A Shining City on a Hill

For some of my conservative friends, this probably won’t be the most popular post I’ve written. Most of you know that I bring a unique perspective to the issue of immigration as the dad of two legal immigrants. As I’ve watched the debate develop in the week since Arizona’s governor signed a new illegal immigration law, a few things have bothered me.

First, this new law has a variety of provisions which are appropriate, such as cracking down on employers who hire illegal immigrants. The lack of security on our borders is a grave national security risk to the United States. Illegal immigration needs to be brought under control by our federal government, period.

As we all know, there are major gaps in our border security right now. The real question here is: how far are we willing to go inside our borders, when American citizens are supposed to be guaranteed the presumption of innocence?

That’s the worrisome part of this new law: the potential violation of Fourth Amendment rights enjoyed by American citizens. The key legal wording is that law enforcement officers will be required to stop and question individuals that they have a “reasonable suspicion” are in the country illegally.

“Reasonable suspicion” is not the standard we have used for the 234 years of our representative democracy. We have always given law enforcement the right to make an arrest, conduct a personal or property search or obtain a warrant only if they believe there is “probable cause” that a crime has been committed.

Here’s the text from the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The bottom line is, this is an impossible law for our law enforcement officers to enforce, unless we want to see an America where it is common for police officers to stop people on the street and demand to see their papers without probable cause.

Worse – and here’s where my “dad” instincts come into play – I can’t imagine how you might develop a “reasonable suspicion” that doesn’t also meet the standard of “probable cause”…unless you base that suspicion on the color of the person’s skin.

I have yet to meet a single one of our dedicated law enforcement officers who want to be put into that position. And my son and daughter, as American citizens, deserve the same freedom that I have, to walk down our streets without being stopped and asked for their “papers” like they do in totalitarian regimes.

This great country of ours is a nation of immigrants, and each brick that has been laid in our history has contributed another color, another accent, another culture and another perspective to the beautiful house that is America.

President Reagan said it best:

I’ve spoken of the shining city all my political life, but I don’t know if I ever quite communicated what I saw when I said it. But in my mind it was a tall proud city built on rocks stronger than oceans, wind-swept, God-blessed, and teeming with people of all kinds living in harmony and peace, a city with free ports that hummed with commerce and creativity, and if there had to be city walls, the walls had doors and the doors were open to anyone with the will and the heart to get here. That’s how I saw it and see it still.

I remember watching President Reagan say those words and being incredibly proud to be an American that day.

We have nothing to fear from legal immigration – in fact, we have everything to gain. I am convinced we can have freedom and security without paying this heavy price.

JudyS

Perhaps you should read the law. People walking down the street will not be “asked for papers”. Immigration status will only come into play when a person is approached by the police for another legal reason (example: you get pulled over for speeding). If you are already breaking the law, then it is reasonable for the police to ask for your status. If our federal government would actually enforce the existing immigration laws, then AZ would not have passed this law. I applaud AZ for taking a bold step.
http://www.aaronklein.com/ AaronKlein

Hi Judy,

Thanks for commenting, but that's just not accurate. The police can do what you describe today under the Fourth Amendment. If they have probable cause that a person is breaking the law (i.e. being pulled over for speeding) they can request documentation. And rightfully so! We depend on them for our protection and security.

What the Arizona law does is actually require police officers in Arizona to question individuals that they have a “reasonable suspicion” are in the country illegally. No probable cause that a crime took place. Just a suspicion that they might be here illegally. That's a dramatic lowering of the bar and a violation of our Fourth Amendment rights.

We need to equip law enforcement with the tools to get their job done, but this is a bridge too far, I'm afraid.

Aaron
Megan

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

I'm not a lawyer, but doesn't, “any lawful contact made by a law enforcement official,” mean that the cop has to have probable cause to start this whole process? If there's any way for a cop to approach someone and ask for documentation of legal status just because he feels like it, then the bill ought to go, but that's not what it sounds like to me.
http://www.aaronklein.com/ AaronKlein

I'm not sure this would be so problematic if it was interpreted that narrowly. However, the consensus I've heard on all sides — conservative and liberal — is that the “reasonable suspicion” modifies the threshold for a lawful contact.

Here's another way to look at it. If an officer has probable cause, the very first thing they ask for is identification. After already having probable cause, there is no need for any further suspicion to trigger a verification of identity or legal status. Officers can do that today under the Fourth Amendment.
Megan

I don't get it. This law cites “lawful contact” and in doing so changes the definition of “lawful contact” from probable cause to suspicion? Sounds like Catch 22. Or is “lawful contact” not the same as probable cause?
My Colt Detective Special and I think no cop has a right to make contact with me without probable cause.
http://www.aaronklein.com/ AaronKlein

Legislatures create artful language all the time so they can try and change or adapt its meaning later to preserve what they passed when and if it gets challenged and goes to the Supreme Court. Definitions of these phrases are key, and there are three definitions that matter here: “probable cause”, “lawful contact” and “reasonable suspicion.”

Probable cause is very clear and has been defined for years by the courts. It's well above reasonable suspicion – you have to have good reason to know that a crime has very likely been committed.

If “lawful contact” was equal to probable cause, then this law isn't even necessary. Probable cause allows a police officer to arrest and hold a US citizen for a limited period of time for any reason whatsoever. Probable cause certainly allows a police officer to request identification and make an arrest if valid identification is not produced.

Therefore, I don't see how “lawful contact” is equal to probable cause. I'm guessing that this phrase was inserted so that Arizona could argue to the Supreme Court that they were specifically disallowing racial profiling. However, that circles us right back to the question: under what circumstances should law enforcement officers walk up to someone and demand identification without probable cause?

There's a further problem: if you note the language, it doesn't just allow the officer to request ID, it requires the officer to do so. An officer could actually be held liable or disciplined by their department if they did not request ID from someone that a “reasonable person” would suspect of being an illegal immigrant (that's the definition of “reasonable suspicion”).

These are the kinds of situations that the Constitution was designed to eliminate. Our law enforcement officers need the tools to enforce the law. But our citizens deserve the protection that the Fourth Amendment was designed to give them.
Ben

No question this law allows cops to go to far. But could the circumstances ever justify it? The federal government has not done an adequate job in preventing illegal immigration, and the crime associated with illegal immigration has grown out of control. Should Arizona continue to wait for the Feds get their act together?

This issue will spells disaster for the Republican Party, but at least it will help us get rid of McCain.
Tyler G

Aaron,

What do you propose we do? When you have crap like (http://www.myfoxphoenix.com/dpp/news/local/pina…) that happening, something needs to be done. You know Washington can't fix it, hell even today Reid proposed an amnesty package. I support Gov. Brewer for taking a stand; the law isn't perfect, but I believe it gets the job done.
http://www.aaronklein.com/ AaronKlein

I don't think “ends justify the means” is a great argument when we're talking about the Bill of Rights.
tonywaters

Aaron–I'm with you on this one. I am all for a sane and fair immigration system too, like the other writers here. But enforcement of the existing laws is not done in a fair fair and even-handed way by the federal government now. To do this requires overhaul of the convoluted situation we have now in our embassies, at the border and at the over-burdened immigration offices in places like Sacramento. Officers are enforcing so many rules and regulations that any semblance of a practical fair system is not really possible for either the foreign visa applicant, or the United States. Ask any of your international students at Sierra to find out what some of these difficulties are.

With respect to the “lawful contact,” one concern I have with the Arizona law is that it means that witnesses to crimes will be reluctant to come forward. Reporting a serious crime is a “lawful contact” which puts potential witnesses at risk.

The biggest objection I have though is the singling out of the . It puts the onus of the failures in our immigration system on the “weakest link” e.g. the Mexican laborer who overstayed a visa to work as a day laborer. There is no attempt to deal with employers, or even home owners (like me) who have hired contractors who probably used illegal labor on their roof job. Or for that matter the politicians who take campaign contributions from farmers, restaurant and factory owners who employ large numbers of illegals. There is plenty of blame to go around.
http://www.aaronklein.com/ AaronKlein

Thanks, Tony. I definitely agree…the immigration system is fundamentally broken and needs a top-to-bottom restructuring. Appreciate your comment.
russinsight

Arron,

Did the amendments to SB1070 specifically prohibiting racial profiling change your views. Please see my post at http://ncwatch.typepad.com/media/2010/05/cluele…, including Jeff Pelline comment and may answer.

Russ
http://www.aaronklein.com/ AaronKlein

Russ, it appears from my initial reading of the amendments that the standard of probable cause was restored, which was my biggest concern here. To be honest, that seems to reduce that part of the new law to symbolism because police officers could and should have been checking legal status with probable cause before it was passed.

The whole brouhaha points to one big thing: the federal government is doing a horrible job of preventing illegal immigration from happening in the first place. For the sake of our national security, we've got to seal the border, and then widen the gates of the shining city to attract the legal immigrants that will have a direct and positive impact on our country.
http://www.aaronklein.com/ AaronKlein

I don't think the issue has to spell disaster for the Republicans. This issue is one of the reasons I'm a big fan of Jeb Bush: he's unflinching when it comes to illegal immigration, but he knows and understands the value of legal immigration.
http://twitter.com/samcarstensen Samuel Carstensen

The “reasonable suspicion” qualification tells us when “lawful contact” may occur. It doesn't take a complete exegesis of this new law to understand this much.

Thankfully, reasonable suspicion is not solely a term of art to give arbitrary and potentially discriminating power to officers. There are quite a few statutes and court opinions in Arizona (as in California!) that tell us what MUST be in order to establish reasonable suspicion. I have read a number of these cases that mention the need for a plurality of indications in order to meet this standard. Simply put, a police officer would not be able to pull over or stop an individual based on their race.

I understand your concerns regarding the perceived change in the “probable cause” standard. However, I believe that we're missing the point with such an argument. SCOTUS upheld the right of law enforcement to demand identification on reasonable suspicion, as long as there is a “stop and identify” law in that state. See Hiibel v. Sixth Judicial District Court of Nevada. Such a law exists in Arizona, California, and 22 other states. Currently, a police officer only needs to meet the reasonable suspicion standard to frisk a person, ask for identification, and even temporarily detain that person (NOT probable cause). See Terry v. Ohio.

Thus, the point of contention is, what constitutes identification? Currently, there is a circuit split on the issue. A challenge to this new law may end up at the SCOTUS to decide this issue once and for all. My guess is that if the courts have already given police such power under the reasonable suspicion standard, they will not find it any more burdensome to individual liberties.

Unfortunately, I think that the critics (and supporters) of this new law have too quickly jumped onto their respective bandwagons without researching these constitutional issues.

But I do expect this law to be challenged on a completely different argument: the Supremacy Clause. The SCOTUS has declared that the “power to regulate immigration is unquestionably exclusively a federal power.” See DeCanas v. Bica. Sure enough, under the Immmigration and Nationality Act, Congress regulates immigration and the executive branch enforces it.

My prediction is that the constitutionality of this law will come down to whether it encroaches on the federal immigration enforcement scheme. Although this appears to be a rather arbitrary standard, the courts have struck down a number of state provisions on these grounds, even our very own Proposition 187 in California. Whether or not we agree with this reasoning, I am sure that Arizona's new sweeping measure will face similar scrutiny.
http://www.aaronklein.com/ AaronKlein

Thanks for the legal perspective on this, Sam. As I've already said here a number of times, it all comes down to whether or not you believe the law lowers the standard from probable cause or not.

I can't figure out what this law was trying to do — beyond make a statement — if it was not trying to lower the standard.

Your analysis about the Supreme Court's likely review are spot on. My only critique would be that you said the executive branch enforces immigration law — perhaps better stated “should” enforce it?
http://www.aaronklein.com/ Aaron Klein

Thanks for the legal perspective on this, Sam. As I’ve already said here a number of times, it all comes down to whether or not you believe the law lowers the standard from probable cause or not.rnrnI can’t figure out what this law was trying to do — beyond make a statement — if it was not trying to lower the standard.rnrnYour analysis about the Supreme Court’s likely review are spot on. My only critique would be that you said the executive branch enforces immigration law — perhaps better stated “should” enforce it?

A Shining City on a Hill

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