Arizona vs. Actual Law, Part 4

Arizona chose to enter the immigration enforcement business via statute. Led by a lawyer who previously represented Gitmo terrorists, Obama's Justice Department has sued to block enforcement, claiming that Arizona's law is preempted by Federal immigration law (the DoJ suit is not grounded on alleged racial profiling). The argument isn't frivolous, and courts will have to decide whether Arizona's law frustrates the purposes or conflicts with Federal law. See generally Crosby v. National Foreign Trade Council, 530 U.S. 363, 373-77 (2000) (Massachusetts law barring state entities from buying goods or services from companies doing business with Burma preempted).

When addressing the Arizona law, courts may want to look at Rhode Island, which -- via an Executive Order, not legislation -- has a similar policy:

In 2008, Governor Donald L. Carcieri, a Republican, issued an executive order mandating immigration checks on all new state workers and ordering State Police to assist federal immigration officials.

Sitting in his office in an old farmhouse off a country highway, Doherty said the State Police had collaborated with federal immigration officials before, but the relationship has become more formal in recent years. In 2007, he said, he trained all state troopers in how to deal with noncitizens because of widespread confusion and because Congress did not resolve the issue of illegal immigration. Troopers learned to notify consulates when noncitizens are arrested, how to recognize different forms of identification, and how to deal with different cultures.

Rhode Island police work with US Immigration and Customs Enforcement, known as ICE:

"There are police chiefs throughout New England who hide from the issue . . . and I’m not hiding from it," said Colonel Brendan P. Doherty, the towering commander of the Rhode Island State Police. "I would feel that I’m derelict in my duties to look the other way." . . .

By some accounts, having states collaborate more closely with ICE could improve public safety. ICE has repeatedly urged police departments to take advantage of its Law Enforcement Support Center in Vermont, a 24-hour network. . .

Bruce Foucart, special agent in charge of ICE in New England, said the center helps police verify the identities of immigrants who are suspected, arrested, or convicted of crimes, and aids ICE by informing them about people who are here illegally. The federal agency can then decide whether to detain an immigrant for deportation or release them pending a hearing in immigration court.

"Does that make for good public safety? Yes," Foucart said. "How do you know who it is until you check him through the [center]?"

Early this year, the First Circuit Court of Appeals considered a suit (Estrada v. Rhode Island, No. 09-1149 (1st Cir. Feb. 4, 2010)) against a Rhode Island state trooper. After stopping a van for an illegal lane change, the policeman queried the passengers about citizenship:

Plaintiffs do not contest the validity of the traffic stop, nor do they argue that it was unlawful for Officer Chabot to request identification from all the passengers in the van, a question our Circuit has not conclusively decided.  Instead, Plaintiffs argue that Officer Chabot's inquiry into their immigration status and subsequent call to ICE prolonged the traffic stop, converting it into an unlawful seizure in violation of the Fourth Amendment.

We cannot say, however, that it was clear as a matter of law that Officer Chabot's brief line of questioning, nor the three minutes it took for him to receive a response from ICE, unreasonably prolonged the stop such that independent reasonable suspicion was necessary to support his inquiry into Plaintiffs' immigration status.   The traffic stop at issue took place a year after the Supreme Court's decision in Muehler v. Mena, 544 U.S. 93 (2005). In that case, the Court held that a police officer does not need independent reasonable suspicion to question an individual about her immigration status during the execution of a search warrant, but that such inquiry constitutes "mere police questioning" so long as the detention was not prolonged by the questioning.  Id. at 101.

Other courts have held that questioning that extends the length of detention "by only a brief time" does not "make the custody itself unreasonable." . . . In a more recent case, we rejected a defendant's argument that "police must limit a traffic citation stop to the narrow purpose of immediately preparing and issuing a citation."  United States v. Dunbar, 553 F.3d 48, 56 (1st Cir. 2009) (finding that a delay of twelve minutes while officer prepared a traffic warning and questioned car's passenger about her itinerary did not unreasonably delay the stop).

We also note that by the time Officer Chabot asked about Plaintiffs' immigration status, he knew that:  (1) Plaintiffs were headed to work;  (2) most were unable to produce any identification, and of the four who did, two could produce only identifications issued by the Guatemalan consulate; and (3) they spoke little English.  Officer Chabot also testified that passengers, of whom he requests documentation as a matter of routine, are able to produce valid identification more than 99 percent of the time.  All of these facts combined may well have sufficiently heightened his suspicions for him to believe that he could shift his inquiry from the traffic stop to investigating other potential criminal activity.

Conclusion: Given that Arizona's requirement of "reasonable suspicion" is less intrusive than Federal law, it will be interesting to see how the 9th Circuit will reason this frustrates Federal policy. After all, Arizona didn't enact its own immigration law--it's simply aiding enforcement of Federal law. And it seems to be working.

Further, concern for illegal immigration isn't limited to places populated by geriatric Republicans, but is exhibited in the "bluest" of States--without, apparently, hamstringing its police or overtaxing the Feds (as the DoJ claims Arizona's law does). As Ed Morriessy says:

Well, that’s different from what Arizona is doing because, well, um . . . Arizona's racist, or something. In fact, Rhode Island does exactly what Arizona belatedly decided to do, which is to get serious about immigration control and enforcing the law. The only difference is that Rhode Island began doing it before Barack Obama needed a distraction from a hugely unpopular ObamaCare bill and thought a fight over immigration would bolster Democrats in the midterms.

Does that "make for good public safety?" Ask ICE special agent Bruce Foucart.

(via reader OBH)