New Arizona Law is “Most Reprehensible Thing Since the Japanese Internment”
Arizona Senate Bill 1070 sure has been in the news a lot lately. To read some accounts, you’d have thought Arizona Governor Jan Brewer had stolen a few pages from Adolph Hitler’s playbook, crossing out “Jews” wherever she found it and penciling in “Hispanics”. So, what’s really going on with Arizona’s new laws, and should anyone whose last name ends with a “z” leave the state now before the authorities can finish building the concentration camps?
Should anyone whose last name ends with a “z” leave Arizona before the concentration camps are complete?
The first thing to know about Senate Bill (SB) 1070 is that it’s already been changed by House Bill 2162, which was intended to head off any legal challenges to SB 1070. HB 2162 has already been signed by Governor Brewer. In this article, whenever I talk about SB 1070, I’m referring to the version that was modified by HB 2162, since the two bills taken together are the law of the land in Arizona.
So, let’s go through it and see what it says. There’s a lot to this, so I’m going to have to break it up into a least two parts.
HB 2162 modifies Section 1-501 of the Arizona statutes, which deals with applications for federal public benefits administered by the state. If you’re wondering what a “federal public benefit” is, that’s something that pertains to federal pensions, welfare, medicare, federal disadvantaged housing benefits, student loans, food stamps, federal unemployment benefits and so on. Illegals are already prohibited by federal law from recieving those things, and Arizona Section 1-501 basically says that anyone showing up at a state office to apply for any of those federal benefits has to have acceptable ID to prove they’re not illegal. It’s not a new law, it was already there before SB1070. In addition, Section 1-501 says that anyone who catches a state agency violating Section 1-501 can file suit to force them to comply. HB 2162 adds a paragraph that says whoever wins the suit, either Joe Citizen or the XYZ Bureau, is entitled to recover court costs and attorney’s fees. That’s it, that’s the only change to this section.
HB 2162 also modifies Section 1-502, which is identical to Section 1-501 except that it’s for state and local benefits instead of federal benefits. There are a couple of exceptions, under Section 1-502 illegals can still collect state retirement benefits and “services widely available to the general population as a whole”. I guess that means that they’re still legally entitled to help themselves to the free brochures at the “Welome to Arizona!” booth at the visitor’s centers. The change to Section 1-502 is the same as for 1-501: you can now get court costs and attorney’s fees if you sue the state.
Now we get to the meat of SB 1070, which starts with adding two new sections to Title 11 of the Arizona Statutes. Section 11-1051, subsection A:
“No official or agency of this state or a county, city, town or other political subdivision may limit or restrict the enforcement of federal immigration laws to less than the full extent permitted by federal law.”
My, that looks pretty constitutional to me. It just says that if you’re a Mayor and federal law allows your police and civilian officials to do something to enforce federal immigration law, then you’re violating state law if you tell them that they can’t do that. In more practical terms, it means you can’t just up and establish sanctuary cities. I believe that primarily affects Chandler, Mesa, Phoenix, and Tucson, all of which have designated themselves as sanctuary cities and all of which are in one of the two largest Metropolitan areas in the state.
Section 11-1051, subsection B (I’ve shortened it up a little and thrown out some legalese):
“For any lawful stop, detention or arrest made by a law enforcement official…where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made…to determine the immigration status of the person…Any person who is arrested shall have the person’s immigration status determined before the person is released. The person’s immigration status shall be verified with the federal government pursuant to 8 United States Code Section 1373(c). A law enforcement official…may not consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona constitution. A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following:
- A valid Arizona driver license.
- A valid Arizona nonoperating identification license.
- A valid tribal enrollment card or other form of tribal identification.
- If the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state or local government issued identification.”
Ok, let’s see what we have here. If you get stopped, pulled over, or arrested, and there’s reasonable suspicion that you’re an illegal, the police officer is required to make a “reasonable attempt” to figure out if you really are an illegal. Well, what’s “reasonable suspicion”? It’s when there’s enough evidence that a reasonable person could belive that you’re an illegal. Things, like, you get stopped and you don’t have a driver’s license. Then the cop asks, “Where are you from?”, and you say, “Tijuana”. Pulling out a driver’s license, an Arizona state ID, or official ID from any other source that requires proof of legal residence automatically stops the investigation (such as a Texas driver’s license). If you’re arrested, they must figure out if you’re an illegal before they release you. That means they ask ICE. If you’re a legal immigrant, ICE can verify that.
Have we busted any myths yet? Maybe it’s just me, but all that seems a far cry from an open invitation for harassment and discrimination against Hispanics regardless of their citizenship. I mean, it does say reasonable suspicion, and it does say that law officers can’t consider race, color or national origin except to the extent that the constitution already permits this. I guess that if someone considers the question, “Are you a US citizen?” to be harassment, then some people are going to be harassed. How about the accusation that the law opens the door for police to make unreasonable stops based on skin color or a lack of English fluency if there’s probable cause to believe someone is in America illegally? Seems like someone really doesn’t understand the law at all. If there is probable cause to believe that someone is in America illegally, that’s justification to not only stop them but to take them to jail. Where’s the “unreasonable” in that? Maybe some people think that it’s unreasonable for people to be stopped and detained when they break the law.
So, what’s next? Section 11-1051, subsection C:
“If an alien who is unlawfuly present in the United States is convicted of a violation of state or local law, on discharge from imprisonment or on the assessment of any monetary obligation that is imposed, the United States Immigration and Customs Enforcement or the United States Customs and Border Protection shall be immediately notified.”
That means that if you’re an illegal who commits a crime, the Arizona authorities have to tattle to ICE about your status.
Section 11-1051, subsection D:
“Notwithstanding any other law, a law enforcement agency may securely transport an alien who…is unlawfully present in the United States and who is in…custody to a federal facility in this state…A law enforcement agency shall obtain judicial authorization before securely transporting an alien who is unlawfully present in the United States to a point of transfer that is outside this state.”
And that means that if you’re an illegal who is in custody, the local sheriff has the option of just dropping you off at the nearest ICE detention facility (jail) instead of locking you up locally. He has to get a court order first if he wants to cross the state line to hand you over.
Section 11-1051, subsection E:
“In the implementation of this section [they mean all of 11-1051], an alien’s immigration status may be determined by:
- A law enforcement officer who is authorized by the federal government to verify or ascertain an alien’s immigration status.
- The United States Immigration and Customs Enforcement or the United States Customs and Border Protection pursuant to 8 United States Code Section 1373(c).”
My opinion is that this is mostly redundant. But it does provide some guidlines for police procedure.
Section 11-1051, subsection F:
“Except as provided in federal law, officials or agencies…may not be prohibited or in any way restricted from sending, receiving or maintaining information relating to the immigration status, lawful or unlawful, of any individual or exchanging that information with any other…governmental entity for the following official purposes:
- Determining eligibility for any public benefit, service or license provided by any federal, state, local or other political subdivision of this state.
- Verifying any claim of residence or domicile if determination of residence or domicile is required under the laws of this state or a judicial order issued pursuant to a civil or criminal proceeding in this state.
- If the person is an alien, determining whether the person is in compliance with the federal registration laws prescribed by Title II, Chapter 7 of the Federal Immigration and Nationality Act.
- Pursuant to 8 United States Code Section 1373 and 8 United States Code Section 1644.
Now, this is “belt and suspenders” legislation. 8 United States Code Section 1644 is very brief, and simply says that federal and state authorities cannot be restricted from sending and receiving immigration status information back and forth to each other. But when this became Arizona law, they felt they needed to stick the phrase about “Except as provided in federal law” in there…just in case. And the reference in item #3 above is just a mess, but I think it’s referring to 8 United States Code Sections 1301 to 1306, which require all legal aliens to get registered and fingerprinted if they’re going to be here for more than 30 days.
Liberty-minded individuals will get a kick out of Section 11-1051, subsection G:
“This section [again, all of 11-1051] does not implement, authorize or establish and shall not be construed to implement, authorize or establish the REAL ID Act of 2005 (P. L. 109-13, Division B; 119 Stat. 302), including the use of a radio frequency identification chip.”
Which, I suppose, is a way of telling Washington, “Oh no, we’re not going to have REAL ID on our driver’s licenses, even though we’re going to use them to tell who is an illegal immigrant or not!” Since I’m not a big fan of REAL ID, this brings a smile to my face.
Section 11-1051, subsection H:
“A person who is a legal resident of this state may bring an action in Superior Court to challenge any official or agency…of this state that adopts…a policy that limits or restricts the enforcement of federal immigration laws…to less than the full extent permitted by federal law. If there is a judicial finding that an entity has violated this section, the court shall order that the entity pay a civil penalty of not less than five hundred dollars and not more than five thousand dollars for each day that the policy has remained in effect after the filing of an action…”
I’m calling this the “No sanctuary cities, and we really, really mean it!” subsection. It allows anyone to sue any goverment official or agency that tries to restrict enforcement of federal immigration law, and sets a fine of $500-$5000 per day for each day that they do so. Try to imagine how long it would take between someone filing one of these suits and the day that a verdict is rendered, multiplied by at least $500, to see how this would strike fear in the hearts of most officials. And if you think that’s not enough to force a big city to comply, consider that if it only took 3 months from filing to verdict, a judge could still hit up a big city like Phoenix to the tune of a cool half million dollars.
Section 11-1051, subsection I:
“A court shall collect the civil penalty prescribed in subsection H of this section and remit the civil penalty to the state treasurer for deposit in the Gang and Immigration Intelligence Team Enforcement Mission Fund established by Section 41-1724.”
So, at least we know the money taken from cities and officials who want to ignore the law will go to good use.
Section 11-1051, subsection J:
“The court may award court costs and reasonable attorney fees to any person or any official or agency of this state or a county, city, town or other political subdivision of this state that prevails by an adjudication on the merits in a proceeding brought pursuant to this section [again, all of 11-1051, but I think primarily subsection H].”
Simply put, “loser pays court costs and attorney fees”.
Section 11-1051, subsection K:
“Except in relation to matters in which the officer is adjudged to have acted in bad faith, a law enforcement officer is indemnified by the law enforcement officer’s agency against reasonable costs and expenses, including attorney fees, incurred by the officer in connection with any action, suit, or proceeding brought pursuant to this section in which the officer may be a defendant by reason of the officer being or having been a member of the law enforcement agency.”
This is obviously intended to prevent officials from being bankrupted by defending themselves against suits that they didn’t enforce this law properly. Unless the court rules that the officer acted in bad faith, you can dip into the city’s pockets, but not the officer’s. And what does “bad faith” mean here? It means that the officer knew that he was likely to get in trouble for his actions, and persisted in them anyway. For example, police do have discretion in what crimes they investigate and in who they arrest. Ever been let off with a warning for a traffic infraction? That’s officer discretion. And an officer might claim that he was “just using his discretion” when deciding to not enforce immigration law. That might fly, but a deliberate and persistant pattern of never following up on immigration status “because he thinks that all immigration law is wrong”, would not. So, good faith, he gets a slap on the wrist, bad faith, he loses his shirt.
Finally, in this installment, Section 11-1051, subsection L:
“This section [one more time, all of Section 11-1051] shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.”
And those are interesting words. Of course, anyone can file suit in federal court for a violation of civil rights. But subsection L there uses the word shall, which means that anyone who violates someone’s civil rights in the enforcement of this law is also violating Arizona law, and can be sued in Arizona court as well as federal court. I should point out, it’s generally easier to file a suit in state court than in federal court.
More next time as we look for other ways that SB 1070 might bring about the end of the world as we know it.
