Posted on 07/08/2010 8:01:32 AM PDT by Constitutionalist Conservative
In the real world, it’s called a “consequence”.
Actions have consequences.
Furthermore, it was also established conclusively (and very early on in the stop) in that case that at least some of the people were illegal because they had presented consular documents when asked for ID. The hypothesis I posit, is completely different, situationally.
If someone gives you consular documents, that's prima facie evidence that they aren't US citizens. The situation would have been much more complicated if those particular plaintiffs hadn't given anything other than their names to the police.
Plaintiff Tamup produced a Driver's License. My presumption and that of the officer is that he was at least a legal resident of the United States, enjoying all the constitutional protections that implies.
He joined the lawsuit.
And lost.
There are almost a dozen states that issue driver's licences to people irrespective of their immigration status. Nowhere in this case, is Tamup's citizenship or immigration status disclosed, as it's not material to the case.
Leaving that aside for a moment, do you understand what Estrada was about, and why it's wholly irrelevant to practical enforcement of the AZ law?
Plaintiff's in Estrada failed to survive defendant's motion for summary judgment because plaintiffs voluntarily provided enough information, including their consular ID's of a foreign nation, to support their detention and transfer to ICE. That's it.
The question becomes what happens when the "suspects" refuse to give any information other than that which they are obligated under Hibel and Terry to provide, and are still arrested. That is what is problematic for AZ, especially if AZ actually arrests any US citizens under this statute. I can promise you that there will be dozens, perhaps hundreds of activists, begging to get arrested in a similar scenario that I've described.
First of all, the Constitution protects “persons”, not just citizens or legal residents. When it comes to Constitutional protections, illegal entrants enjoy them just as much as anyone else. That’s why Plaintiff’s status is not material. (You were the one that brought up the illegal status of some of them)
Law Enforcement is entitled to know your identity, and under Muehler v. Mena, your immigration status. You may refuse to give this information to them, but you can be detained until your identity and status are ascertained, whether or not you are, in fact, a citizen, a legal resident, or an illegal entrant.
This is how ICE operates every day, as well as the Rhode Island State Patrol.
Why do you think the ACLU has not tried to “set up” ICE? Wouldn’t nailing a Federal Agency be a brighter feather in their cap?
The Arizona Law was carefully crafted to mirror US Immigration Law.
As for activists, I don’t care if a boatload of Daughters of the American Revolution sign on to your “set up” scenario. If the AZ police follow the law as written, and they refuse to provide them with their identity or immigration status, they can be detained until this information ascertained.
That’s what Estrada means.
They can sue, but they can’t win, and the ACLU, the Attorney General, and the President all know it.
That’s why they did not raise this issue in their lawsuit.
No, some of the Constitution's protections apply to citizens, and some of it protects "persons". The Constitution doesn't allow that the "state" require you to carry with you identification (or so the Court has held). However, non-citizens may be (and are) required to carry their documentation with them at all times. See the difference? One standard for citizens, a different standard for non-citizens.
As for Muehler v. Mena, that IS NOT what the court held. First, the court held that it was allowable to detain someone in handcuffs while a search warrant was being executed without violating their 4th Amendment protections. Second, the Court also held that while a person was being detained, it was allowable to question them about their immigration status absent probable cause also without violating their 4th Amendment protections.
"Why do you think the ACLU has not tried to “set up” ICE? Wouldn’t nailing a Federal Agency be a brighter feather in their cap?"
I am not aware of any instance where RI police have arrested someone solely on immigration concerns. And, even if they have, you either don't understand or choose to ignore the broader and more relevant point - What happens when an American citizen refuses to answer questions about their immigration status? That has never been litigated, and I suspect when it does - as it surely will with the AZ statute - the Court is going to demand that the police demonstrate that they've based their arrest on something more that the suspects color, clothes, speech or refusal to answer immigration questions.
You see, just because the Court has held law enforcement may question someone about their immigration status without violating their 4th Amendment rights, it doesn't mean that law enforcement can arrest someone based on non-cooperation, especially if that someone is doing something that is plainly legal and facially non-suspicious - like riding as a passenger in a passenger van with a licensed driver on a public road.
"This is how ICE operates every day, as well as the Rhode Island State Patrol."
Really, ICE arrests US citizens every day? I think not.
This is the provision of SB 1070 (pulled from the AZ state "fact sheet" that will cause AZ problems with enforcement
"Allows a law enforcement officer, without a warrant, to 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 U.S."
This isn't like an ICE raid on a meat-packing plant where federal law requires that employers have I-9 documentation for all employees. This is about police arresting someone that they think might be illegal. As I said, it will be interesting to see if "someone looking and sounding" like a foreigner is held to be probable cause for arrest absent any other information. I think how the federal courts will side in that question, is plainly predictable.
Again, there is nothing facially unconstitutional about this law. It does not violate the Supremacy Clause or the principle of field preemption. BUT, there's a wide divide between how a law is written, and how it's enforced. It's enforcement is where the peril for AZ lays.
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