Thoughts on the AZ Immigration Bill

29 04 2010

I don’t live in Arizona, and I have never been to Arizona, so the impact this bill will have on me personally is negligible.

However, I have a friend who lives in Arizona (actually a former classmate who transferred to a school down there).  While he is white, his wife is Mexican, and his children obviously a mix.  My concern is how the law may affect him and his family.  Will his wife be unable to drive around town by herself for fear of being stopped?  I don’t know her status in this country, so I cannot say for certain how she will fare if a police officer pulled her over.

The most controversial part of this bill in my observation is using the “reasonable suspicion” standard for pulling over people to check their citizenship status.  Obviously, routine border searches have never required suspicion (according to Wikipedia), although a non-routine search would need reasonable suspicion.  This concept is also a fact in school searches (as I learned from my Criminal Procedure Moot Court competition, where I must have invoked T.L.O. about a dozen times).  Apart from these specialized circumstances, reasonable suspicion is a factor in Terry frisks.

However, is it reasonable (pun somewhat intended) to extend this concept to citizenship checks?  What is reasonable suspicion in this situation?  More specifically, how would an officer be reasonably suspicious that the subject could be an illegal immigrant?  Opponents of this legislation talk about racial profiling, while supporters counter that this is basically doing what the federal government has refused to do.

Joe Arpaio, the controversial sheriff who has cut his teeth on fighting illegal immigration, uses the example of “ten guys in a trunk” as a good example of reasonable suspicion.

Doug Mataconis, analyzing a Reason article, points out that the law is unclear in some points:

The bill’s proponents, though, say not to worry, because the law only allows officers to question people about their status when there has been “lawful contact,” the problem is that the law does not define what that means[.]

The Reason article goes into further detail:

[C]ops can ask for immigration information only when they have “lawful contact” with someone—when “the officer is already engaged in some detention of an individual because he’s violated some other law.”In fact, the law doesn’t define the crucial term. One of the dictionary definitions of “contact” is “immediate proximity,” which suggests that anytime a possible illegal immigrant comes in sight of a cop, the cop has a legal duty to check her papers.

Law professor [Marc] Miller says “lawful contact” could also mean any normal interaction a cop has with ordinary people. If a Hispanic asks a patrolman for directions, she could expose herself to immigration questions. If an officer walks up to someone and starts a conversation without detaining him—something police are allowed to do—he may have established “lawful contact.”

I can understand questioning the citizenship status if the officer detains the subject for a valid reason.  But the directions example above troubles me.  We are ingrained almost from birth to trust police officers.  Heck, I remember seeing “stranger danger” videos where the narrator suggested going to a police officer (among other examples) if someone seemed creepy.

The vague definition of “lawful contact” seems to place the bulk of it in the officer’s discretion.  That alone makes me wary about the law’s applicability, whether it will be uniformly applied in certain circumstances or whether some officers (like the aforementioned Arpaio) may abuse this discretion for the goal of shipping all illegals back to wherever they came from.  I refer again to the story of my friend from above.  His children are at the age where they are just starting school.  How will they fare if a police officer stops them and inquires about their citizenship status?  I am pretty sure they were born in the United States, but how would such an interrogation or encounter affect them?

Make no mistake, illegal immigration is a significant problem.  However, you can’t tackle a problem such as this with vague legislation.

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