Monday, June 25, 2012

Supreme Court Splits the Baby on Immigration Law


            In a case that will have a significant impact on a similar Alabama law, the Supreme Court has partially upheld the controversial Arizona immigration law enacted in 2010 to combat the influx of illegal aliens in the state. 

            The Supreme Court actually struck down 3 of the 4 provisions at issue, however the remaining provision is perhaps the most important.  That provision, known as the “show me your papers” provision, requires Arizona police officers making any stop, detention, or arrest to make efforts to verify the suspect’s immigration status, if the officer has reasonable suspicion that the person is illegally in the United States.  So for example, if a person (whether he be named Jose, Jamaal, or John) is stopped for speeding or arrested for vandalism, and the officer has reasonable suspicion (less concrete than both “probable cause” and “beyond a reasonable doubt”) that the person is illegally in the United States, the officer is required to check into their immigration status, either by asking for proof of citizenship, or checking with the Feds (ICE).  Opponents of the law have called this portion legislative racism, while supporters have called it a necessary course of action after the Federal government has neglected immigration enforcement for decades. 

            The Obama administration (after weeks of political turmoil) and like-minded liberals are claiming a victory because of the provisions that were overturned.  The AZ governor and other conservatives are claiming a victory because of the Court’s approval of the “show me your papers” provision.  The truth is, neither side will be very happy with the result, as the left will cry foul over the possibility of racial profiling with the “show me your papers” provision, while the right will long for the banned provisions that would have enabled the state and local governments to punish illegal immigrants located within the state. 

But in any event, by allowing the “show me your papers” provision of the AZ law to stand, the Supreme Court is basically saying that that portion of the law is not unconstitutional on its face, and that the state has a right to administer the law and see how it plays out.  There will certainly be challenges to the methods used by the police officers and state officials so we may see this law, as well as a similar law enacted in here in Alabama in front of the Court again, so the Court can rule on the specific manner in which the states are carrying out the law.  But until that time, you will see both sides spin the latest Supreme Court decision in the light most favorable to them, in the ever-present battle for political capital heading into the election this fall.


  1. Great summary of the facts. As you may know, I lean to the left. My concerns about the remaining portion center around the what methods are used to determine reasonable suspicion. Jan Brewer (et al) ensure that racial profiling will not be tolerated as a means to that end. The question that no one seems to be able to answer is this: if someone's physical appearance (skin color) is NOT a factor in determining reasonable suspicion (of being in the country illegally) what is? It's not a rhetorical question...

    I presume that reasonable suspicion is normally about someone's behavior. How does someone ACT as if they are in the country illegally?

    I haven't read the opinions yet, but I would wager that the split decision may have been a way to separate (isolate) the "papers please" be dealt with on its own terms, perhaps in a subsequent case.

  2. Thanks for the comment. I don't know what training the police officers in Arizona and other states are put through in order to tell when a person may be illegal, but there are no doubt indications other than skin color. If the suspect is unable to communicate with an officer because he does not know English, and the officer therefore decides this person is likely illegal, is that racial profiling? I would argue that the inability to speak the native language of the country you are in, would at least be an indicator that you are either vacationing in the country or illegally present. A vacationer should have a passport and a valid explanation for being in the country.

    Also, in a border state like Arizona, it is likely that there are certain areas near the border and certain activities that, in combination, are clear indicators of illegal immigration, that have nothing to do with color, such as not having a drivers license on you or driving a car without a tag or expired tag. Sure, legal citizens all over do that every day, but all we are talking about is reasonable suspicion and a few questions by an officer. We are not arresting and convicting based on these things. A well-trained police officer patrolling that area every day will be able to discern those nuances better than I can. It is no different than an officer developing reasonable suspicion for any other crime. This is not a new standard that was created for this law. Officers have certain things they can or can't do based on whether they have developed "reasonable suspicion" that a crime is afoot. The behaviors and mannerisms of the suspect can play a big role in this.

    Thanks for the comment. I always like your responses.

    1. I'll yield on the certain areas argument. But when you remove the car as part of these hypotheticals, it begins to get very muddy. It's certainly a reasonable thing to ask that anyone driving a car to produce a license *once they've been stopped for an offense.(perhaps they were stopped for a broken taillight). In the process of normal police work if someone can't produce the license, then reasonable suspicion is met. (though, I would argue that in all other areas, if someone can't produce a license, we normally don't jump to the conclusion that they are an undocumented person.)

      But if someone is *walking down the street, in one of these areas (presumably where where latino citizens also may live), I'm not sure we're able to define what *behaviors constitute a reasonable suspicion. In other words, what (other than appearance) would make it constitutionally (4th Amendment) legitimate for an officer to ask to *see one's identification? There is no national language (though I recognize there is a default language); people who can't speak english aren't breaking any laws.

      In your view, does the inability to speak english alone constitute reasonable suspicion?

    2. I would not say that the inability to speak english alone would provide the officer with all of the "data" needed to develop reasonable suspicion, but I think it would go a long way. "Reasonable suspicion is a less demanding standard than probable cause." Alabama v. White, 496 U.S. 325, 330, (1990). "To determine whether reasonable suspicion existed for a particular stop, the totality of the circumstances, as known to the officer at the inception of the stop...must be considered." Arnold v. State, 601 So.2d 145, 149 (Ala.Crim.App.1992).

      So my argument is that if an officer is in an area where he knows from his experience is frequented by illegal immigrants and he encounters a person who does not speak english, he could very easily have reasonable suspicion. For example, it's my understanding that the Home Depot parking lot in Hoover in the morning is a known location for undocumented workers to find labor, or at least back when construction was booming. If an officer sees a person in such a location and has an unrelated valid reason to stop them, in car or on foot, and that person does not speak english, then the totality of the circumstances (in a location known to be frequented by undocumented persons, does not speak english) would rise to meet the modest standard of "reasonable suspicion."

      I know we want to protect the rights of citizens against police intrusion into their lives, and we are not comfortable with racial profiling, but we do have to be realistic in the ways that we enforce laws, whether it be in airport security situations or border control. Illegal immigration is as much a threat to our country as Jihad, perhaps on a less intense, but more consistent level.

  3. You've raised another justifiable example. No problems with that hypothetical set of circumstances. But what if that person is a block away from the home depot, walking in its direction? Is the fact that he is a pedestrian constitute reasonable suspicion? Would that same cop assume that I was illegal if I were walking the same route? (I would wager not, the difference can only be my ethnicity, or language). Again, muddier...

    I don't worry about your positive examples, I worry about the negative examples. Is there something special about the crime of being undocumented that let's us reverse the standard "innocent until proven guilty" principle on which our entire judicial system stands? If I get pulled over and can't produce a license, I would almost guarantee that the first thought is not that I am in the country illegally. The fact is that my or your fate would be *categorically different than someone who looks browner than us. That's not fair.

    Surely, some officers will get it right. But just as surely, some will get it wrong.

  4. Racial profiling may or may not happen - and that is what the court system is for. I have black clients from time to time who have been pulled over, charged with 11 offenses, many of which have no merit. I can only believe that an officer saw a black guy in a white neighborhood, expected to see criminal activity, and made assumptions he shouldn't have made. The solution is to defeat such racial profiling in court, not limit the state's ability to police activity in general.

  5. I agree that we should combat racial profiling in court, but the lack of concern with violating people's rights is unnerving. Let's look at another legal topic, and see if the logic holds true. The Jerry Sandusky case. Say PA police arrested every single coach and administrator at Penn State as soon as they had heard what went on--after all, we want to be sure to find the guilt party. In your view (please correct me if I'm off-base), the ends justify the means. It wouldn't matter if innocent people were arrested because they would be vindicated in the court system.

    In my admittedly limited understanding of the judicial system, that's not how things are supposed to work. Isn't jurisprudence very concerned with NOT forcing people into the legal system who are innocent? Isn't the protection of innocent people normally a higher priority even than finding wrongdoers?

  6. As far add the immigration law is concerned, the police must still have a warrant or probable cause to arrest, not just reasonable suspicion. With reasonable suspicion if being an illegal immigrant, the officer can only inquire about legality, not arrest. The arrest would be due to an unrelated crime. I don't agree the officer should be able to arrest just because and then us straighten it out it court.