Senate Bill 1070

Everyone has an opinion about Arizona’s Senate Bill 1070. Unless you’ve been living under a rock, you probably love it or hate it. You may have a strong opinion about it even if you have no clue what it says. If so, you aren’t alone.

S. B. 1070 makes it so the government can’t create a policy limiting the enforcement of federal immigration laws. If any part of the government does make a policy restricting enforcement of federal immigration laws, citizens have standing to sue. If they win, they get court costs and attorney fees.

This doesn’t mean an officer will be sued just for not arresting a particular person or group of people. There will have to be a policy, not just one officer failing to do something, in order for that to happen. Also, unless an officer acted in bad faith, his agency will indemnify him for fees and costs, including attorney fees. People won’t be suing the cop personally.

There is a civil penalty of $1,000 to $5,000 for each day the policy remains in effect after the action is filed, and that money goes to a DPS fund for, among other things, immigration enforcement. The law creates something called the “gang and immigration intelligence team enforcement mission fund.” To repeat, the big penalty money doesn’t go to the plaintiff. Only the lawyers and the DPS fund will likely get rich from the law.

S. B. 1070 also makes it so no part of the government can be prevented from sharing immigration information with other parts of the government for all kinds of reasons. That includes when the government is trying to determine eligibility for anything any part of the state or federal government offers, whether that means applying for welfare or even getting a driver’s license. That also applies when the government is verifying residency, confirming the identity of someone who is detained, or making sure someone is a registered alien under federal law.

Finally, the law requires that employers not only e-verify every employee, but also keep a record of the verification for the entire employment or 3 years, whichever is longer. Employers who hire undocumented immigrants have an affirmative defense of entrapment if they’re set up by authorities (which I can assure you will happen), but like with any entrapment defense in Arizona, they must admit to the offense, bear the burden of proof by clear and convincing evidence, and must among other things show they weren’t predisposed to commit the crime in the first place. It’s about as tough an affirmative defense as you could imagine. I’ve never used it in a criminal case, nor have I ever seen a criminal defense lawyer use it in a criminal case.

The bill wouldn’t just create new government policies. It creates all kinds of new government obligations and powers too. Under the law, if an officer makes lawful contact with a person, and if after that the officer develops reasonable suspicion that the person is an undocumented alien, the officer must make a reasonable attempt to determine the person’s immigration status if practicable. They have to verify it with the feds. This requires that officers do things they might not have done before, but it does not explicitly give them a new way to stop people.

The bill also says that, if an officer has reasonable suspicion someone is breaking the human smuggling law and breaks a civil traffic law, he can lawfully make a stop. Officers can already make a stop after seeing a traffic violation, so that portion may be largely pointless, depending on how the courts interpret it.

Officers can also already arrest someone who commits a crime in front of them, so the part of the bill saying officers can make a warrantless arrest if someone has committed a crime that makes them removable isn’t that revolutionary either. Again, that may depend on how the courts read the law, and as an aside, good luck teaching cops which offenses make people removable. The quick reference chart Arizona defense attorneys use to figure that out is 184 pages long, and most attorneys consult an expert on top of that. I do.

Perhaps the biggest change is the part of the law saying that, if an undocumented immigrant breaks any law (even a traffic law), when his or her sentence is done (whether the sentence is a fine, probation, or incarceration), he or she will be brought to ICE. That means we could theoretically be incarcerating undocumented immigrants the moment they pay their photo radar ticket.

Another huge change is the part saying law enforcement can take an undocumented immigrant who is in their custody to a federal facility even if it means officers must leave their jurisdiction to do so. We may have cops driving all over the state getting undocumented immigrants to federal immigration facilities.

Finally, S. B. 1070 creates all kinds of new crimes. Just like a bill I discussed over a year ago, it makes it so an undocumented alien is guilty of trespassing simply by virtue of being in Arizona. The way to determine someone’s immigration status is through an officer federally authorized to verify it or by communicating with the feds. Someone convicted of this new crime must serve the entire sentence without any kind of early release and must pay jail costs and an assessment of $500 for the first violation or $1000 for a second. The assessment goes to the DPS fund mentioned above.

It’s a class 1 misdemeanor just to be here without papers. It’s a class 3 felony if you have in your possession dangerous drugs, precursors for making meth, a deadly weapon or dangerous instrument, or property used for terrorism. It’s a class 4 felony if you’ve violated the law before or have been removed in the past 5 years.

The law also makes it a crime to stop in your vehicle in order to hire someone to work at a different location if you impede traffic, or to get in a vehicle in order to be hired to work at a different location if that impedes traffic. Furthermore, it’ll be a crime for an undocumented immigrant apply for work, solicit work in public, or work as an employee or independent contractor. Those are all class 1 misdemeanors.

“Solicit,” by the way, is defined as “verbal or nonverbal communication by a gesture or a nod that would indicate to a reasonable person that a person is willing to be employed.” Careful not to nod at your ride when they pick you up to carpool home, and never meet your ride at Home Depot.

If you know or recklessly disregard the fact someone is undocumented, it will also be a crime for you to do the following to them: transport, move, attempt to transport or move, conceal, harbor, shield, attempt to conceal or harbor or shield, or encourage or induce to come here or reside here. Don’t call up your friend in Mexico and suggest he come to Arizona to visit or live with you unless you know he has the right papers. You could be charged with a class 1 misdemeanor, and there’s a $1,000 fine. If you’re inviting ten or more of your undocumented alien friends, it’s a class 6 felony.

Finally, the bill will make it so your vehicle is subject to immediate immobilization or impound for pretty much anything. The government just loves taking people’s cars.

Paul Kennedy at The Defense Rests summed up a lot of what I was thinking in this post. If the bill goes ahead as planned, Hispanic citizens will be stopped, detained, and accused of crimes at an alarming and unprecedented rate. Although the bulk of this law will fall on them, no race is safe. People of all ethnicities will soon find themselves being deported after getting stopped for a cracked windshield or expired tags.

I have no faith in Arizona’s courts to strike down S. B. 1070. I have no faith in the federal courts to strike it down either. I see most if not all of it as clearly being preempted, but any judge with political ambitions won’t want to touch it with a ten foot pole. According to at least one poll, most Americans seem to support the bill. I imagine it will end up standing at least in part, and any little part of it that does stand will probably be significant enough to make life very different for a huge number of good people here in Arizona.

In this post and this post, Rick Horowitz at Probable Cause really hits on exactly where I think Arizona is going. If we aren’t already one, we are rapidly becoming a police state. It’s sad that Rick, a California lawyer, would write two posts about becoming a police state and Arizona would come up in both.

The road we’ve taken is slow. Courts have allowed roadblocks. They’ve allowed pretextual stops. The Fourth Amendment has been swallowed by exceptions, one at a time. The erosion of our rights has been gradual, and it’s been justified by our desire to stop things most people fear: drugs, DUI, property crimes, violent crimes. We wanted to get the bad guys, so we gave up our rights.

Now, the legislature has created a whole new class of bad guys. They’re your neighbors. They’re your friends. If you aren’t a bad guy yet, you’ll be next. Something you do or even a fundamental part of who you are will soon be outlawed.

People who loved seeing rights disappear when they thought the constitution just shielded criminals are now going to wish they had those lost rights back. People never expect that they’ll become criminals. Roadblocks and pretextual stops take on a new light when they end up being primarily effective not at preventing DUI or finding drugs, but at catching people of a certain race.

I hate the bill. I think it’s racist. If it passes constitutional muster, I think it will keep officers from solving real crimes. I think it will be expensive and generally ineffective at its desired purpose. I can only hope the courts somewhere along the way stand up and do the right thing. If not, I wonder what will happen to the federal immigration system.

Imagine the lines of people waiting to be taken into federal custody, deputies waiting by their side. Imagine our immigration courts trying to deal with the influx. I always say this with respect to drug prohibition, but it may be even more appropriate here: what if we won this new war? Can you imagine filling our federal system with half a million new, nonviolent offenders? That’s just in Arizona.

If you like the bill, I doubt I’ll be able to change your mind by espousing the virtues of liberty or racial tolerance. I do, however, suggest one thing. Before you pass final judgment on the bill, see what it costs. The price tag of turning thousands and thousands of otherwise law-abiding people into criminals may change your mind.