The Corner

Arizona and ‘Lawful Contact’

My column this morning is about the Arizona immigration law and attempts to make the point (among other points) that the state law is a measured response to a serious economic, social, and law enforcement problem. As I detail, the powers invoked by the statute are tiny compared to the federal government’s border enforcement powers, which are not subject to any of the usual protections of the Fourth Amendment’s warrant clause.

Contrary to the hysterical charges of racism being leveled at the statute, it does not permit a no-holds-barred inquisition of Hispanic people. Indeed, the state law demands more of police than federal law. To begin with, there is to be no inquiry about a person’s immigration status unless the “contact” between the police officer and the person is “lawful” in the first instance.

There are three relevant gradations of contact between a police officer and a person: non-custodial, brief detention, and arrest. The non-custodial context refers generally to any incidental interaction between a police officer and an individual — including those initiated by the individual. A police officer does not need suspicion in order to ask a person a question, but the person is not required to answer and the officer has no lawful authority to detain a person, even fleetingly, absent “reasonable suspicion.”

Brief detentions are known in the law as “Terry stops” — thanks to the famous Supreme Court case of Terry v. Ohio, 392 U.S. 1 (1968). Under Terry, a police officer may only detain a person if the officer has reasonable, articulable suspicion of criminal activity. This standard is not met by a hunch or a generalized suspicion — a cop who says to himself, “Those look like Mexicans, they must be up to no good,” does not make the grade. Instead, the officer must be able to articulate specific facts which, together with the logical inference to be drawn from those facts, reasonably suggest that criminal activity has occurred or is imminent. Courts are deferential to the judgment of police officers — the standard is not what any person would think of the facts observed but what an experienced cop acting reasonably and responsibly would think. But there must be specific, describable indicia of criminal activity.

The permissible duration of a Terry stop depends on the circumstances. The Supreme Court has not set in stone some magic moment where a brief detention evolves into an arrest. But arrest happens when the detention has become police custody. At that point, the officer must have probable cause that a crime has been or is being committed.

So the Arizona immigration law does not allow the police officer to have contact with the person unless the contact is lawful. This means if even the briefest detention is involved, the police officer must have reasonable suspicion that some crime has been or is being committed. Absent that, the officer is not permitted to stop the person.

Now, why do I say the Arizona law is more restrictive of police than is federal law? Well, the Supreme Court has held that one common rationale for a permissible Terry stop is to ascertain the identity of the person who is detained. That is, federal law would probably permit an inquiry into citizenship as a part of establishing who the detainee is — again, as long as the officer had a good reason for detaining the person in the first place.

The Arizona law, by contrast, does not give a cop this latitude. Instead, the officer is permitted to attempt to determine the person’s immigration status only if, in addition to the initial contact being lawful, there also exists specific “reasonable suspicion that the person is an alien who is unlawfully present in the United States.” As I noted above, our Fourth Amendment jurisprudence teaches that reasonable suspicion requires specific, articulable facts — not a hunch or generalized suspicion. Thus, the Arizona law requires that there be reasonable suspicion for both the initial stop (e.g., the police officer observed erratic driving and concluded the person might be intoxicated) and for pursuing a line of inquiry about whether the person is an illegal alien.

Two more principles are instructive here. The first involves the complaint that this law may result in a person’s being found to be an illegal alien even if the reason the police officer stops him has nothing to do with his immigration status. So what? If the police stop you because you are driving erratically and they find an illegal gun in your car, you may be prosecuted for possession of the gun — the fact that the cops weren’t looking for a gun is irrelevant. Ditto if police get a warrant to search your home for stolen appliances and, while lawfully searching, find a bag of cocaine — you can be charged for violating the drug laws even though that is not what the warrant allowed the police to look for. The question is not what the police were expecting to find; it is whether they were lawfully conducting a search in the first place.

Second, all of the above takes place within the context of the the civil rights laws. Under Section 1983 of Title 42, United States Code, state law enforcement officers may be sued if they deprive a person of any rights, privileges or immunities to which the Constitution entitles him. Police officers who enforce the law in bad faith, who harrass people without a reasonable basis to believe a crime has been or is about to be committed, are liable to civil suit. The legal, financial, and professional consequences of violating the civil rights laws can be very damaging.

As I indicated in my column, I agree with Byron: The people who are complaining about this law almost certainly either have not read it or are demagogues who would make the same absurd claims no matter what they law said.

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