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ARIZONA SB1070: Short Analysis (and Amendment HB2162)

Posted by FactReal on April 30, 2010

UPDATE – on May 7, 2010:
Amendment to SB1070: The Arizona Governor also signed HB2162 (PDF), an amendment to the original SB1070. HB2162 changes “lawful contact” to “lawful stop, detention or arrest.” HB2162 removes the word “solely” from “may not solely consider race, color or national origin in implementing the requirements of this subsection.” HB2162 also reduces some fines, etc.
- – - – - – - – - – Original Post – - – - – - – - – -
SUMMARY OF THE NEW ARIZONA LAW (SB 1070):

Mirrors the federal law that since 1940 requires aliens to register and carry their documents with them.[2]
Targets ILLEGAL IMMIGRATION. Americans do not oppose legal immigration. Why is it racist to ask people to come through the front door?
Will NOT give police the power to pick anyone out of a crowd for any reason and force them to prove they are in the U.S. legally.[2]
Reasonable Suspicion: SB1070 also requires police officers who, in the course of a traffic stop or other law-enforcement action, come to a “reasonable suspicion” that a person is an illegal alien verify the person’s immigration status with the federal government.[1]
No Racial Profiling: SB1070 did not invent the concept of “reasonable suspicion.” Several factors are combined for police to arrive to “reasonable suspicion” that a crime has been committed. The law prohibits police to engage in racial profiling when making any stops.
Prohibitions: SB1070 prohibits the harboring of illegal aliens and makes it a state crime for an alien to commit certain federal immigration crimes.[1]

Countries have the responsibility to provide national security. Countries like Mexico have stricter immigration laws than USA.

CARRYING DOCUMENTS
FACT: SB1070 mirrors the federal law that since 1940 requires aliens to carry their documents with them:

● The Arizona law makes it a misdemeanor for an alien to fail to carry certain documents.[1]
● Since 1940, it has been a federal crime for aliens to fail to keep such registration documents with them.[1]
For 70 years, federal law has required non-citizens in this country to carry, on their person, the documentation proving they are here legally — green card, work visa, etc. That hasn’t changed.[2]
● The Arizona law simply adds a state penalty to what was already a federal crime. [1]
● Other nations have similar documentation requirements.[1]
● The new Arizona law mirrors federal law, which already requires aliens (non-citizens) to register and carry their documents with them:[3]

U.S. Federal Law: 8 USC 1306(a): Willful failure to register
Any alien required to apply for registration and to be fingerprinted in the United States who willfully fails or refuses to make such application or to be fingerprinted, and any parent or legal guardian required to apply for the registration of any alien who willfully fails or refuses to file application for the registration of such alien shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not to exceed $1,000 or be imprisoned not more than six months, or both.

U.S. Federal Law: 8 USC 1304(e): Personal possession of registration or receipt card; penalties
Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.

CARRYING A DRIVER’S LICENSE
FACT: SB1070 does NOT require that people carry a driver’s license. Actually, a driver’s license in Arizona proves the person is not an alien. Besides, all Americans are constantly asked for papers for routine transactions, i.e., banks, airports, etc.:

● Arizona’s law does not require anyone, alien or otherwise, to carry a driver’s license.[1]
● It gives any alien with a license a free pass if his immigration status is in doubt. Because Arizona allows only lawful residents to obtain licenses, an officer must presume that someone who produces one is legally in the country.[1]
● All Americans have to carry their driver’s license: Is having to produce a driver’s license too burdensome? These days, natural-born U.S. citizens, and everybody else, too, are required to show a driver’s license to get on an airplane, to check into a hotel, even to purchase some over-the-counter allergy medicines. If it’s a burden, it’s a burden on everyone.[2]

NO RACIAL PROFILING
FACT: SB1070 will NOT allow police to engage in racial profiling:

● The law (Section 2) specifically states that police, “may not solely consider race, color or national origin” in making any stops or determining immigration status.[1][2]
● In addition, all normal Fourth Amendment protections against profiling will continue to apply.[1]
● In fact, the Arizona law actually reduces the likelihood of race-based harassment by compelling police officers to contact the federal government as soon as is practicable when they suspect a person is an illegal alien, as opposed to letting them make arrests on their own assessment.[1]
NEW: The Arizona Governor signed HB2162 (PDF), an amendment to SB1070, to “make it crystal clear and undeniable that racial profiling is illegal, and will not be tolerated in Arizona.

LAWFUL CONTACT
NEW: HB2162 (PDF), the amendment to SB1070, changes “lawful contact” to “lawful stop, detention or arrest.” But SB1070 was already clear, so here below are the facts for SB1070.

FACT: SB1070 will NOT give police the power to pick anyone out of a crowd for any reason and force them to prove they are in the U.S. legally:[2]

● The law requires police to check with federal authorities on a person’s immigration status, IF officers have stopped that person for some legitimate reason and come to suspect that he or she might be in the U.S. illegally.[2]
● “Lawful contact” defines what must be going on BEFORE police even think about checking immigration status. “That means the officer is already engaged in some detention of an individual because he’s violated some other law.”[2]
● The law only allows police to ask about immigration status in the normal course of “lawful contact” with a person, such as a traffic stop or if they have committed a crime. [3]

SB1070, Section 2. “For any lawful contact made by a law enforcement official or a law enforcement agency…where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person…”

REASONABLE SUSPICION
FACT: “Reasonable suspicion” will NOT permit police misconduct.

● Before asking a person about immigration status, law enforcement officials are required by the law to have “reasonable suspicion” that a person is an illegal immigrant.[2]
● The concept of “reasonable suspicion” is well established by court rulings.[2] Over the past four decades, federal courts have issued hundreds of opinions defining those two words.[1]
● The Arizona law didn’t invent the concept: Precedents list the factors that can contribute to reasonable suspicion; when several are combined, the “totality of circumstances” that results may create reasonable suspicion that a crime has been committed.[1]
● For example, the Arizona law is most likely to come into play after a traffic stop. A police officer pulls a minivan over for speeding. A dozen passengers are crammed in. None has identification. The highway is a known alien-smuggling corridor. The driver is acting evasively. Those factors combine to create reasonable suspicion that the occupants are not in the country legally.[1]
● Since Arizona does not issue driver’s licenses to illegal immigrants, having a valid license creates a presumption of legal status.[2]
● When Arizona’s governor signed the new law, she also issued an executive order requiring training for local police on what does and what does not constitute “reasonable suspicion.”[2][4]

STATE VS. FEDERAL POWERS
FACT: State governments may enact laws to discourage illegal immigration.
[1]

● While it is true that Washington holds primary authority in immigration, the Supreme Court since 1976 has recognized that states may enact laws to discourage illegal immigration without being pre-empted by federal law. As long as Congress hasn’t expressly forbidden the state law in question, the statute doesn’t conflict with federal law and Congress has not displaced all state laws from the field, it is permitted.[1]
● That’s why Arizona’s 2007 law making it illegal to knowingly employ unauthorized aliens was sustained by the United States Court of Appeals for the Ninth Circuit.[1]
● The SB1070 law is designed to avoid the legal pitfall of “pre-emption,” which means a state can’t adopt laws that conflict with federal laws. By making what is a federal violation also a state violation, the Arizona law avoids this problem.[2]

WON’T CREATE A POLICE STATE
FACT: The Arizona law hardly creates a police state.

● When you read the Arizona SB1070, you realize “it is a reasonable, limited, carefully-crafted measure designed to help law enforcement deal with a serious problem in Arizona. Its authors…went to great lengths to make sure it is constitutional.[2]
● It takes a measured, reasonable step to give Arizona police officers another tool when they come into contact with illegal aliens during their normal law enforcement duties.[1]

WHY THE LAW IS NEEDED
FACT: Arizona is the ground zero of illegal immigration.
[1]

● The federal government estimated that Arizona had one of the fastest growing illegal immigrant populations in the country, increasing from 330,000 in 2000 to 560,000 by 2008.[2][5]
● Phoenix is the hub of human smuggling and the kidnapping capital of America, with more than 240 incidents reported in 2008. It’s no surprise that Arizona’s police associations favored the bill.[1] Also, 70 percent of Arizonans support SB1070.[6]
● We already have plenty of federal immigration laws on the books, and the typical illegal alien is guilty of breaking many of them. What we need is for the [federal] executive branch to enforce the laws that we already have.[1]
● Unfortunately, the Obama administration has scaled back work-site enforcement and otherwise shown it does not consider immigration laws to be a high priority. Is it any wonder the Arizona Legislature, at the front line of the immigration issue, sees things differently?[1]

SOURCES
1. ^ Kris W. Kobach, author of the SB1070 Arizona law
2. ^ Byron York, “A carefully crafted immigration law in Arizona”
3. ^ Center for Immigration Studies
4. ^ Arizona Governor’s executive order requiring the Arizona Peace Officer Standards and Training Board
5. ^ DHS: Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2008 (see Table 4)
6. ^ Rasmussen Poll (4/21/2010): 70% of Arizona Voters Favor New State Measure Cracking Down On Illegal Immigration.
RELATED
Kris W. Kobach’s Website
Another Obama Gaffe… Immigrant ID Law Has Been On Books For 70 Years
Coulter: I’ve Never Seen Any Issue Lied About As Much As Ariz. Immigration Law
Los Suns from Phoenix
Here’s what we can do for Arizona
Arizona Governor Jan Brewer to Barack Obama: “No One In Arizona Is Laughing” (Video)

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