New Mexico Civil Rights Law Blog : New Mexico Civil Rights Lawyer & Attorney : Kennedy Law Firm : Albuquerque NM Excessive Force & Police Misconduct

          Arizona's new law compels law enforcement officers to make inquiry into the immigration status of a person who law enforcement has "reasonable suspicion . . . is an alien who is unlawfully present in the United States".   Many on the radio and on the web suggest that this provision only applies when a law enforcement officer has lawfully stopped someone for suspicion of criminal activity or for a traffic violation. This is untrue.

          The new statute presupposes a "lawful contact" between law enforcement and the person suspected of being an illegal alien.  However, "lawful contact" between law enforcement and citizens includes police walking up to people in a public area and asking for identification.  Florida v. Bostick,  501 U.S. 429 (1991); Florida v. Royer, 460 U.S. 491 (1983).  However, the police may not demand identification and may not arrest for a refusal of a person to identify himself, unless reasonable suspicion exists that the person refusing to identify himself is engaged in some criminal act.  Hiibel v. Humboldt County, 542 U.S. 127 (2004).  So, while the police may not have probable cause to arrest the person detained for the crime he is suspected of committing, they can arrest the person, under most state laws, if the person refuses to identify himself, while being lawfully detained.  In my experience, police understand that a verbal identification, which includes date of birth, is sufficient identification in most circumstances.  

          The genius [some would say evil genius] of the Arizona "stop and identify" law is that it creates a new crime under state law - illegal alien trespass.  Thus, "lawful contact" is expanded to include all sorts of factors that did not amount to suspicion of a criminal conduct before the criminalization of illegal alien trespass.  Thus, what would normally be considered profiling is transformed into reasonable suspicion of trespass.  Lawful contact can now include detaining persons who appear to be Mexican and speak Spanish or speak English with a foreign accent.  Once lawfully detained, law enforcement may require identification under threat of arrest. 

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          My focus in this post is the "stop and identify" feature of the new Arizona immigration law and its potential impact on New Mexicans traveling to Arizona.  

          In 1928, Supreme Court Justice Louis Brandeis famously observed that the most cherished American right is the right to be let alone.  Our country has a long antipathy toward "stop and identify" laws. In Brown v. Texas, 443 U.S. 47 (1979). our Supreme Court stated that police may not demand, under threat of arrest, identification of persons in public.  In Hiilbel v. Humboldt County, 542 U.S. 177 (2004), the Supreme Court allowed law enforcement officers to enforce identification statutes if the person who refused to identify himself is lawfully detained for suspicion of criminal activity.  The Court left open the question of what type of identification the state can require. However, I read the Hiilbel case to suggest that anything beyond verbal identification would be difficult to justify.  

          The most noxious feature of the Arizona statute is that it allows police officers to demand identification of person's suspected of being illegal aliens.  Through experience we know that many suspects are innocent.  Many suspected of being illegal aliens will be citizens and visitors legally in the United States.  Reasonable suspicion requires a minimal level of objective information that a person is committing or has committed a criminal act.  Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000).  This minimal level of information will involve police accounts detailing "furtive movements", "an area known for the pick-up of day laborers", 'failure to make eye contact" , and "Spanish speaker" in order to justify detentions and demands for identification.  

          Whether the failure to produce identification, once a person is detained on suspicion of being an illegal alien, provides sufficient cause for arrest will likely be for the courts to decide. The legislature gave law enforcement no guidance as to what constitutes reasonable suspicion of illegal alien status invoking law enforcement's right to demand identification.  That lack of guidance and the failure to explain whether lack of accepted identification provides probable cause upon which an officer may make an arrest for trespass are troubling in a country that prides itself on freedom of movement.

          The statute provides:  "Any person who is arrested shall have the person’s immigration status determined before the person is released."  Whether that provision is related to all arrests for any crime or simply to arrests for illegal alien trespass is not clear.  The arrest provision in the "stop and identify" portion of the statute implies that one can be arrested for trespass if one does not have the required documents.  Most notable for New Mexicans is that our state issued driver's licenses are not proof of legal residency in the United States, under Arizona law.  Additionally, if the provision refers to all arrests, it is in direct conflict with our Eighth Amendment right to reasonable bail.  

Here is the relevant portion of the law:

 B.  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, except if the determination may hinder or obstruct an investigation.  Any person who is arrested shall have the person’s immigration status determined before the person is released.  The person’s immigration status shall be verified with the federal government pursuant to 8 United States code section 1373(c).  A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not solely consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution.  A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following:

1.  A valid Arizona driver license.
2.  A valid Arizona nonoperating identification license.
3.  A valid tribal enrollment card or other form of tribal identification.
4.  If the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state or local government issued identification.                              

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          The Tenth Circuit affirmed the conviction of a man for child sexual abuse after deciding that the trial court correctly admitted evidence of grooming behavior of predator abusers.  You can read the opinion here:  http://www.ca10.uscourts.gov/opinions/09/09-8079.pdf

           In United States v. Batton, 2010 U.S. App. Lexis 8509, the defendant was convicted of taking a fourteen year old boy to Chicago and sexually assaulting him.  The defendant appealed his conviction and complained that the trial judge should have excluded testimony from an expert about "grooming" behavior of predatory child abusers.  The Tenth Circuit permitted the following testimony:

Dr. Heineke testified that sex offenders are generally not strangers to their 

victims and their families but are more often than not close family members, 

friends, or well-respected individuals in a community who often use their 

positions to groom their victims into trusting them.  He also informed the trial 

court that many lay persons carry a common misconception that sex offenders are

only strangers or fit some misconceived criminal caricature.

The Court went on to explain that other courts have allowed similar testimony to explain how sexual predators develop a trusting relationship with their victims.

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          In Zia Trust Company v. Montoya,  2010 U.S. App. Lexis 5016 (March 9, 2010), the child of a victim of police use of deadly force brought a lawsuit against the police officer and Dona Ana County.  In this police shooting case, the police officer filed a motion for summary judgment in district court.  The district court denied the motion holding that the law related to excessive use of deadly force was clearly established.  The Officer appealed and the Tenth Circuit affirmed that a reasonable jury could find that the officer's use of force deprived the child's father of his fourth amendment right to be free of excessive force. The opinion can be read here:  ca10.washburnlaw.edu/cases/2010/03/09-2006.pdf.

          In this case, police were called to a home where a father and an adult son were having a dispute.  The son was reported to have mental health problems.  When police arrived, the son was in a car lodged on a pile of rocks.  The car lurched forward about a foot and Officer Montoya fired a single shot into the car killing the son.  The Tenth Circuit found that a reasonable jury could conclude that Officer Montoya used excessive force in shooting the adult son.

          For practitioners, the Tenth Circuit explained, in greater detail, the factors a jury may consider when deciding whether deadly police force is unlawful:

We may also consider a number of factors, including: "(1) whether the officers ordered the suspect to drop his weapon, and the suspect's compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect." Estate of Larsen, 511 F.3d at 1260. "The use of deadly force is justified under the Fourth Amendment if a reasonable officer in the Defendant's position would have had probable cause to believe that there was a threat of serious physical harm to themselves or others." Walker, 451 F.3d at 1159 (internal quotations omitted).

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          Law enforcement likes consent to search a home.  With consent to search a home, law enforcement does not need to apply for a search warrant.  The law prefers search warrants, but allows consent when "freely given".

          In USA v. Fox, 2010 U.S. App. Lexis 5804, the Tenth Circuit reversed a felon in possession of a gun conviction because officers illegally searched a defendant's home based upon the defendant's wife's consent to search the home. The problem for the police was that the consent was obtained after an illegal detention of the wife.  The full opinion can be read here: ca10.washburnlaw.edu/cases/2010/03/09-5131.pdf

          The Tulsa police arrested Mr. Fox outside his home for an outstanding warrant.  When Mrs. Fox arrived home, she stopped in the street and asked the officer what was going on.  One officer hopped into the passenger side and told Mrs. Fox to pull into the parking lot of a local convenience store.  Once there, the officer checked Mrs. Fox's license and checked her for outstanding warrants.  The officer then conducted a "consensual" search of Mrs. Fox's car and found an illegal drug - likely methamphetamine.  A that point, the officer told her that he had bigger fish to fry - Mr. Fox.  The officer asked for consent to search the family home.  Mrs. Fox said "yes".  The officers from Tulsa searched the home and found a shotgun.  Mr. Fox was a convicted felon.

          The opinion focuses on whether Mrs. Fox was seized when the officer hopped in her car and directed her to another location.  The Tenth Circuit held that, indeed, Mrs. Fox was seized and that there was no legal basis for the seizure.  Thus, the consent resulting during the illegal seizure was, as a matter of law, coerced or not "freely given".

          For the practitioner, the Tenth Circuit re-stated the factors it considers when deciding whether a seizure occurs:

In determining whether an individual has been seized, we have considered several factors, including:

(1) the threatening presence of several officers; (2) the brandishing of a weapon by an officer; (3) physical touching by an officer; (4) aggressive language or tone of voice by an officer indicating compliance is compulsory; (5) prolonged retention of a person's personal effects; (6) a request to accompany the officer to the police station; (7) interaction in a small, enclosed, or non-public place; and (8) absence of other members of the public.

United States v. Rogers, 556 F.3d 1130, 1137-38 (10th Cir. 2009). No single factor is dispositive, and this list is not exhaustive. Id. at 1138. Another relevant factor that suggests an encounter is not consensual is whether the officer advised an individual that she is free to leave. United States v. Ledesma, 447 F.3d 1307, 1314 (10th Cir. 2006).

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 In Shroff v. Spellman, 2010 U.S. App. Lexis 6018, Amy Shroff vindicated her right to privacy when she and her attorneys successfully defended the appeal of Officer Spellman's denial of his qualified immunity defense to his arrest of Ms. Shroff after he ignored the clear terms of a restraining order she had obtained against the physically abusive father of her child.  The full opinion can be read here:  ca10.washburnlaw.edu/cases/2010/03/09-1084.pdf.

Officer Frank Spellman of the Denver Police Department arrested Amy Shroff.  She had obtained a restraining order against the father of her child after several acts of physical abuse.  The restraining order prevented her ex from coming within one hundred feet of her, but it was not a mutual restraining order.

One day while driving to drop her daughter off for supervised visitation, she noticed her ex's truck parked outside the local bar.  Amy got out of her car and took a picture of the truck in front of the bar.  Unknown to her, her ex was simultaneously taking a picture of her.  The ex complained to Officer Spellman, who ignored the clear language of the restraining order and arrested Ms. Shroff for coming within 100 feet of her ex.   The Tenth Circuit ruled that the arrest lacked probable cause of a crime.

At the police station, Amy pleaded not to be arrested because of her child's aversion to formula.  When that appeal was denied, she pleaded for a chance to pump her breasts.  Officer Spellman placed Amy in a conference room with a female cadet where Amy pumped her breasts.  The Tenth Circuit held that Amy did not voluntarily expose her breasts and held that her claim was analogous to prohibited strip searches of misdemeanants in police custody.

Of note for the practitioner is further explanation of the qualified immunity defense and the need for an action to have been held unconstitutional in a previous decision.  The Tenth Circuit wrote:  

In Fogarty v.Gallegos, 523 F.3d 1147 (10th Cir. 2008), this Court held that 

“our circuit uses a sliding scale to determine when a law is clearly established. 

Under this approach, ‘[t]he more obviously egregious the conduct in light of 

prevailing constitutional principles, the less specificity is required from prior case 

law to clearly establish the violation.’”  Id. at 1161 (quoting Pierce v. Gilchrist, 

359 F.3d 1279, 1298 (10th Cir. 2004)) (alteration in original).

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