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The TalkGwinnett Express Yourself Forums :: Express Yourself National |
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Subject :Arizona Judge's Decision on SB1070..
07/28/2010 23:18
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Subject :Re:Arizona Judge's Decision on SB1070..
07/29/2010 03:57
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| Larry Major |
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Joined: 07/12/2008 04:10
Posts: 6
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Somewhere along the way, the AP forgot that while the sizzle may attract, you really do need the steak. I haven’t been following this case closely and was on the third emotion-packed “news” article until it struck me they were talking about a motion, not the actual case determination. Thank you for starting this thread properly.
Some previous reports claimed SB1070 reads more like a collection of random thoughts than legal code. Having now read this mangled coding attempt, I have to wonder what was going through the minds of AZ lawmakers… and if I can get some of it for Friday night. There’s simply no reason a court should have to study a new law’s wording to figure out what the legislature meant. Determining legislative intent should only be required when existing law is applied to new circumstances, as in Freedom of the Press extending to the internet.
Any state considering “similar” legislation would be better off starting from scratch. Using SB1070 as a model for new legislation is like using Janet Reno as a model for cosmetic surgery. |
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Subject :Re:Arizona Judge's Decision on SB1070..
07/29/2010 09:59
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| Bob Griggs |
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Joined: 09/15/2006 06:06
Posts: 40
Location: Loganville, GA |
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I could not disagree with your assessment of the new law more, Larry. Even the more "controversial" parts are founded on established law or court precedents. The only reason that the law is being challenged is that pro-amnesty folks know that if it is allowed to stand, it becomes a model for actual enforcement across the country.
The law was drafted with the assistance of several attorneys and organizations who cherry-picked laws that had withstood local challenges across the country. Arizona had the benefit of learning from the experience of Hazelton, for example; one of the first cities to enact local immigration legislation. In other words, not only was SB-1070 not written by clueless politicians but the legislators who debated and approved it had the benefit of years of experience and court precedence. The AZ law of which most of SB-1070 was an amendment has been tested to the Supreme Court and found to be valid and enforceable.
I believe that this Clinton appointee was under great pressure to do something to slow down the advance of local immigration enforcement efforts, so she picked the most controversial issues and ginned up some far-fetched reasoning.
Take, for example, the part of the law (enjoined) that required police to investigate a suspect's immigration status if reasonable suspicion exists to believe that they may be in the country illegally. The judge's opinion does nothing to prevent an officer from investigating a suspect's status... it only prohibits the state from REQUIRING the cops to do so.
Frankly, I don't understand why she enjoined the requirement... if an officer were to investigate, the ONLY way to do so is to query federal databases or officials, which is the way that it done under every other circumstance already! The cop isn't enforcing federal immigration law; he is simply identifying a violator based on evidence provided by the feds. This is EXACTLY how enforcement happens under other authority including the 287(g) program. Again, the only difference is that SB-1070 REQUIRES the officer to investigate and that is EXACTLY what has the law's opponents up in arms... if the officer isn't required to ask, most illegal aliens escape.
The judge enjoined the portion of the law that creates a state crime for failure to apply for or carry alien registration papers. While I can almost agree with her on this one, this part of the law actually PROTECTS legal immigrants! If an immigrant is required to carry immigration documents-- WHICH HE IS ALREADY REQUIRED BY FEDERAL LAW TO CARRY 24/7, IF he is here legally-- the officer's investigation of immigration status happens more quickly, shortening the period of the suspect's detention.
(It's called a "seizure" in the law and we are protected from "unreasonable" seizure. In examining every seizure, the courts weigh the unique facts and circumstances to determine if they are "reasonable" to justify the length of the detention.)
Further, it is a common practice for lower jurisdictions to "adopt" the statutes of the higher jurisdiction, for no other reason than to achieve local control. States make federal laws their own; counties turn state laws into local ordinances, etc. The difference in this instance, of course, is that enforcement of the borders and immigration is specifically made a responsibility of the federal government by the Constitution.
Personally, I do not believe that adopting the federal requirement of the carrying of papers is tantamount to "enforcement" of a federal law but, hey, I'm not an attorney... I just play one in discussion forums.
She put on hold the part of the law that creates a crime for when an illegal immigrant solicits work. Believe it or not, laws of this type have been struck down in other jurisdictions because it has been said that they infringe on the illegal alien's constitutional rights to work! She did not, however, stop the creation of a state crime when an illegal immigrant does the same thing in the middle of the street; primarily because it is considered to be a legitimate interest of the state to maintain the safe and free flow of traffic.
For an officer to enforce this law, he/she must first detain the suspect, then determine his legal status. If the immigrant were carrying documents, the officer could make quick work of the stop and turn legal immigrants loose with a citation. AS it is now, the officer will not have much choice than to physically arrest all and sort out legal status later.
So why would she not also enjoin this part of the law if law enforcement officer is supposedly not authorized to investigate legal status? Simple... it is because the officer is NOT prevented from investigating legal status... as I note above, the state is only enjoined from REQUIRING the officer to investigate. Local officers currently have, even without SB-1070, the authority to investigate immigration status; use evidence provided by the federal government to identify violators; and arrest the violator until the federal government can come do its job.
Finally, the judge enjoined Section 6 which authorizes an officer to conduct a warrantless arrest when probable cause exists to show that the suspect has violated any law that would justify removal of an illegal alien from the country. This makes no sense-- even the judge recognized that this section DOES NOT CHANGE CURRENT ARIZONA LAW; she based her decision on her conclusion that this section was complex and too difficult to enforce.
The bulk of the law was allowed by the judge to STAND... in other words, even in this Clinton appointee's estimation, the state of Arizona got it mostly right. With the additional court tests that this law will undergo, it will be the perfect model for local enforcement across the country. |
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Subject :Re:Arizona Judge's Decision on SB1070..
07/30/2010 10:06
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| Larry Major |
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Joined: 07/12/2008 04:10
Posts: 6
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One of my favorites is a remark Judge Sears made during Chase v. State. The DA argued the law’s intent would preclude prosecution in some situations which it clearly covered. Sears replied, “But that’s not what it says.”
This is the situation with Section 2( of 11-1051(, which appears on page 13.
The poor wording of when “reasonable suspicion” applies, is what deep sixed it. AZ argued, as you do, that SB1070 would only require verification of anyone arrested if reasonable suspicion existed - but to borrow from Judge Sears, that’s not what it says. The feds argued, and the court agreed, its wording would require police to verify the status of everyone arrested regardless of circumstances. This would include the over 36,000 cite-and-release cases in Tucson alone. Applied locally, such a statute would have required the verification of Bannister’s status before his release.
It wasn’t enjoined to interfere with legitimate requests, which as you noted are unaffected; it was enjoined because the sheer volume of clearly unnecessary inquiries would overwhelm the system and seriously interfere with the necessary requests we need to get a handle on the problem.
AZ’s on-record statement concerning how this code was written says it “might well have been more artfully worded.” I’m not that understanding. When a statute is properly worded, you don’t have to waste time in court arguing over what the legislature really meant.
Judging by another section, AZ apparently has a problem with “sanctuary cities” where local officials refuse to co-operate with state and federal law enforcement over processing illegal immigrants. It’s a shame such a law is even needed, but if that’s what it takes to wake up local officials, then so be it. Thankfully, they thought to include a severability clause in SB1070, otherwise this section too would have been jeopardized.
I don’t care what amnesty proponents want or what they say; I care that AZ made an avoidable mistake and dropped the ball.
Instead of spending more time getting an appellate court’s opinion, AZ should sit down with ICE, reword the sections in question and get this code out of the courts and on the books.
AZ has been involved with 287 (g) at the state level since 2005. Not that it matters, but I have to wonder how things got to this point. |
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