Legality of the new Arizona Immigration Law

[Bricker]

@Rumor_Watkins

Ok, what about this one:

COP: Afternoon, gentlemen. How are things?

SUSPECT 1: Si?.

COP: By the way, are you a US citizen or legal resident?

SUSPECT (Puerto Rican born and raised): Como? No hablo ingles, senor

Doe officer McDipshit have reasonable suspicion?

Nope.

Or how about this one?

COP: Afternoon, gentlemen. How are things?

SUSPECT (Puerto Rican born and raised): Fine.

COP: By the way, are you a US citizen or legal resident?

SUSPECT 1: I’m not answering that.

Nope, no reasonable suspicion there at all.

keep in mind that Hiibel is inapposite for 2 reasons:

1. This Arizona law, to my knowledge (haven’t read the statute) does not distinguish between “asking about your citizenship/immigration status after being reasonably suspected of a crime” (as was the case in the Nevada stop-and-identify statutes) and “we are going to terry stop you and ask you this question merely if the reasonable suspicion is due to your immigration status”

I think you should read the law before offering this speculation.

2. I don’t think Hiibel would fairly be read to require that someone cough up their SSN - or any other potentially criminalizing information (i.e. what being forced to give an SSN would be vis-a-vis an illegal). The Nevada statute only required you to give up your name.

I disagree – the argument in Hiibel was that if you were wanted, then giving your name was incriminating – basically what you’re arguing now with SSN. The court roundly rejected that proposition.

However, we can put some ambiguity to rest: there’s already an Arizona law that’s analogous to the Nevada “must identify” law: 13-2412, which obligates you only to provide your actual correct name. You can’t lie, or remain silent. So regardless of whether an SSN statutory requirement would be supported by Hiibel, it’s not in play here.

[Bricker]

@Diogenes_the_Cynic

I think we are taking it different ways, but I did a lot of searching for a legal definition and couldn’t find one. Bricker did agree with me when I said that it appeared that “legal contact” could constitute nothing more than a cop saying “hello.”

“Legal contact” refers to any contact that does not violate statutory or constittuional provisions. So, yes, “legal contact” would include a consensual encounter, an investigative detention, and an arrest.

BUT – it would not include a consensual encounter that transformed into a detention without supporting reasonable, articulable suspicion.

So, for example, I’ve been saying repeatedly that as long as a citizen is free to disregard the police inquiry and go about his business, the Fourth Amendment is not implicated. The moment that he’s not free to do that, he’s “seized” within the meaning of the Fourth Amendment, and that seizure must be based on reasonable suspicion. If it isn’t, then the encounter ceases to be a “legal contact.”

So back to the examples:

COP: Hello, gentlemen! How are things?

SUSPECT 1: Todo bien aqui.

SUSPECT 2: (silent)

COP: Say, you guys are both citizens or legal residents, right?

SUSPECT 1: Si, soy norteamericano.

SUSPECT 2: (turns and starts to leave)

COP: Hey, bud – I’m talking to you! Hang on there!

At that point, the encounter ceases to be consensual.

[Bricker]

@Cisco

Even if that is, technically, legally, the case, do you think in a million fucking years it’ll fly once?

The year I got my drivers license I had a crappy, 10 year old, $900 car. I got pulled over about 3 or 4 times a month. Maybe more. There were a couple times I got pulled over twice in the same day. Every single time they asked me if they could search my car and every single time I said no. Every single time they searched it anyway. They never found anything, and I was never ticketed for anything at all.

In the 13 years since then, I’ve driven new(er), clean cars, with glossy paint jobs, and I’ve been pulled over maybe 5 times, total.

One time I was with a friend who got pulled over, and the officer asked if he could search his car. My friend said no, and the police officer just acted like he didn’t hear him and started searching anyway. When my friend reiterated that he did not consent to a search, he yelled at us to “go stand over there” (by his partner.) I told his partner that my friend did not consent to a search, and he said the other officer was using a justitification called “search to arrest,” which basically meant: if he found something worthy of arrest, that would retroactively justify the search, and if he didn’t, well then we’ll all just go our separate ways and forget about this, ok?

I’m not a cop-hater by any means. I have close friends and family members in law enforcement, and I think most cops are great people who really want to serve and protect. But these (and other) first hand experiences have made me extremely skeptical of how vague laws that rely on the opinion of police officers are going to be applied. I didn’t realize it at the time, but when I look back, I think I was harassed for driving a crappy car (those numbers tell a hell of a tale), and I have absolutely no doubt in my mind that people are going to be harassed for having brown skin under this new law.

Well, the incidents you’ve described are already completely contrary to the law. I don’t know how you can use that to rail against this law. The cops in your example were already perfectly willing to break the law, apparently so blatantly that they were perfectly comfortable with discussing their illegal conduct with you.

I find that… very unusual.

In any event, youhave described police breking the law. How is that an argument for or against this law? If cops are willing to cheat, why does it matter what the law says?

[Bricker]

@E-Sabbath

(link opened but not yet read) Not your address, Bricker? I would have thought address. Cops ask for it all the time.

Not in Arizona, so far as I can tell.

[Bricker]

@elucidator

Wait a minute, I’m missing something here. If the policeman asks if you are an American citizen, and you do not answer, but simply walk away, you’re cool. But if you answer, you put yourself at risk by complying with a policeman’s request?

So all our Hispanic friend need do is turn away from an armed policeman and simply stroll away, as casual as you please? Damn! I’m not just an American, I’m a Texan, and I’m not at all sure I’ve got the sand to do that.

He can stand there and not say anything, if he pleases.

[Diogenes_the_Cynic]

@Bricker

“Legal contact” refers to any contact that does not violate statutory or constittuional provisions. So, yes, “legal contact” would include a consensual encounter, an investigative detention, and an arrest.

BUT – it would not include a consensual encounter that transformed into a detention without supporting reasonable, articulable suspicion.

There’s the rub, though. This law does not define what constitutes “reasobnable suspicion” that a person is in the country illegally.

[Bricker]

@Diogenes_the_Cynic

There’s the rub, though. This law does not define what constitutes “reasobnable suspicion” that a person is in the country illegally.

It doesn’t need to. The law against marijuana use does not define what constitutes reasonable suspicion concerning marijuana use. The law against possession of burglarious tools does not define what constitutes reasonable suspicion of possesion of such tools.

That’s because “reasonable suspicion” is a well-defined standard already in criminal law.

Reasonable suspicion is a standard lower than probable cause, but above an unparticularized, inchoate hunch. The officer must be able to point to specific articulable facts that, taken together, would warrant a man of reasonable caution to believe that a crime is taking place or about to take place.

[Diogenes_the_Cynic]

@Bricker

It doesn’t need to. The law against marijuana use does not define what constitutes reasonable suspicion concerning marijuana use. The law against possession of burglarious tools does not define what constitutes reasonable suspicion of possesion of such tools.

That’s because “reasonable suspicion” is a well-defined standard already in criminal law.

Reasonable suspicion is a standard lower than probable cause, but above an unparticularized, inchoate hunch. The officer must be able to point to specific articulable facts that, taken together, would warrant a man of reasonable caution to believe that a crime is taking place or about to take place.

What would be the illegal alien equivalent of the smell of marijuana smoke or possession of burglary tools?

[Martini_Enfield]

Does the “Reasonable Person” test apply in these sorts of situations? Ie, a “Reasonable Person” (and not an SDMB member), upon seeing a Hispanic person standing outside a known area for day labourers and conversing with their peers in Spanish, is unlikely to think “Gosh, there’s a hardworking American citizen and his fellow citizens engaging in a spirited discussion of how awesome it is to be an American citizen. Good Day, Fellow Citizen!” Instead, they’re more likely to think “Well, I know where to come if I need my roof re-tiled on the cheap by people who aren’t technically here. Perhaps I should brush up on my Spanish beforehand, though.”

ETA: I see Bricker has addressed this.

[Bricker]

@Diogenes_the_Cynic

What would be the illegal alien equivalent of the smell of marijuana smoke or possession of burglary tools?

Claiming you’re a legal resident but being unable to produce a green card when asked.

[Bricker]

@Martini_Enfield

Does the “Reasonable Person” test apply in these sorts of situations? Ie, a “Reasonable Person” (and not an SDMB member), upon seeing a Hispanic person standing outside a known area for day labourers and conversing with their peers in Spanish, is unlikely to think “Gosh, there’s a hardworking American citizen and his fellow citizens engaging in a spirited discussion of how awesome it is to be an American citizen. Good Day, Fellow Citizen!” Instead, they’re more likely to think “Well, I know where to come if I need my roof re-tiled on the cheap by people who aren’t technically here. Perhaps I should brush up on my Spanish beforehand, though.”

In this economy?

In my view, no. It’s true that “reasonable suspicion” does not require that all innocent explanations be eliminated, but I don’t think there’s anything particular about seeking day labor that gives rise to the suspicion that one is illegally present. There’s just not a sufficient nexus between day labor and illegal presence.

[Martini_Enfield]

@Bricker

In this economy?

In my view, no. It’s true that “reasonable suspicion” does not require that all innocent explanations be eliminated, but I don’t think there’s anything particular about seeking day labor that gives rise to the suspicion that one is illegally present. There’s just not a sufficient nexus between day labor and illegal presence.

In which case, we’re back to “How do you establish reasonable suspicion that someone’s in the country illegally?” without simply stopping everyone who’s not white, black, or Native Indian and asking for their papers? What’s the “reasonable suspicion” for asking for their papers in the first place?

[Diogenes_the_Cynic]

@Bricker

Claiming you’re a legal resident but being unable to produce a green card when asked.

So the cops can only ask for papers on people who claim to have legal residency?

I’m a natural born citizen. I don’t have a green card. Does that make my residency status suspect?

[Polycarp]

@Bricker

It doesn’t need to. The law against marijuana use does not define what constitutes reasonable suspicion concerning marijuana use. The law against possession of burglarious tools does not define what constitutes reasonable suspicion of possesion of such tools.

That’s because “reasonable suspicion” is a well-defined standard already in criminal law.

Reasonable suspicion is a standard lower than probable cause, but above an unparticularized, inchoate hunch. The officer must be able to point to specific articulable facts that, taken together, would warrant a man of reasonable caution to believe that a crime is taking place or about to take place.

Okay, this is a request for information, GQ style, not an argumentation. What crime is or is about to be taking place? I ask this because it’s my understanding that most “illegal aliens” have committed a civil violation, not a criminal offense, against U.S. law, that while there are specific criminal charges in immigration law, the great majority of illegal aliens (or undocumented non-citizens, for that matter, which broadens the category somewhat – people in the country legally but unable to produce papers so proving) are ‘guilty’ at most of a civil violation, the equivalent of a parking ticket or failure to license your dog, or perhaps erecting a storage shed without the proper zoning permit.

In such a case, would the relevnce of “reasonable suspicion” remain valid? Is, for example, a neighbor’s allegation that Smith has a noisy dog plus checking the clerk’s records and finding that Smith has never licensed a dog sufficient grounds to search Smith’s grounds and house for the putative unlicensed dog?

[Left_Hand_of_Dorkness]

@Bricker

Claiming you’re a legal resident but being unable to produce a green card when asked.

I may be missing something here: are legal residents required by law to produce a green card whenever they’re asked?

[Fear_Itself]

@Bricker

Claiming you’re a legal resident but being unable to produce a green card when asked.

So all an undocumented person has to do to circumvent this law is say “I am a US citizen” when asked about his immigration status? Surely law enforcement can’t force citizens to prove their status as well?

[Bricker]

@Left_Hand_of_Dorkness

I may be missing something here: are legal residents required by law to produce a green card whenever they’re asked?

Yes. Legal residents are required to have their green card in their possession at all times and produce it when asked.

[Bricker]

@Martini_Enfield

In which case, we’re back to “How do you establish reasonable suspicion that someone’s in the country illegally?” without simply stopping everyone who’s not white, black, or Native Indian and asking for their papers? What’s the “reasonable suspicion” for asking for their papers in the first place?

Once again: in a consensual encounter, no reasonable suspicion is needed.

Right now, in any state in the country, a police officer is permitted to approach you and ask any question he pleases. No reasonable suspicion required.

[Bricker]

@Diogenes_the_Cynic

So the cops can only ask for papers on people who claim to have legal residency?

I’m a natural born citizen. I don’t have a green card. Does that make my residency status suspect?

No. If you choose to answer the voluntary, consensual inquiry “Are you a citizen or a legal resident?” by saying you’re a natural-born citizen, then there’s obviously no reasonable suspicion available.

Of course, the cop may follow that voluntary, consensual inquiry with a request for your name and birth date, which you are under no legal obligation to provide.

And as long as he can’t point to any other violation of law, then that’s the end of it. It has to be. I mean, as long as you’re willing to keep talking, the cop can keep talking to you – al voluntary.

[Bricker]

@Polycarp

Okay, this is a request for information, GQ style, not an argumentation. What crime is or is about to be taking place? I ask this because it’s my understanding that most “illegal aliens” have committed a civil violation, not a criminal offense, against U.S. law, that while there are specific criminal charges in immigration law, the great majority of illegal aliens (or undocumented non-citizens, for that matter, which broadens the category somewhat – people in the country legally but unable to produce papers so proving) are ‘guilty’ at most of a civil violation, the equivalent of a parking ticket or failure to license your dog, or perhaps erecting a storage shed without the proper zoning permit.

Not quite. It’s a criminal violation to enter the country illegally. It’s a civil violation to remain in the country past your visa expiration date. So the person that snuck across the border is guilty of a crime. The person that legally entered on a visa and then stayed past his visa’s valid date is “guilty” only of a civil violation.

In such a case, would the relevnce of “reasonable suspicion” remain valid? Is, for example, a neighbor’s allegation that Smith has a noisy dog plus checking the clerk’s records and finding that Smith has never licensed a dog sufficient grounds to search Smith’s grounds and house for the putative unlicensed dog?

If it’s a crime to not license your dog, then a neighbor’s description of a noisy dog over several days (not just a visiting dog, that is) plus the lack of any license would be sufficient to support probable cause, a higher standard than reasonable suspicion.