Arizona, A to Z
By Mitch Berg
I can’t honestly say I have a coherent, consistent opinion about Arizona’s immigration law yet.
On the one hand, there can be no more repugnant thought to a citizen of a free society than the idea of police wandering around going “your papers, please?”.
On the other hand, that’s not what the Arizona law is about. According to actual lawyer Joe “Learned Foot” Tucci, who actually has some background in Arizona law, and who noted in my comment section yesterday:
Reasonable suspicion, I think, pertains to searches after an arrest has been effected. The example here being: a cop pulls a guy over for speeding and when the perp opens the car door window, pot smoke billows out. The cop then has reasonable suspicion that there may be pot in the car and can search it without a warrant.
That distinction (if I’m correct) is key to the critical language in the blurb you quote from 11-1051, “Lawful contact”. That term is not defined in Arizona Revised Statutes. However, given the context, I think it may mean a search or arrest pursuant to probable cause. Meaning that the mandate for cops to make a “reasonable effort” to ascertain a person’s immigration status (based on a “reasonable suspicion” of illegality) only kicks in if the person is stopped or arrsted for the violation of some other law.
That said, if I’m wrong and “lawful contact” means merely a cop ambling up to some browish dude with an accent and saying “hey, how ya’ doin’? Papers please,” then this law is repulsive, and proably unconstitutional.
If my interpretation is correct, then a lot of people are getting their panties in a wad over nothing.
To the best of my knowledge, the Arizona law does not mean law enforcment will be driving down the street rounding up brown-looking people who don’t have IDs on them.
As many proponents of the Arizona law note, the law just reiterates federal law, as it is supposed to be enforced (but isn’t). I’m no lawyer. I don’t know.
On the third hand, there are a lot of people who dont’ really care if you know the real truth or not. To our nation’s media and current political elites, disinformation is just fine. Christina Cordova at “MNSpeak” is part of the disinformation, whether as a producer, a consumer, or both:
A new Arizona law makes it a state crime to be in the U.S. illegally, and requires local law enforcement to ask for papers from anyone they reasonably suspect is in the country illegally — in other words, anyone that “looks” like they “may” not be… a “white” American. Hmm…
If someone can show me the “racial dragnet” portion of this law, please speak up.
On the third-and-a-half hand, we all know that there are cops who will made their collars first and bother with “reasonable” this and “probable” that later, and pretty much assume that nobody’s got the money to fight City Hall anyway. And that’s usually a fair bet; I know of not a few situations where the police have trampled over ostensible constitutional rights, knowing that the victims weren’t going to be able to do anything about it on their budgets anyway.
On the fourth hand, that’s a separate issue. The fact that some cops give ten miles per hour of leeway over the posted speed limit, and some give none at all, doesn’t invalidate the speed limit law. We need to keep our cops accountable.
On the fifth hand, more enforcement is only part of the answer to the narcotraficante problem. The “War On Drugs” is a failure by every possible moral, ethical and practical measure. We need to end it.
On the sixth hand, until we do end it, we have to deal with the hand we’re dealt. It’d be far better to keep illegal immigrants on the other side of the border. Perhaps it’s time to abandon the farce of the “open, unfortified border”, and screw the whole idea of a “fence”, and move the Army down there.
On the seventh hand, barring a major commitment in fence-building or a major redeployment of the Armhy, our border is utterly permeable. And cops in Arizona – and all along the border – are facing an awful situation. It’s not just would-be landscapers and fry cooks coming across the border. Once low-crime Phoenix is awash in narcotraficante crime these days. Trafficers from across the border are causing all kinds of mayhem, and killing not a few innocent Americans who are in the wrong place at the wrong time. And the feds are apparently doing nothing useful, and the mainstream media are pretending there is no story, largely because they ideologically support open borders. Hey, news anchors need cheap nannies too.
On the eighth hand, the illegal immigration problem predates the drug war in Mexico by quite a bit. The current drug war and the longstanding illegal immigration problem tie into the fact that Mexico is a failed, socialist state, while the US, so far, isn’t. The open border has allowed Mexico’s failed socialist government to put off its day of reckoning with its own people.
On the ninth hand, to a big chunk of our nation’s political and media elite, the idea of separating ourselves from a neighbor’s failure – even for both country’s mutual good – is noxious. America is guilty, they think, for much of the hemisphere’s dysfunction, one way or the other. The whole “the world is one” conceit isn’t just idle talk to them.
And as part of exercising that conceit, there is an epic slander underway. It’s of a piece with the slander of all dissent that our political aned media elites are engaged in, in which all dissent on any subject is called “racist”, “violent” and otherwise depraved.
Part of that campaign is the deliberate blurring of the distinction between legal and illegal immigrants. You will never see a lefty commentator, from Christina Cordova to Chris Coleman, use the word “illegal” immigrant when talking about the subject of the law; they never qualify the term “immigrant”, to the point of lying (Coleman’s little squib yesterday about the law affecting his sainted Irish grandmother, who would no doubt kick his ass if she saw the way he was torturing context; every good Irish Catholic gramma knows a lie by omission is a lie just the same).
On the tenth hand, I know of not one single conservative, anywhere, who actually favors clamping down on legal immigration. “Build a high fence, and a wide gate”, most of us say.
On the eleventh hand, the media would rather cover peckerwoods waving shotguns from the backs of their pickup trucks, a la “Reno 911″‘s classic “Minutemen” episode, than the actual facts.
So with eleven hands raised, where does that leave us?
Make sure the law is constitutional – as in, “actually follows the law”, as opposed to “makes my white-liberal-guilty heart droop”.
April 29th, 2010 at 12:53 pm
Is this law any different than what Mpls announced yesterday? They are increasing police presence in high crime areas, including breaking up large gatherings. They asked the public to report such gatherings. So, a bunch a rich white folk in SW Mpls gather for a back yard BBQ. A bunch of African-Americans gather on a property in North Mpls. Geuss which one gets police attention. Does this make Mpls racist? Is “BBQing while Black” now a crime? Is Chris Coleman going to say “my grandmother used to hold summer parties at her house all the time. I would have hated to have firehoses turned on her for this”.
April 29th, 2010 at 12:56 pm
I find a reliable lodestone is how the Left reacts. If they’re a’gin it, I’m usually for it.
The Arizona law strikes me as one of those jobs Americans won’t do. Or at least, the American government won’t do. The federal gummint won’t enforce the border, border states like Arizona bear the brunt of the tide, and so try to do something about it.
April 29th, 2010 at 1:03 pm
“Reasonable suspicion, I think, pertains to searches after an arrest has been effected. ”
He’s a lawyer – and he *thinks* that’s the definition of reasonable suspicion?
/shakes head in amazement
April 29th, 2010 at 1:04 pm
“On the third hand, there are a lot of people who dont’ really care if you know the real truth or not. ”
Such as your buddy flash who made the following comment at MDE
“This law is NOT about illegal Immigration, it is about harassing LEGAL immigrants who are here LEGALLY and LAWFULLY. Anyone can be stopped and must provide proof of citizenship on demand.”
April 29th, 2010 at 1:13 pm
A new Arizona law makes it a state crime to be in the U.S. illegally, and requires local law enforcement to ask for papers from anyone they reasonably suspect is in the country illegally — in other words, anyone that “looks” like they “may” not be… a “white” American. Hmm…
She just punted herself into the dustbin of future irrelevancy. Good aim, sweetie.
On the eleventh hand
Mitch is up to two deck Blackjack right now.
So with eleven hands raised, where does that leave us?
55 Peevish fingers pointing back at you?
April 29th, 2010 at 1:13 pm
“He’s a lawyer – and he *thinks* that’s the definition of reasonable suspicion? ”
In the context of the statute Nachman. Read the whole comment, or don’t read it at all.
April 29th, 2010 at 2:27 pm
“”Make sure the law is constitutional – as in, “actually follows the law”,””
That is my primary concern, and I am still not convinced Reasonable Suspicion can come after Probably cause. If there would have been strict “Probably Cause’ language I don’t think so many would have gotten up in arms about it.
MoN, If this was about ILLEGAL immigration they wouldn’t have worded it so wishy washy to allow for local interpretation. From “I am not going to enforce it all all”, to “Ofc. Jack Bauer does what Jack Bauer wants” LOL
Nachman’s comment in the previous thread, being a cop and all, helped immensely in trying to reconcile my desire to understand this issue:
==
There are a number of levels of proof. For police officers, three are the most important.
1. Mere suspicion is a hunch. You have nothing else. The only action to have what is known as the “common law right of inquiry”. You can go up to the person and ask questions that any other civilian is allowed to.
“Good morning! How are you today, Sir?”
“What time is it?”
“Do you thing it’s going to rain today?”
A police officer cannot use force during a mere suspicion inquiry.
2. Reasonable suspicion: general facts and circumstances that indicate a crime has been committed, is being committed, or will be committed. This is a forcible stop. The officer has the authority to ask the subject his identification and nature of his conduct. If there is a fear for the officer’s safety, the officer has the authority to *frisk* the subject.
3. Probable cause: specific facts and circumstances that indicate a crime was committed or is being committed. The officer has the authority to use force to effect a custodial arrest of the subject. The officer has the authority to search the subject.
==
If that is the case, and it can be followed consistently, then the Left picked the wrong battle. We’ll fund out 90 days after the AX Leg adjourns, as that is when the law takes over.
Flash
April 29th, 2010 at 2:52 pm
The “lawful contact” lingo still bugs me. That can be constued to mean calls for assistance, questioning innocent witnesses, etc.
April 29th, 2010 at 4:09 pm
Foot,
Here’s what Andy McCarthy said about “lawful contact.” See if this helps:
http://corner.nationalreview.com/post/?q=MGZjZmY3OThiZWJkYTNiMDI4NzM4MGZiOTNhOTMzMzU=
April 29th, 2010 at 6:32 pm
LearnedFoot wrote:
“Probable cause = predicate to arrest (i.e. you need to have probable cause a crime has been committed to make a [warrantless] arrest. For example, seeing someone break a window of a home and crawl through it.
Reasonable suspicion, I think, pertains to searches after an arrest has been effected. The example here being: a cop pulls a guy over for speeding and when the perp opens the car door window, pot smoke billows out. The cop then has reasonable suspicion that there may be pot in the car and can search it without a warrant.”
—
The way I learned probable cause and reasonable suspicion:
Reasonable suspicion: general facts and circumstances that indicate a crime has been committed, is being committed, or will be committed. This is a forcible stop. The officer has the authority to ask the subject his identification and nature of his conduct. If there is a fear for the officer’s safety, the officer has the authority to *frisk* the subject.
Probable cause: specific facts and circumstances that indicate a crime was committed or is being committed. The officer has the authority to use force to effect a custodial arrest of the subject. The officer has the authority to search the subject.
LearnedFoot wrote:
“Reasonable suspicion, I think, pertains to searches after an arrest has been effected.”
The officer *doesn’t need* reasonable suspicion if he arrested a perp upon probable cause. The lower level of proof (reasonable suspicion) has already been met. I already explained a forcible stop upon reasonable suspicion.
April 29th, 2010 at 6:44 pm
Andy McCarthy with the best synopsis so far:
“The people who are complaining about this law almost certainly either have not read it or are demagogues who would make the same absurd claims no matter what [the] law said.”
April 30th, 2010 at 7:55 am
I’m only a night school wonder (and that was 25 years ago) who now works with real estate titles exclusively, but I remember enough Con Law to recognize that Arizona lifted its “reasonable suspicion” language right out of the US Supreme Court’s opinion in Terry v. Ohio (1968).
Arizona is saying that whenever an officer has a sufficient legal basis to make a lawful and Constitutional Terry Stop, at that time the officer also should check for illegal immigration status. What’s wrong with that?
In Koochiching County, it might not make much sense. What’s the liklihood that any random speeder is also an illegal alien? But in Maricopa County, what are the odds?
Years ago, as a small-town prosecutor, I told local cops to Stop All Violators; Write All Misdemeanors. If a cop stopped somebody for 10 miles over but they were sober, no warrants, clean record, valid license with proof of insurance and up-to-date tabs – sure, let ’em go with a warning. Not a waste of time, you’ll snag enough people with those few questions to keep you busy. Besides, running the lights wakes up other motorists and that’s good, too.
I strongly suspect Arizona cops won’t need to accost people on the street to find illegals, they’ll run across enough in the ordinary course of business to keep them busy. And when the cops ask for license and proof of insurance but the guy doesn’t have any – then the cops have all the probable cause they need to inquire further about other crimes the person also may have committed, such as illegal immigration.
The reasonable suspicion part doesn’t bother me, that sounds perfectly Constitutional. I’m more worried about soem liberal judge deciding Arizona can’t criminialize illegal alienage as a status crime.
.
April 30th, 2010 at 8:01 am
Nachman,
Instead of defining the terms, I was talking about when these standards kick in (under the statute). Which didn’t answer Flash’s question, but it was early and I was distracted by a shiny object. Also, I haven’t so much as thought about criminal law in about 6 years. And even then, it was just briefly enough t o pass the bar.
As for the my problem with the “lawful contact” language, it seems the AZ Legislature has taken my advice:
http://www.azcentral.com/news/election/azelections/articles/2010/04/29/20100429arizona-immigration-law-changes29-ON.html
April 30th, 2010 at 9:25 am
As to Foot’s last, well, yeah — maybe. The AZ Senate and the governor still have to sign off on the changes, or they’re left with “lawful contact”. “Lawful contact”, by any standard of interpretation that this amateur is familiar with, includes somebody (including a guy with a badge) passing by somebody else in a public place with a friendly, “Hey, how you doing?” “Lawful stop, detention or arrest”, while probably a whole lot broader than many folks would think, pretty much has to be something more than that.
(And let’s, at least for a moment, skip over the public policy issue of whether it makes sense to make illegals even more reluctant to give information — or have any other contact with the police — when they’re witnesses to or victims of crimes. That’s a policy issue, and the AZ lege has the right to be wrong on policy.)
But the deal isn’t done, yet, and the law now says, clearly, “lawful contact.” So either Foot’s right, and that means, in this context, something like “lawful contact incident to a stop, arrest, or investigation,” or it means just what it says, including the walking by and saying “hi!”
So: I dunno.
As to the effect of it, I guess we’ll see. From this remove — where there’s upwards of half a million illegals in a state with a population of around seven million — this looks to me like we’re discussing the Constitutionality of the number of tines on the fork they’re using to try to push the ocean back.
April 30th, 2010 at 10:00 am
Of course, Government (aided by SCOTUS) has been ignoring the 4th Amendment for years…
Result of all this: You cannot have open borders and a huge welfare state. So take your pick…close the borders…or get rid of the welfare state (my preference).
I’ll be bettin’ this brings on another call for a National ID card…