Original Editorial by HALC Member Jeff Larson
Now With 40% More Added Unconstitutionality
- Will we be seeing more of these signs soon?
Well, this should be the third and final installment of Arizona Mythbusters, my look at Arizona SB 1070 as modified by Arizona HB 2162. If you missed the first two parts of Arizona Mythbusters, you can find Part I here and Part II here. What I’ve been doing is just looking at the plain text of the new Arizona laws, and just trying to explain what it all really means.
Can you go to jail in Arizona just for taking an illegal to church?
Full disclosure: I have an ancestor who was a lieutenant in George Washington’s Spy Corps, and I have a niece who is marrying an illegal later this year. I understand Juan’s English better than I understood some of my grad school professors, and Sammie’s Spanish proficiency has been growing by leaps and bounds…mostly from helping Juan’s family in the kitchen at family get-togethers.
Juan and Sammie are grateful that they don’t live in Arizona. Since Juan is already “in the system” and on his way to getting a green card because his mother is legal (she got amnesty a few years back), it is extremely unlikely that he’ll be deported unless he does something stupid, and Juan’s not that kind of guy. But most illegals know someone who has been deported, and are very careful to avoid that fate. In Juan and Sammie’s case, they’ve been reluctant to come to Texas for fear of him getting into immigration trouble. They absolutely won’t visit Arizona, because if Sammie was driving, she could be thrown into jail, too.
Huh? Well, maybe if she were speeding 20 miles over the limit, which I suppose is possible if she drove into a speed trap.
I can see this is getting a little confusing, so maybe I’d better start quoting the law. SB 1070 establishes a new section of the Arizona Revised Statutes, Section 13-2929. Subsection A reads:
“It is unlawful for a person who is in violation of a criminal offense to:
- Transport or move or attempt to transport or move an alien in this state, in furtherance of the illegal presence of the alien in the United States, in a means of transportation if the person knows or recklessly disregards the fact that the alien has come to, has entered, or remains in the United States in violation of law.
- Conceal, harbor or shield or attempt to conceal, harbor or shield an alien from detection in any place in this state, including any building or any means of transportation, if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law.
- Enourage or induce an alien to come to or reside in this state if the person knows or recklessly disregards the fact that such coming to, entering or residing in this state is or will be in violation of law.”
And that is easily the most poorly written part of all of SB 1070. The confusion starts with the first line with “who is in violation of a criminal offense”. So, apparently, it’s a crime to do any of this if you’re already breaking another law, but it’s not a crime if you’re not? Does it mean that if you have an alien with you and you’re obeying all the traffic laws, you’re OK, but if you’re speeding, you can get slapped with this, too?
Like most poorly written law, this started off with good intentions. Section 13-2929, subsection A looks an awful lot like 8 United States Code Section 1324 (a) (1) (A), and I’ll bet that the Arizona legislature was just trying to create a parallel state version of the federal law. I suppose they expected anyone who ran afoul of this to already be up to no good, and to be part of an ongoing human trafficking ring. But “who is in violation of a criminal offense” is not a common phrase in federal or state law, and will probably take some interpretation by the courts. For that matter, 1324 (a) (1) (A) isn’t that well-written itself, and has already been the source of many court rulings that tried to clear up some of the murkier parts. But let’s look at 13-2929, subsection A, and try to figure out what that might mean.
On it’s face, it appears to apply to any other crime. Under Arizona law, it’s a crime to exceed the speed limit by 20 mph (a class 3 misdemeanor, punishable by up to 30 days in jail). However, if you’re only going 19 miles over the limit, that’s a civil violation and presumably 13-2929 wouldn’t apply. As a practical matter, this would be up to a District Attorney to decide whether charges under 13-2929 should be filed or not.
As an example of just how broadly this could be construed, look back at Arizona 13-2319, the anti-smuggling ordinance. At first glance, you’d think that applies only to the coyotes who smuggle immigrants across the border, and their cronies who traffic them to jobs in the interior, right? Well, 13-2319 (E) (3) defines “smuggling of human beings” to be transportation when you know that the person you are transporting is an illegal. And 13-2319 (A) makes it a crime to smuggle someone for “a commercial purpose”.
So…you need a babysitter for a couple of hours. Your neighbor tells you that his cousin Maria is reliable, and could use a little extra cash since she’s still in high school and too young to work full-time. You call her up and hire her, agreeing to give her a lift home when you and your spouse get back in. She shows up, seems to get along great with the kids, and in the course of making small talk while you’re getting ready to go, you find out that Maria and her immediate family are illegals. Well, you might not like that, but you’ve already made plans, you’ve already agreed to hire her, and besides, she’s been in the community for years, and even went to the same elementary school that your kids are going to now. You go out, return, and find that the kids were fed and are in bed, sleeping, and she’s doing some homework in front of the TV. You give her a few bucks, take her home, get pulled over for a broken tailight…and are looking at 4 – 10 years in the slammer for “smuggling a human being” (transporting your babysitter) “for…a commercial purpose”. She’s a minor, and not in the company of her parents, which is why it’s 4 -10 instead of a lesser felony.
Now, given the choice of fighting that in court, or pleading guilty to 13-2929, which is a Class 1 misdemeanor with a minimum fine of $1000 (and the DA tells you he’ll ask for the minimum, since you weren’t really a coyote), which do you think most people would choose? Oh, and it’s not necessary for you to have been convicted of a 13-2319 violation in order to be eligible for a 13-2929 conviction, just that you admit to it as part of your 13-2929 plea bargain.
You can see why Sammie and Juan don’t plan on traveling to Arizona any time soon.
Moving on, 13-2929, subsection B:
“A means of transportation that is used in the commission of a violation of this section is subject to mandatory vehicle immobilization or impoundment pursuant to Section 28-3511.”
So, if you’re “in violation of a criminal offense” and with an illegal, your car will be impounded. Of course, whether or not your car is impounded is up to the judgement of the officer who stops you and charges you with 13-2929. I mean, if you really weren’t going 45 in a 25, your car still gets towed.
13-2929, subsection C:
“A law enforcement official of agency of this state of a county, city, town or other political subdivision of this state may not consider race, color or national origin in the enforcement of this section except to the extent permitted by the United States or Arizona Constitution.”
Considering that to charge you with 13-2929, the officer first has to believe that you’re already violating some other law, and that not only is the person you’re transporting illegal, but that you knew that you were transporting an illegal, I’d say that was extraordinary. This is the sort of belt-and-suspenders legislation that we’ve seen elsewhere in the law. I wish they’d have put as much thought into the ramification of the “in violation of a criminal offense” part.
13-2929, subsection D:
“In the enforcement of this section, an alien’s immigration status may be determined by:
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A law enforcement officer who is authorized by the federal government to verify or ascertain an alien’s immigration status.
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The United States Immigration and Customs Enforcement or the United States Customs and Border Protection pursuant to 8 United States Code Section 1373(c).”
And that’s the same thing we’ve seen in several other parts of Arizona SB 1070…it’s just guidelines on how to figure out if someone’s illegal or not.
13-2929, subsection E:
“This section does not apply to a child protective services worker acting in the worker’s official capacity or a person who is acting in the capacity of a first responder, an ambulance attendant or an emergency medical technician and who is transporting or moving an alien in this state pursuant to Title 36, Chapter 21.1 (scroll down to see Chapter 21.1).”
And this is where it gets really interesting, and why lots of pro-immigration groups have gotten up in arms over this. The question that these people have asked is, “If I give the little old lady next door, who is an illegal, a ride to church, am I going to be convicted under this law?”
Now, at first glance, you’d think the answer would be, “no”. You have to be a person who “is in violation of a criminal offense” in the first place to fall afoul of this, and what law would you be breaking by taking someone to church? But if that was the case, why does the law give a blanket exception to CPS workers and paramedics? How could it be a violation of law for an EMS worker (who is already under federal obligation to treat anyone in an emergency, regardless of immigration status) to take an illegal who is near death to a hospital?
If this all seems fair to you, consider the case of taxi drivers, who don’t enjoy this blanket exception. Remember, the law states that you are guilty if you know or “recklessly disregard” the person’s immigration status. So, you’re a taxi driver, and a guy asks for a ride, speaking heavily accented English (and we all know that never happens around airports, right?) You ask him if he’s illegal, “just to be safe”. He says that he’s legal, but everything about the way he answered and everything else about this guy says that he isn’t. If you don’t believe him but give him a ride anyway, if he turns out to be illegal then you’re guilty because you didn’t know that the guy was illegal, but “recklessly disregarded” evidence that he was…and it’s the arresting officer’s word against yours that you should have known better.
But if you turn him down because you’re “pretty sure” he’s really illegal and it turns out that he’s not, congratulations…you’re now the subject of a federal civil rights lawsuit for discrimination. Why is it that public servents get exceptions in the law to avoid this sort of problem, but ordinary citizens get stuck between a rock and a hard place?
I’m sticking to my guns. Section 13-2929 may have had some good ideas behind it, but it’s poorly written and needs a re-do.
Oh, the last part of Section 13-2929:
“A person who violations this section is guilty of a Class 1 misdemeanor and is subject to a fine of at least one thousand dollars, except that a violation of this section that involves ten or more illegal aliens is a Class 6 felony and the person is subject to a fine of at least one thousand dollars for each alien who is involved.”
Based on that, I would advise people driving church buses in minority areas in Arizona to carefully watch their speed.
One last thing about 13-2929. I mentioned 8 US 1324 (a) (1) (A), which has the same “in furtherance of the illegal presence of the alien in the United States” language that the Arizona law has. The federal courts have had a field day interpreting this section. For example, they’ve held that driving someone across country to a new job violates the law, but that a cabbie who takes an illegal immigrant for a fare or that a foreman who drives a crew containing illegals to a job site across town was not. And, of course, different federal courts interpret this same law different ways, so don’t be surprised if this sort of case eventually bubbles up to the US Supreme Court. And all that’s just for interpretations of US federal law, not this Arizona law. Now, what happens when some legal beagle lawyer appeals a cab driver’s guilty verdict from the Arizona law to the federal courts, claiming that Arizona is systematically denying due process rights by interpreting similar legislation in a substantially different way from the federal system? I’ll bet that the feds take the opportunity to remind Arizona that they’re in charge.
And all of that could have been avoided if Congress had drafted a better law on the federal side, or the Arizona legislature had done a better job on the state side. At least the lawyers will have something to do.
So, what else is in Arizona SB 1070? It amends Section 13-3883, which deals with a peace officer’s authority to arrest someone without a warrant. It adds the following reason to the short list of reasons that an officer can arrest, given probable cause that something on the list has happened:
“The person to be arrested has committed any public offense that makes the person removable from the United States.”
I think that’s pretty specific to illegal aliens, or at least to aliens in general. It’s probably also redundant, since Arizona peace officers already have the authority to arrest someone for a violation of federal law, like treason, violations of the Mann Act, or crossing the border illegally.
Section 23-212 is an existing law that forbids Arizona employers from knowingly hiring an illegal alien. SB 1070 adds a couple of subsections to it, like subsection K:
“It is an affirmative defense to a violation of subsection A of this section (the part that says you can’t hire an illegal) that the employer was entrapped. To claim entrapment, the employer must admit by the employer’s testimony or other evidence the substantial elements of the violation. An employer who asserts an entrapment defense has the burden of proving the following by a preponderance of the evidence:
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The idea of committing the violation started with law enforcement officers or their agents rather than with the employer.
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The law enforcement officers or their agents urged and induced the employer to commit the violation.
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The employer was not predisposed to commit the violation before the law enforcement officers or their agents urged and induced the employer to commit the violation.”
This seems a little unnecessary, since it is already a defense to any charge of a violation of law that you were entrapped. And this doesn’t appear to change the elements of what you have to prove in court in order to show that you were entrapped. It’s another one of those, “I wonder what they were really thinking when they wrote that” things.
Section 23-212, new subsection L:
“An employer does not establish entrapment if the employer was predisposed to violate subsection A of this section and the law enforcement officers or their agents merely provided the employer with an opportunity to commit the violation. It is not entrapment for law enforcement officers or their agents merely to use a ruse or to conceal their identity. The conduct of law enforcement officers and their agents may be considered in determining if an employer has proven entrapment.”
And that’s even more belt and suspenders, since those are pretty much the same guidelines that have been used in courts all over the country for decades in dealing with entrapment defenses.
There is also a Section 23-212.01 of the Arizona Statutes that forbids Arizona employers from intentionally hiring illegals. If that sound exactly like 23-212, it’s pretty close, but with one key difference. Here’s how I’d explain it:
Intentionally hiring an illegal: “Illegals work cheaper, so I’m going to go out and find me some illegals to hire.”
Knowingly hiring an illegal: “I need 12 guys to do a job. I’ll hire whoever shows up, even if they’re all illegal.”
It might seem like splitting hairs, but to a legal mind, intentionally is worse than knowingly. Likewise, the penalties for violating 23-212.01 (intentionally) are more severe than the penalties for violating 23-212 (knowingly). What does SB 1070 do for 23-212.01? It adds new subsections K and L, which are all about entrapment defenses. The words are identical to the words used in 23-212 subsections K and L. I’ll skip printing them here, since I’m pretty sure you don’t need to see them a second time.
Just between you and me, I’d love to see an entrapment defense for someone accused of intentionally hiring illegals. “Your Honor, not only did he make me do it, he made me want to do it!” I’d pay to watch that.
Arizona Statutes Section 23-214 requires all employers to use e-verify, an online program administered by the federal government that matches data from the I-9 form required for all new employees with data in government databases. It’s a way to catch people who put false information on their I-9 forms, which are supposed to establish that someone has a legal right to work in this country.
Arizona SB 1070 modifies 23-214 to require that employers keep their employee’s I-9 forms for 3 years, or for 1 year after the employee leaves, whichever is longer. That’s already a federal requirement, but it’s now an Arizona requirement, too. The main penalty on the Arizona side for failure to comply is loss of eligibility to participate in any government “economic development incentive”. I’m not sure this one really has a lot of teeth, except perhaps for government contractors.
Remember how 13-2929 required the cars of people transporting illegals to be impounded under 28-3511? Well, SB 1070 modified 28-3511, allowing a car to be impounded if it is being driven:
“4. In furtherance of the illegal presence of an alien in the United States and in violation of a criminal offense, the person is transporting or moving or attempting to transport or move an alien in this state in a vehicle if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law.
5. The person is concealing, harboring or shielding or attempting to conceal, harbor or shield from detection an alien in this state in a vehicle if the person knows or recklessly disregards the fact that the alien has come to, entered or remains in the United States in violation of law.”
And since that exactly matches the words of 13-2929, which I’ve already discussed and noted as allowing a violator’s car to be impounded, I don’t think I have much to add here.
Arizona HB 2162 establishes a “Joint Border Security Advisory Committee” consisting of six appointees from the Arizona legislature and six appointees from the Governor’s office. There’s no salary, but the members can get expenses reimbursed. They meet no more than once a month, and are supposed to:
- “Take tesimony and other evidence regarding the international border with Mexico.
- Analyze border crossing statistics.
- Analyze related crime statistics.”
I think you care about this if you pay taxes in Arizona, but I don’t think anyone else would.
SB 1070 also establishes a new section in the statutues, Section 41-1724:
“The Gang and Immigration Intelligence Team Enforcement Mission Fund is established consisting of monies deposited pursuant to Section 11-1051 and monies appropriated by the legislature. The department shall administer the fund. Monies in the fund are subject to legislative appropriation and shall be used for gang and immigration enforcement and for county jail reimbursement costs relating to illegal immigration.”
If you recall from Arizona Mythbusters, Part I, 11-1051 was the anti-sanctuary city legislation, that allowed for civil penalties for government entities that block immigration enforcement. Well, here’s where the penalty money goes.
There’s a final piece in HB 2162 that allows the Arizona Governor to direct either the Attorney General or any other counsel to act in defense to any challenge in state or federal court to the combined SB 1070/HB 2162. I’m not sure it was really necessary.
So, there you have it, Arizona’s new anti-illegal immigration law in three parts. Now that you’ve seen it, do you think that “This is a direct attempt by Arizona to regulate immigration laws. And it’s forbidden by the federal government.“?
You might want to look up Gonzales v. City of Peoria, in which the US Ninth Circuit Court of Appeals ruled that local officers can arrest people for violations of immigration law.
I started this by doing a bunch of mythbusting. Some of the statements made about this law are pretty spectacular, ranging from it being “an open invitation for harassment and discrimination against Hispanics regardless of their citizenship status” to not complying with international human rights standards. But after three installments on SB 1070, I find that I didn’t have to carry the mythbusting load all by myself.
The Arizona government has their own mythbusting page up on the new Arizona laws.
