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Applying logic to the Arizona argument

Post by Brian O'Neill on May 1, 2010 at 12:54 pm with 17 Comments »
May 2, 2010 2:10 pm

When it comes to Arizona’s recent illegal alien legislation, descriptive language rules the day.

Even before the governor’s ink dried on her new immigration law, SB1070, print media proclaimed the statute “draconian…oppressive and unconstitutional” (Eugene Robinson’s column) and “a consequence of colossal [federal] failure” (Orange County Register).

Somewhere in all the rhetoric, it seems to me that we have missed the point. Despite such labels, this new legislation is anything but original. In fact, SB1070 is based heavily on the existing federal statute which provides federal agents the authority to investigate and detain individuals who may be illegally residing in the U.S.

In my thirteen years of law enforcement I have worked hand in hand with these same federal agents on immigration checks, and nowhere did I see lines of protesters with signs, or celebrities and politicians decrying the contacts we made with potential illegal aliens.

To suggest Arizona will be the rebirth of fascist Nazi Germany simply because local cops rather than federal agents enforce immigration laws is both irrational and condescending.

In fact, Immigration and Customs Enforcement (ICE), the federal agency responsible for handling immigration violations, has been deputizing large numbers of police officers and deputies through a five week training program since 1995.

This training includes the accepted protocol for approaching and contacting a suspected illegal alien. It is entirely consistent with accepted professional practices and, more importantly, legal precedents and Constitutional protections.

None of the contacts I observed was based on skin color, including one in which a white subject from Eastern Europe was detained for deportation.  Instead, agents and their local counterparts are trained to spot subtle clues that indicate a foreign born subject. Federal law then requires that an alien present the required documentation describing their legal status. Not one complaint regarding the officers’ conduct or profiling was made.

In short it’s not what’s in the new law, but how it’s carried out. With proper training, Arizona cops should perform the same task in the same fashion as their federal colleagues.

That leaves all of us, as Americans, with the real issue: whether immigration enforcement should be legislated by a state, even one as negatively impacted as Arizona.

That is a different topic requiring a whole new set of descriptive words.

Leave a comment Comments → 17
  1. Too much logic here :). Great article, surprised the TNT would publish it!

  2. nwcolorist says:

    Maybe the feds could devise a quota system for arresting illegal immigrants. You know, once the’ve reached the set quota for an ethnic population, no more arrests can be made.

    Sound absurd? You bet. But I would put it past the Dem’s to try such a thing.

  3. If you notice, Arizona immediately had to amend the law to take many of the unconstitutional issues out of it. The protests were not in vain. The reason this bill was considered “draconian” was it originally did not speak to the fact that a police officer cannot just go up to someone and then demand identification, not even require them to give their name, much less produce a driver license. US citizens do not have to respond to a law officer’s request for such if they are not commiting an infraction of the law, but this law would not have allowed someone to respond by saying “I am an American citizen” and not be harassed by police. If the Supreme Court decides to change decades of past interpretations of the Constitution to say a citizen must show ID to a police officer upon demand, without probable cause, then I am all for it, but that is not the way it is right now.

    The law before it was amended used a term “lawful contact” that had no legal definition. The amendment corrected that by stating that it was only during an arrest, or surrounding other alleged violations of law that the police could demand ID. I think that has made the law much more tolerable and the police will be able to be trained properly.

    I’ll leave it up to the Supreme Court about whether or not a state or local official can enforce immigration laws in the manner this law requires.

  4. the3rdpigshouse says:

    Bottom Line – we have an illegal immigrant problem and an incompetent government!!! Thanks to the Governor of AZ. She and others with a brain in the state legislature have the guts and the right to protect the legal residents of Arizona!!!!!!! Maybe in the process we can awaken the sleeping dullards in the U.S. Congress!!!!

  5. ldozy1234 says:

    Great opinion article. Nice surprise to see here.

  6. gowenray says:

    It’s been awhile but, I was a Sheriff’s Deputy in a county with a significant population of immigrants, Walla Walla. We also had a county run labor camp for housing well, as many families as could fit in the housing confides.
    And no, we didn’t go out of our way to check for illegal documented individuals.
    Yes, if responding to a complaint situation which probably was going to result in somebody going to jail, then checking documentation of suspects and witnesses just became common sense and proper investigative technique.
    Of course there was a respect between us and seldom were immigrants who observed acceptable social conduct bothered. But, somewhere along the line the ugly head of greed and politics seems to be getting in the way of those common sense approaches to maintaining a homogeneous society such as ours.
    Has the threat of immigration, documented or not, become that serious?
    Or, are we just seeing a bunch of blow-hards taking their narrow-mindedness out on a target they don’t need to justify?

  7. YouCantHandleTheTruth says:

    There is quite a difference between a federal agency tasked with enforcing specific federal laws having authorities & powers to carry out that job, and mandating all state/local law enforcement officials to check citizenship status papers at “any lawful contact.”
    Federal officials are constrained by rules regarding who they can/can’t contact, in other words they can’t pull you over because you didn’t use your turn signal & then arrest you because you don’t have federal citizenship/immigration status papers on your person–state and local law enforcement can (by this law)–they are in constant lawful contact, and have any number of “lawful” reasons for stopping/questioning people. Now not only do they have the authority to check status at any stop, they are mandated to do so.
    One of the defining traits of a police-state is the requirement to carry “papers” to verify identity & the legality of being where you happen to be when the police decide to inquire. The effect of this law is to require legal citizens/immigrants of Arizona to carry “papers” to verify their legality at any lawful contact with police.
    The claim that this law will not lead to racial profiling is disingenous at best, no one is up-in-arms about illegal Eastern-Europeans. This is all about illegal Mexicans. 30% of the legal residents of Arizona are of Mexican descent, and they will now be required to carry “papers” to protect themselves from possible detention over lack of them.
    You are right that some of the rhetoric gets a little heated, but I think in this case it is somewhat justified; although it is couched in reasonable sounding language, and while it’s supporters are at pains to say that it wasn’t, this law was motivated by racism/nativism and it was passed in a spirit of mob rule (tyranny of the majority); it’s effect will be racial profiling by law enforcement agencies using police-state methods, and unjust treatment of legal citizens & residents.

  8. Brian O'Neill says:

    One of the purposes of writing a blog on this topic was to supply a law enforcement perspective. Therefore, I will have to politely disagree with your take on police powers.

    Police officers, whether they be federal agents, state troopers, sheriff’s deputies or municipal cops, all have the right to contact anyone on the street. That does not mean they can detain anyone without a reasonable suspicion that a crime has occurred, which in this case would be either the federal or Arizona state immigration laws. Once reasonable suspicion has been satisfied, a detention could be made to ascertain whether a person(s) is violating the law.

    Also, federal officials CAN stop you in a vehicle. The fact that this rarely occurs is the result of the vehicles they use, their non-uniform attire and the fact that traffic enforcement is not on their agenda. I have participated in operations wherein federal agents have stopped cars for any number of reasons, including traffic violations.

    On the flip side, any non-citizen of the U.S. is required by law to carry appropriate documentation, much in the same manner that all drivers must have their driver’s licenses.

    From the standpoint of race, federal officials work around the country in various cities that have a variety of ethnicities. It’s not unreasonable to suggest that Hispanics would represent a higher percentage of aliens in Mexico, just as Somalis might tip the scale in Minneapolis.

    On the other hand, I don’t believe that this state law is a good fix for a federal problem. But, with due respect, it does not help to confuse assumptions with fact.

  9. Brian O'Neill says:

    The laws that govern search and seizure, which apply in the case of police officers detaining anyone for any reason, are consistent no matter if the issue is a drive-by shooting or an immigration offense. Thus, a “lawful contact” is not necessarily a definable term, but a reference to the fact that those of us in law enforcement must meet the Constitution’s standards any time we stop and detain a subject.

    However, there’s no law against striking up a conversation with anybody. People are free to walk away.

  10. YouCantHandleTheTruth says:

    I appreciate your law enforcement perspective on this issue. Let me ask you this: is immigration violation a criminal offense? One of my assumptions on this issue is that “crime/criminal” is too strong a word for the actual violation being commited. Even in criminal law there are various levels of felonys and misdemeanors, and various degrees of offense–where does immigration violation stand in this hierarchy?

  11. Brian O'Neill says:

    The question of criminal vs. civil in regards to immigration status is not a topic with which I am very familiar. But I’ll tell what I know.

    The initial detainment and deportation by ICE is, I believe, a civil issue. I am not very confident about that answer, however.

    When a prior deportee returns to the U.S., however, that second detainment is a felony arrest. Of that I am sure.

    As I understand the Arizona law, the immigration arrest is based on a trespass violation. That is a criminal offense and my guess would be that it is a misdemeanor crime.

  12. Brian, you are correct about it not being a felony issue. Its not even a misdemeanor. I just read a summary of various proposals over the past decade to enact immigration reform laws. One of the sticking points in Bush’s efforts was that many Republicans wanted Bush to make it a felony to be in the USA illegally. Bush wanted to have guest workers, but a person who had entered the USA illegally before the law was passed would have been ineligible because they would have been considered felons, so it was highly controversial. That did not sit well with businesses, immigration supporters, lawyers and even some federal courts which said they would need to double their budget size to handle all the cases.

    The cases now are are usually handled in special immigration administrative courts that deal just with immigration that are somewhat similar to civil procedings. Transporting or otherwise aiding and abetting illegal entry is a felony. There are some very old laws on the books that make harboring a person who had illegal entry into the USA a felony, but it is seldom enforced because it could send owners of businesses to jail for 5 years for hiring illegal aliens.

    Thanks for your perspective on this issue.

  13. btw, I think your statement about illegal aliens who return being a felony charge is only applicable to aliens who were deported based on criminal acts tried in criminal courts, not by these special administrative immigration judges.

    I also unfairly singled out business owners who might be sent to jail for harboring illegal aliens. Under the unenforced laws, doctors can be sent to jail for treating illegal aliens, hospitals, homeless shelters, churches, anyone who houses an illegal alien. You can see why it is so unpopular with all sides of the political spectrum and goes unenforced.

  14. Roncella says:

    Tuddo, and other Liberal/Progessives who post here. This is the Definition of illegal. ” Not legal, contrary to law. violating official rules “.

    Mexicans, crossing our southern borders are illegal period.

  15. larsman says:

    Hi everybody, I’m new to the forum. A couple of aspects for consideration1) Romans 13: 1-7 regarding the keeping of ordained civil/criminal law is the responsibility of citizens, guests or foreign officials. This would especially include Christians ( Roman Catholics also ). 2) Reciprocity would be applying the same immigration statutes at our borders that are in effect at the borders of Guatemala and Belize; how do their border partners treat legal vs. illegal visitors? Is there such a thing as the Mexican counterpart of the A.C.L.U. for the poor Hondurans who stumble into Mexico but just happened to (oops they were here a second ago) misplaced their photo-ID? Thank you for your time…

  16. larsman says:

    btw, I was not singling out individual Catholics but rather the North American Council of Catholic Bishops who seem to have absolutely no respect for our laws or borders according to their most recent positional statement, and sadly there are also some protestant denominations who have not thoroughly thought this issue through. If we cheat to allow ourselves a temporary advantage, we can expect others to do the same to us, it’s called “negative precedence”…

  17. Tuddo, really appreciate your comments and perspective on this. Don’t agree with you on it, but do agree that the protests may have had some positive effects. It is definitely polarizing this debate, an going to force some real immigration reform. Not the wink-wink that we have had for the past 20 years, but real reform. Also, if there are unconstitutional aspects to this law, they will be removed. The law is being fine tuned quickly, and should ultimately be a good thing. Phoenix is the kidnapping capital of the nation, and I believe only second to Mexico City in the world. Their crime rate is off the charts. For instance, San Diego is the same population, and Phoenix’s crimes rate is about 60 percent higher. Just doesn’t make sense, other than our porous borders in Arizona and Texas allow for major drug running, human trafficking, gun running(interesting that guns flow over the border the other direction-you’d think that Mexico would want a tighter border for their safety)

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