The Arizona law authorizing law enforcement to question the immigration status of virtually any individual has revealed a disturbing trend in a sizeable section of the US population, that is now being mirrored in several state legislatures. Specifically, Subsection (B) of Article 8, of Section 2, title 11, chapter 7, of the Arizona laws – the first section of the Arizona law SB1070, reads as follows:

B. FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON. THE PERSON’S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).

Nowhere in SB 1070 is there a definition of what “Lawful Contact” is supposed to be.

The effect of this omission – whether wilful or not – is profound: what this means is that a police officer can, on “lawful contact” – and therefore without ANY suspicion of any illegal activity, stop a person to ask about that activity and in the course of that inquiry, also inquire about the person’s legal status if the officer suspects (again, no explanation of the basis for such suspicion) that person is “unlawfully present” in the United States.

This means that if a person is standing at a bus stop or a street corner, or is walking along a street and a police officer has some occasion for “lawful contact”, not only can that person be stopped, he or she would then be subject to questioning about his or her activities and in the course of that questioning, asked about his or her immigration status and then further be asked to produce documents.

“What are you doing here”? Sounds Communist, Fascist, or just plain uninformed? It probably is.

The ramifications of such a horrible and harsh measure are obvious, but are clearly being ignored by the uninformed elements in the US population that only wants to penalize over and over again the undocumented alien who lives and works in their midst. Even though these undocumented aliens are most often doing jobs that US workers do not want to do, SB 1070 legalizes tracking, hunting down, and deporting these undocumented workers. Not only this, but the law allows private citizens to sue the Arizona entity that does not enforce these laws! The entity would have to pay a fine to the State for any violation!

There are so many questions that the law leaves unanswered. Here are but a few of the most glaring omissions:

What is a “Lawful Contact?” What gives a police officer a “reasonable suspicion”.

Is it a person’s attire? Is it that the person does not fit into his or her surroundings? Is it the dirt under the person’s fingernails? How will police officers determine who is suspicious and who is not? Will there be heightened suspicion for people who do not fit in or who are of a different ethnicity compared to the majority of the population in the area? This law legalizes racial profiling and discrimination in the worst sort of way. The law allows police to claim – without any evidence – that the police had a “suspicion” of a person and therefore stopped and questioned that person. If that person is indeed undocumented, that person would be removed from the United States thus sharply reducing the likelihood that the police department is going to be sued for civil rights or constitutional violations.

The law immunizes police officers for activities that would be considered entrapment and penalizes employers who are “predisposed” to hire undocumented aliens. How such predisposition is proved is also unclear. An employer may be entrapped into hiring undocumented aliens and have no defense to an officer’s testimony that he or she was “predisposed” to hire an alien.

A US citizen may be criminally charged and convicted for driving an undocumented alien to a hospital or to child care or to a grocery store*. There is no exemption for “good samaritans” under SB 1070. Maybe when officers arrest and charge some lovely old, white granny who was helping her undocumented church members get to an appointment, then finally, Arizona’s “tough” policy will start to crumble.

In its rush to “get tough” on undocumented aliens, the Arizona legislature has clearly sacrificed the rights of even US citizens and the ability of law enforcement officers to stop crime and apprehend criminals. Gone is any vestige of cooperation from the public in the investigation of crimes. Even citizens or documented aliens may be afraid to come forth for fear of drawing attention to themselves or their friends or relatives.

“Show us your papers.”

Even if immigration documents are produced, does the officer have enough training to recognize that the papers are valid or not? What about, for example, the student visa that has expired, but the student who has legally entered the USA under that visa and is in legal status in the USA during the duration of his or her studies? What about the visitor who’s extension for stay is pending? Or the business visitor who leaves his passport in the hotel safe? Throw them all into jail pending USICE clearance? What about the citizen who does not carry any identification? What about the burden on the taxpayer? What about the innocent who gets assaulted in jail? Who pays for the damages awarded in lawsuits against the state and the police?

Even citizens are not immune from unlawful arrest and wrongful prosecution: Keep in mind that there is no “national ID card” and that IIRIRA specifically admonished against creation of such a document. So if a citizen does not have a Driver’s license or carry around a US passport, how does a citizen prove US citizenship? Carrying around a birth certificate really does not help – it is a record of a person’s birth, nothing more. It does not bear a current photo of the person who is the subject of the birth certificate. So how does a citizen show proof of citizenship? College or other photo ID’s are likewise non-determinative indicia of US citizenship for the same reason.

Conclusion:

There is no question that the US immigration system needs serious and substantive repair; but SB 1070 is not the answer. This knee-jerk reaction to the problem of undocumented immigration is ill conceived, poorly informed, and badly drafted. Not only does the law violate fundamental civil rights, elements of the law clearly invite challenges under the Fourth, Sixth and Fourteenth amendments to the Constitution. Under the Constitution, immigration is clearly a federal subject, not one relegated to the States. Several lawsuits have been filed against the Arizona law, more will doubtless be filed once the law is implemented. Only Comprehensive Immigration Reform (CIR) offers sensible and permanent systemic improvements to our current immigration crisis. Stay tuned for further developments.

*(View the hardships that immigrants go through to build a better life before you jump to conclusions about undocumented aliens. Watch the movie “Entre Nos” (http://reformimmigrationforamerica.org/blog/moms-for-family-unity/) to see the “other side”.)

Copyright Farhad Sethna, Attorney, 2010