Tuesday, April 27, 2010

Update on Arizona Immigration Law SB 1070

There has been an outpouring of commentary and discussion of SB 1070 since our last post here.  

A few of the worthwhile materials include a NYT Room for Debate feature with Steven A. Camarota, Center for Immigration Studies; Hiroshi Motomura, UCLA immigration law professor; Dan Schnur, former adviser to John McCain; Tamar Jacoby, ImmigrationWorks USA; and Vivek Malhotra, ACLU.   All the commentators are good at analogizing to other legal controversies and are good examples of persuasive writing. 

Also on the NYT blog is an opinion piece by Linda Greenhouse.  Greenhouse takes a dim view of SB 1070; her opening might be thought to say all she has to say:

I’m glad I’ve already seen the Grand Canyon.

Because I’m not going back to Arizona as long as it remains a police state, which is what the appalling anti-immigrant bill that Gov. Jan Brewer signed into law last week has turned it into.

But Greenhouse's real contribution is her discussion of Plyer v. Doe, the 1982 case in which the Court (5-4) held unconstitutional a Texas statute denying public education to undocumented children. 

Governor Jan Brewer, who signed the bill into law, has been a focus of criticism, but her own statement is worth reading.  Brewer adamantly contends she is against "racial profiling" and that she

worked for weeks with legislators to amend SB 1070, to strengthen its civil rights protections. That effort led to new language in the bill, language prohibiting law enforcement officers from “solely considering race, color, or national origin in implementing the requirements of this section…”

A good commentary, a bit off the beaten path, is from The Desert Lamp, a student blog out of University of Arizona.  The author Connor Mendenhall has some particularly insightful observations about how SB 1070 fits into larger questions of Arizona politics, even as he has a pretty solid legal analysis.

If you are a ConLawProf who hasn't yet written the exam you have to give in a very short time, SB 1070 provides some great issues and framework; our recent exam drafting discussion has other tips and observations.  The law might also provide a great basis for a Criminal procedure examination - - - one can easily imagine a fact pattern raising 4th, 5th, and 6th Amendment issues.

And finally, if you haven't yet viewed the Stephen Colbert and Jon Stewart treatments, they are certainly worth a look.

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This law mirrors the Federal law except that it makes E-Verify mandatory for employers, and does not prosecute those who give shelter to seemingly homeless, such as churches, soup kitchesn, service groups, and the like. It is being state applied to eliminate the need for officers to be federally trained, and for local enforcement. The state legislatures felt compelled to do so when requests for assistance went unanswered despite increasingly dire circumstances. This included the recent murder of a rancher, and increased incidents of drug-related problems, violence, kidnapping, and unsecured borders.

The elements of reasonable suspicion and probable cause were settled by the Supreme Court in 1968. This has been a standard for all police work since that time and is taught in law enforcement academies. The case was Terry vs. Ohio. Other cases have fine tuned this issue and are included in the links. Below is a quick link to a summary document.


Here is the link to more quick information on the landmark case. It included a "stop and frisk" decision as well as what is "concern space" within the reach of a driver during a traffic stop. It
is to ensure safety of the responding officer, the public as well as what is reasonable for basic questioning that is not considered confinement. This is important because of the process of "reasonable suspicion", and what is needed to better understand the Arizona immigration law.


Arizona's immigration law 1070 is fully compliant with this well-established ruling of 42 years ago, and in consideration of listed related cases! The public needs to be better informed that the police procedures are nothing new. When a law enforcement officer stops someone, they have to be able to explain why something seemed suspicious or worth pursuing. What was odd or concerning that caught their attention such to the degree they felt the need to follow up. The time, location, lighting, what is heard (say an alarm), other known information such as bulletins, past experiences, and observations all come together to create a need for the officer to "check things out." An example: officer on patrol at 11 p.m. sees a man pulling a screen off the window of a residence. He is crouching as not to be seen. After asking the man what he was doing there, he is told the man has locked himself out of the house and doesn't want to wake his family. The officer asks for ID and sees the picture on the driver's license matches the man's face and the address on the license is the same as the residence at that location. False alarm to what might have bene a serious crime. Right? Well, he takes the man to the door to ring the bell, and the now ex-wife tells the officer they are recently divorced and that she has a restraining order because he broke in last week and assaulted her. Now the officer goes from reasonable suspicion to probable cause to make an arrest. Every situation is going to be unique with twists and turns, and the detail gathering varies circumstantially.

Public education is essential as anxiety is high amonng citizens andn non-citizens alike. The news media and many legislators from other states are not aware of law enforcement procedures that have already been deemed constitutional by the highest court.

Posted by: Desert-Rose-8 | Apr 28, 2010 11:56:10 PM

This is just another government ploy to impose their personal agendas on society. The real question is why has the state of Arizona and neighboring Border States failed to control or curtail the flow of illegal drugs, weapons and humans at the source. There are many legal and illegal drug lords, gangs and organized crime groups that have been around for decades; and trust me government knows who they are. The truth is that they are afraid of the consequences... they see how the Mexican authorities disappear or end up tied and beaten to death on the side of the road, they are not ignorant. Government is fully aware of the risk involved with taking these groups head on and their fear prevents them from taking action. The innocent illegal migrant workers who are being targeted are just an escape goat for local authorities to show that they are trying to do something about the issue. Apprehending innocent individuals will not solve the root cause of Arizona and neighboring states main problem/s. I guarantee you that taking all immigrant people of the streets in Arizona will not solve a thing. While authorities are busy questioning the thousands of illegal immigrants the US citizen or non migrant looking criminals are going to have a field day continuing their illegal operations with no opposition. WAKE UP ARIZONA, GROW SOME COURAGE AND GO AFTER THE REAL CRIMINALS!!!!!

Posted by: Rick | Apr 29, 2010 12:55:45 PM

U.S. Citizen in Chicago, Illinois

Good Day and Hurray for Senate Bill 1070. God Bless America!

A message from a layman:

This Law must be adopted by every single state in the United States of America.

In the state of Illinois, when operating a motor vehicle, the law states that you must provide a patrol officer or legal authority with your vehicle registration, your vehicle insurance card and your valid driver’s license “anytime” you are stopped for a traffic violation. If you cannot present these credentials, you must pay the price. And this is just for a traffic violation made in your vehicle.

My vehicle does not deprive US Citizens from getting jobs, does not take away jobs from US citizens or drive jobs away to other countries. And, my vehicle does not eat tax dollars for funding patronizing programs.

My point is this. If I must go through all the hoops that are lawfully needed just to drive my vehicle then why doesn’t one have to have valid US credentials to walk the streets of this country? Does one need a passport when walking the streets of another? Think about it my friends. I carry my Social Security card and my Valid Driver’s License with me at all times. This is not a burden to me. I do this by choice because I am a proud to be an American. And yes, this is as my forefathers did and as they had taught me to do at a very young age... I speak English; pay my taxes and all for Law enforcement. Every US citizen should do the same. Am I becoming a US American minority?

If anyone who is reading this message has any weight in the US House or Senate, please make use out of our “National Guard” for protection starters and I also ask that “my” tax dollars be spent on more military to be used in protecting and guarding our borders of this country against the entry of illegal aliens. Guard our country against “all” illegal aliens entering and crossing our borders of this country. By underground tunnels, swimming, ocean liners, aircraft, boats, ships, transported in vehicles or even running across the border. I do not want my tax dollars going into patronizing programs. No matter what the case may be... either under the US soil, on US soil or over US soil in the air, confirmation of one’s citizenship or ones plans while in this country and follow this up. And, I am not opposed to Shoot and Kill if one flees an authority official when simply asking for Credentials to live or reside in this great country of ours...

Devotedly yours in the USA,
GMS, B.U.C. (Bipartisan U.S. Citizen)

Posted by: GMS | Apr 29, 2010 6:34:05 PM

Re: Arizona immigration bill 1070
I am white woman married to a Mexican-American, I would hate my husband to be stopped because of the color of his skin, this law is very rude, nazi fascist and racist. This is a good link to watch the struggle inmigrants go through: http://www.youtube.com/watch?v=BYXEva3AuWA

Posted by: Katherine Gonzalez | Apr 30, 2010 10:33:10 PM

Re: Arizona Immigration Bill 1070
I would specifically like to address a comment made by desert-rose-8. She used the adjectives "innocent" and "illegal" to describe migrant workers who are here without proper documentation. This is an oxymoron. You cannot be both "innocent" and "illegal" simultaneously. I understand the point she is trying to make in that she deems undocumented farm workers (maids, service indivuduals, etc...) as harmless particularly when compared with drug dealers, kidnappers and coyotes. The problem with this rationale is that it excuses criminal behavior without consequence. Illegal immigration, regardless of the level of criminality harms America. There is a cost burden that is not accounted for when people hold a similar view. Instead of thinking of illegal immigrants as a poor, helpless lot who just want to make a better life for themselves, we need to recognize the fact that they are thieves. Illegal immigrants, regardless of their trade are stealing. No taxation, no participation and access to services that cost you and I money (health care and education for their undocumented children come to mind). Reform is necessary, but it starts with the enforcement of existing laws, which means if you're here illegally, you should be deported regardless of your intent.

Posted by: Mike Thompson | Apr 30, 2010 11:44:07 PM

re: Arizona immigration law sb1070

To address the issue about racial profiling...is hilarious to me because black men have been racially profiled for years and now that the tables are turning on the "illegals" it's now a big problem. Now...moving on to another issue...if you are "legal" then why not carry your "papers" with you? We as "citizens" have to carry identification, we drivers have to carry our proof of insurance, and driver's license with us or else we will be fined or jailed. When the tornados hit in my area last weekend....guess who was out luding...? Hummm!!! My husband was a victim of a hit and run....guess who was in the other vehicle...? Just saying though. They come here and do these crimes and then they want to escape prosecution, they flee back to the one place they fleed from in the beginning. They are coming into the U.S. in the masses, but the U.S has no jurisdiction there. They are known to still people's identity...SSN#...then, they don't pay taxes....if you want to be here, do what everyone else is doing that comes into this country...become legalized...it's just that simple. This how I feel about the issue, I applaude those that are here abiding by our laws and doing what it takes to become legal citizens.

Posted by: Adrienne B. | May 1, 2010 8:06:51 PM

Illegal immigrants do not steal people's identities and social security numbers and then not pay taxes. The whole reason illegal immigrants get fake social security numbers is to provide them to employers for the sole purpose of paying payroll taxes. Most employers that use immigrant labor require social security numbers for the employees to shield themselves from liability for employing an illegal immigrant. Therefore, illegal immigrants end up paying a higher rate of taxes than almost any other person in America. This happens because, by paying taxes under an inaccurate social security number the illegal immigrant forgoes any opportunity to receive a return on the Social Security Taxes they pay, the federal government puts all the SST paid by fictional social security numbers into a fund away from Social Security taxes paid by actual citizen. Before criticizing illegal immigrants from taking jobs and stealing money without paying taxes, please familiarize yourself with the actual process that most illegal immigrants, not the criminal element but the people who are here illegally for the purpose of working to support a family, go through in order to obtain employment.

Posted by: face | May 2, 2010 12:56:35 PM

re: Arizona Immigration law sb 1070

ADRIENNNE B said: illegal immigrants dont steal people identities and social security and then not pay taxes.the whole reason illegal immigrants get fake SSI is to pay payroll taxes...this girl is high.appearantly she doesnt read much because if she did then she would know that the statistics shows that majority of fake socials and ID'S are found in illegal immigrant possession.and to FYI you illegal immigrants do not pay taxes they work off the books and transport billions back to mexico every year.did you know that mexico second biggest income comes from the illegal immigrants that are here in america and they will not register because it will affect the mexican economy...idiot wake up we are being robbed blindy and as americans we think we have all the problems in the world figured out.but watch in years to come we are going to regrett this tremendously...

Posted by: 5mics | May 3, 2010 2:01:25 AM

I think it is great. I want to move to Arizona!!!!

Posted by: Mandie | May 4, 2010 10:49:25 AM

I agree with ADRIANNE B. totally.

Posted by: Juanita | May 4, 2010 5:59:37 PM

Cinco de Mayo is a popular celebration of Mexico's triumph over the French at the Battle of Puebla on May 5, 1862. It is now celebrated along with the current concern on the Arizona Immigration Bill as it is supported by Governor Jan Brewer which made the people against it to protest along with the supporters of the said law. I'm up for an update on this buzz.

Posted by: whitX | May 5, 2010 1:31:59 AM

Re: Arizona immigration law sb1070

Illegal immigration is not a race, and even if it was, no race should be above the law. You’re not a racist because you expect the members of every race, including your own to respect your nation’s borders, and the rule of law, and your government to enforce the law, and to do what AZ has done when the Feds refuse to enforce the law. Wise up boy-cotters.

Posted by: Chuck | May 7, 2010 2:28:41 AM

Re: Arizona immigration law sb1070

Frankly, you all are missing the real issue. Being a woman of color I have experienced racial injustice and racial discrimination my entire life. Enough to know that racial profiling is NEVER EVER okay! And now they think that they can just slip it into law?!?!? This is not about us supporting immigrants being illegal or supporting illegals crossing the border without the appropriate paperwork. Its about the millions of Mexican Americans who are citizens. Born and raised here just like you, who will now legally be profiled, apprehended, harassed, discriminated against, and automatically assumed to be illegal. That is not right and that is not civil! So thank you Rev. Al Sharpton for inflamming the true issue when so many others are blind, because if this law goes into effect, honestly, WHO IS NEXT?
That's the problem with white politicians. They think that if a law protect the rights of white Americans than it protects the rights of all Americans and that is not the case! As for President Obama I feel that by him not intervening he is condoning. President Obama we voted for you because you represented CHANGE so please don't be afraid to do just that!

Posted by: justice studies grad | May 7, 2010 9:31:16 AM

If you want to move to Arizona - GO! They should put all racists in that state!

Posted by: Terry | May 16, 2010 7:11:46 PM

justice studies grad... I trust your screen name is just a screen name. What justice is there in condemning a state for enforcing a federal law that's been in the books for 58 years? The fact is that Arizona law DOES NOT ALLOW RACIAL PROFILING... READ THE LAW!

"Yes it does...Obama said so!!"

So did US Attorney General, Eric Holder http://www.youtube.com/watch?v=xGvaw6Et6VE, and Homeland Security Chief Janet Napolitano http://www.youtube.com/watch?v=vIwI1ICYCFE. The problem is, (like you) none of them bothered to read the law either.

It's pretty pathetic "grad" that when your debate runs empty, you (like so many others) call people like me racist! You want the truth? Our president was elected not for his qualifications, but because so many got caught-up in having the first black president of the US...they voted for him because he was black (there...I said it.) I didn't vote for him because I didn't think he could do the job...HIS SKIN TONE HAD NOTHING TO DO WITH IT. I don't like the direction he's taking our country. If a white man was making the same decisions, I wouldn't like him either!!!

Those who voted FOR him because he's black are just as racist as those who voted AGAINST him because he's black.

Posted by: charleskdabney | May 23, 2010 3:21:37 AM

Arizona Immigration law is scheduled to go into effect on July 28. Referendum requires filing 76,682 voter signatures by 90 days. Make your voice heard on http://immigration.civiltalks.com/

Posted by: Evelyn | May 24, 2010 2:38:19 AM

I have been pulled in to weigh stations for inspection on a semi I drive. 5 times in the last year. I was asked for identity every time. So why do illegals think they should not have to produce indentity? I was also pulled over in my private car last car and what did I have to do, show my indentity ( license). Do I think this is racist or they are nazi's. No!

Bottom line, these protestors are really just mad because now they actually have to be deported, should they be stopped for a infration of the law. If your legal you have nothing to worry about.

It is illegal to come here illegally. Just as it is in any country. It's federal law. Not something Arizona just made up.

Posted by: David | May 30, 2010 1:03:24 PM

I'm making a special effort this year to go to Arizona and spend as much money there as possible as a way of supporting these common sense, courageous people who are, in effect, helping to defend the rest of us against the onslaught of alien criminals.

Posted by: Elaine | Jun 25, 2010 11:08:24 AM

"Illegal immigrants do not steal people's identities and social security numbers and then not pay taxes. The whole reason illegal immigrants get fake social security numbers is to provide them to employers for the sole purpose of paying payroll taxes. Most employers that use immigrant labor require social security numbers for the employees to shield themselves from liability for employing an illegal immigrant." posted by Adrienne on May 1, 2010.... You basically admitted in your response that they are breaking the law by having fake SSN's and their Employer is breaking the law as well....by crossing the border without proper authorization (i.e. work visa, green card, etc) they are breaking the law...therefore, they ARE criminals

Posted by: Ken | Jul 7, 2010 1:29:03 AM

Somehow my first long commentary here was not accepted. I felt I had a very good one.
Nevertheless, the Arizona law is not a law enforced yet. It seems it will be contested by the Federal Government and other groups, if not blocked somehow. As third and fourth generation U.S. American, since this whole hemisphere is American, I strongly feel this law is Racist for some personal reasons of what happened to a friend in Arizona who is a U.S. Citizen. This experience was before the law was proposed and I did not think much of what he told me, but after seeing this proposed law I wonder about Arizona. He was stopped, asked for usual ID, insurance, etc. which he provided and was still fined and given a ticket. He is a U.S. Citizen. They according to my friend said it could be bogus. He then had to straighten this out with the Judge by which he was not apologized to. His ID paperwork was no different that any other one would have. They told him they could use the fullest extent of the law instead of apologizing.

Illegal does not mean it is criminal. All illegal actions are not a criminal offense. The law has to make it criminal as does the Arizona proposed law. Propoganda is used by both sides of the issue and both are guilty of spreading disinformation, and misinformation that pushes emotional buttons that keep people on their defensive.

Lets make this a law that resolves the infringement of many U.S. Citizens rights. I do not want to be racially profiled, or targeted by a law that just about mandates that, because of my looks or name.

We are better than that. That the Arizona law mirrors the Federal law does not mean it is quite the same as is the Federal law. It can be resolved without having to infringe on many U.S. citizens. According to the Federal contention they are saying that a state does not make laws relating to immigration. Does that make the Arizona Law illegal? Seems like illegal is thrown both ways. Anyhow it is not in force yet and therefore not a law yet. It is being contested unless blocked.

My biggest gripe as a U.S. citizen, even though there is much more it can resolve in the process, are my rights as citizen of this country are being infringed upon. And I do believe in controlling the border, and mending many of its problems.

Posted by: El | Jul 20, 2010 3:53:20 PM

response to El:
Thanks for posting again. I am not sure what happened to the first comment, but it doesn't seem to have made it to us (and a search for author "el" doesn't retrieve anything).

Posted by: RR | Jul 20, 2010 6:25:15 PM

First kick out the Native Americans,Hitler with the Jews,Then Americans vs Blacks,Now vs Latinos, next thing you know Its Going to be Whites With brown hair and eyes vs Blue eyed blonds.

Now i understand why all the blond jokes........By, the way to set the record straight,There is a thing called the EIN #.Wich all my edducated people know about.But 4 u dat don't(Its a # provided to Immigrants and busineess owners,works same as ss#)And thats how immigrants file their tax returns.Theyr not stealing. I honestly believe the goverment actually keeps lots of money owed to immigrants that by any case don't file.

This law is very rude, nazi fascist and racist.

This law won't fix the root of the problem.Fix ur RACEISM!!!!!!!!!

Posted by: ????? | Aug 5, 2010 8:34:37 PM

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