New Mexicans and Arizona's Immigration Law
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.
New Mexico is one of a handful of states that does not require proof of citizenship or legal residency to obtain a driver's license. Another Arizona neighbor - Utah - also issues driver's licenses without proof of citizenship. Again, the statute does not state whether the failure to produce adequate identification will lead to an arrest. However, a police officer could reasonably believe he has the power to make an arrest of a person whom he suspects to be an illegal alien who, also, cannot produce evidence of legal status. To me that places far too much discretion in the hands of officers. Many citizens and legal residents of New Mexico could be affected by this law. Because the standard of reasonable suspicion, as a general concept in the law, calls for a minimal amount of evidence, a foreign accent or appearance, in the right circumstances, could raise a reasonable suspicion that the person is an alien and subject him to the identification obligations. A New Mexico driver's license does not create a presumption of legal residency.
The Arizona immigration law sets itself squarely in opposition to our cherished right to be let alone. The government's exercise of its police powers often results in restrictions of liberties for all. The Arizona immigration law is such an exercise of police powers.
