by: Jonathon C.A. Blevins
The sky is not falling…
The new AZ law requiring law enforcement to inquire as to the legal status of its population is a hot button issue. The reason the issue is so hot is that the law is targeted at illegal immigrants, undocumented workers, aliens, or whatever politically correct noun is currently popular. I will concede the facts surrounding the passage of the law are unpalatable. However, the law is probably consitutional. Further, the request for “your papers” is similar to a request for “your driver’s license or ID.” (The analysis assumes the law will require LEOs to inquire to EVERYONE about legal status).
I cannot postulate on the status of AZ law. But, I am familiar with the law of the State of Florida. Thus, I will provide analysis of the AZ law as if it were passed by the FL legislature. Hopefully, the readers can ascertain that the below is an analysis of the law and not a pro/con law enforcement argument. Regardless of your feeling regarding LEOs, the status of the law is, well, the status of the law.
Law enforcement is allowed to inquire into the legal status of the population provided LEOs follow certain procedures. If LEOs do not follow the procedures, the remedy is suppression of evidence and/or release of detainee.
So long as LEOs do not use the legal status inquiry as a basis for any of the following, the Fourth Amendment will not be triggered. If the sole basis for detention or arrest is to inquire about legal status, it is clear that all evidence from the detention would be suppressed.
Florida recognizes three levels of police-citizen encounters or “lawful police contact”:
1. Consensual encounter
2. Investigatory stop / detention
3. Arrest
Popple v. State, 626 So.2d 185, 186 (Fla. 1993).
In a consensual encounter LEO is allowed to approach any individual and inquire about any topic, including proof of identification. The test for a consensual encounter is whether a reasonable person would think he/she was free to leave. Whether a person is free to leave is a test of factors: the number of officers, tone/language used by LEO, display of weapon, blocked path, lights/sirens, whether the officer ordered anything (not an exclusive list). During a consensual encounter, LEO is allowed to ask for ID/DL/Proof of legal status.
The LEO is allowed to approach an individual at any location and ask any question. The responses to questions are not subject to Miranda and the answers may be used against the individual. Further, the LEO can search the individual with consent. The key to a consensual encounter is the individual sets the parameters for the encounter. The individual may refuse to answer any question posed by the LEO. The individual may walk away from the LEO and refuse to produce an ID. During a consensual encounter, the LEO is at the mercy of the individual’s consent.
An investigatory detention/traffic stop (aka Terry stop) the parameters are narrower. The encounters must be supported by reasonable, articulable facts that create a reasonable suspicion the individual has committed, is committing or is about to commit a crime. The totality of the circumstances will determine whether the LEO acted reasonably in detaining an individual.
If the LEO is able to articulate facts that lead to a reasonable detention of the individual, LEO can ask for ID. However, unlike a consensual encounter, the individual does not have the right to refuse. Thus, the individual will be compelled to answer investigatory questions. The questions are not always subject to Miranda. In fact, in a DUI case, the LEO is explicitly allowed to ask questions about the charge without reading Miranda.
LEO are permitted to detain a suspect as long as necessary to effectuate the purpose of the stop/detention. It is a reasonableness test. So, if the LEO has a reasonable suspicion of criminal activity, the individual will be reasonably detained and compelled to produce ID/DL/Proof of legal status.
The arrest is the most obvious type of LEO-citizen encounter. If the individual is formally arrested and questioned, the individual must be provided Miranda warnings. The individual is not free to leave. The LEO may formally arrest someone if probable cause is established. Probable cause lies somewhere between reasonable suspicion and proof beyond a reasonable doubt that a crime was committed, is being committed, or is about to be committed. Even if the person invokes Miranda, the individual will be compelled to produce ID/DL/Proof of legal status…at the time of arrest or at booking.
The analysis above is not mind blowing. In fact, the analysis is basic. The fact that the analysis is so basic is what astounds me about the outcry against the AZ law. If LEO follow the above parameters, no Fourth Amendment violation will occur. The request for production of ID/DL/Proof of legal status will not run afoul of precedent or the basic reading of the Fourth Amendment.
As for FL, in order to get a DL, you must produce proof of identify, social security and residence . Thus, if the LEO asks for ID, you are producing proof of citizenship…guess what? No Fourth Amendment violation!
If LEO does not follow the above parameters and the specific caselaw of the jurisdiction, the remedy is suppression of evidence and/or release of detainee. The “show your papers” hysteria assumes we live in a country run by law enforcement. For the law to truly be abused, the SAO, defense bar and judiciary would have to be in collusion.
Law enforcement officers are not the final decision makers regarding arrest and detention. Yes, LEO make the temporary decision whether to arrest an individual. Yes, LEO can ruin your day. Yes, there are abusive LEOs in the world…the opposite is also true.
However, a dutiful and responsible State Attorney (or similar state prosecuting agency) will analyze the case for 1) likelihood of conviction and 2) lack of potential suppression issues. If either of those two elements are not met, the ASA may want to think hard about whether to file the case. If the ASA is not diligent, it is the defense attorney’s responsibility to file appropriate motions. Then it is the judge’s job to decide whether the law was followed. The process is not perfect and the process is slow…but it is our process.
The above process is afforded to EVERY case in the Union. The system will provide redress for abusive policies and abusive laws. The same process will be provided to every person required to produce ID/DL/Proof of legal status to LEO. The idea that the “show me your papers” law will disassemble the process is without merit.
The “scary” issue of being forced to carry your papers everywhere is ridiculous. WE ALREADY CARRY OUR PAPERS. You are required to carry your papers to drive, to vote, to write a check, to set up cable, etc. We carry an ID everywhere…what is new?
This is much ado about nothing…at least much ado about nothing new…
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The Legal Satyricon 
Wow, an article on a legal blog based on bullshit. No, there is no requirement to carry ID. Only when driving, and that is a requirement for enforcement of driving safety. Really, you should just delete this post. It’s the worst post I’ve read in a year of following this blog. You just lost major credibility, LegalSatyricon. You just failed basic civil rights.
p.s. just so you don’t think I’m defending on the basis of my personal opinion on illegal immigration: If I could push a button to send 100% of illegal immigrants back to their country of origin right this second, I would. But this law is still unconstitutional.
If you could press that magic button – be prepared for the massive negative economic repercussions for this country.
tim: The same could be said if you pressed a magic button to get rid of the illegal drug trade, or human trafficking, or ANY illegal activity!
Clint,
The blog exists as a forum for its writers. Unless a post is signed by “all hands” it represents the views of its author, and its author only.
I disagree with the article as well. Strongly so. However, I don’t believe that the LS should be a place where the point of view is always the same, always from the same person.
Blevins put his ideas out into the marketplace. Lets test his ideas and buy them or reject them.
I, for one, reject them. I find the new Arizona law to be terrifying, disgusting, and a symptom of “The Flori-duh of the West” mentality that pervades the Grand Canyon state.
But, don’t say that the whole blog has failed basic civil rights, just because Blevins has (if he indeed has). You’ll notice that we have authors with views that are positively at odds with one another. DeVoy and Christensen agree on pretty much nothing. I disagree with DeVoy half the time, and Christensen the other half.
Its about diverse views and a robust marketplace of ideas. I may even let a white supremacist publish here one day, and let the comments destroy him. In fact, I think i offered to let one post as a rebuttal to one of my posts, and he never took me up on it.
Marco, you are one brilliant First Amendment purist who practices what he preaches.
:)
Seriously, that it one of the things that makes your blog fun. I even read Jason Fischer’s stuff.
Let me just ask one question: how many white or black people do you think will be asked to prove their immigration status upon being stopped? The “reasonable suspicion” language of the bill will almost certainly translate into “looks Hispanic.” Bad law is bad law, even with good intentions.
I am a white person who was stopped and required to show proof of nationality. This was about 40 miles north of the Mexican border, in around 1998.
Do you have any more questions?
That was a checkpoint for drug smuggling, not exactly the same thing.
Yes, and even “white” native born citizens can “look Hispanic”.
I am one of those and if I were an Arizona resident, I would not relish the prospect of having the odds of being selected for a traffic stop increase for me, while they stay the same or decrease for my blonde blue eyed neighbors.
Hispanic people have identified themselves as a group with unique characteristics, among them being a) they are the most numerous illegal immigrants, b) they have staged street demos demanding the right to stay here, and c) have fought successfully to retain their language in state and federal documents. Yet if the ethnicity of this *self-identified* group becomes a ground for suspicion, now we are guilty of racial profiling!
Yes
I’m unclear why the term “self-identified” is the key term here…
“You are required to carry your papers to drive, to vote, to write a check, to set up cable, etc. We carry an ID everywhere…”
Ah no … most states don’t require an ID for voting (it doesn’t prevent voter fraud). Most people don’t write checks anymore. And I can’t recall any time I was asked for an ID to setup cable or any other utility. As for driving – you can be in this country illegally and still have a valid drivers license.
Your argument is based merely on the fact that since most people carry some sort of id to begin with – then its alright to ask for it for any reason and any time. Your argument is complete and utter bullshit.
First off, you aren’t required to have ID to vote in most states — just proof of address. (In Minnesota, for example, this can be satisfied by bringing a utility bill to the polls.)
Second, and more importantly: there’s a huge difference between the cable company saying, “We won’t hook up your HBO unless you have ID” and the guys with guns who have the power to arrest you saying, “We’ll put you in jail until we figure out whether or not you’re a citizen unless you have ID.” The coercive power of the state is a far cry from a voluntary business transaction.
You completely ignore the fact that a drivers license or ID does not prove citizenship. If I, a natural born citizen, were to visit AZ I would need to carry my birth certificate or my passport. WE DON’T ALREADY CARRY THOSE PAPERS. This fact, that you choose to ignore, makes your entire post make no sense whatsoever.
@EVERYONE:
I do not support or condone detaining people to check legal status (in fact I put that in my post). No one says that is ok, constitutional, legal or otherwise. I guess I should edit my post because the analysis is not basic…even though the above is probably on the first 5pgs of any Criminal Procedure or Search & Seizure Textbook.
LET ME SAY THIS LOUD AND CLEAR: IT IS NOT OK, CONSTITUTIONAL, LEGAL, MORAL, ETHICAL OR OTHERWISE TO DETAIN PEOPLE FOR THE SOLE PURPOSE OF CHECKING LEGAL STATUS. IT IS NOT OK TO DETAIN PEOPLE FOR THE COLOR OF THEIR SKIN, SOUND OF THEIR ACCENTS, COLOR OF HAIR. IN FACT IT IS NOT OK, CONSTITUTIONAL, LEGAL, MORAL, ETHICAL OR OTHERWISE TO DETAIN PEOPLE JUST TO CHECK THEIR ID (WHITE BLACK GREEN YELLOW MARTIAN ETC). NOT OK, THE POST DOES NOT SUPPORT THIS, I DO NOT SUPPORT THIS, THE LAW DOES NOT SUPPORT THIS, THE LS DOES NOT SUPPORT THIS.
First, I did not “failed basic civil rights.” I am well versed in civil rights and individual rights. However, I am aware that ad hominem attacks show 1) lack of ability conceptualize 2) lack of ability to argue the actual issues 3) indicate a weak understanding of the argument as a whole. Ad hominem attacks is the acient “your momma” response.
Second, “guys with guns” will hold you until they find out who you are…in fact, they are legally allowed to detain you for that reason IF IF IF the encounter is deemed to be one of the above (see 3 types).
You are naive to think that your status is a mystery to LEO. Once you are arrested, detained, or pulled over they are running your ID whether you have it on your person or not. Again, they are allowed to do this. No 4th A problem.
My point was that “show me your papers” is the motto of a moot point. The LEO are already checking your papers whether you provide them the documents or the computer in the squad car or booking provides the info. If LEO is legally detaining you based on the previous explained criteria, why is it now wrongful to check my status?
If an illegal immigrant is arrested for Battery, the LEO will check for ID (any type), the first thing the jail does is ID the person. If ICE is looking for the person, they are alerted. If he does not have documentation, the jail alerts the proper authorities…They do the same for white people…they ID you, check you for warrants, check your status (guess what white people come from other places too) and alert the proper authorities. NOTHING ILLEGAL ABOUT THIS.
@Tim
Please cite to the statement where I posted the law supports the idea that “ID can be requested for any reason or anytime.”
I posted that IF IF IF you are arrested or legally detained (see 3 types of legal encounter), the LEO can ask you to ID yourself. Please read post for the actual words used and analysis provided…
Lastly, the above are not my personal feelings, thoughts, or perspective…it is the law.
If you do not like what I posted, then advocate for a change in the law. I post a minute about of editorial…the rest are quotes or near quotes of the legal definitions.
I know I took a long sabatical from the LS but I do remember this much personal attacks. I seem to remember debates about the LAW…
Interesting:
@hawkhead. You do not need an ID to vote since you can use a utility bill? First, you probably needed an ID to set up the utilities or at least to have a bank account to pay for the utilities. Second, that would seem to mean anyone can steal your mail and vote in your place…
The major flaw with the logic (and AZ law) as I see it hasn’t been mentioned here yet.
As you say, investigatory detention by law enforcement must be supported by “reasonable, articulable facts that create a reasonable suspicion the individual has committed… a crime.” I’m no lawyer, but this makes sense to me.
Assuming the above, the issue with the law as I understand it is that the officer now has the right (or obligation?) to stop someone who they have “reasonable suspicion” is illegal. But what “reasonable articulable facts” do you use to support a reasonable suspicion of someone’s immigration status?
If an officer overhears someone say “I hope the cops don’t find out that I’m an illegal alien”, I guess I can see that working. But how often will that happen?
What we’re left with is situations where officers will be using inappropriate, subjective (unlawful?) criteria to evaluate immigrations status, and requiring them to provide ID to avoid detention.
I suppose you can say it’s an enforcement issue, and that this would indicate that the police would simply never be able to actually *use* this law, since they will never be in a situations where *facts* support their suspicion. But if you think that’s the way it’ll happen, I’ve got a bridge I’m looking to sell….
It will be interesting to see what actual reasons are given for “reasonable suspicion” when this law is enforced.
You got it. That is the problem with the law and the “logic” behind it. What’s gonna happen now is that either the law will be repealed, or, the AZ courts are going to spend the next 20 years trying to define, exactly, what “reasonable suspicion” means, and whether that reasonable suspicion is a bright line standard of some sort, or is contextual and subjective, and if so, how much subjectivity is permitted.
Also, those who’ve stated that US citizens are not required to carry ID are correct. There’s no law against anonymity. Moreover, legally, I can be arrested or detained for a variety of reasons, but simply leaving my home without an ID is not one of those reasons. So, if a cop “reasonably suspects” that I might not be legally in the US, and I don’t happen to have my ID on me, and the cop has no other legally permitted reason to detain me, should that cop legally be permitted to detain me under the new AZ law, then finger print me if I elect (as I am entitled to do) to not tell the officer my name?
In other words, “show me your papers” is exactly one of the key issues here.
How long would it take Joe Arpaio to start abusing this law?
That guy you pulled over won’t consent to a search of his car? Threaten to (legally) hassle him for not carrying proof of citizenship, since a driver’s license doesn’t count – especially for an out-of-stater. So he can consent to the search, or be taken in until he can provide proof of citizenship. Reasonable suspicion? You could’ve sworn you heard him say “aboot.”
Arpaio has already been operating under the spirit of this law for years. Governor Brewer said that this law needs to be enforced without using racial profiling, but Arpaio has never taken those instructions as anything more than a suggestion anyway.
I’m not even worried about racial profiling. I’m concerned about Arpaio using this as a hammer to clobber anyone, even folks who are clearly not illegal immigrants.
In response to questions about “reasonable suspicion” here are some scenarios.
Law enforcement receives information that a contractor is paying cash for day labor by illegal immigrants. Contractor agrees to cooperate with law enforcement and says, “Just go to the corner of [two streets in Phoenix] and you’ll find them waiting there for us to pick them up and drive them to the construction site, every morning at 8am.” Sounds like reasonable suspicion to me.
Or how about this. Law enforcement just inside the Mexican border observes an unmarked van discharging a dozen nervous-looking guys at 2am on a desert highway.
There are a lot of smart people reading this blog. I’m sure you can come up with your own scenarios.
But will the new law be abused? Of course. All laws seem to be abused, one way or another. The current immigration laws have certainly been abused, by the illegal immigrants. Now we have the obvious consequence.
So, legal immigrants will have to carry ID to prove their innocence, at least until the illegals decide that Arizona is not such a pushover anymore, and they go elsewhere. I know two who have already made that decision. That’s another consequence which should be fairly obvious, surely?
What about people who aren’t immigrants at all? Do they need to start carrying a passport or birth certificate to “prove their innocence”?
Why do you assume that actual US citizens won’t be affected by this law?
Also, the fact that there are cases where “reasonable suspicion” is meaningful won’t save the law from violating the 14th Amendment. The issue will be whether the law violates equal protection on its face or as applied, or whether its directive is unconstitutionally vague.
I’m putting my money on it being invalidated for preemption before the argument even gets that far, however.
So basically…you’re all for greater state authority and the abuse of laws when “they started it”?
Interesting political philosophy…I had you pegged as more of a libertarian.
This assessment of the law is basically accurate. The outcry of “racial profiling” and the like is naked demagoguery. Consider this interesting political analysis:
Arizona’s widely misunderstood – and deliberately misquoted – new immigration law is an expression of no confidence in the federal government, which has refused to enforce the laws it already has on the books. The government of Arizona passed this law with due process, and strong majority support from its citizens. Unlike certain laws to come out of Congress recently, this one was not sold with fraudulent promises and carefully falsified cost estimates, scribbled on shreds torn from the Constitution.
Advocates of open borders and amnesty routinely encourage illegal immigrants to simply ignore the law. Several cities, including San Francisco, have declared themselves “sanctuary cities” where defiance of immigration law will not be prosecuted. Enforcement of the Arizona law has been caricatured as the behavior of a Nazi police state, to be conducted with racial profiling and sinister midnight knocks on the doors of terrified migrant families. Even the peaceful consumption of ice cream is said to be imperiled.
Removing the enforcement mechanism for a law renders it meaningless. If Arizona cannot expect its citizens to produce legitimate identification during traffic stops and other encounters with state authorities, the entire concept of “immigration” has been rendered meaningless… and this, in turn, largely erases the meaning of citizenship. Anyone who can physically occupy a few square feet of American soil becomes eligible to dine on the banquet of expensive services provided by our gigantic central government. This doesn’t just mean welfare. It includes all sorts of infrastructure, from roads to hospitals. We abandon even the pretense of citizens enjoying the benefits of public works they helped to build and maintain. Lawful residents of the United States, including legal immigrants who worked hard to join our society properly, become suckers who toil as janitors, in an amusement park with empty ticket booths and broken turnstiles.
The President and his party assert that only a vast and powerful central government can address the challenges faced by society. How can this be squared with the willful disregard of inconvenient laws? (They’re not even unpopular laws – they enjoy huge majority support.) How will the President’s disastrous health care bill function, if we are all free to ignore any part of it we don’t like? Will there be sanctuary cities for those who refuse to participate in ObamaCare? Their numbers would be far larger than the illegal alien population, and their belief in the immorality of the law they’re resisting would be every bit as strong.
All of the blind rage about “racial profiling” in Arizona has the situation exactly backward. Those who support the illegal alien community are the ones who assert a race-based privilege to ignore lawful statutes and resist enforcement mechanisms. No such lawbreaking will be tolerated from any group of citizens who refuse to pay the VAT tax, or obey a cap-and-trade law.
I think the law fails on preemption, and later there will be an as-applied equal protection challenge based on the disparate impact against legal immigrants, a class which traditionally receives higher scrutiny.
Scenario:
Truck gets stopped. A potential violation of this law is what (ostensibly) supplied reasonable suspicion for the Terry stop. The occupants are legal immigrants and have to produce papers, and during the stop the police discover a bag of marijuana. And there we have standing in a not too distant hypothetical and variations of it.
The preemption hurdle is pretty huge too–we have field preemption at least, and arguably conflict. That’s a per se unconstitutional test. Should I cite cases? I’ve never seen “the fed sucks at enforcement” as a successful argument to counter preemption, but I’m just a 1L.
I am wondering if a variation of this law will be on my final on Monday, actually.
There are other arguments I would make on the exam, like the fourteenth amendment says “person” not “citizen”, I’d try to bring in Plyer, that sort of thing. Depending on who was challenging the law I might even be able to bring in The Slaughterhouse Cases, as they dealt expressly with the right to seek employment, and the law is targeting people on the way to work. These though, are tangential. The meat is in preemption, a huge hurdle, and as-applied disparate impact against legal immigrants, which triggers strict scrutiny. Consider especially the commentary by government officials around this law–which does get considered under strict scrutiny–and it’s sunk.
I don’t think the majority of you quite understand how “bad” Arizona really is. I grew up in Phoenix area and I really hate to say this, but there are not a lot of educated people there. While growing up, sure we all had our gangs and bad people, but man, when you compare Arizona schooling system with 50+ other states, its quite saddening when you see your own hometown Arizona rank among one of the lowest. I myself even dropped out of High School though I moved my butt to China and am doing ok.
You know, for any-non-Arizona person to comment on this and show outrage, you’re simply showing pride for being an American and what America stands for in general. However if you actually lived there, experienced how things really are and saw what “direction” the environment and overall living, crime, gangs, economy and more are heading, you too would cheer on laws that would free LEO’s hands a little to make a little safer environment.
After all, I didn’t hear all you patriotic people crying out for the PATRIOT ACT all because “terrorism” (what terrorism?) is on a rise. Patriot Act was passed to free up the feds hands. Whether abused or not, thats at the discretion of the leader of the group in the FBI handling that certain case. Same will go for the LEO, every time he asks for ID, he shouldn’t have to worry about getting sued for discrimination.
The only terrorism I saw in Arizona were illegal immigrant, mexican gang bangers, that deal with drugs and prostitution which would kill you if you looked at them the wrong way. How about all them robbings and rapes? Arizona is the highest state to have the most robbings and rapes. Or did you forget all them scumbag coyotes that hold the smuggling family members for ransom payouts? Did you know only 20% survive while the rest get killed?
While it might take a few minutes to 10-15 minutes getting pulled over or stopped, I think the overall bigger picture is to clean up the state of “criminals” and not hard working illegal dish washers whereas the “whites or blacks” would never in a millions years consider doing. So cry a river, Arizona sure needs the extra water flowing through that death valley of a place.
I mean, last time I went to Arizona to visit family, the local fast food mexican place asked me in drive thru me to pay x amount in PESO instead of Dollar. Then when i pulled up, looked at me as a white boy and said, oh, $3 dollars…
So, how long do they get to ‘detain’ me?
I read that Federal policy allows THREE GOVERNMENT BUSINESS DAYS to answer a request for information under TO 8 UNITED STATES CODE SECTION 1373(c), before they reply.
So if I’m stopped walking down a public street after 5 pm Eastern time on the Friday before a government holiday and an LEO says he has ‘REASONABLE SUSPICION’ that I’m an illegal, do I get to stay in ‘detention’ until the NEXT FRIDAY?
Arizona statute says:
For any lawful stop, detention or arrest made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the person is an alien who and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person’s immigration status determined before the person is released. The person’s immigration status shall be verified with the federal government pursuant to 8 United States code section 1373(c).