Analysis: the Arizona immigration law

(edit: related discussion here).  Here’s the text.  And here are snippets with comments.

A.  No official or agency of this state or a county, city, town or other political subdivision of this state may limit or restrict the enforcement of federal immigration laws to less than the full extent permitted by federal law.

Merely an anti-sanctuary city provision. Let’s all enforce existing federal immigration laws.

B.  For any lawful contact made by a law enforcement official

For starters, there has to be a “lawful contact” before ID is sought. Every lawful contact by law enforcement already results in ID’ing the person contacted whether it’s a traffic stop or upon exiting a 7-11 in a ski mask carrying a handgun!

where reasonable suspicion exists that the person is an alien

The phrase “reasonable suspicion” is a term of art in criminal law. There are existing situations where an officer must have an “articulable reasonable suspicion” in order to, for example, detain an individual. Google the phrase and you’ll see a lot about it. What that means is that the officer has to be able to testify not simply “I had a reasonable suspicion” that party ‘A’ was doing ‘X’ in violation of the law; but rather must be able to articulate what that reasonable suspicion was based upon.

Applying that existing and well-litigated principle sets a clear legal standard for when and whether a person can be approached for proof of citizenship.

Any person who is arrested shall have the person’s immigration status determined before the person is released.

What can be wrong with that? How incompetent would it be to have a lawbreaker (illegal entry) in your grasp and just turn them out onto the streets?

[a cop or agency] may not solely consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution.

That’s an anti-racial profiling provision. Of course, the fairness of the implementation of this depends on the integrity of the officer, but then so does a lot of law enforcement. Add the “articulable reasonable suspicion” criteria and substantial limitations exist.

1.  A valid Arizona driver license.
2.  A valid Arizona nonoperating identification license.
3.  A valid tribal enrollment card or other form of tribal identification.
4.  If the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state or local government issued identification.

That’s how one proves citizenship. Hardly a burden.

[officers or agencies can’t be precluded from ] exchanging that information with any other federal, state or local governmental entity for the following official purposes:1.  Determining eligibility for any public benefit, service or license provided by any federal, state, local or other political subdivision of this state.
2.  Verifying any claim of residence or domicile if determination of residence or domicile is required under the laws of this state or a judicial order issued pursuant to a civil or criminal proceeding in this state.
3.  If the person is an alien, determining whether the person is in compliance with the federal registration laws prescribed by title II, chapter 7 of the federal immigration and Nationality act.
4.  Pursuant to 8 United States Code section 1373 and 8 United States Code section 1644.

Merely says to verify that the person is eligible to receive public benefits, i.e YOUR tax dollars.

That concludes my analysis of the portion of the bill that deals with the ID of a suspected illegal alien. The other parts deal with trespass by an alien, employment of aliens, and other items ancillary to the identification aspect.

CONCLUSION:  the ID provisions having significant constitutional safeguards and are not unduly burdensome.


About Gil Jones

CPA/Attorney/Judge by training and trade. Hobby nut at heart with BMW m/c, computers, ham radio, kayak fishing, photography, hiking and, starting in 2010 some semi-serious running and bicycling (road and mountain bikes). Retired after 16 years on a Texas District Court bench and since 2013 have been mediating cases. I am a Credentialed Distinguished mediator (TMCA).
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3 Responses to Analysis: the Arizona immigration law

  1. Pingback: Further Analysis of Arizona’s Anti-Illegal Immigration Law | Musings of Captain Justice

  2. Michael says:

    Good analysis. I was up in arms about this law until someone explained the “lawful contact” clause. I’m still not a fan of the legislation for a couple of reasons.

    1. It’s a political move, plain and simple. My parents live in Tucson, so I know all about the problems they are having there with home invasions, drug and human trafficking and drug wars. But, this is just an attempt to bring the immigration issue to the national spotlight by a state that feels it’s being ignored.

    2. Do they need a law to tell them to enforce another law? Seems redundant. See #1.

    3. While as written, the law doesn’t violate any human rights … people are upset about it nonetheless. Why is that? Well, the answer to that is simple. There’s a human aspect to this that must be taken into consideration. The law by itself is pretty tame. But there is a segment of our population (citizens) who do not trust authority. You may say, “well tough.” But there’s a reason for this distrust that merits examination. Our entire history as a country contains example after example of laws that on paper seem tame like this one. Yet the application of those laws by law enforcement over the years demonstrates the degree to which the human factor can lead to abuses. And entire segments of our population have deep seated distrust of law enforcement as a result. They already assume at this point that bias is built into the system. And thus, these same people will believe there is bias here too, whether that was the intention or not.

    All of this, in my opinion, could be avoided with a little PC. I know that’s a bad word these days. But when you are talking about tens of thousands of citizens being pissed off, maybe it wouldn’t hurt? A lawyer will understand the implications of “lawful contact”. A citizen might not. So perhaps, outlining when and where they can ask for your identification would help? I don’t know. I know it would help me feel more comfortable with it, and I don’t even live there. So legally, perhaps the law is fine. Politically, it ignores the sentiments of 15.9% of American citizens or 46.9 million people who are all here legally. And that’s just not very smart, unless your real goal is … see #1.

    That said, any chance we could fix the sexist and biased Texas Family Code sometime this millennium? I’d sure like to see my kid more often. 🙂


    Michael in Dallas

  3. Pingback: Great explanation of Arizona’s need « Musings of Captain Justice

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