Defending Arizona
From the June 7, 2010, issue of NR.


There’s nothing new about police officers’ taking illegal aliens into custody, in Arizona or elsewhere. The documentation provisions of S.B. 1070 simply give Arizona law enforcement one more option in how to deal with them. Previously, when officers encountered illegal aliens in the course of their normal duties enforcing other laws, they could turn them over to ICE (Immigration and Customs Enforcement) for handling under federal procedures, or else make a case under Arizona’s human-smuggling statute. Now S.B. 1070 offers a third course of action: Illegal aliens without documentation can be jailed under state law even if human-smuggling provisions do not apply. If a local police department prefers to turn all illegal aliens that it encounters over to ICE, it can certainly continue to do so.

Third, critics have claimed that the law requires police officers to stop people in order to question them about their immigration status. Here too, President Obama misrepresented the law. Offering the example of a Hispanic family going to an ice-cream parlor, Obama said a police officer might walk up to the father and start interrogating him about his immigration documents. But Section 2 of S.B. 1070 stipulates that in order for its provisions to apply, a law-enforcement officer must first make a “lawful stop, detention, or arrest . . . in the enforcement of any other law or ordinance of a county, city or town or this state.”

The original wording made reference to “lawful contact”; this was revised to “lawful stop, detention, or arrest” to make clear that officers could not stop someone simply on suspicion and ask for his papers. So in President Obama’s example, S.B. 1070 might come into play if the person came running out of the ice-cream shop with a gun in one hand and a bagful of money in the other (and then only if race-neutral indicators that the person was an illegal alien came to light). But an officer could not demand identification without the initial lawbreaking that justified the stop.

The law operates in straightforward fashion. If a police officer, during a detention to investigate another offense, develops reasonable suspicion that the subject is an illegal alien, then the officer must take specific steps to verify or dispel that reasonable suspicion. And contrary to the claims of critics, “reasonable suspicion” is a well-defined concept. Over the past four decades, the courts have issued more than 800 opinions defining those two words in the context of immigration violations.

The most common situation in which S.B. 1070 will come into play is during a traffic stop. Suppose a police officer pulls over a minivan for speeding. He discovers that 16 people are crammed into the van and the seats have been removed. Neither the driver nor any of the passengers have any identification documents. The driver is acting evasively, and the vehicle is traveling on a known human-smuggling corridor. Courts have held that those four factors can give an officer reasonable suspicion to believe that the occupants are aliens unlawfully present in the United States.

At that point, S.B. 1070 kicks in and requires the police officer, “when practicable, to determine the immigration status of the person” by verifying it with the federal government (ICE maintains a 24/7 hotline for exactly that purpose). Indeed, many police officers in Arizona were already regularly contacting ICE before S.B. 1070 was enacted. Critics of the law evidently think police officers should turn a blind eye to any violations of federal immigration law that they come across. The Arizona legislature and the people of Arizona felt otherwise.

In sum, the law does not make any radical changes. Rather, it gives Arizona police officers a few additional tools to use when they come into contact with illegal aliens during their normal law-enforcement duties. It also ensures that local cooperation with ICE will occur more regularly. Other provisions that have received less media hype prohibit Arizona cities from restricting enforcement of immigration laws (for example, by preventing their officers from contacting ICE), and make it a misdemeanor for an alien who lacks work authorization to solicit work in a public place.


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