Gov. Jan Brewer’s signing of SB 1070 into law has one more obstacle to overcome before it can be permanently placed on the books. It has to pass the scrutiny of the courts. In our system of government there are three equal branches of government: Executive, Legislative, and Judicial. Although lawmaking is constrained to the legislative and executive branches of government, the courts can overturn law and rule it unconstitutional. However, it is common practice for the legislative and executive bodies to vet the constitutionality of their proposed laws before they are placed on the legislative agenda. Given that SB 1070 was appropriately vetted, it begs to question: why so many conclusively label Arizona’s SB 1070 as unconstitutional? Has politics blinded the eyes of Arizona’s legal analysts or do the masses have it wrong?
According to the SB 1070 as it was passed, the provisions given under Article 8, Enforcement of Immigration Laws seems to be the subject of debate. First and foremost, it is common knowledge that immigration enforcement is the duty of the federal government; according to the 10th Amendment of the United States Constitution, federal duties granted to the federal government are exclusively reserved to the federal government, and therefore not a right granted to the States or its people. Notwithstanding the 10th Amendment and its implications, consider the following provisions under Article 8 of SB 1070:
A. NO OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE MAY ADOPT A POLICY THAT LIMITS OR RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW.
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).
E. A LAW ENFORCEMENT OFFICER, WITHOUT A WARRANT, MAY ARREST A PERSON IF THE OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT THE PERSON HAS COMMITTED ANY PUBLIC OFFENSE THAT MAKES THE PERSON REMOVABLE FROM THE UNITED STATES.
These provisions in SB 1070 are the sections of the law that are in question, namely sections B and E, under Article 8. What deserves attention in section B is the terminology “for any lawful contact” as it pertains to a “law enforcement official or agency of this state or a county, city, town or other political subdivision.” When taken together the language casts a rather wide net on the persons and institutions that may pull the immigration status of the individuals with whom they are in contact. For example, the Health Department is considered an agency of the state. Therefore it is lawful, according to this provision, for this agency to make a reasonable attempt to determine the status of a person. Consequently, an animal control officer, formerly known as a dogcatcher, is a law enforcement officer with arrest powers, and is therefore allotted this authority under section B. Moreover one can make the argument that lawful contact can entail almost any contact between an agency or enforcement officer and the individuals they serve.
To expand on the lawful contact language and the circumstances surround contact between agencies and law enforcement officers: is it lawful contact for an officer to speak to a person, or in a case where a person calls for emergency assistance, receives medical services, or reports a crime? When DUI check points are installed, would the interaction between citizens and officers at this checkpoint be considered lawful contact? These are some of the many concerns opponents of this law are calling into question.
Giving these powers to state agencies and enforcement officers redefines, in most cases, the primary purpose of these agencies and enforcement officers. For example, the role of the health department, whose primary purpose is to control disease, treat the sick, manage public health practices, and partner with the community, would change with the implementation of SB 1070. Implementation of SB 1070 would result with the health department determining the immigration status of its patients whom they are in contact with and conveying that information to the appropriate entities, which can have a harmful effect on the primary purpose of this agency. In the case of law enforcement officers, criminal leads in murder investigations and such, may be at risk because certain parts of the population would be reluctant to come forward, and not necessarily because they themselves have a questionable immigration status, but because they reside or interact with those who are of a questionable status.
Added to this confusion is section E under Article 8. According to this provision, a law enforcement officer may arrest a person without warrant. (Stop and reread the last sentence one more time, without thinking it’s referring to some Cold War Soviet State) In the United States of America, all persons residing within its borders are afforded the presumption of innocence. This principle places the burden of proof on the accuser and affords us the liberty of not being treated like a criminal or subjected to criminal warrants (searches) without just cause. Also, a warrant is a legal writ that is obtained from a judge who determines if there is reason (probable cause) to usurp certain individual liberties, allowing those rights to be curtailed. Therefore, under normal circumstances, a warrant is necessary for an arrest absent an actionable crime.
Thus including the language, “a law enforcement officer, without warrant” removes a liberty granted by the spirit of the Constitution and usurps due process laws of all persons in the state of Arizona. Further, when used in conjunction with the language “if an officer has probable cause to believe” that a person “has committed any offense that makes a person removable from the United States” gives officers the ability to utilize a “hunch” to make a determination on a persons immigration status, because that is about the only offense that makes a person removable from the United States.
To expand on the “hunch,” that is to say there is no probable cause when it comes to immigration status in the circumstance of a law enforcement officer in the general public. Probable cause can be defined. In the case where an officer believes one is intoxicated, the justification may be in some observable behavior, whether driving, speech, cognition, smell, report, etc. Even in the case of a crime such as robbery or murder, one may match the description of the perpetrator, blood on the clothes, driving a vehicle that is reported stolen, etc.; there is a smoking gun. However, there is no smoking gun that can be observed where immigration status is concerned. It is no different than an officer trying to determine, by looking at a person, if that person is a speeder or was speeding, absent outside information. It’s impossible!
Given the tools available to state enforcement officers, there is no legal manner in which a person’s legal status can be determined, absent a warrant, without violating a person’s civil rights. To prove the latter statement one only has to ask, how can a person’s legal status be determined by just looking at them so as to give law enforcement probable cause to believe the person has committed a removable offense? How would the officer determine probable cause? Would it be determined by looking at the individual’s nationality, sex, race, sexual orientation, color, age, disability, or political persuasion, what? Unless Arizona were to crop-dust the border with purple dye, only then, an officer can reasonably conclude an individual with purple stained shoes or clothes illegally crossed the border.
Finally section A under Article 8, demands that all entities enforce the provisions of the law without conscience, and makes it a criminal offense not to enforce the provisions of the law as it is written. Therefore all cities, towns, agencies, officers, and political subdivisions of the state are criminally liable if they do not enforce sections B – J under Article 8.
Thus it can be said, with great confidence, this law will sooner or later be struck down in the courts. It will be struck down on the basis of federalizing the state and on the grounds that it violates individual liberties guaranteed by the constitution. And though laws could be written by lawmakers, our system of government is designed in such a way to protect liberty and justice; and no one body or action could change the intent and system of government of this great nation our Founding Fathers strove hard to preserve. God bless America!