Thursday, April 29, 2010

Why does Arizona hate police officers?

Just because you’ve identified a problem, doesn’t mean your solution is a good idea. Arizona, in response to an issue of illegal immigration that pretty much everyone agrees has not been properly handled by the federal government, has passed a controversial new law. Whether that law makes things better or worse is up for debate.

First of all, let’s lock down exactly what the new law does. Under the new law, Arizona law enforcement officers are required (that word becomes important later) to check the immigration status of any person they have a “reasonable suspicion” of being in the country unlawfully. The law also gives citizens the right to sue a local government agent or agency if that citizen believes the new law is not being enforced to “less than the full extent.”

OK, buckle up, because there’s a lot of problems in this law to go over.

The first legal problem the bill faces is the Supremacy Clause of the United States Constitution. This is the one that is very rarely discussed amongst right-wing Constitutional lovers, because it holds that federal law is the “supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

You never see that one a sign in a “states’ rights” rally, do you?

Immigration is, by definition, federal law. States like Arizona don’t get to have their own rules about who can come in or out of the country. We tried that once, with the Articles of Confederation back in 1776, and it didn’t work out so well. And the “preemption doctrine” says that when an area of law is so inherently federal (like immigration), the Supremacy Clause prevents states from passing laws in that area.

So does Arizona’s law violate the Supremacy Clause? Maybe. The law isn’t adding new rules, just mandating that state officers attempt to enforce already-existing federal rules. It’s a grey area that will certainly have to be hashed out in federal courts.

Legal problem number two is vagueness. Any law has to clearly define what is or is not prohibited and how it is to be enforced. The “reasonable suspicion” part of the law is going to be troublesome. What exactly is “reasonable suspicion” that a person is in the country illegally? The answer to that question suggests one of the biggest practical problems with the bill, in that it invites racial profiling of Hispanics.

The bill does say that race cannot be the sole grounds for reasonable suspicion – meaning that it can be part of the grounds, just not the whole thing. But even if that’s the case, what non-racial basis can be used to justify a check of a person’s immigration status? So far, that’s a question that no one – including the proponents and authors of the bill – can adequately answer. And that makes it subject to a vagueness attack.

One reason to strike down vague laws is to prevent selective enforcement. The theory goes that if a law is so vague that it’s not clear how it should be enforced, then the authorities are given leeway to abuse that law selectively against a group of people. They could get away with that selective enforcement because the law is so vague that it isn’t clear what that official is and is not supposed to do. That’s exactly what Hispanics in Arizona and those around the country interested in civil rights are afraid of.

Those are the two legal problems with the law, which will almost assuredly be vigorously litigated. I’m all for making sure lawyers get more money, but the legal bill the state of Arizona’s taxpayers will be footing for defending this law should be a whopper.

But there’s some practical reasons why this law is a bad idea as well, most notably for law enforcement officers. I have to think this law makes being a cop in Arizona a heck of a lot more difficult. Keep in mind, there’s a lot of Hispanic people in Arizona. Some of those Hispanic folks are criminals. Some are victims. Most are just Arizonans trying to live their lives in peace.

Now, every time an Arizona law enforcement officer has a “lawful contact” with those persons (or anyone else), that officer is going to have to decide if there is “reasonable suspicion” that they are in the country illegally. Of course, they’ve been given no guidance as to what that reasonable suspicion might be, so they’ll have to make it up as they go. I can’t imagine what could possibly go wrong.

It gets worse. Lots of times, officers will be investigating serious crimes, and needing to gain the trust of the people they are having “lawful contact” with in order to help their investigation. That’s going to be a lot more difficult if the officer is required – required, not encouraged, remember – to check on the immigration status of the people that officer is dealing with in an investigation.

Proponents of the bill will point to an exception that the requirement is only “when practicable.” But what does that mean? And will that mean something different to a judge and jury when the officer is being sued for not enforcing the new law?

Because that’s the part of the bill that isn’t getting nearly enough attention. Any person can bring a lawsuit against any officer or agency if that person thinks the law isn’t being enforced “to less than the full extent permitted by federal law.” A person winning a lawsuit gets their attorney’s fees and costs paid for by the losing party. And there’s plenty of anti-immigration organizations out there looking to get some publicity and a little dough for their lawyers by suing insufficiently-zealous Arizona cops, believe you me. And, again, while I am firmly in the pro-lawyers-making-scads-of-money camp, this provision is ripe with the potential for mischief.

So, imagine you’re that law enforcement officer. You’re investigating a murder, and trying to convince a witness to talk to you about what she saw. She's reluctant, because she comes from a tough background and has learned not to trust the police. But you need her testimony for your investigation. As you talk to her, you discovery she’s Hispanic, and (for whatever reason) you think she might be here illegally.

Do you, as the law requires, check your witness’ immigration status? Do you check it even if it will derail your murder investigation and let the guilty party go free? Do you not check it and risk being sued by an anti-immigration zealot, putting your job and your family’s livelihood at risk?

What a horrible position to put a law enforcement officer in. I have long thought that police officers have the hardest and most dangerous jobs in the world. Why the state of Arizona wants to make their jobs harder just to make a political point is beyond me.

There’s another angle to this story as well, one of hypocrisy. Where is the Tea Party outrage about this bill? I thought the Tea Party people were all about small government and reducing the intrusion of “Big Brother” government into our lives. I thought they loved the Constitution and just were about people being left alone.

The sole purpose of this bill is to give law enforcement – that’s the government, Tea Party folks – more authority to detain and arrest people. I’ve seen lots of your signs (some of them comically misspelled, of course) telling everyone how the Constitution prohibits health care reform and how the Constitution says President Obama isn’t actually President because he was born in Kenya, or Indonesia, or Mars, or something like that.

Hey, folks, this is an actual intrusive-government problem here! Arizona just passed a law that mandates the police to stop people on the vaguest of reasons. That’s a huge government intrusion, right? You’re all about small government, right? You should be up in arms about this, right? You’d be very concerned about this even though it is likely not to affect your overwhelmingly-white membership because you believe in freedom for everybody and aren’t even the slightest teeny tiny bit racist, right?


The Republican party’s hypocrisy is worse. In Arizona, they’re the driving force behind the new law. Remember, this is the same Republican party who thinks the economic downturn can be fixed by putting limits on patients suing doctors who butcher them. Now they’ve passed a law giving the green light for anyone to sue a police officer or police department if that person thinks Arizona’s immigration enforcement isn’t tough enough.

So, to summarize the Republican position on lawsuits: Suing doctors, bad. Suing cops, good.

And the hits keep on coming. The Republican National Committee has just set up a new fund-raising website claiming Obama is “versus” the Constitution. Plenty of Republican attorneys general are spending taxpayer money to get the newly-passed health care reform bill declared unconstitutional.

Really? Were you guys around when the PATRIOT Act was passed? When President Bush’s warrantless wiretapping program was revealed? When Vice-President Cheney tried to argue that the vice president’s office wasn’t legislative or executive and therefore not subject to oversight? When Guantanamo Bay was created as a place to hold prisoners indefinitely at the whim of the president?

You know, things that were actually violations of the Constitution.

I’ve got plenty of problems with the Obama administration, many of them revolving around his failure to stop the Constitutional violations of his predecessor. But here’s the thing. Just because you don’t like a particular policy decision Obama or anyone else makes doesn’t mean it’s unconstitutional.

People are entitled to whatever opinion they like, I guess. But they aren’t entitled to wrap themselves in the Constitution and pretend it says whatever they want it to say. And if you’ve held your tongue after eight years of a presidential administration who exhibited naked contempt for the Constitution, you really don’t get to tell me about how much you love the Constitution.


Dinah Bee Menil said...

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Law-Talking Guy said...

Thanks for the kind words, Dinah. If there's anything else I can do, please let me know. Tell your friends, too!