There’s been much concern — and, we suspect, much confusion — about what to do about the portions of Arizona’s SB1070 immigration and ID-check law that weren’t struck down by the US Supreme Court in its decision last month in Arizona v. United States.
The portion of the law that remains in place (at least for now) after the Supreme Court decision is exactly the section that we focused on in our analysis of the law when it was first enacted:
For any lawful contact 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 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.
So far as we can tell, the Supreme Court majority (567 U. S. ____, slip opinion at pp. 19-24) reads this section of the law the same way we read it, in three crucial respects:
First, the Supreme Court opinion describes the Arizona law as imposing requirements on state officers to “attempt… to determine” certain facts, in certain circumstances. Nothing in the Supreme Court opinion suggests that SB10170 imposes any obligation on individuals to assist those officers in their “attempt .. to determine” that information, or to carry or provide evidence of, or to answer questions about, their identity or immigration status.
Second, the Supreme Court was unable to find in the text of the law any clear mandate for state officials to detain anyone who would not already be properly subject to detention, or to prolong anyone’s detention, merely in order to facilitate that “attempt … to determine” their immigration status.
Third, the Supreme Court explicltly left open the possibility that any prolongation of detention or delay of release from custody in order to facilitate an immigration check, or as a sanction for inability or unwillingness to supply evidence of identity or immigration status — even if the original detention or custody was lawful — might be unconstitutional. The Supreme Court did not find that this provision is Constitutional, only that it might be Constitutional — depending on how it is interpreted and applied by Arizona state officers and judges — and that it would be premature to find it unconstitutional just yet:
Some who support the challenge to §2(B) argue that, in practice, state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status…. But §2(B) could be read to avoid these concerns. To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of §2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with ICE if there is reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry.
To take another example, a person might be held pending release on a charge of driving under the influence of alcohol. As this goes beyond a mere stop, the arrestee (unlike the jaywalker) would appear to be subject to the categorical requirement in the second sentence of §2(B) that “[a]ny person who is arrested shall have the person’s immigration status determined before [he] is released.” State courts may read this as an instruction to initiate a status check every time someone is arrested, or in some subset of those cases, rather than as a command to hold the person until the check is complete no matter the circumstances. Even if the law is read as an instruction to complete a check while the person is in custody, moreover, it is not clear at this stage and on this record that the verification process would result in prolonged detention. However the law is interpreted, if §2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive pre-emption — at least absent some showing that it has other consequences that are adverse to federal law and its objectives. There is no need in this case to address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law….
There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law…. This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect. [slip opinion at pp. 22-24, emphasis added]
This close reading of the law and the Supreme Court opinion makes clear that the next step for opponents of the law is to test how, in practice, the state of Arizona will answer the questions asked by the Supreme Court: Will people in Arizona be detained, will their detentions be prolonged, or will their releases from custody be delayed (without, in each case, some other lawful basis) merely to check their immigration status?
If any of things happen to people in Arizona, the Supreme Court has explicitly left it open for them to bring new Constitutional challenges to those infringements of human rights. And if not, then people in Arizona retain the rights they have always had.
Some people have started petitions calling for repeal of SB 10170 by the Arizona legislature, or non-cooperation by executive agencies like the DHS with requests from Arizona for immigration checks, as though the Supreme Court ruling means that we should give up hope that our rights will be recognized or respected by the judiciary, and rely on executive discretion for our freedom.
But rather than ignoring our rights, we should be explaining them to, and enforcing them against, police and other officers whose first duty is to Constitutional human rights, and only secondarily and to the extent it is consistent with those rights to Arizona or other state law. Letter-writing campaigns asking Federal or state officials to respect our rights — as though that were a discretionary choice, or as though fundamental rights could be rescinded by vote of the legislature — will only be ignored.
The question to ask is what right a cop has to demand identification papers of anybody - citizen or non-citizen. The answer is that they have no such right. A state law can’t require citizens to start carrying identification documents; they can’t make it a crime to be born and live and not ever get an ID card. That’s a “status crime” and those have been regularly struck down as unconstitutional. Citizens can’t be arrested for not having identifying “papers”. The result is that a police officer who has no evidence about whether a person is a citizen or not can’t arrest them for refusing or failing to provide any papers (such as an immigration card, driver’s license, state ID , passport, etc.).
So the way to take up the challenge posed by the Supreme Court’s decision in Arizona v. U.S. is to test whether, in fact, SB1070, will be applied and interpreted in a Constitutional manner that respects our right to walk the streets — an Arizona or anywhere — freely without government papers or permission, or whether it will be used to legitimate the practices (common even in state’s without the pretext of laws like SB1070) of detentions based solely on lack of ID.
We suspect that the answer is that Arizona did, does, and will continue to detain people, prolong their detentions, and delay their release from custody if they don’t play along with “requests” for ID. Those actions are unconstitutional in and of themselves, and the violations of Constitutional and human rights are compounded by profiling and other discrimination on the basis of race and ethnicity.
If so, those actions need to be challenged as violations of our rights, and those challenges need to be brought back to the Supreme Court, if necessary, as soon as possible.
What will happen if US citizens who have no immigration papers are arrested, and then sue the arresting officers for violating their right to be left alone?
If their lawsuits succeed, particularly if the courts hold that the right was clearly established, police will be very reluctant to become personally liable for arresting someone without a legal basis.
And the racist police and/or DHS personnel and contractors (including many of those, such as TSA checkpoint staff, who aren’t law enforcement officers) who keep on arresting or detaining people, or taking actions that lead to or prolong detentions, for no legal reason?
Those with the resources to mount, and follow through on, legal challenges should just keep sending dark-skinned, fluent Spanish speaking US citizens through those cops’ beat until they arrest a few — then bring lawsuits that put those cops at risk of losing their savings, houses, and livelihoods. Whoever hired those police could end up paying big damages from their city, county, or state treasury. And if they keep it up, the court judgments against them will establish a pattern and practice of violations of rights, on the basis of which it will be possible to obtain injunctions against the responsible city, county, or state agency, ordering them not to arrest people for lack of papers.
It’s as clear as ever that the way to reclaim our rights is to exercise them, and to challenge those — including most especially the state and its minions — who try to interfere.