May 28, 2010 2:08PM

Immigration Law — Up Close

Kirk Adams, speaker of the Arizona House of Representatives, has an article in today’s Washington Post on the controversial Arizona immigration law. Here’s an excerpt:

Under the law, officers can only attempt to determine a person’s immigration status during “lawful contact,” which is defined as a lawful stop, detention or arrest. Any “reasonable suspicion” can be derived only through the investigation of another violation or crime. Those who are concerned that law enforcement can simply walk up to a person and say, “Can I see your papers?” should keep this in mind.

The police are going to ask questions and request to see papers in a variety of circumstances — whether they have reasonable suspicion or not. From a legal, constitutional, and practical perspective, the key issue is this: What are the consequences, if any, for the person who stands his ground and declines to answer questions or declines to produce identification papers? If a person declines, will the police back off and say, “Well, that is your right, sir, you may go” or will the police escalate the situation by ordering the person to answer questions, ordering the production of identification, detaining the person, or threaten the person with arrest on bogus charges?

The police are trained to blur the line between “voluntary” interactions with people (perfectly lawful) and “involuntary” interactions with people (where police power is limited by the Constitution). So, for example, if a police agent says, “Okay pal, let’s see what’s in the backpack!” it is unclear whether the officer just made a request (lawful) or issued an order (for my purposes here, unlawful). The onus here is on the layperson to speak up if he does not wish to voluntarily consent to a search: “Officer, I don’t consent to any searches.” Upon hearing that, the officer will either (a) retreat; (b) clarify that he was ordering, not asking; © press the person some more to consent. A dishonest officer can just lie and deny what you said — and if that matter goes to court the outcome will depend on who the judge believes. That’s a severe practical disadvantage for laypeople.

With that background in mind, check out this video footage taken by a guy who seems to know constitutional law and immigration law inside out.

The vehicle is not stopped on a warrant, probable cause, or reasonable suspicion. As far as I can tell, all the cars are being stopped. The police ask about his immigration status and the driver declines to answer. The man in the car knows the law well and quickly makes it crystal clear that he’s not interested in a “voluntary” encounter with the police — he wants to be on his way. The police repeatedly evade his attempt to clarify the situation. That is, if the police are detaining him, the driver does not want to flee or resist the officers (that’s a crime) — but if the police are not detaining him, the driver does not wish to hang out with them and talk — he wants to be on his way. Watch the police lie and/​or illegally threaten that he will be detained — until he answers their questions. Watch the police threaten to arrest the man for causing a “safety” hazard, or for “impeding” or obstructing their “work.” Given those police actions, most people will come to the conclusion that they have no choice in the matter — answer the questions and produce the ID papers. These are the situations that the courts rarely see. The citizen who was understandably intimidated by the threats may get mad, but it is not worth it to sue. If an illegal is discovered, he would be deported in a matter of hours. This video is thus a real public service announcement — whatever your view is on the immigration matter, do understand clearly how the police will be are interacting with people.

Note also that the police in the video clip work for the federal government, not Arizona. So those concerned about the Constitution should remain on guard when they hear the claim that “Arizona is only doing what the federal government is already doing.” Further, it is doubtful that the Obama administration intends to roll back or reform the powers of the federal police. Instead, it is trying to retain federal police powers while trying to find a way to challenge Arizona’s methods on racial/​ethnic grounds. The Arizona law is quite misguided, but so too is the president’s legal challenge.

For a terrific video that instructs people on how to deal with the police, go here.

For related Cato work on immigration law, go here, here, and here.