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Friday, April 30, 2010

Do NOT Read This Supreme Court Decision

... if you want to be able to continue using terms like Nazi, Communist and Apartheid to describe the new Arizona immigration law. Or if, like President Obama, you want to claim that the law would allow people to be questioned merely for going out for ice cream. Because none of these accusations have a basis in reality.

Some quick research, available to all the people screaming about the Arizona law, reveals that the U.S. Supreme Court has reviewed the issue of questioning potential illegal aliens regarding citizenship or immigration status, and has found such questioning permissible provided that the "characteristic appearance" of the person was not the sole factor giving rise to a "reasonable suspicion" that the person might be here illegally.

In U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975), the Supreme Court unanimously (with various concurring opinions) held that "roving patrols" by the U.S. border patrol (which by regulation had to be within 100 miles of the border) could not stop vehicles and question the occupants as to immigration status based solely on the occupants appearing to be Mexican. (I assume this case is why the Arizona statute forbids using race, color or national origin as the sole factor.)

Rather, the Supreme Court held there had to be other articulable factors which formed a reasonable suspicion under a "totality of the circumstances" test.

The Supreme Court provided a non-exhaustive list of some possible factors which could contribute to the formation of a reasonable suspicion, including characteristic appearance (emphasis mine):

"Any number of factors may be taken into account in deciding whether there is reasonable suspicion to stop a car in the border area. Officers may consider the characteristics of the area in which they encounter a vehicle. Its proximity to the border, the usual patterns of traffic on the particular road, and previous experience with alien traffic are all relevant ....

They also may consider information about recent illegal border crossings in the area. The driver's behavior may be relevant, as erratic driving or obvious attempts to evade officers can support a reasonable suspicion....

Aspects of the vehicle itself may justify suspicion. For instance, officers say that certain station wagons, with large compartments for fold-down seats or spare tires, are frequently used for transporting concealed aliens....

The vehicle may appear to be heavily loaded, it may have an extraordinary number of passengers, or the officers may observe persons trying to hide....

The Government also points out that trained officers can recognize the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut....

In all situations the officer is entitled to assess the facts in light of his experience in detecting illegal entry and smuggling....

In this case the officers relied on a single factor to justify stopping respondent's car: the apparent Mexican ancestry of the occupants. We cannot conclude that this furnished reasonable grounds to believe that the three occupants were aliens." [case citations and footnotes omitted.]

Just a year later, the Supreme Court held that no reasonable suspicion was needed to engage in limited questioning of citizenship or immigration status at fixed checkpoints (unlike the roving patrols). U.S. v. Martinez-Fuerte, 428 U.S. 543 (1976). Take a look also at this Congressional Research Service memo discussing the reasonable suspicion (to stop someone and ask questions) and probable cause (to conduct a search) standards, to get an idea of how the courts have struggled with these concepts.

There have been attempts to distinguish these cases, for example, where the questioning was done far away from the border area, or by state police not federal border patrol agents, and so on. And there may be other challenges to the Arizona law unrelated to the stopping and questioning. That's fine. That's why we have courts, to decide such matters.

Just don't claim that the Arizona legislature has done something government was not already empowered to do, or invented some new standard called "reasonable suspicion," or by failing to exclude "characteristic appearance" from being taken into consideration engaged in a clear constitutional violation.

In many ways, we have been there and done that judicially when it comes to the standards for questioning people as to their citizenship or immigration status.

The issue really is whether we want to push right up to these legal limits, or do we want to stop short out of political, philosophical or other concerns. There also are issues as to whether the policy will be effective, and other aspects of the law which may be challenged.

Regardless, the notion that the Arizona immigration law allows the police to question someone's immigration status just because the person "looks Mexican," or is "driving while Brown," or has a particular accent, has no basis in the Arizona statute or the clear history of the law in this area.

So if we were not Nazis and Communists and Apartheidists the day before the Arizona Governor signed the immigration law, we did not become any of those things the day after.

Update: Desmond Tutu picks up on Obama's theme, and wrongly claims that looking or sounding Hispanic is a ground for questioning:

I am saddened today at the prospect of a young Hispanic immigrant in Arizona going to the grocery store and forgetting to bring her passport and immigration documents with her. I cannot be dispassionate about the fact that the very act of her being in the grocery store will soon be a crime in the state she lives in. Or that, should a policeman hear her accent and form a "reasonable suspicion" that she is an illegal immigrant, she can -- and will -- be taken into custody until someone sorts it out, while her children are at home waiting for their dinner.

Glenn Reynolds posts an e-mail from a federal immigration agent who argues that border security is not enough. If and when the courts deal with the Arizona statute, I expect the State of Arizona to argue that the illegal immigration situation has become so bad that the entire state now serves as the equivalent of the 100 mile border area discussed in the Brignoni-Ponce case.

Update No. 2: The Arizona legislature is in the process of amending the law to clarify certain terms, which should insulate the legislation from some of the anticipated challenges:

Another change replaces the phrase "lawful contact" with "lawful stop, detention or arrest" to apparently clarify that officers don't need to question a victim or witness about their legal status.

(h/t HotAir)

Related Posts:
I Thought We Were Supposed To Be Boycotting California
Just Say It - "All Immigration Laws Are Racist"
Obamacare Requires You To "Show Your Papers"

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  1. Desmond Tutu needs to be nominated for an academy award. He is a sure bet to win!

  2. Isn't questioning someones status the primary job of the Border Patrol....?
    Go to any border checkpoint and that is what they do fifty thousand times a day.
    Try to return from Mexico without proving you are an American and then getting all indignant.
    "How dare you demand my drivers license you nazi."

  3. Because entry enforcement is primarily a function of border immigration, Republicans and now some Democrats have pushed to improve it and make it viable BEFORE tackling questions of HOW to become a citizen not just answering the border question ARE you a citizen. Qualifications for citizenship is a separate process; a separate issue. People forget that.

    At the border, agents are looking not just at citizenship but at criminal activity, terrorism, illegal importers of goods - many issues. Citizenship has little if anything to do with this.

  4. I read the agent's letter and Glenn's response. The agent's letter carried more weight with me, and I thought Glenn missed the agent's observation (from being on the line) that the prevention of illegal immigration is only as strong as its weakest link. In the agent's experience, once they penetrate the border and gain access to the interior, they consider themselves home free.

    I think you could say the agent's case is proving to be correct, when Mexico has even taken notice and advised its citizens about the AZ law. It is already working.

  5. Watching the local news the past few days, I am getting an education about blowhard CA politicians like Mayors Villaraigosa and Newsome and others who without thinking, declare a boycott against another state. I am learning that AZ and CA are so intertwined that it may very well be that it can't be done. There are all kinds of sweetheart deals for CA that involve substantial state ownership in
    water and power partnerships for instance.

    "Yeah, sell our shares at fire sale prices and while you're at it, cut off our water and electricity too. That'll teach you Nazis a lesson!"

    Mouths go one way, brains go the other. Very entertaining.

  6. What is the legal significance of state officials looking for the Brignoni-Ponce factors?

  7. The best way for legal residents and citizens of any national or ethnic origin to be free of the suspicion that they might be here illegally is to (drum roll) limit the number of illegals in our society. The smaller the percentage of illegals in the population, the less chance there is that any one individual is illegal. Without a large illegal population, there would be no need for crackdowns or the introduction of "scary" new legislation designed to control it.

    Reducing the raw number and the percentage of illegals would be beneficial in many ways, but I would think that those who clamor for greater protection of the rights of legal residents would recognize this simple point. Reducing the number of illegals really is their best protection, and so they should strongly support strict border control and better legal immigration policies.

  8. all one has to do is read the headlines or police blotters from border states in areas as far north as Dallas to see the effects of crime and violence due to not so "hard-working" illegal immigrants. just blocks away from my parents, people are being held hostage in their own homes in a string of Home Invasions committed by Illegals. If the Federal Govt would get off their collective tookus and do their damn job of PROTECTING AMERICAN CITIZENS... states would not have to.