The great state of Arizona has been in the news recently, and not because John McCain has found out he is of Mexican descent (we can all dream). Arizona’s SB1070, the new immigration law, has set off protests all around the country. Even Obama called the law “misguided.” Some Republicans have reacted with caution, ambiguity, avoidance and careful diction. In other words, it is an election year. Conservative Republicans have come out in full favor of the law, even considering similar legislation in their states. Finally, others have just gone independent. Well…just Charlie Crist.
I am going to read the 17-pg (yawn…) and give you, the avid reader, some semi-objective guidance. I will cover some of the more controversial sections along with some of the boring detail.
No hyperbole, just the facts…kinda:
“FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE,WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON.”
The ambiguity comes from the words “reasonable suspicion.” What constitutes “reasonable suspicion?” Will it be treated like “probably cause?” More importantly, is it ambiguous enough that it can withstand an argument of violation of XIV rights?
“A LAW ENFORCEMENT OFFICER, WITHOUT A WARRANT, MAY ARREST A PERSON IF THE OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT THE PERSON HAS COMMITTED ANY PUBLIC OFFENSE THAT MAKES THE PERSON REMOVABLE FROM THE UNITED STATES.”
What constitutes an “offense that makes the person removable from the United States?” If the person is a citizen, and is arrested on suspicion of being illegal or doing an “offense that makes the person removable from the United States,” but turns out to be a citizen doing a crime that is punishable by US law, would the conviction be overturned due to the lack of warrant? Is “probably cause” akin to “reasonable suspicion?”
“A PERSON MAY BRING AN ACTION IN SUPERIOR COURT TO CHALLENGE ANY OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE THAT ADOPTS OR IMPLEMENTS A POLICY THAT LIMITS OR RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW.”
If any section of this law comes into conflict with federal law, and impedes the full enforcement of such a law, it can be challenged in superior court. This also allows for citizens to sue the state if they believe the law is not being implemented in its fullest.
A VIOLATION OF THIS SECTION IS A CLASS 1 MISDEMEANOR, EXCEPT THAT A VIOLATION OF THIS SECTION IS 1. A CLASS 3 FELONY IF THE PERSON VIOLATES THIS SECTION WHILE IN POSSESSION OF ANY OF THE FOLLOWING:
(a) A DANGEROUS DRUG AS DEFINED IN SECTION 13-3401.
(b) PRECURSOR CHEMICALS THAT ARE USED IN THE MANUFACTURING OF METHAMPHETAMINE IN VIOLATION OF SECTION 13-3404.01.
(c) A DEADLY WEAPON OR A DANGEROUS INSTRUMENT, AS DEFINED IN SECTION 13-105.
(d) PROPERTY THAT IS USED FOR THE PURPOSE OF COMMITTING AN ACT OF TERRORISM AS PRESCRIBED IN SECTION 13-2308.01.”
This is a no-brainer. This is the “we care about national security” section. Stop traffickers, stop terrorists, stop WMDs.
"’Smuggling of human beings’" means the transportation, procurement of transportation or use of property or real property by a person or an entity that knows or has reason to know that the person or persons transported or to be transported are not United States citizens, permanent resident aliens or persons otherwise lawfully in this state or have attempted to enter, entered or remained in the United States in violation of law.”
In a previous section, the law prohibits human trafficking, and designates different levels of misdemeanor for a couple of circumstances (age of individual, citizenship, if intimidation or abuse occurred, etc). This section defines human trafficking as to include the transportation of illegal aliens over the border. So, this makes US citizens involved in such activities (“Coyotes”) liable to prosecuted as human traffickers. This might be inherent, but I decided to include it anyways.
IT IS UNLAWFUL FOR AN OCCUPANT OF A MOTOR VEHICLE THAT IS STOPPED ON A STREET, ROADWAY OR HIGHWAY TO ATTEMPT TO HIRE OR HIRE AND PICK UP PASSENGERS FOR WORK AT A DIFFERENT LOCATION IF THE MOTOR VEHICLE BLOCKS OR IMPEDES THE NORMAL MOVEMENT OF TRAFFIC. IT IS UNLAWFUL FOR A PERSON TO ENTER A MOTOR VEHICLE THAT IS STOPPED ON A STREET, ROADWAY OR HIGHWAY IN ORDER TO BE HIRED BY AN OCCUPANT OF THE MOTOR VEHICLE AND TO BE TRANSPORTED TO WORK AT A DIFFERENT LOCATION IF THE MOTOR VEHICLE BLOCKS OR IMPEDES THE NORMAL MOVEMENT OF TRAFFIC.
C. IT IS UNLAWFUL FOR A PERSON WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES AND WHO IS AN UNAUTHORIZED ALIEN TO KNOWINGLY APPLY FOR WORK, SOLICIT WORK IN A PUBLIC PLACE OR PERFORM WORK AS AN EMPLOYEE OR INDEPENDENTCONTRACTOR IN THIS STATE.
Take a look at section C, and compare it to the above paragraph. This section is a little broad and ambiguous for my taste. What is the individual being hired or picked up is a legal citizen? What will happen if one person is being picked up by their employer on the sidewalk and their car impedes the flow of traffic because of that? Do both of such things make them prosecutable under this new immigration law? Maybe the top part is unnecessary, and might not stand up to either an illegal search and seizure or violation of civil rights argument.
“AN EMPLOYER DOES NOT ESTABLISH ENTRAPMENT IF THE EMPLOYER WAS PREDISPOSED TO VIOLATE SUBSECTION A OF THIS SECTION AND THE LAW ENFORCEMENT OFFICERS OR THEIR AGENTS MERELY PROVIDED THE EMPLOYER WITH AN OPPORTUNITY TO COMMIT THE VIOLATION. IT IS NOT ENTRAPMENT FOR LAW ENFORCEMENT OFFICERS OR THEIR AGENTS MERELY TO USE A RUSE OR TO CONCEAL THEIR IDENTITY. THE CONDUCT OF LAW ENFORCEMENT OFFICERS AND THEIR AGENTS MAY BE CONSIDERED IN DETERMINING IF AN EMPLOYER HAS PROVEN ENTRAPMENT.”
An employer can claim “entrapment” if being prosecuted for hiring illegal aliens. There are various definitions of entrapment, with the most prevalent being a coercive act by a law enforcement agent forcing the person to violate the law. But, it is not entrapment when the employer was “predisposed” to violate the law or when officers “merely provide the employer with an opportunity to commit the violation.” Is there a way to discern the line between coercion (thus entrapment) and “merely providing an opportunity?” And who will verify coercion or entrapment when considering “the conduct of law enforcement officers and their agents?”
CONCLUSION: While the law is ambiguous and cries out for a legal challenge, I find no explicit section giving power to AZ law enforcement to indiscriminately stop anyone they deem “illegal.” But, it does give open ended statements which can be interpreted to enforce the purpose of the law, but not ensure against abuse and vigilantism. For this law to stand up to legal challenges, it must clearly outline the guidelines for “reasonable suspicion” and ensure that the lawful activities and civil rights of U.S. citizens are not unconstitutionally scrutinized or violated.
No comments:
Post a Comment