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Sheriff Can't Detain Suspected Illegal Aliens
Courthouse News Service ^ | 09/26/2012 | Tim Hull

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."


TOPICS: Constitution/Conservatism; Culture/Society; US: Arizona
KEYWORDS: 9thcircuit; aliens; illegals; immigration; joearpaio; sb1070; sheriffjoe

1 posted on 09/26/2012 4:48:25 PM PDT by SeekAndFind
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To: SeekAndFind

The 9th Circus strikes again...Idiots!


2 posted on 09/26/2012 4:49:42 PM PDT by JohnD9207 (Mitt better grow a pair or this thing will be over soon.)
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To: SeekAndFind

Sheriff Joe should appeal. These fools are almost always reversed on appeal.


3 posted on 09/26/2012 4:53:04 PM PDT by Czar (NRA Life Member)
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To: SeekAndFind

9th Circuit court ‘slapped down’ in 3, 2, 1...


4 posted on 09/26/2012 4:53:09 PM PDT by skeeter
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To: SeekAndFind

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.


5 posted on 09/26/2012 4:53:09 PM PDT by no-to-illegals (Please God, Protect and Bless Our Men and Women in Uniform with Victory. Amen.)
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To: SeekAndFind
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,

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.

/johnny

6 posted on 09/26/2012 4:53:30 PM PDT by JRandomFreeper (Gone Galt)
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To: SeekAndFind

foreign invasion is free and clear

come on in

welfare for all


7 posted on 09/26/2012 4:53:31 PM PDT by GeronL (http://asspos.blogspot.com)
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To: SeekAndFind

If only Sheriff Joe could transport them all and release them in D.C., right in front of the Capitol Bldg. or White House.


8 posted on 09/26/2012 4:57:56 PM PDT by Obama_Is_Sabotaging_America
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To: SeekAndFind
The most-reversed Circuit Court in the United States takes a dump on the rule of law. Big, big surprise--NOT.

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.

9 posted on 09/26/2012 4:58:49 PM PDT by backwoods-engineer (My game is disruption. I will use lethal force --my vote-- in self-defense against Obama.)
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To: SeekAndFind

> Sheriff Can’t Detain Suspected Illegal Aliens

At least not until they vote for Hussein, probably.


10 posted on 09/26/2012 4:59:19 PM PDT by Jyotishi (Seeking the truth, a fact at a time.)
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To: SeekAndFind
TITLE 8 > CHAPTER 12 > SUBCHAPTER II > Part VIII > § 1324. Bringing in and harboring certain aliens

(a) Criminal penalties
(1)
(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
(v)
(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).

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?

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?

Back to 1226...

(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
(C) which uses computer resources to maintain a current record of aliens who have been convicted of an aggravated felony, and indicates those who have been removed.
(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
(B) to officials of the Department of State for use in its automated visa lookout system.
(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 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.

More...

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 general
Notwithstanding 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—
(1) is an alien illegally present in the United States; and
(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) Cooperation
The 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.

-PJ

11 posted on 09/26/2012 5:07:03 PM PDT by Political Junkie Too ( It doesn't I naturally when you're not natural born.)
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To: no-to-illegals

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.


12 posted on 09/26/2012 5:10:25 PM PDT by Melas (u)
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To: SeekAndFind
"Unlawful presence is not criminal."

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?

-PJ

13 posted on 09/26/2012 5:10:41 PM PDT by Political Junkie Too ( It doesn't I naturally when you're not natural born.)
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To: Political Junkie Too

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).


14 posted on 09/26/2012 5:13:56 PM PDT by Melas (u)
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To: Czar

Only one place to appeal, and no chance of getting on the docket this year.


15 posted on 09/26/2012 5:15:22 PM PDT by Melas (u)
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To: backwoods-engineer

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.


16 posted on 09/26/2012 5:15:58 PM PDT by forgotten man (forgotten man)
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To: Melas
That must be what the 9th Circuit is doing, because the illegal act isn't just the illegal crossing itself, it's also the continued illegal presence without authorization.

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?

-PJ

17 posted on 09/26/2012 5:17:47 PM PDT by Political Junkie Too ( It doesn't I naturally when you're not natural born.)
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To: SeekAndFind

“Latino” or “Hispanic” is not a race.


18 posted on 09/26/2012 5:21:05 PM PDT by exit82 (Pass the word: Obama is a FAILURE!! Democrats are the enemies of freedom!)
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To: Political Junkie Too
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?

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.

19 posted on 09/26/2012 5:23:07 PM PDT by Melas (u)
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To: JohnD9207

wonder what the gardeners look like at certain residences....


20 posted on 09/26/2012 5:24:53 PM PDT by ptsal (E)
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To: SeekAndFind

Joe Arpaio needs to give these illegals a bus ride and drop them off at the homes of the people on the federal appeals panel in San Francisco.


21 posted on 09/26/2012 5:26:01 PM PDT by Irish Eyes
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To: SeekAndFind

Round the judges up and lock them up.


22 posted on 09/26/2012 5:27:53 PM PDT by bmwcyle (Corollary - Electing the same person over and over and expecting a different outcome is insanity)
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To: SeekAndFind

The freaking world is upside down. These idiots on the court are telling the good Sheriff that he can’t enforce the &*^$@!+% LAW, for crying out loud!


23 posted on 09/26/2012 6:11:26 PM PDT by Windflier (To anger a conservative, tell him a lie. To anger a liberal, tell him the truth.)
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To: Melas
Dunno, I'm not a lawyer.

Thank you. At least that is an explanation.

24 posted on 09/26/2012 6:33:13 PM PDT by no-to-illegals (Please God, Protect and Bless Our Men and Women in Uniform with Victory. Amen.)
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To: Czar
What you said struck me as hyperbole, so I checked. Turns out, you're right. Astounding!

"U.S. Supreme Court again rejects most decisions by the U.S. 9th Circuit Court of Appeals Judges in the circuit's nine Western states are more liberal than the high court justices, who reversed or vacated 19 of the 26 decisions they examined for the last term.

http://articles.latimes.com/2011/jul/18/local/la-me-ninth-circuit-scorecard-20110718
25 posted on 09/26/2012 6:37:52 PM PDT by USFRIENDINVICTORIA
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To: Political Junkie Too
During the Obama regime America is no longer a nation of laws, and we are into a post-Constitutional era. Will we survive?
26 posted on 09/26/2012 6:41:47 PM PDT by Cheerio (Barry Hussein Soetoro-0bama=The Complete Destruction of American Capitalism)
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To: Windflier

My reply..

Ok. We’ll turn um loose. Be there tomorrow with the first bus load. How many fit in your court room?


27 posted on 09/26/2012 6:47:22 PM PDT by cableguymn (peace through strength. if they don't like you at least they will fear you.)
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To: Windflier

My reply..

Ok. We’ll turn um loose. Be there tomorrow with the first bus load. How many fit in your court room?


28 posted on 09/26/2012 6:48:27 PM PDT by cableguymn (peace through strength. if they don't like you at least they will fear you.)
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To: SeekAndFind

so they will be arrested for anything and that will give the reason for the detention.


29 posted on 09/26/2012 6:51:06 PM PDT by longtermmemmory (VOTE! http://www.senate.gov and http://www.house.gov)
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To: cableguymn
The American people have a breaking point. They can't take this oppression from the courts and their government forever. When they finally snap, the elites are going to involuntarily evacuate their bowels in terror. Everything will reverse overnight, with nary a shot being fired.

Well, maybe not too many shots.

30 posted on 09/26/2012 6:52:48 PM PDT by Windflier (To anger a conservative, tell him a lie. To anger a liberal, tell him the truth.)
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To: Cheerio
Will we survive?

yep, you can bet your bottom dollar! unless God says no.

31 posted on 09/26/2012 6:59:44 PM PDT by no-to-illegals (Please God, Protect and Bless Our Men and Women in Uniform with Victory. Amen.)
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To: SeekAndFind

Do you think this is just the start of things to come.Remember a few days ago..Woman blames SB 1070 for mother’s traffic arrest
.PHOENIX — Erika Andiola’s mother was pulled over by Mesa Police Saturday night for speeding but Andiola believes there was another reason, a reason police said is irrelevant.

“According to the police she was going 50 miles per hour when it was supposed to be 40,” Andiola told 92.3 KTAR’s Jay Lawrence.

“I actually went to speak to one of the cops and he didn’t even want to answer whether he stopped them or not because of the color of their skin but I honestly felt that was the reason why that happened.”

Andiola added that her mother and two siblings who were also in the car were adamant that they weren’t speeding. The family is Hispanic.

http://ktar.com/22/1577349/Woman-blames-SB-1070-for-mothers-traffic-arrest

Earlier..Phoenix police: Officer wasn’t wrong in ICE arrest http://www.azcentral.com/community/phoenix/20120921phoenix-police-officer-wasnt-wrong-ice-arrest.html Check out this key quote... “He told me, ‘The only reason that the officer stopped me was because we looked Hispanic. If we looked Anglo they wouldn’t have stopped us,’ “
“He told me, ‘The only reason that the officer stopped me was because we looked Hispanic. If we looked Anglo they wouldn’t have stopped us,’ “

MCSO: Illegal immigrant used fake ID to try to enter Palo Verde Nuclear Power Plant.
MARICOPA, AZ - Maricopa County Sheriff’s deputies say they arrested an illegal immigrant Wednesday after learning he attempted to enter the Palo Verde Nuclear Power Plant by using false identification

Read more: http://www.abc15.com/dpp/news/region_central_southern_az/maricopa/illegal-immigrant-nestor-martinez-ochoa-used-fake-id-to-try-to-enter-palo-verde-nuclear-power-plant#ixzz27d6prk8n

It will be interesing to see what becomes of this illegal.Will it be catch and release ?
Another racial profiling,case.. Sept 19,2012
North Carolina sheriff accused of ‘egregious’ targeting Latinos for deportation
A Justice Department report said Sheriff Terry S. Johnson encouraged his staff to use racial epithets and was heard referring to Latinos as “taco eaters” prone to drinking, drug dealing and other crimes.

Read more: http://www.nydailynews.com/news/national/north-carolina-sheriff-accused-egregious-racial-profiling-targeting-latinos-deportation-article-1.1162932#ixzz27d9ZxW8h

Latinos living without immigration papers in Arizona have begun bombarbing helplines and lawyers’ offices with anxious requests about how to provide for their children should they be arrested under a controversial new police power that came into effect this week.

A phone line hosted by the Arizona branch of the American Civil Liberties Union has received almost 4,000 calls in just two days, many from anxious parents who fear that their children could be left abandoned should they be picked up under the so-called ‘show-me-your-papers’ provision. Hundreds have been asking for help setting up a “power of attorney”, which gives a relative or friend who has US citizenship the right to care for minors in such an eventuality.

“People are terrified. They fear that they will go to the store to buy groceries and won’t get home and their kids will be left alone at school,” said Luz Santiago, a pastor in Mesa. She said she has personally handled about 50 requests for power of attorney since Tuesday.

http://www.guardian.co.uk/world/2012/sep/20/arizona-undocumented-latinos-law

I think in the coming days,weeks,months we will see more lawsuits filed under the guise of racial profiling.


32 posted on 09/26/2012 7:02:14 PM PDT by moonshinner_09
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To: SeekAndFind

For all the headlines, this doesn’t really change much. The Mormon illegal alien stooge Judge had already blocked Arpaio from this impossible-to-prove “standard” before and Joe has conducted a dozen workplace raid since.


33 posted on 09/26/2012 7:09:15 PM PDT by montag813
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To: Political Junkie Too
Laws don't mean cr@p. but Injunctions do, got it?

</sarcasm>

34 posted on 09/27/2012 2:21:13 PM PDT by itsahoot (I'll write in Palin in 2012. That is 1 vote for Palin, 0 votes for Romney and Zer0 votes for Obama.)
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