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by Peter Moskos

April 27, 2010

Immigrants in Arizona (II)

Nothing about this law is good. It is even worse that I first thought. When I wrote the previous post, I didn't realize that individual police officers are being required to enforce that law. That certainly makes no friends in police circles. It is stupid to limit police discretion.

Police are supposed to demand proof of legal residency from any person they lawfully contact and have "reasonable suspicion" that the person is an unlawful alien. Then it states that all illegal immigrants are criminals (being present makes them trespassers [see correction below]).

How is this different that Nazis criminalizing the Jews and them rounding them up for their crime of being present? If the best you can answer is, "well, we're not going to send Mexicans to the gas chambers," then you really need to raise your bar of morality.

How the hell can so-called anti-government conservatives and tea-party people (and John "I used to stand by my principles until I lost an election" McCain) support such a totalitarian big-government law? Oh, because they're not anti-government. They're just anti this government. The democratically elected government. I mean, if you're really just anti-government, there are libertarians out there you can rally around and vote for.

Warning to Republicans: if you haven't already, you're slipping off the deep end. On the plus side, if this is considered conservative, it makes liberals (or "libs" as you like to say) look good.

I don't think there's any chance this law will pass constitutional muster. But God save us if it does. And regardless, that test is years away. Reasonable suspicion? Oh, it's come such a long and scary way from Terry v. Ohio.

In 1968, Terry made frisking a person for weapons based on "reasonable suspicion" constitutional. This decision introduced the "reasonable suspicion" concept and said it is what is needed for a stop or frisk (the Fourth Amendment's "probable cause" is needed for a search or arrest). Terry was an eight-to-one decision.

Justice Douglas was the one. It is too bad that his dissent has become more and more prescient:
To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment. Until the Fourth Amendment, which is closely allied with the Fifth, is rewritten, the person and the effects of the individual are beyond the reach of all government agencies until there are reasonable grounds to believe (probable cause) that a criminal venture has been launched or is about to be launched.

There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.

Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can ‘seize’ and ‘search’ him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.

[Linda Greenhouse has an excellent op-ed in today's New York Times.]

[I based my info on the New York Times, which was wrong: "An earlier version of this Op-Ed essay referred incorrectly to the provisions of the new Arizona immigration statute. The version of the bill signed by the governor no longer includes a section under which undocumented immigrants would be guilty of trespassing for being on Arizona soil."]

24 comments:

Jeff said...

I may be wrong, and I hope you will correct me if I am, but won't the police be able to exercise their discretion in what they find to be reasonably suspicious?

We either trust the police with the powers that reasonable suspicion grants them or we do not.(I lean towards not trusting the police to decide this, so its odd to be on the opposite side of this from you)

As written, the law seems constitutional. So I think the tea partiers and constitutional conservatives wont have a big issue.

I also actually like the idea of this being a state crime as well as a federal crime.

Lets not forget that 100% of illegals have committed crimes to be where they are. There is no such thing as a law abiding illegal immigrant.

I think there could be a guideline of indicators to build a case for reasonable suspicion that do not include race/color. I bet that the Arizona police officers who commented on the previous post could list off the items that clue them in to a persons illegality other than race/color.

The constitutional problem I see coming will be the uneven enforcement, and how certain counties (maricopa) will define and enforce reasonable suspicion. I expect that some police agencies will have vastly different ideas on what powers this law grants them.

PCM said...

All Americans have committed crimes. Some take drugs, others cheat on their taxes, some drink underage, some fish out of season.

Immigration crimes and not mala in se. They are male prohibita. If your only problem is that immigrants have violated a law, we could simply change that law. Problem solved.

If you live here lawfully for some number of years, you are a lawfully immigrant, legal or illegal. If you've lived here for a number of years and stayed out of trouble, you're better than the average American. These are people who should be made legal because it is good for them and good for us. Besides, they are us.

If illegal immigrants were deported tomorrow, my neighborhood and city would be economically, culturally, and morally devastated. These are not criminals. These are people with jobs and families and community ties. Businesses in New York would close not just because they wouldn't have workers, they would close because the owners are illegal immigrants. Why would we ever want to kick out a tax-paying job providing business owner?

Deportation is unbelievable cruel to families and relatives (including children) who are US citizens.

And I'm waiting to hear guidelines for identifying illegal immigrants in Arizona that isn't based on "looking Mexican." Get serious. Could it be done in theory? Maybe but I doubt it. In reality? Not a chance.

Anonymous said...

"And I'm waiting to hear guidelines for identifying illegal immigrants in Arizona that isn't based on 'looking Mexican'."

Me too. Every last person I have seen trying to defend this unconstitutional law in T.V. interviews has sounded incoherent and super defensive (They know they are wrong).

I support the legal challenges that are already happening, and I am all for the boycotts that are forthcoming. My Mexican wife and I will not step foot in Arizona until this law is shot down, or Gov. Brewer and Sheriff Joe are arrested are dragged away in cuffs by U.S. Marshals for violating the constitution.

If immigration was this messed up when my mostly German and Irish ancestors arrived in the late 19th century, I might not be here. This is personal for me on multiple levels.

Am I the only one with the Public Enemy song "By the Time I get to Arizona" in my head today?

Dave H.- IL

Mitch said...

How in the world do you get to Nazi's rounding up Jews.

By definition, these people are here illegally. Hence the description "illegal alien".

They have not followed proper procedures to enter this country. People that do follow the proper procedures have passports and 'green cards'.

How is this different than your neighbor entering your house illegally. The neighbor has not followed proper procedures to enter your house. But he is using your bathroom, taking a shower, using your medical supplies and eating the food our of your refrigerator. And oh by the way, he is pretty sneaky, you don't even know that he is there, but you know all of this being used because you keep paying for it.

So what do you do, do you just let this neighbor continue to enter your house. And, by the way, he has told his friends how to enter your house and use your stuff as well.

What are you going to do?

Jeff said...

"If your only problem is that immigrants have violated a law, we could simply change that law. Problem solved."

Agreed, create a sensible approach to increase/manage immigration and enforce it.

I am pro-immigration, and the fact that we can have millions of illegals here means we could easily support that many legal immigrants.


The only problem in my mind is what to do with those who have already broken the law. Amnesty is not an acceptable answer to me.

Those who have broken the law don't get to go to the front of the line. There are many who would like to come here who followed the law and are waiting.

I personally know/worked with 2 people who had to leave the country because their company screwed up their visas. They wanted to stay, but followed the law.

There is no way that I can be convinced that people who choose to disrespect our rules on how to stay here, deserve to stay here.

(Both of those 2 are back now, legally. It took a year or so to straighten it out)

Cleanville Tziabatz said...

Terry is a terrible decision. Blatantly unConstitutional. Very slippery slope. I see this immigration law thing as a blessing in disguise because it is making some people think critically about Terry for the first time.

I question whether RS stops are needed for officer safety. If they really are (and I do mean "if"), then we need some more rules governing Terry stops, and the rules we need are this:

1. all evidence collected is automatically suppressed (RS stops aren't about a hunt for evidence after all, so why tempt abuse);

2. no proning a subject out on an RS stop;

3. no putting a suspect on her kness for an RS stop; and

4. require police to document and make public info on all RS stops and what was found (if anything).

PCM said...

Personally I wouldn't have a problem with #1 (and for drugs it is the law in NY State).

#2 and #3 show you've never policed. 98% of Terry Frisks are not done in the prone position. But if it needs to be done it is.

PCM said...

Mitch, I think the analogy is more like who guy who sneaks into your home, says hello, and then cleans up after you and cooks your dinner.

But the analogy doesn't work either way because our country is not my house.

And we're not there yet, and I don't want to quote the over-quoted Cardinal Ratzinger, but I don't think it's too much of a stretch to say this law is better suited to Nazi Germany.

Being Jewish (or doing almost anything as Jew) was a crime in Nazi Germany. Everything Hitler did was technically and immorally legal. There were laws. Jews violated those laws. Therefore they were criminals.

Illegal immigrants are human beings. Human being who sometimes in order to live, literally to survive, enter or stay in America even though it may violate our current immigration policy. If that's the worst crime they committed, I don't have a problem.

So to criminalize a person for being here and being Mexican or Colombian, a person who has done nothing else criminal... I don't see that as much different than Hitler criminalizing Jewish people.

I recommend reading Martin Luther King Jr.'s Letter from a Birmingham Jail.

Cleanville Tziabatz said...

98% of Terry Frisks are not done in the prone position.

No, but most of the ones where an RS stop turns into a wood shampoo are because the popos wanted to prone somebody who didn't want to be and didn't need to be proned. Got your PC? Prone away, smokie! Just RS? show some respect! Word.

5. It should be legal to run from an RS stop (at least on foot or by bicycle). RS stops are theoretically justified by risk to the police. When the subject runs that risk has been abated by flight. QED.

Johnny Law said...

Cleanville,

I have to wonder if you are serious when you post some of your stuff. If officer safety requires a subject be proned out, then that is what cops do. If someone refuses to comply and the officer uses force, then too bad for that person. Police have the right to ensure their safety.

#5 is so ridiculous it is hard to even respond to it. It does laughably show that you have no idea what you are talking about. I personally think you are trolling.

PCM, this quote makes me lose some respect for you:

"How is this different that Nazis criminalizing the Jews and them rounding them up for their crime of being present? If the best you can answer is, "well, we're not going to send Mexicans to the gas chambers," then you really need to raise your bar of morality."

You bringing up the Nazis is one the same level as calling anyone who disagrees with Obama a racist. Weak, inaccurate, and offensive.

Anonymous said...

@Johnny Law

If all the Officer has is RS, then officer safety does not require proning anybody out. If the danger were clear and imminent enough to require proning somebody out, then there would be PC.

As far as #5, it already is the law to some extent. SCOTUS drew a narrow exception a couple years back, but generally you have a right to run (on foot) absent PC. The new popo theory is that running from an attempted RS stop is a crime, and it is the PC for that crime of fleeing that justifies the chase. Bad theory. Has not been tested in court from a Constitutional perspective. Hopefully, the Jordan Miles lawsuit will provide a nice vehicle for challenging that theory.

Johnny Law said...

"If all the Officer has is RS, then officer safety does not require proning anybody out. If the danger were clear and imminent enough to require proning somebody out, then there would be PC."

It doesn't have to be clear and imminent. The threat just has to be articulable.

As for running, the Supreme Court ruled awhile back that simply running from the presence of the police in a high crime area creates enough for a PC stop. I've had situations where I roll up on a dope corner and see a guy quickly walk away. I now have enough to stop him. If the guy runs, that is an evading charge.

PCM said...

Johnny,

I'm not just saying that people who support this law are Nazis. I am saying that this law has way too much in common with Nazi-era laws.

Seriously.

Why is this inaccurate?

Say an business owner lives in Arizona with no criminal record and two children, 8 and 10. They bought a home 5 years ago. Lived in the country 15 years. Got here by crossing the border illegally.

Then one day, based on an officer's "reasonable suspicion," (say a tip from a business rival), police come asking to see their papers.

They cannot provide them. So the family gets rounded up and detained. After a year the family gets deported. The children, US citizens, are sent to a country they've never been to.

What do you call this scenario? This is what the law wants. This is what the Nazis did.

Hitler didn't wake up one day and say, "OK, today is the day we kill all the Jews, gypsies, gays, Communists, and disabled." Hitler did everything legally. They were bad laws. Each step along the path didn't seem that radical ("Hey, ve just vant you to vear a little wellow star? People have a right to know. Besides are you ashamed of being Jewish? Seriously, vat's the big deal? And the law is the law."). Rights get stripped away. Laws are changed. The evil happened over time and with complacency.

Why is the immigration law not a step in that direction.

And remember, the law won't work. The border will still be porous. Crime among immigrants will go up. So than in a few years, the anti-immigrant people will demand even tougher laws toward immigrants.

The get-tough approach in America towards illegal immigration can end in only two ways: an incredibly repressive police state or millions of people being forceably deported. Or both.

I don't like either of those choices. Give me a third choice. I'm all ears. And explain to me how any choice is in line with American values of freedom.

PCM said...

[Johnny, it's a stop based on reasonable suspicion and not probable cause.]

And what exactly is the crime of "evading"? We didn't have that. "Felony running" we'd call it before being pissed off and letting the guy go. Once you chase the guy, you can't even get him for loitering.

Cleanville Tziabatz said...

as for running, the Supreme Court ruled awhile back that simply running from the presence of the police in a high crime area creates enough for a PC stop.

I am well aware of the case. I think it is bad law, but explained away by the fact that all the court decided was that if the popo catches the guy, and he is a felon with a gun, then the gun doesn't get suppressed.

If the case were different, and the guy didn't have a gun, and the popos were merely charging the d00d for running as a crime, I think the case would (will?) go the other way.

For obvious reasons, SCOUS hates suppressing evidence. The exclusionary rule actually is a poor protector of personal freedoms of the innocent and that case (forgot name) is one example of that dynamic in action. The felon with the gun ending up making popo think it was okay to charge innocent people from running. Terrible law courtesy of the exclusionary rule.

PCM said...

Er SCOUS? What the hell is that? Can't we spell things out for the stupid people here, like me.

Anonymous said...

Sorry, Professor Moskos, I did a mispelling, meant: SCOTUS: Supreme Court Of The United States.

FYI: POTUS = President Of The United States.

The way running (on foot) has morphed from a right to a crime since 9/11 is one of the great untold stories of recent criminal law.

Johnny Law said...

"And what exactly is the crime of "evading"? We didn't have that. "Felony running" we'd call it before being pissed off and letting the guy go. Once you chase the guy, you can't even get him for loitering."

It's a valid charge in many jurisdictions. It's usually illegal to run from a valid detention.

"If the case were different, and the guy didn't have a gun, and the popos were merely charging the d00d for running as a crime, I think the case would (will?) go the other way."

You are wrong about this. I've charged many a person for running from me. Never had a problem in court as long as I can explain why I wanted to detain them.

PCM, you gotta stop with the Nazi comparisons. They are ridiculous and beneath you. I refuse to explain to you how deporting people who are here illegally is different from the Holocaust. If you can't see that already, then I doubt I can change your mind.

It is the right for every country to control its borders and if someone comes here illegally without attempting to abide by immigration laws, I will not cry when they get caught and ejected.

Just curious, did Baltimore have neighborhoods with large illegal immigrant populations when you were there and did you patrol them? I have patrolled such areas and it is eye-opening.

Cleanville Tziabatz said...

It's a valid charge in many jurisdictions. It's usually illegal to run from a valid detention.

That is the new post-9-11 thing and that is the problem.

The biggest problem with it is that it criminalizes reasonable behavior.

Do you wonder what I mean by that?

Do you really wonder?

Do you really, really wonder?

Do you really, really, really wonder?

Here is a video:

http://www.youtube.com/watch?v=9llvTQn8v-c

Here is another:

http://www.youtube.com/watch?v=Yl4a4Y2sMVk&feature=fvw

Many times the little gambit is not caught on video, but it is still evil.

PCM said...

Johnny, When I was in Baltimore, there were almost no immigrants. Just a very small latino presence in the South East.

That has become much bigger since I've left.

PCM said...

Johnny,

Can you explain to me what the end game is? What's the ultimate goal for this law and anti-immigrant movement? When is success declared and people move on to other pursuits?

Because if it's no illegal immigrants and a sealed border, you know that's a pipe dream, right? You know our borders cannot be sealed, right?

I do not want a war on immigrants to become like a war on drugs.

And what is so wrong with doing a better job preventing illegals from crossing over and granting amnesty to everybody here who has paid taxes and stayed out of trouble for 5 or 10 years?

PCM said...

It is illegal to run from a valid detention... the problem is if you chase a guy for running and only after you catch him ask, what was my reasonable suspicion for running after him? It's not always easy to answer.

Johnny Law said...

"Can you explain to me what the end game is? What's the ultimate goal for this law and anti-immigrant movement? When is success declared and people move on to other pursuits?"

You really do have a hard time looking at this objectively as you said earlier. That's like asking what is the end game of having Customs checking passports at the airport? When should we declare success in that as well? Border security issues are never going to go away. So what? We will never eradicate crime either but we keep locking our doors and prosecuting criminals.

It is the same way with the border. Of course we can never secure it 100% but that doesn't mean we shouldn't do the best we can. I have already seen news reports that illegals are leaving AZ due to the new law. That shows me we can put a dent in the problem. You make it hard enough and alot of folks will stop coming.

I completely oppose amnesty because it rewards illegal behavior and encourages others to continue to break the law.

Cleanville Tziabatz said...

What they need to do is jail people who hire illegals. Arrest a few rich white people and the tea partiers will stop their yipping. Close their WAL*MART and they will apologize for agitating for the bad law.