Friday, May 1, 2015

Why State and Local Enforcement of the U.S. Immigration Laws is a Bad Idea: The Example of Sheriff Joe Arpaio and the Maricopa County Sheriff’s Office

Last week, U.S. District Judge Murray Snow held four days of contempt hearings in the civil rights class action known as Melendres v. Arpaio.  The court heard testimony on whether Sheriff Joe Arpaio and the Maricopa County Sheriff’s Office had violated an injunction that, among other things, sought to halt practices that had targeted Latinos, including U.S. citizens and lawful immigrants, in immigration and other law enforcement efforts.  Ironically enough, the contempt hearings occurred the same week as the fifth anniversary of the enactment of a law known as Arizona’s S.B. 1070, an immigration enforcement milestone that the Supreme Court held for the most part unconstitutionally intruded on the federal power to regulate immigration.

It is a sure thing that the court will find that the defendants violated the injunction.  In fact, Sheriff Arpaio candidly admitted that his office violated the injunction.  The only questions remaining before Judge Snow are whether the violations of the injunction were intentional and what penalties should be imposed.  While the hearings held a surprise or two, including Sheriff’s Arpaio’s admission that his attorney had retained a private investigator to investigate Judge Snow’s wife, the legal issues are relatively straight-forward.

Even if exceptional in certain respects, Melendres v. Arpaio exemplifies the ordinary problems with state and local enforcement of the federal immigration laws.  Indeed, the case is a poster child for critics who claim that discriminatory enforcement will likely result when state and local law enforcement authorities, rather than federal law enforcement, are entrusted with the enforcement of the U.S. immigration laws.

Generally speaking, state and local political pressures are more enforcement-oriented and harsher than those existing at the national level.  One might recall the ugly images last summer in Murrieta, California as protesters sought to block buses filled with down-on-their-luck Central American women and children headed for a detention center in their town. 

In addition, even with training, state and local law enforcement officers cannot reasonably be expected to have the same familiarity with U.S. immigration law, famous for its arcane complexity, which their federal counterparts have.  State and local law enforcement’s limited understanding of immigration law makes fair, effective, and racially neutral enforcement difficult.

Moreover, as the conduct of Sheriff Arpaio and the Maricopa County Sheriff’s Office demonstrates, state and local police sometimes may pursue their own immigration enforcement agendas that are not consistent with U.S. law and policy.  Although the Supreme Court repeatedly has emphasized that the “‘[p]ower to regulate immigration is unquestionably . . . a federal power,’” state and local governments over the last decade have enthusiastically pushed the envelope.  States, including Alabama, Arizona, Georgia, and South Carolina, and localities, such as Farmer’s Branch, Texas, Fremont, Nebraska, and Hazleton, Pennsylvania enacted laws designed to facilitate immigration enforcement.  Not surprisingly in light of the Supreme Court’s unequivocal pronouncements about federal authority over immigration, courts have frequently ruled that state and local immigration enforcement measures, in whole or in part, impermissibly intruded on the federal power to regulate immigration.

Some state laws require that state and local police officers directly assist the federal government in its immigration enforcement efforts.  Section 2(B) of Arizona’s SB 1070, popularly known as the “show your papers” law, is the most well-known.  It requires state and local law enforcement officers to verify the immigration status of persons whom they reasonably suspect are in the United States in violation of the federal immigration laws.  Officers necessarily exercise considerable discretion in making that all-important assessment—with few standards restricting what can be considered while making that determination.

Although the Supreme Court invalidated central provisions of SB 1070 as conflicting with the federal power to regulate immigration, it refused to strike down Section 2(B).  However, the Court left the door open to future challenges of the section as applied in individual cases by state and local law enforcement officers.  Commentators understandably expressed concern that the implementation of Section 2(B) would increase the incidence of racial profiling of Latinos by local law enforcement agencies in Arizona.

The case of Melendres v. Arpaio illustrates concerns with the possibility that state and local law enforcement officers will enforce immigration laws in a discriminatory manner.  The district court entered an injunction in an attempt to end a pattern and practice of discrimination against Latinos by the Maricopa County Sheriff’s Office; earlier this month, the U.S. Court of Appeals for the Ninth Circuit affirmed almost all of the ruling.  Having admittedly violated the injunction, Sheriff Arpaio is now subject to civil, and possibly even criminal, penalties for contempt of court.  

Although the case of the Maricopa County’s Sheriff Office is in certain ways extreme, the case reveals many of the problems with state and local enforcement of the immigration laws.  At a minimum, lawmakers and the courts should be extremely careful before enlisting state and local police to assist in the enforcement of the federal immigration laws.


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