Skip to comments.Sheriff Can't Detain Suspected Illegal Aliens
Posted on 09/26/2012 4:48:22 PM PDT by SeekAndFind
Sheriff Joe Arpaio may not detain suspects based solely on a belief that they are in the country illegally, the 9th Circuit ruled.
The federal appeals panel in San Francisco late Tuesday upheld a preliminary injunction in a class action over the sheriff's alleged pattern of racial profiling. Other issues in the action went to trial in Phoenix in late July.
Manuel de Jesus Ortega Melendres, David and Jessica Rodriguez, Manuel Nieto Jr., Velia Meraz and the organization Somos America sued Arpaio and the Maricopa County Sheriff's office over three traffic stops during a 2006 anti-illegal immigration sweep. The plaintiffs claimed in a 2007 complaint that they were racially profiled as Latinos and illegally singled out for arrest.
U.S. District Judge G. Murray Snow issued the preliminary injunction in 2011, prohibiting deputies from "detaining any individual 'based only on knowledge or reasonable belief, without more, that the person is unlawfully present within the United States."
Snow has yet to rule on other aspects of the case, which was the subject of seven-day bench trial in July. Whatever his ruling, the case is likely to return the 9th Circuit on appeal.
In Tuesday's limited review of the preliminary injunction, a three-judge appeals panel found that the plaintiffs were likely to succeed with their Fourth Amendment claims, and that they were likely to be profiled again in the absence of a court order.
"Even if the plaintiffs comply with all criminal laws enforceable by the defendants, under the defendants' view of the Fourth Amendment, the plaintiffs remain vulnerable to unlawful detention solely because an officer has reasonable suspicion or knowledge that they are not authorized to be present in the United States," wrote Judge J. Clifford Wallace for the unanimous panel.
The panel found the plaintiffs' case strong and likely to succeed because "mere unauthorized presence is not a criminal matter, [and] suspicion of unauthorized presence alone does not give rise to an inference that criminal activity is 'afoot.'"
"While the seizures of the named plaintiffs based on traffic violations may have been supported by reasonable suspicion, any extension of their detention must be supported by additional suspicion of criminality," Wallace wrote. "Unlawful presence is not criminal.Nor does illegal presence, without more, give rise to reasonable suspicion of violation of Arizona's human smuggling statute, as the defendants maintain."
The 9th Circus strikes again...Idiots!
Sheriff Joe should appeal. These fools are almost always reversed on appeal.
9th Circuit court ‘slapped down’ in 3, 2, 1...
It always reaches a point where the courts and LE disagree. At that point LE, in order to uphold their oath of, to serve and protect, have to tell the court to enforce their law, because LE has decided to disobey a court ruling, in order to serve and protect the public.
You have to say that really fast, faster than I can, for it to begin to make sense.
I propose that we adopt Mexico's immigration laws.
foreign invasion is free and clear
come on in
welfare for all
If only Sheriff Joe could transport them all and release them in D.C., right in front of the Capitol Bldg. or White House.
This should go all the way to the Supreme Court, although we can no longer count on Roberts, because it is apparent that the Left has some big blackmail item hanging over his head like Damocles' sword.
> Sheriff Can’t Detain Suspected Illegal Aliens
At least not until they vote for Hussein, probably.
Can 1324(a)(1)(A)(ii) "Any person who -- knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law" be applied to a local police officer who conducts a traffic stop and finds a driver of a car (who may be an illegal) who has other people in the car as passengers (who are illegal) under the "transports" clause?
(a) Criminal penalties
(A) Any person who
(i) knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien;
(ii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law;
(iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation;
(iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law; or
(I) engages in any conspiracy to commit any of the preceding acts, or
(II) aids or abets the commission of any of the preceding acts,
shall be punished as provided in subparagraph (B).
In other words, could Arizona police officers (under the definition of "any person who" be held in violation of this law by not detaining someone they suspect to be in violation of the above clause?
(c) Authority to arrest
No officer or person shall have authority to make any arrests for a violation of any provision of this section except officers and employees of the Service designated by the Attorney General, either individually or as a member of a class, and all other officers whose duty it is to enforce criminal laws.
Does "all other officers whose duty it is to enforce criminal laws" refer to state and local police officers?
(3) Upon the request of the governor or chief executive officer of any State, the Service shall provide assistance to State courts in the identification of aliens unlawfully present in the United States pending criminal prosecution.
The governor has the power to request the federal government to assist in the determination of immigration status of detained suspects.
So, Federal law allows for Arizona police to detain suspected illegal aliens pending ICE review.
The Governor can request federal support in determining the status of detainees.
TITLE 8 > CHAPTER 12 > SUBCHAPTER II > Part IV > § 1226 (Apprehension and detention of aliens) says:
(d) Identification of criminal aliens(1) The Attorney General shall devise and implement a system—(A) to make available, daily (on a 24-hour basis), to Federal, State, and local authorities the investigative resources of the Service to determine whether individuals arrested by such authorities for aggravated felonies are aliens;(B) to designate and train officers and employees of the Service to serve as a liaison to Federal, State, and local law enforcement and correctional agencies and courts with respect to the arrest, conviction, and release of any alien charged with an aggravated felony; and(2) The record under paragraph (1)(C) shall be made available—(A) to inspectors at ports of entry and to border patrol agents at sector headquarters for purposes of immediate identification of any alien who was previously ordered removed and is seeking to reenter the United States, and
The federal code requires that the Attorney General create a database of legal immigrants that local law enforcement can call upon for verification of suspected illegal immigrants. The local law enforcement would not access this database directly, but would go through a liaison within the Justice Department. The federal code says that the Justice Department is to make this system available on a 24-hour basis.
TITLE 8 > CHAPTER 12 > SUBCHAPTER II > Part V > § 1252c
§ 1252c. Authorizing State and local law enforcement officials to arrest and detain certain illegal aliens(a) In generalNotwithstanding any other provision of law, to the extent permitted by relevant State and local law, State and local law enforcement officials are authorized to arrest and detain an individual who—(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction,but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual and only for such period of time as may be required for the Service to take the individual into Federal custody for purposes of deporting or removing the alien from the United States.(b) CooperationThe Attorney General shall cooperate with the States to assure that information in the control of the Attorney General, including information in the National Crime Information Center, that would assist State and local law enforcement officials in carrying out duties under subsection (a) of this section is made available to such officials.
1252c specifically authorizes states to arrest and detain certain illegal aliens.
Doesn’t work that way. When LE starts holding living, breathing human beings without the consent of the court, then due process is gone. At that point, the jailer is a common kidnapper.
Those dead white guys knew what they were doing when wrote that bit about being deprived of liberty without due process of law.
How can "TITLE 8 > CHAPTER 12 > SUBCHAPTER II > Part VIII > § 1324. Bringing in and harboring certain aliens" make harboring an illegal alien criminal, but the illegal alien's presence itself is not criminal?
It’s like being high. Possession of marijuana is illegal. However, if the police find you high in your living room, and you’ve smoked all of your marijuana leaving them nothing to find, there isn’t a damned thing they can do. Being high isn’t illegal in your living room, but possessing marijuana is, and you don’t have any (left).
Only one place to appeal, and no chance of getting on the docket this year.
I thought this Arizona law already went to the Supreme Court and this part of the law was upheld. Are there any lawyers out there who can explain? I know that the 9th Circus gets overruled frequently.
If it isn't illegal to be present illegally, then why is it illegal to hide someone who is here illegally, or to transport someone who is here illegally?
“Latino” or “Hispanic” is not a race.
Dunno, I'm not a lawyer. However, being here illegally is an administrative offense, not a criminal one. That's been explained in so many venues by so many sources that I've lost count.
wonder what the gardeners look like at certain residences....