Thread: Panel of experts outline how Arizona immigration law works

Panel of experts outline how Arizona immigration law works

Scenarios illustrate how opinions differ

by Alia Beard Rau -
May. 17, 2010 12:00 AM
The Arizona Republic

Much of the debate around Arizona's new immigration law is focused on the moment when a law-enforcement officer can or should ask about a person's legal status.

The law states that an officer engaged in a "lawful stop, detention or arrest" must, when "practicable," ask about a person's legal status when "reasonable suspicion exists" that the person is in the U.S. illegally.


What that may mean in real life has spurred concerns, warnings of racial profiling and statements defending law enforcement's ability to do its job fairly - all before the law has gone into effect. Several lawsuits have been filed challenging the law's constitutionality, and attorneys want the court to delay the law's July 29 implementation until a judge rules.

The Arizona Peace Officer Standards and Training Board is beginning a training program to teach officers how to enforce the law. That program - and how officers put it into action - will likely offer answers about what the law will mean to Arizonans.

The Republic asked a panel of lawmakers, police and legal experts to address a few key issues that have raised controversy and then consider several scenarios to see how those concepts might play out.


Asking the question

The first issue: When can a law-enforcement officer ask a person about legal status? Can a person be stopped to ask that question? Or does "lawful stop, detention or arrest" during the "enforcement of any other law or ordinance of a county, city or town" mean that question can only follow a completely separate reason for being stopped?

Three of the five panelists said suspicion that a person might not be here legally is not reason to stop the person.

"What does an illegal alien look like? What does a person look like that has two rocks of crack cocaine in their pocket?" asked Mark Spencer, president of the Phoenix Law Enforcement Association. "No one can tell by looking. There first needs to be conduct that is connected with suspicious or criminal activity."

Three panelists said the initial reason for the contact must stem from some other suspected violation, such as speeding, drinking alcohol in a city park or, for juveniles, violating curfew.

Others say that it's not that clear-cut.

Lynn Marcus, director of the Immigration Clinic at the University of Arizona James E. Rogers College of Law, said nothing prevents an officer from engaging someone in a conversation about immigration status at any time. But she also said the person is not required to answer the question, based on the Fifth Amendment.


Reasonable suspicion

The second issue: What does "reasonable suspicion" mean to a police officer?

The law has been clarified to state that race, color or national origin cannot be considered "except to the extent permitted" by the U.S. and state constitutions.

Spencer said reasonable suspicion could include an admission of being in the country illegally, having fake identification, having foreign identification without a visa or U.S. immigration documentation, or having no identification.

Kyrsten Sinema, a Democratic state representative and an attorney who opposes the law, said the law does not state what officers can consider when determining reasonable suspicion, which opens the door to broad interpretation and the potential for racial profiling.

"Arizona courts describe (reasonable suspicion) as requiring only a minimal, objective justification based on the totality of circumstances," she said. "These can include such basic factors as a person's conduct or appearance, the characteristics of the area, the time of day and the experience of the officer."

How would scenario play out under law?

Scenario: At 9 on a weekday evening, a police officer comes across three men ages 18 or 19 playing basketball in a south Phoenix neighborhood park. The neighborhood has a large illegal-immigrant population. All three appear to be Latino. There have been no recent crimes or complaints that might be connected to these three men. The men are wearing torn T-shirts, shorts and basketball shoes. They have no identification with them.

• Question: Can the officer approach the men and ask them their legal status?
John Kavanagh: No. Nor could the officer approach them for any other law-enforcement reason, assuming the park is still open to the public. They are doing nothing that is illegal or even suspicious.

To be contacted, they would have to be observed committing an unlawful act (other than being in the U.S. illegally). Even then, additional facts that create a "reasonable suspicion" they are here illegally would have to be present before the officer could question them about their immigration status.

Andy Silverman: A police officer can talk to anyone he or she wants to and ask them anything. The issue is whether the person is free to go. If the person is not accused or suspected of a crime, they should be free to go and thus not answer the question. If the police officer has a legitimate criminal reason to detain the person, then of course they are not free to go.

A person doesn't need to answer any question by a police officer whether detained or not except maybe their name - that is, people have a right not to incriminate themselves or answer questions from a law-enforcement officer.

Kyrsten Sinema: The new law does not prohibit the officer from questioning the men about their status. Reasonable suspicion depends on the totality of circumstances and can include a person's conduct or appearance, characteristics of the area and time of day.

The new law does not give guidelines that define what police can use in deciding who to question about immigration status.

Mark Spencer: No. There is no suspicious conduct and the law presumes everyone is in the country legally.

The officer could question the men if there was suspicious or criminal conduct (i.e. calls complaining about fighting, urinating in public, odor of marijuana, etc.) along with reasonable suspicion to being in the country illegally. Even with suspicious or criminal conduct, the person contacted is presumed to be a citizen.

• Question: If the officer did approach and ask for identification, can the officer accept their word that they are legal citizens when they have no identification?
John Kavanagh: The boys do not have to prove their legal status.

Given that this situation does not even create reasonable suspicion to legally question them about any initial offense needed to trigger immigration status questioning, this encounter should not even be taking place.
Andy Silverman: ARS 11-1051(B) (section 2 of 1070) doesn't require that the person show identification indicating their immigration status but requires the officer to verify their status with the federal government if they have reasonable suspicion they are in the U.S. unlawfully.

However, ARS 13-1509(A) (section 3 of 1070) does create a state crime if a person willfully fails to carry an alien-registration document if the person is in violation of a couple of federal statutes.
Kyrsten Sinema: The officer probably won't be able to accept their word because Senate Bill 1070 actually ties the hands of police. If the officer doesn't ask the basketball players for identification, the officer could be at risk for being sued for not enforcing the law.
Mark Spencer: Yes. The statute communicates that all people contacted are presumed to be citizens unless reasonable suspicion indicates a violation of immigration law.

• Question: If the officer does end up asking for identification and the men don't have IDs, can they be detained or arrested?
John Kavanagh: No.
Andy Silverman: The law doesn't provide for what the officer must do if he or she determines after checking with the feds the person is unlawfully in the U.S. However, a subsection provides that a police officeer "may" transport to the feds a person who they have verified is in the country unlawfully.

The issue is whether the feds need to take that person - I assume they can refuse to do so. I would assume at that point the local officer would have to release the person unless they are going to charge them with some crime under SB 1070 or some other crime.
Kyrsten Sinema: The basketball players probably can be detained or arrested. The men could be processed for deportation or voluntary removal if they do not have legal status in this country.

However, if they are legally present in the country but do not have documentation, they could be unlawfully detained by officers.
Mark Spencer: In this case, they could not be detained or arrested.

Reasonable suspicion is required for detention. Probable cause is required for arrest. The conduct in this scenario is insufficient for either reasonable suspicion or probable cause.

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