cause to believe that the person has committed any public offense that makes the person removable from the United States."  Really?  What does that mean if the officer "has probable cause to believe" that a suspect has committed the "public offense" of being in the US illegally?  This would seem to be a "catch 22" situation.  It would seem to give an officer a free pass to arrest or "detain" anyone on a pretense.

So, what does the USCIS have to say about the E-Verify system?  I found the section on "Tentative Nonconfirmations" to be very interesting.  Apparently the USCIS system doesn't always work!
E-Verify works by comparing the information employees provide on the Employment Eligibility Verification form (Form I-9) against millions of government records. Generally, if the information matches, the employee receives an "Employment Authorized" response in E-Verify. If the information does not match, the employee is given an opportunity to resolve the problem.

A Tentative Nonconfirmation (TNC) response means that the Social Security Administration (SSA) and/or the U.S. Department of Homeland Security (DHS) could not confirm that the employee's information matches government records. It does not mean an employee is unauthorized to work or is an illegal immigrant as there are legitimate reasons why an employee may receive this result.
Whups! So sorry, you aren't in the "system"!  That's too bad.  But maybe there's a problem on the E-Verify side.  How long will it be until they fix that problem?
For those cases requiring manual review, E-Verify will first return a "DHS Verification in Process" response, and will then usually provide an initial verification result within 24 to 48 hours.
Well, 48 hours doesn't seem too bad does it?  But according to the E-Verify manual, if you receive a DHS Tentative Nonverification, the process could drag out.  Here's what the manual says: (PDF link to manual)
DHS VERIFICATION IN PROCESS: This response indicates that the non-citizen’s information provided to SSA matches the information contained in SSA records, but did not match DHS’ records. The case is then automatically referred to DHS for further verification. You do not need to take any action at this point. DHS will respond to most of these cases within 24 hours, although some responses may take up to three (3) Federal government workdays. You should check the system daily for a response.
I hope you didn't get pulled over on a Friday night!  You might not make it back to work until next Thursday!

But, that's okay, because you are in jail.  You can call a lawyer to help you out, and call your wife and employer to let them know where you are... right?  Maybe - maybe not.  The new Arizona Law seems to have wording that indicates that during this process you are only being "detained", and not actually "arrested".  If you were arrested, you'd have the right to a lawyer, and can make a phone call or two.  But if you're only being detained you do not have those rights.

There is no mention in this new law about what would happen to your vehicle during this time if you were detained during a routine traffic stop.  My guess is that it will be towed and impounded.  If so, then you would be told to pay the fees for towing and impounding.

So let's get back to the pickup-truck driving "bubba" in a Peterbilt hat with an "America, Love it or leave it" sticker on the bumper.  Even with all I've said here, Bubba might still be in favor of this new Arizona law because he's White, darn it!  And not brown like some illegal Mexican!  Enforce the law 'cause Bubba won't get pulled over!

Has Bubba given any thought as to how many Hispanics are on his local Arizona police force?  A few of these might even be what Fox News commentators lovingly call an "anchor baby".  I would think that these people, over everyone else, will make sure that the law is applied fairly to everyone, light or dark skinned.

There is also no provision to allow access to the E-Verify system from an officer's patrol vehicle. What if you're pulled over in Leupp Arizona, population 970 - with a total of SIX white residents? The police there are probably going to be using a dial-up connection to verify your citizenship. I hope they have a fast modem!

I don't know how this law will turn out.  I'll bet that it will soon be challenged in court.  Meanwhile legislators in Texas are planning on a similar bill - Texas State Republican Debbie Riddle (R-Tomball) has said she plans to file a similar bill.

And I have to ask - what logical outcome will be the result if other states (or the Federal Government) implemented similar laws?  Even if the USCIS (a bureau of Homeland Security) got its act together and provided instant identification of citizenship, there is still a possibility of a problem if the database crashes, or the police department loses it's data connection.  But why should we worry about that?  It's not like Homeland Security ever makes mistakes.

Instead of relying on a computer database, what if all American citizens just carry a National ID card?  The Real ID Act of 2005 was enacted by Congress to modify Federal Law in order to change your driver's license into a national ID card.  That would work just fine for this purpose - a police officer could just examine your compliant driver's license / National ID card, and determine if you are a citizen or not. 

I've seen something just like this in South Korea.  When traveling by bus near the Demilitarized Zone, we often had to stop at a police checkpoint where a stern faced policeman (backed up by another policeman carrying an M-16) walked up and down the bus isle looking at everyone's national ID.  (I showed them my military ID during these stops.)

Hey, it works for them.  it should work here too.

Of course, there might be some protest from Christians who are worried about the fulfillment of Revelation 13:16-18.


sempaidavid said...

Great post Mark, well researched as usual.

Mike aka MonolithTMA said...

Good stuff. I had skimmed the bill and caught the troublesome wording, but you've done a great job of laying it out.

Peter Wall said...

First, I think the Arizona law is a bad one. It is either intended to be applied unequally to people who appear to have certain "racial" characteristics, or it will actually be applied that way, or both.

But I want to address a couple legal points in your post. Specifically, you appear to express some skepticism about "reasonable suspicion" and "probable cause." Those are fairly well-established standards in American law.

"Probable cause" can be generally defined as facts personally known by an officer that would convince a reasonable officer in the same circumstances that a crime had been committed, or that a person had committed it.

Most lawyers would explain "reasonable suspicion" as "less than probable cause but more than a hunch." An officer claiming to have "reasonable suspicion" must have articulable facts that, individually or together, would convince a reasonable person in the same circumstances that someone is has committed a crime, is committing a crime, or shortly will commit a crime.

"Probable cause" can support the issuance of a warrant or an arrest in a place where the officer is otherwise lawfully present, while "reasonable suspicion" generally supports only a detention, which is what happens when an officer talks to someone before taking them into custody, or a pat-down for weapons.

So I think there is a good argument that the phrase "reasonable suspicion exists that the person is an alien" would require an officer to have articulable facts that are more than just racial. In other words, if broad legal challenges to the law are unsuccessful, the law goes into effect, and an officer makes a "reasonable attempt" to determine the "immigration status" of a person, that person challenges the attempt, and the officer can articulate nothing more than racial standards, then such a challenge would probably be successful because race is irrelevant to immigration status.

Additionally, that person could probably mount a successful challenge under the equal protection clause of the 14th Amendment, if he or she could demonstrate that the law was applied on the basis of race, which is a suspect classification for equal protection purposes (i.e., the government can't classify people for racial reasons without an extremely compelling interest to support that classification).

The same arguments would apply for a probable cause determination, but would be even more likely to find success, given that probable cause is a higher standard than reasonable suspicion.


Peter Wall said...

(continued from previous)

The part of the law that says the officer can arrest someone if the officer has probable cause that that person has committed a crime (e.g., entering the United States unlawfully) is unremarkable, except to the extent that it purports to grant authority to a state or local police officer to arrest someone on probable cause of having committed a federal crime. (In other words, officers arrest people on probable cause all the time. That's the standard they have to meet to make an arrest.) As I understand the law (and I could be wrong because immigration law is complex and ever-changing), Congress can give state and local police the authority to make arrests for federal crimes, but it has only given such authority in a few circumstances. For example, they can arrest someone who is in the United States unlawfully if they have also previously been convicted of a felony here (which is essentially what the Arizona law says, so that part is consistent with established federal law), or if there is a memorandum of agreement between a specific local law enforcement agency and the Department of Justice and the officers have been specially trained. (I think.)

In my view, the Arizona law has three fundamental problems:

First, some or all of it is probably preempted by federal immigration law.

Second, establishing articulable facts regarding a person's immigration status would either require officers to have good reasons to already know what they would then be required to make a "reasonable attempt" to find out or to enforce the law according to impermissible standards of racial classifications. The latter seems far more likely. (Otherwise, I'm guessing the law would kick in far less often than its loudmouthed proponents seem to think it would.)

Third, given the likelihood that the law would kick in far less often than its loudmouthed proponents seem to think it would if it were enforced according to permissible legal standards, it seems highly unlikely that the law is intended to be enforced according to those standards and was in fact intended to be enforced by racial classifications, which violate equal protection.

So I agree with you, but I think it's important to understand the applicable legal standards and how the law still (probably) fails to meet them.

Peter Wall said...

Also, here is more legal analysis on the federal preemption issue.

(Note where I was wrong about the legality of Arizona law's grant of state and local police authority to make immigration arrests—that's what happens when I try to read and think too quickly.)

Calladus said...

The problem that I have with the "Probable Cause" statement that I call a "catch 22" is that it seems to give the officer quite a lot of unnecessary power.

Having been married to a Resident Alien, my wife and I were aware that there were things that could get her residency cancelled. Marijuana, legal in California, would have resulted in her losing her Resident status. This is why even with all the physical pain that Won was going through, she never dared to try using Marijuana to ease the pain. It's legal in California, but using it could have revoked her citizenship.

An offense that results in a citation for a citizen, could mean the end of a legal alien's permanent residency. A police officer seeing a white person make that offense might act differently if a brown person, or a person with an accent makes the same offense.

The last time I visited Texas for a couple weeks, I came back to California with a Texan accent. I'll bet my step-brother has a nice Italian accent from being stationed in Italy for so long.

It seems as if this law has a great deal of potential for misuse built into it - especially in a state known to protect officers who commit "Contempt of Cop" abuses.

Peter Wall said...

I understand your concern, and I worry that officers abuse the "probable cause" standard, too, but that's a widely-used standard for many things that officers do and it's difficult to articulate a better way for them to determine when they should act.

The problem is that all law enforcement comes with "a great deal of potential for misuse built into it." Despite the growing militarization of police forces around the nation, police officers are essentially just citizens with special training employed by communities to act within exceptions to other laws. For example, the power of a police officer to make an arrest is essentially an exception to the laws against false imprisonment and kidnapping. The use of force by police officers is allowed as an exception to laws against battery and related conduct. When we pin badges on people, let them carry guns around our streets, make arrests, and so on, we aren't giving them unlimited power to act as they please, so we have to give them some kind of standard to determine when and how they can act. Generally, that standard is "probable cause," but officers on duty still have to exercise discretion in determining whether they have probable cause to do something. Essentially, "probable cause" is a procedural standard, and it gives police officers the ability to overstep the authority we have granted to them—subject to later oversight by the court, or by civil actions by citizens who have been harmed by police misconduct.

But your concerns seem really to be more substantive than procedural. In other words, the problem with marijuana laws in California is that state law conflicts with federal law. That's the fault of our legislators, not the fault of police officers.

And the problem with the Arizona law is not that it invokes the "probable cause" standard—there's really no other standard to invoke—but that it contemplates officers' enforcement of laws whose substance is problematic. Specifically, if the law allows officers to make a "reasonable attempt" to determine the "immigration status" of a person if they have a "reasonable suspicion" that the person is an alien, the question is, "What kinds of facts would support a reasonable suspicion that a person is an alien?" The problem is not that officers have to find facts to support their exercise of authority to enforce the law; they have to do that almost constantly when they are on duty. The problem is that the Arizona law asks officers to find facts that, in the vast majority of situations, either cannot be found or can only be assumed by impermissible inferences (e.g., racial discrimination).

Peter Wall said...

Also, here's a pretty nice overview of general law relating to encounters between officers and citizens.

Calladus said...

Peter, as always, I'm enlightened by your comments.

I find law to be a fascinating, scary, and extremely confusing subject.

I only became interested in law after exploring "Don't Ask, Don't tell" as a side effect of Article 125 of the UCMJ in my blog.

To me, it seems as if law is written too often in a way to obfuscate meaning, instead of clarify. As an engineer, I long for a special legal language that is based upon logic and inherently shuns contradictions and collisions with reality. Sort of a "programmers language" for law.

Such a legal language would need syntax and semantic checker on the front end of a legal compiler. And a simulator to determine when the proposed law clashes with reality. You'd need special training in order to understand and create the law, but how is that different from now?

Anyway, that's just me being geeky again. Sorry.

I've got a lot of reading to do on this subject, and I'll always defer to the experts. Thanks again Peter for helping me out here.

Peter Wall said...

People with backgrounds in science or engineering typically have perceptions of law like yours. Unfortunately, I think the desire for unambiguous law is misplaced. While law does have features akin to programming languages, especially in that it prescribes consequences for certain conduct (what legal philosophers might call its "normative" quality), that is not the extent of its function.

For quite a long time there has been much debate among legal scholars over what exactly law is, for instance whether it is fundamentally descriptive and therefore responsive to social needs, or whether it is fundamentally prescriptive and therefore constitutive of social structures, or some mixture. There is also a dispute between the "natural lawyers" and the "positivists," about whether law is a set of moral principles arising from nature or only a code of rules made up by humans and lacking intrinsic morality. (That argument is similar to but not coextensive with the descriptive-prescriptive argument.) There are disputes about the function of law, whether its goal should be distributive justice, protection of individual rights, or maintenance of social stability. Some scholars make much of the distinction between "primary" and "secondary" rules (i.e., primary rules relating to rights and duties, and secondary rules relating to how those rules are formulated and administered).

It doesn't help the lack of clarity that some laws are made by legislators and others by judges, that some laws are prohibitive and others regulatory, that some laws clearly target directly defined behavior (e.g., criminal laws) while other laws are intended to provide incentives for conduct that they don't directly define (e.g., tax credits).

Meanwhile, there is a great difference between the work of lawyers (like me) who represent clients, lawyers who are judges, lawyers who write laws, and so on. For example, I see much of what I do as sorting through facts, interpreting laws, and then using that to create a narrative that helps my client efficiently order his or her affairs, persuades a third party (like a judge), or both. But a judge is primarily concerned with resolving disputes, while a lawyer who writes laws is primarily concerned with understanding policy objectives, anticipating a range of possible future events, and crafting language that will advance those policy objectives no matter the events that actually occur.

(continued below)

Peter Wall said...

(continued from above)

People with a science or engineering background tend not to see legal disputes in their natural habitat. In the real world, somebody has a grievance with somebody else, they can't resolve their dispute, so they ask a judge or a jury to decide for them. Despite appearances and jury instructions, the real question is not typically "What actually happened?" but rather "Should the plaintiff receive a remedy?" In scientific research, however, the question is typically something like, "What is the cause of this phenomenon?" But while we spend a lot of time talking about "causation" in law, it's not like scientific causation; it's more like narrative causation.

For example, even if we could prove with scientific certainty that Danny Defendant squeezed the trigger on the gun that's entered into evidence as Exhibit A, which caused a discharge of the weapon, which caused a bullet to enter the body of Vicky Victim, which caused death, we still have not proved that a murder occurred. That takes what I would (broadly) call "narrative" certainty about the circumstances, including the intent of Danny Defendant.

Murder is an extreme example, but there are similar problems all across the legal landscape. Most of the time, simply proving a fact is not sufficient to resolve a conflict; the fact needs a social context.

Given this social or narrative dimension of law, it's probably impossible to ensure that all laws will be useful to real humans and completely unambiguous in all circumstances. Some of our laws are hard and fast, without wiggle room, but they're mostly procedural rules—deadlines for filing things, and so on.

This uncertainty probably arises from the fact that human language is fundamentally ambiguous. Even though our rules of syntax and grammar allow our finite vocabulary to describe a vast array of phenomena, the realm of possibility still exceeds the limits of our language. I think of Jorge Luis Borges' The Library of Babel. And this humorous article from one of my favorite legal journals provides, in my opinion, is extremely illustrative: "The Food Stays in the Kitchen."

Calladus said...

I loved "The Food Stays in the Kitchen"! Very good.

And yes,I may be guilty of an Engineer / Law form of the "Salem Hypothesis".

I'm not a genius, by far. But I'm smart enough to know that if I'm in legal trouble, I'll ask for a lawyer's help. On my own, I know enough to be dangerous - to myself.

Still, I find law interesting.

Peter Wall said...

Oh, law is completely enthralling.

While it seems pretty common for a lot of science and engineering types (I'll call them "geeks") to romanticize about a future world without law or lawyers (witness, for example, how law is almost nonexistent in vast swaths of the science fiction literature), I think law is an essential component to the post-religious society that a lot of the same geeks are after because it supplies a formalized system for building naturalist (i.e., non-supernaturalist) social narratives, a function that religion formerly monopolized.

Anyway, if you know of any good science fiction with strong legal themes, I'd love to hear about it.

Calladus said...

"The Moon is a Harsh Mistress" comes to mind - politics, legal systems, and the formation of legal systems.

Many of my favorite Heinlein SF stories deal with law and politics. Including "Starbeast" and "Stranger in a Strange Land".

"Starship Troopers" (the book, not the awful movie) was a wonderful discussion on rights, and the difference between military and civilian law.

Peter Wall said...

I didn't much like Starship Troopers. It was overly militaristic for my taste. And in general Heinlein's politics strike me as deeply antithetical to law as a social phenomenon (and in my opinion the social dimension of law is what makes it law). From the Heinlein I've read (which is not a lot; he's been hard for me to get "into"), he seems to have built his politics on a sense of individual honor and morality, so that "law" is just a secondary phenomenon you get, where honorable and moral individuals are not (or should not be) bound by law, and they use the law to keep everybody else in their places. Law is there, but it still seems pretty atrophied to me, like it's this appendage he'd love to cut off. But I'm making vast generalizations about a literature with which I have only limited familiarity.

Calladus said...

Well, Heinlein's works captivated me before I ever joined the military, and they spoke to me even further after I'd enlisted.

Rudyard Kipling is much the same way - I appreciate his stories and poetry much more now than I did before I was in the Air Force.

I'd really like to see a legal opinion on "The Ring" by Piers Anthony. It's been over a decade since I read it though. I might need to pick it up again. Books often look better after you've forgotten half of them - and I soured on Piers Anthony a long time ago.

Peter Wall said...

Here is another recent article by a law professor who makes some of the same points I tried to make in my previous comments on this thread about "reasonable suspicion," but in more detail and perhaps more effectively. Just thought you might be interested.