My understanding of the new law in Arizona is that if the cop has any reason to suspect you’re in the US illegally, he can ask you to prove that you are here legally, and if you don’t he can arrest you.
So I guess my first question is, am I right about that?, because if not, my real question is based on a faulty premise.
If that’s so, here’s the real question: Does requiring someone to prove that they are not in violation of a criminal law violate the 5th amendment? It seems like they’re placing the burden of proof on the suspect rather than the state.
Not quite. Here is the text of the relevant portion of the law:
And just in case you’re wondering about the “reasonable attempt” to determine a person’s immigration status section, here is what 8USC1373(c) states:
This has typically been accomplished through a computer database that ICE (Immigration and Customs Enforcement, the partial-successors to the INS) grants access to for certain local law enforcement agencies.
If you’re driving, for instance, presenting a valid Arizona driver’s license to a cop would be considered sufficient proof to forestall any “reasonable suspicion” that you are in the US illegally. In order to get an Arizona driver’s license, you must present certain documents that either prove you are a citizen (birth certificate or US passport) or legally present US resident (foreign passport with appropriate US visa, other immigration papers).
Ultimately, while the officer only needs reasonable suspicion to initiate an immigration status check with ICE on an individual, the officer still needs probable cause (a significantly higher standard) to arrest the individual for the crime. An inconclusive result from an ICE check, with nothing more to warrant probable cause, would not likely be enough for a legal arrest.
Also, Gov. Brewer recently signed another law that supposedly clarifies some of the defined grounds for “reasonable suspicion,” though I haven’t been able to find the actual text of the even newer law.
No, I don’t believe that a cop can’t stop a person who he thinks is illegal just because he thinks they are illegal. They must have probable cause. If a person is obeying all traffic laws while driving down the road, a cop can’t stop them because they are of Mexican heritage. There is no probable cause. However, if the same car is weaving all over the road, there is a reason to stop the car, and if, in addition to the traffic offense, the cop suspects the person is an illegal, he can also ask for proof of citizenship.
All Arizona is doing with this law is enforcing something that the Federal government SHOULD be enforcing but isn’t.
Wait a second, so what about a citizen. How are they going to establish his/her legality? It’s not like natural-born citizens are in a USCIS database. What about children and babies? As far as I know Arizona doesn’t have any laws that make you carry ID (if you’re not driving), or does it?
Why wouldn’t natural-born citizens be in the USCIS database? All natural-born citizens have social security numbers and the USCIS database pulls some of its data from the Social Security Administration. That would also include children who were born here, assuming they weren’t just born in the past couple months (since it may take that long for the SSA to mail one to the parents of a newborn).
a) Is that really true? As far as I know, getting a social security number is purely voluntary. It might be hard to do things without one, but you don’t have to have one from birth.
b) I have trouble believing, without a cite, that there’s a database of all the people in the US legally, including natural born citizens, anywhere. How would you identify them? How do you tell John Q. Smith from some other John Q. Smith?
Cite that the USCIS pulls data about natural-born citizens from the SSA? Why would the USCIS care? I don’t think you can draw any definitive conclusions about one’s citizenship or immigration status from the SSA database. This is simply not their job. I don’t think the State department would accept anything from the SSA as proof of US citizenship when applying for a passport.
I highly doubt there’s any centralized federal database anywhere that lists all natural-born US citizens. That would be just like a national ID database, which I’m sure many proponents of this Arizona law would oppose.
Is this factual or editorializing? Does a federal cop have the same threshold to instigate a citizenship check, and all this law does is charge the state cops with the same? Or, what is the threshold for a federal cop to check someone’s citizenship status?
A cop can ask anyone if they are here legally without reasonable suspicion just like a member of the public can. What reasonable suspicion usually allows a cop to do is to stop a person for enough time to investigate his suspicion. That means that anyone asked by a cop about their legal status without reasonable suspicion would be free (under the law) to ignore the cop.
This law requires a cop to check the legal status of a person when he has reasonable suspicion that the person is in the country illegally. The standard for reasonable suspicion will not be clear until courts iron it out on a case by case bases. However, it is highly unlikely that courts will accept suspicion based solely on race. So you can expect a standard of suspicion based on something more than the race of the suspect.
Once a cop has reasonable suspicion, and does the required check, he can arrest the person if his check gives him probable cause to suspect the person committed a crime. This law makes it crime for documented aliens not to carry proof of lawful residence. If an officer investigates and finds out someone is not a US citizen, but does not have proof of lawful residence, then he can arrest that person.
US citizens are not required to carry proof of citizenship, so they can’t be arrested for not having any documentation when asked. In order to arrest someone for not having documentation an officer would need probable cause to believe they’re not a US citizen and that they don’t have their documentation. How an officer would figure this out I’m not sure, but that’s the standard under this law.
What part of the 5th amendment are we talking about here? Right to remain silent or due process?
If a suspect remains silent while an officer questions them then an officer can’t use their silence to create probable cause or reasonable suspicion. If an officer has nothing else but a suspect who refuses to talk to him about their legal status then he can’t do anything.
The one relevant thing the right to remain silent doesn’t cover here is your name. You have to give that to an officer who has reasonable suspicion that you committed some crime, but you don’t have to say anything when asked whether or not you have documents.
As for due process, there are plenty of laws requiring people to show police permits or licenses when asked. So this isn’t a problem. But once again, a US citizen is not required to carry proof of citizenship.
Of course, this is a news article (rather than the text of the law), and may or may not be completely accurate. Since this is GQ, I will refrain from giving my personal opinions about the law or the changes.
There is a multi-page thread on his in GD. While we here on the straight dope can argue either way the answers the the questions you’ve asked are not clear and will not be clear until the courts have clarified the meaning and intent.
USCIS is charged with maintaining the E-verify system for ensuring that new potential employees either in government or the private sector are either citizens or are immigrants who are legally entitled to work. This system is mandatory for all federal job applicants, but is only mandatory in some states for state governmental or private sector jobs. Arizona is one of the mandatory states. Per the E-verify website:
Since SSNs are issued to non-citizens permanent legal residents and temporary immigrants allowed to work as well, you are correct in that producing a SSA card is not an acceptable form of identification to get a US passport. But USCIS is not a part of the State Department, it’s a part of the Department of Homeland Security.
No. The questions asked in the OP can be answered by examing the text of the law and the existing caselaw concerning Terry-type stops.
This is not correct. “Any reason” is not the standard. “Reasonable suspicion” is the standard. This is a phrase that was given life in Terry and refined in many cases since then. In the GD thread, I have defined it about six times.
A reasonable suspicion is a standard lss than probable cause, but above a mere unparticularized, inchoate hunch. Reasonable suspicion exists when all the facts within an officer’s knowledge would lead a reasonable person of prudent caution to suspect that a crime is, or will be, committed.
No. Here are the standards of proof required at various stages of the criminal process:
[ul]
[li]Reasonable suspicion (defined above) - allows a brief, non-intrusive investigatory stop of sufficient time for the officer to confirm or dispel his belief that a crime has been committed[/li][li]Probable cause (when all the facts known by the officer make it likely that a crime has been committed) – allows for an arrest[/li][li]Beyond a reasonable doubt (when all the facts found to be true by the fact-finder at trial exclude all reasonable hypotheses except guilt) – allows for a conviction at trial[/li][/ul]
So, like any other crime, if reasonable suspicion exists, then the officer can briefly detain a person to investigate. If sufficient facts arise during that detention to support probable cause, then the person may be arrested. Neither of these standards offend the Fifth Amendment.
At trial, the jury must hear sufficient evidence to prove each and every element of the crime beyond a reasonable doubt. That, too, is consistent with the Fifth Amendment.
In short – it’s up to the government to prove that someone IS an illegal alien. Nothing in this law contradicts that.
Ok, I’ll accept that cite. However, as mentioned earlier, applying for a SSN is technically voluntary, and I think it is possible for a natural-born citizen to be absent in the database, especially for children. Let’s say someone claims that they are a US citizen, but only provides their name and address, as required by the law, and absolutely refuses to provide any other information to help the authority to either verify or refute the claim to citizenship. Since it is possible that a natural-born citizen may fall through the crack and not be listed in the database, how would the government go about proving beyond a reasonble doubt that the person is not in fact a US citizen? Guilt cannot be inferred from the lack of cooperation, right?
There are also those who disagree with your assessment and are questioning the constitutionality of the law. You can sit there and claim you are correct but that does not change the fact many others that have also strong a legal backgrounds don’t think you are correct.
Just to point out, while there are no laws that US citizens must carry proof, that is only true for some of us. As this story reports, even having ID is not enough to keep you from being arrested. It was his own fault of course, he was Driving While Mexican(-American). While this did happen in Arizona, it was ICE, not any state authorities.
The really sad part is, according to the ICE, arresting someone with a valid ID and Social Security card is SOP. After all, he is Hispanic, in the SW USA. :dubious:
No one with a strong legal background disagrees with anything I’ve written above.
It’s true that people with strong legal backgrounds believe that the law is unconstitutional. Although I do not believe this, there is no question that arguments can be made – most especially in the area of federal preemption.
The questions and answers above, however, do not touch on any of those issues, and are factual and uncontroversial statements about police encounters and standards of proof.