Arizona SB-1070 Amended
The Arizona State Legislature has amended the hotly contended SB-1070. In my untrained legal opinion, they pretty much had to, or face an immediate slapdown from the first federal court it wandered in to (see my previous post on the topic).
Well, let’s take a look at what they did. Here is the original SB-1070:
http://www.galactanet.com/sb1070s.pdf
And here is the amendment (Arizona HB-2162):
http://www.galactanet.com/hb2162c.htm
It’s a mess, as amendments to laws usually are. I read through it and did a lot of cross-referencing. The majority of the amendment affects laws not created by SB-1071. They mostly further define what constitutes proof of legal residency in proactive cases. And by “proactive” I mean that an individual is going to the government of their own volition and proving their legality in order to receive state benefits.
The portion that affects SB-1070 is Section 3. It makes significant changes to numerous portions of the bill.
SECTION B:
In the original law, Section B granted police officers the power to check immigration status for anyone in any situation that can be termed “Lawful Contact”. And “Lawful Contact” is any interaction a police officer has with anyone for any reason, so long as the officer himself is not committing a crime.
The Amendment has limited that power to situations of “lawful stop, detention, or arrest”.
It also appends this language to the section: “A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution.”
It further goes on to specify a list of things that will, by law, provide proof of legal residency. The list includes AZ driver’s license or non-operation state ID, Native American Tribal ID, and a complex edge case for people who are in the country legally, but awaiting their actual documentation, letting them use other forms of ID.
SECTION E:
You may recall from my earlier post how my main objections were to Section E. That section has now been completely replaced. Actually, it was removed entirely, and they needed a place to put a new clause, so they put it in to the hole left by Section E. The new Section E merely specifies some additional methods of proving legal residency with the assistance of federal offices.
ANALYSIS:
I think the amendment is a very large step in the right direction, but doesn’t quite go far enough. I still see significant Constitutional issues with the law, even in its amended form.
Section B now restricts the police’s ability to check immigration status to lawful stops, detentions, and arrests. A detention or arrest is a situation where it’s perfectly reasonable for the police to ascertain your identity, and by extension your legality in the US. But I want to talk about “stops” for a moment.
A “stop” is any time the police order you to remain where you are, for whatever reason. This includes traffic stops, but also an officer simply stopping you on the street because you match the description of a fugitive they’re looking for. I have no objection to the police ascertaining identity as part of a traffic stop; you are legally required to carry a driver’s license while driving and not doing so is a crime in itself. And, under the amended law, a driver’s license is automatic proof of legal residency.
But I don’t like that they can simply stop someone who is not committing a crime, say the person resembles a wanted fugitive, then use the fact that they stopped them to enact the legal residency check.
I also find it disturbing that driver’s licenses from other US states and territories don’t count as proof of legal residency. So if I (with my Massachusetts driver’s license) get pulled over for speeding in Arizona, the officer could decide to check my legal residency status, and my MA license would not automatically count as proof.
Finally, in the wording where it says the police can’t use race as a factor, it ends with “except to the extent permitted by the United States or Arizona Constitution.” I find that clause troubling. There is nothing in the US Constitution that prevents profiling. You could argue the US Constitution allows profiling through omission of mention, and thus it is “permitted” so the rest of the clause is void. In short, profile away!
As for the removal of Section E, I couldn’t be happier.
CONCLUSION:
I think it’s a great improvement, but I still find the law unconstitutional.
SUGGESTIONS:
In some parallel dimension where the Arizona State Legislature hangs on my every word and is constantly seeking my approval, this is what I would tell them to do:
1) Replace “stops” in Section B with “traffic stops”. Also add language in Section B to only allow the legal residency check on the *driver* of the vehicle, not the passengers.
2) Expand the list of things that prove legal residency in Section B to include any US state or territory’s valid driver’s licenses. To be safe, they could add a rider requiring that in order for an out-of-state license to count, the state laws of the issuing state must allow no legal way for an illegal alien to get a license.
3) Remove the trailing clause “except to the extent permitted by the United States or Arizona Constitution” from the language that prevents profiling.
If those three changes were made, I would consider the law constitutional. Police would only be able to check for legal residency in cases where they would already have legitimate reasons to verify identity (you have to actually commit a crime before it comes up), it would be easy to prove your legal residency with pretty much any form of ID, and profiling would be explicitly prohibited with no loophole to escape the provision. It wouldn’t prevent the police from profiling, but it would at least make profiling actionable (civil lawsuits), and would make profiling a potential exculpatory case in any criminal trial that results.
-ATW
Well, let’s take a look at what they did. Here is the original SB-1070:
http://www.galactanet.com/sb1070s.pdf
And here is the amendment (Arizona HB-2162):
http://www.galactanet.com/hb2162c.htm
It’s a mess, as amendments to laws usually are. I read through it and did a lot of cross-referencing. The majority of the amendment affects laws not created by SB-1071. They mostly further define what constitutes proof of legal residency in proactive cases. And by “proactive” I mean that an individual is going to the government of their own volition and proving their legality in order to receive state benefits.
The portion that affects SB-1070 is Section 3. It makes significant changes to numerous portions of the bill.
SECTION B:
In the original law, Section B granted police officers the power to check immigration status for anyone in any situation that can be termed “Lawful Contact”. And “Lawful Contact” is any interaction a police officer has with anyone for any reason, so long as the officer himself is not committing a crime.
The Amendment has limited that power to situations of “lawful stop, detention, or arrest”.
It also appends this language to the section: “A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution.”
It further goes on to specify a list of things that will, by law, provide proof of legal residency. The list includes AZ driver’s license or non-operation state ID, Native American Tribal ID, and a complex edge case for people who are in the country legally, but awaiting their actual documentation, letting them use other forms of ID.
SECTION E:
You may recall from my earlier post how my main objections were to Section E. That section has now been completely replaced. Actually, it was removed entirely, and they needed a place to put a new clause, so they put it in to the hole left by Section E. The new Section E merely specifies some additional methods of proving legal residency with the assistance of federal offices.
ANALYSIS:
I think the amendment is a very large step in the right direction, but doesn’t quite go far enough. I still see significant Constitutional issues with the law, even in its amended form.
Section B now restricts the police’s ability to check immigration status to lawful stops, detentions, and arrests. A detention or arrest is a situation where it’s perfectly reasonable for the police to ascertain your identity, and by extension your legality in the US. But I want to talk about “stops” for a moment.
A “stop” is any time the police order you to remain where you are, for whatever reason. This includes traffic stops, but also an officer simply stopping you on the street because you match the description of a fugitive they’re looking for. I have no objection to the police ascertaining identity as part of a traffic stop; you are legally required to carry a driver’s license while driving and not doing so is a crime in itself. And, under the amended law, a driver’s license is automatic proof of legal residency.
But I don’t like that they can simply stop someone who is not committing a crime, say the person resembles a wanted fugitive, then use the fact that they stopped them to enact the legal residency check.
I also find it disturbing that driver’s licenses from other US states and territories don’t count as proof of legal residency. So if I (with my Massachusetts driver’s license) get pulled over for speeding in Arizona, the officer could decide to check my legal residency status, and my MA license would not automatically count as proof.
Finally, in the wording where it says the police can’t use race as a factor, it ends with “except to the extent permitted by the United States or Arizona Constitution.” I find that clause troubling. There is nothing in the US Constitution that prevents profiling. You could argue the US Constitution allows profiling through omission of mention, and thus it is “permitted” so the rest of the clause is void. In short, profile away!
As for the removal of Section E, I couldn’t be happier.
CONCLUSION:
I think it’s a great improvement, but I still find the law unconstitutional.
SUGGESTIONS:
In some parallel dimension where the Arizona State Legislature hangs on my every word and is constantly seeking my approval, this is what I would tell them to do:
1) Replace “stops” in Section B with “traffic stops”. Also add language in Section B to only allow the legal residency check on the *driver* of the vehicle, not the passengers.
2) Expand the list of things that prove legal residency in Section B to include any US state or territory’s valid driver’s licenses. To be safe, they could add a rider requiring that in order for an out-of-state license to count, the state laws of the issuing state must allow no legal way for an illegal alien to get a license.
3) Remove the trailing clause “except to the extent permitted by the United States or Arizona Constitution” from the language that prevents profiling.
If those three changes were made, I would consider the law constitutional. Police would only be able to check for legal residency in cases where they would already have legitimate reasons to verify identity (you have to actually commit a crime before it comes up), it would be easy to prove your legal residency with pretty much any form of ID, and profiling would be explicitly prohibited with no loophole to escape the provision. It wouldn’t prevent the police from profiling, but it would at least make profiling actionable (civil lawsuits), and would make profiling a potential exculpatory case in any criminal trial that results.
-ATW