Judge blocks Arizona "show me your papers" law

Great Debates
441

No, my issue is not with immigration enforcement.

One of my many issues with the new law is concerning the term “reasonable time.” Once a Border Patrol agent detains you, he may hold you for a “reasonable time” while your status is verified. And let’s all remember:
But to the Agent, his “reasonable suspicion” is the “sole authority” for your “detention.”

I’m sure the **Bricker **answer to this is that “reasonable time” will be determined by the courts.

In my experience, it takes a very long time to verify status. So where does this get applied to the legal process of a traffic stop? That was my most recent question to Bricker.

Based on what I’ve learned in this thread, there are two answers that could be applied:

  1. if there is reasonable suspicion, the officer can try to verify status in a reasonable amount of time. like with drugs, he fcan have drug dogs sniff the car, but it can’t take longer than a normal traffic stop. If this is the case, I don’t believe AZ officers will be able to verify status in a reasonable amount of time. I believe this based on my experience waiting to have my status verified.

  2. if there is probable cause, the rules change, now an arrest can be made, and you will be passed off to ICE for processing. Is there a “reasonable time” factor here?

What I don’t get is the refusal to walk through this proposed law BEFORE in takes affect. Is that such an unfamiliar concept to people? Why aren’t we able to draw on past experiences with similar laws and consider the most likely outcomes?

Is that not what we do every time a new stimulus is proposed? Think about previous stimulus plans, think about how they worked, then make a prediction?

We are all aware that Border Patrol is not the same thing as ICE, USCIS, or even customs, which makes things even worse. Neither Border Patrol agents nor AZ officers have access to immigration status, any more than they have access to your tax records or medical history. They have to call ICE to get immigration information on a suspect.

I am trying to get people to examine at the very least what happens to the **false positives **caught in this new law that is supposed to be aimed at catching illegals. Starting with the idea of “reasonable suspicion,” and then “probable cause.” Moving towards the length of “reasonable time” a person may be detained. Followed by what is required to ultimately prove innocence once assumed guilty.

For those wondering what my agenda here is I’ll spell it out: I don’t want to be caught up in this legal nightmare. What will be a “breeze” for US citizens will be a nightmare for legal residents. This statement is based on conjecture, the result of my varying experiences with state patrol officers, border patrol agents, ICE, USCIS, and the DMV.

And what I see in this thread is a lot of hand waving by proponents of this bill that see it all as routine, something that happens every day with every law.

Three years ago I had a customs official staple the wrong piece of paper into my passport while I was crossing into the US. I made the mistake of trusting a customs official. If Border Patrol agents had set up a stop in northern Minnesota, I would have been questioned. I would have presented my passport, with the wrong piece of paper, given reasonable suspicion, and would have been detained.

Instead, this mistake wasn’t caught until the next time I tried to enter the country, and which point I was detained. It too several hours for them to verify my status; missed a flight and missed a day or work.

That is just one case to consider, I personally have about a dozen, my wife has about a dozen. Each of our immigrant friends have about a dozen.

442

Yes. But there are other reasons than race to treat the two differently, and courts reviewing the issue have found that Congress was justified in creating sentencing guidelines to treat them differently, and courts were permitted to treat the guidelines as guidelines and not mandatory.

Now Congress has revised its policy. That’s fine too – that how our system works. Congress, the legislature, creates new law.

And crack targets the poor, making it a greater evil than powder.

Yes. So what? That means you don’t like the law. In this case, Congress now agrees with you. I may not agree with Congress now, but I absolutely acknowledge their right to reach that conclusion. I don;t ascribe any base or improper motives to them.

Of course it will. The crime of immigration violation in Arizona is committed by more non-whites than whites. Naturally a law targeting that crime will target non-whites more than whites.

A call to ICE for verification of immigration status.
[/QUOTE]

You’re in great shape. You have correctly placed the call in the right spot, and you have correctly identified the standard: the detention generally cannot last longer than necessary to complete the original process.

So let’s consider a couple of cases:

Carmen is pulled over for speeding, and creates reasonable suspicion by first claiming to be a legal resident and then a citizen. The phone call to ICE and their response can take no longer than the time needed to write her ticket. (Note: if Carmen is let go, and ICE later returns information indicating she is not legally present, Arizona may keep that information in a database to use if she’s pulled over again).

Basil is arrested for drunk and disorderly, and creates reasonable suspicion by informing the arresting officer he never should have paid that coyote to bring him here. He is held until Morning when he can see the magistrate to bond out on the D&D charge. The phone call and response from ICE can take as long as “until morning.”

Albert is detained because he matches the description of a purse snatcher that just stole a purse in the next block, and creates reasonable suspicion when he tells the officer he is a legal resident but doesn’t have a green card. He may be detained until the investigation of the purse snatch is complete, and if ICE has not called back by then, must be released.

443

As far as these immigration policy, this case just make sense. I see no reason not to check status for everyone that is arrested. During the booking process, they are going to take finger prints, and run them through the system to check for other issues. Might as well send a note to ICE and see what their immigration status is while you’re at it, and then send his info to Interpol.

I’m all for this as a matter of policy, I think it’s a great idea. As I’m sure you’re aware, this process also nets a lot criminals. For anyone that has read Malcom Gladwell, he talks about cops setting up in NY subway stations and busting people for jumping the turn styles. In the process they netted thousands of criminals.

Now, this is the scenario I’ve been working with. The problem here that I’d like to point out is that in my experience, getting a response from ICE takes considerably longer than it takes to write a ticket. I’ve gotten tickets, I’ve deal with ICE. It is at this point that the law becomes extremely ineffective.

As long as we don’t go from reasonable suspicion to probable cause, a lot of illegals are going to pass through the net. Meanwhile, both AZ officers and ICE agents are going to be tied up dealing with a lot of extra checks.

That’s a bit scary, but makes sense.

So the next issue from this scenario that needs to be address is what information are the cops going to send to ICE?

444

I’m not sure that this says what you mean it to say. But for clarification, the new law does not empower Border Patrol agents to do anything. It doesn’t address the Border Patrol at all.

It is very unfair to classify this as “the Bricker answer”. It would be far more accurate to classify it as the legal answer. When these terms are used (i.e. “reasonable suspicion”, “reasonable time”, ”detention”, etc.) those are not scare quotes. They indicate a very specific legal meaning. From your responses I am not sure you understand this.

And all I am trying to say is that if false positives are a concern, then they should already be a concern. The Border Patrol is making arrests based on the above criteria right now …this minute … in Arizona! The proposed Arizona law passing or not will do nothing to change this.

Again, I can empathize with this. I have experienced first hand both immigration and customs and both processes could be (to put it kindly) improved. If you want to start a thread about the evils of legal immigration to the US, I’ll happily join you. But this has nothing to do with the proposed AZ law.

445

OK, good. No heartburn here, then.

OK. That may turn out to be the case. Or it may be that mounting public pressure forces ICE to implement a reliable “instant check” system. In any event, why make the perfect the enemy of the good? Let’s say that in these types of cases, law enforcement gets the word 20 minutes after Carmen’s gotten her ticket and gone about her business, and only rarely do they get an answer back in time to do something about it. That’s for Arizona to decide. You may complain that it’s a foolish choice, but you can’t complain it violates anyone’s rights.

And:

So even then, there’s some modicum of benefit to the way the law played out in Carmen’s case. Sure, she left the first time, but if encountered again, they can do something with their local information first.

Name, date of birth, driver’s license number, alien registration number, social security number, to the extent that the individual has any of those. Obviously in the case of a driver, lacking a valid license (as opposed to not having your valid license with you) is cause to lock them up anyway, so if we’re talking about a stopped driver who will be getting a ticket and leaving, we may assume the driver has a valid license.

446

I’m not sure if you noticed, but that’s kind of what we do here. Scan through any of the UHC debates and that’s pretty much how it goes.

And from what I’ve learned, I’m now supposed to say, “you are the one proposing we change the status quo, it’s up to you to justify it.” Why should this debate be any different?

If it turns out to be foolish, why is it being done? Shouldn’t law makers work to produce laws that aren’t just popular but also effective?

[quote=“Bricker, post:445, topic:548345”]

And:

So even then, there’s some modicum of benefit to the way the law played out in Carmen’s case. Sure, she left the first time, but if encountered again, they can do something with their local information first.

[quote]

Yup, now we have an even bigger issue, which again I assume I’ll get caught up in. The cop is going to enter date he doesn’t understand into a system he doesn’t understand. 20min after I drive away, it will spit back and error–giving him probably cause. As a result of this, there is an arrest warrant (am I using that process correctly) issued for me. No one actually knows that I’m here legally, all they know is that there is probable cause for my arrest, and eventual hand off to ICE.

First, is this entirely out of the realm of possibilities? Am I incorrectly working through the arrest process? Going back to what we had before

  1. Lawful stop
  2. question about citizenship
  3. reasonable suspicion
  4. sends my info to ICE, takes too long
  5. gives me a warning to slow down sends me on my way
  6. info comes back inconclusive
    7 now we have probable cause
    8 arrest warrant issued

Is that how it’s supposed to play out?

447

Um…no. That statement might have been true as the bill was debated, but it was passed, signed by the governor, and became law. It IS the status quo.

I agree. If the law turns out not to work well, I will certainly support its change.

I simply don’t agree with your attempt to summarily axe the law prior to its operation, based solely on your theory of how it might unfold.

The cop is simply going to record what ICE says. This doesn’t create an arrest warrant – only a judge or magistrate can do that. It simply records the last transmission to ICE on this individual and ICE’s response. So that the next time this person is stopped, there’s no need to wait for ICE to respond.

As I say, no arrest warrant involved. And if the info comes back inconclusive, it wouldn’t justify a further detention anyway. The info would need to come back positive, with the ICE verifying that the individual is deportable, before anyone could act.

From the above, it seems you’re worried that if ICE shrugs and says, “We just aren’t sure,” then that’s enough to justify further detention or even arrest. No. Probable cause needs more than “inconclusive.”

448

Yes, it would have been nice if they had consulted me first. Too bad no one in the Arizona political system had the foresight to think through this bill.

Again I need to ask, is it so wrong that we work through how this law is supposed to play out? I don’t understand how it was passed without this very scrutiny, but I think the word “popular” is involved with the answer.

But to the topic at hand: so I’m incorrect in how the arrest process works.

Okay, so what happens the next time? And what is kept on record about me? Where else will this show up? I know this will sound funny, but am I going to end up on a no-fly list? Is my name flagged when I go to renew my driver’s license?

To most people I sound crazy. But why shouldn’t I ask where my name ends up in police data bank?

Edit: something doesn’t add up here. The cop sends my name, and you’re saying nothing happens unless ICE says I’m deportable?

Okay, so we need to establish what exactly ICE is going to send back. Let’s start by assuming the cop has my name and driver’s license, he sends that to ICE, what can it come back with?

I presume for all citizens it will come back as saying “citizen.” If they are illegals what will it say? “No name found?” Is that detention worthy?

If I am a visa holder what will it say? You probably didn’t know but for the duration of my time in the US I was in visa limbo, moving from one to another. When you apply for a new visa, your old one is essentially invalid until the new one comes through. Is an AZ officer going to understand that? And is the ICE system going to be able to transmit that?

My guess is that it will come back as saying “expired visa” without bothering to mention that I am in the process of getting a new one, but I won’t get it until I cross the border.

Unfortunately, none of that makes any sense to you, or most of the people in AZ. There is no reason for an American to understand the American immigration process. Given that state lawmakers aren’t involved with the immigration system, and given the lack of thought they put into this law, it does not surprise me that they would be unaware of each individual visa issue that might come up.

449

Why do you imagine it didn’t have this scrutiny?

It’s not wrong to work through how the law is supposed to play out.

It’s wrong to support the federal courts invalidating a state law based on your feeling that it might play out unwisely.

All valid questions.

I can’t speak as confidently about the Arizona system as I can about the Virginia system, but assuming the two are similar, in Virginia, your data goes into a database where it stays for 180 days. If the police stop you for speeding and issue a warning instead of a ticket, the next cop to stop you (within that 180 days) can see the fact that you got a warning for speeding. In like fashion, the police system would show there was a query to ICE about you and what ICE said in reply. After 180 days, that information is stale, and removed. It has nothing to do with a no-fly list and is not shared with other states or the federal government on any routine basis, although certainly a specific request from another state or the feds would be answered.

Or otherwise illegal. One of the legitimate complaints about this law is that it presumably flouts the fed’s exclusive jurisdiction to decide on amnesty in certain circumstances as a matter of national policy. Let’s say war breaks out in Uzbekistan. The federal government may decide to temporarily, as a humanitarian gesture, stop deporting people back there, and not pursue illegal Uzbekis here. So from the feds’ point of view, you wouldn’t be deportable, but you’d still be in the country illegally and thus in violation of the Arizona law.

“No name found” is NOT detention worthy. It can’t be. It doesn’t create probable cause.

Well, my wife is a green card holder now, but was not when we married, so we had to go through the adjustment of status with her, including applying for advance parole when she needed to return to the D.R. before the application process was complete.

My father was born in El Salvador and became a naturalized citizen following his legal residency. I believe I have some insight as to the process.

450

So what does the query to ICE have to come back with to give probable cause for arrest?

451

“We know this person, and he’s not a citizen, and he’s here illegally.”

There are other ways to get to probable cause, such as a confession by the person. But for probable cause to arise from an ICE report, it would have to say that we know he’s here illegally… “we’re not sure” doesn’t create probable cause.

452

Deeper and deeper we go:

So you identified one response–known illegal.

If the person entered the country illegally, ICE would have no record of him. What would it then tell the cop?

One other question, does ICE really have a record of all citizens to present?

453

That’s not necessarily true. If a person entered the country illegally, was caught and deported, and then re-entered the country illegally, ICE would have a record of him.

I don’t believe ICE has a record of all citizens, but they do have a record of all naturalized citizens.

This is why I said their response must be: “We know this person, and he’s not a citizen, and he’s here illegally.” Note the ‘and’ between each clause.

Obviously if the police encounter a person who has thus far been completely off the radar, and he claims to be a citizen, then he’ll evade the reach of this law at at a traffic stop.

(For the jail inquiry, the process can get more in-depth, by asking him where he was born, and then inquiring at the relevant birth certificate database… much too long for the traffic stop. And remember – if we’re talking about a driver, he either has a license or he’s going to jail for the charge of driving without a license).

454

Right, so obviously this law won’t catch illegal immigrants that ICE doesn’t know about.

But it will catch those that have been catch before, and re-appeared.

Sounds like a well thought out process.

So this net is going to catch those that were previously caught-released-returned, it won’t catch those that weren’t caught before, and it will probably catch legal aliens currently in flux. And since ICE doesn’t have a record of citizens, we don’t know what will happen to citizens that cause reasonable suspicion.

It’s a good thing this law is popular and costs nothing.

455

Hey, Bricker. You know VA. So, how’s the Cooch stacking up on this statement he made?

He being a complete moron or actually speaking prudent sense? It looks like prudent sense, but it’s the Cooch.

456

Legally, he’s right on the money.

457

Yes, money. Right on the money. As in, the money for legal fees while the courts decide “significant degree.”

458

sigh

Despite pages and pages of talk about suspects making inculpatory admissions, I see that, once again, the thought has left your mind, as though you really just can’t bear to think about it, and every time you’re not directly forced to, it just erases itself from your thoughts.

So: let me remind you again of a category you seem to have forgotten. It will also catch people that are stopped for some other reason and then make a statement implicating themselves as illegal aliens.

When you do manage to think about it, you appear to believe this number will be almost zero, despite the fact that similar tactics used against other criminals have proven amazingly effective. I may have mentioned that once or twice.

Seriously – what happens in your thoughts on this subject? Do you really just forget it? Is it too painful to contemplate, like imagining your parents having sex?

459

What amazes me about all this is that I had no idea US police officers had so much free time on their hands. I kind of thought they were busy doing things.

If they really wanted to help with immigration, why not get them to help reduce the processing time at USCIS offices. The DMV was understaffed today when I had to update my status with them, having a few officers there to lend a hand would have really sped things up.

460

I didn’t forget, I included them in the group that got caught, deported, and then returned.

You said yourself, those that claim they are citizens will be released (pending other charges).