Arizona's SB1070 and State Policing of Immigration
Overview: Students will examine a controversial law passed in the state of
On April 23, 2010, Arizona Governor Jan Brewer signed into law a controversial state immigration bill. The bill, SB1070, restricts employment of unauthorized immigrants, directs police officers to investigate suspected unauthorized immigrants, and penalizes government agencies that do not enforce immigration laws. Legislators in Oklahoma, Texas, Utah, Maryland, and many other states then considered passing laws similar to SB1070. The government of Alabama also enacted H.B. 56, a controversial law similar to Arizona’s.
At a press event following the signing, Governor Brewer stated that SB1070 was necessary because the federal government had not been performing its function in controlling unlawful immigration. In March 2010, for example, rancher Robert Krentz was found shot to death in his vehicle in an area known to be used by smugglers of unauthorized immigrants. Investigators believe he was killed by smugglers.
Based on this and other incidents, many in the state called on federal authorities to take more action to seal the border, including sending in the National Guard. In the meantime, the Arizona legislature passed SB1070. Its stated purpose is to have state and local law enforcement “deter the unlawful entry and presence” of unauthorized immigrants.
What the Law Says
The law bears the name Support Our Law Enforcement and Safe Neighborhoods Act. Most of the act revises Arizona’s criminal code, but it contains several controversial provisions, among them:
Section 2(B) directs police to question those they reasonably suspect of unauthorized status. This section states: “For any lawful stop, detention or arrest made by a law enforcement official…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 that person.”
Section 2(G) states that a “person may bring an action in Superior Court to challenge any official or agency of this state…that adopts or implements a policy that limits or restricts the enforcement of federal immigration laws….” This means individual citizens may sue police if they believe police are intentionally not enforcing the new law adequately.
Section 3(A) requires lawful resident immigrants to have provide proof of authorized status or else be prosecuted for misdemeanor trespassing. It states: “In addition to any violation of federal law, a person is guilty of trespassing if the person is both: (1) present on any public or private land in this state [and] (2) in violation of [federal law that requires resident aliens to at all times have in their possession proof of alien registration].” (Trespassing is the crime of going onto another person’s property without permission.)
What Is Reasonable Suspicion?
Perhaps the most controversial provision is Section 2(B), which directs law enforcement officers to determine the immigration status of those persons they have lawful contact with, provided they have a reasonable suspicion that the person is an unauthorized immigrant. Over the years, the U.S. Supreme Court has outlined requirements for reasonable suspicion, but the specific requirements are still under debate in the courts.
Arrests must be based on probable cause. This requirement comes from the Fourth Amendment to the U.S. Constitution. Courts have defined probable cause as evidence strong enough to give a careful law enforcement officer reason to believe that the suspect is committing or has committed a crime.
Reasonable suspicion is different. It is not sufficient to make an arrest, but it is evidence that would give police a reasonable suspicion that a person either is about to commit a crime or has committed a crime. It must be more than a mere “hunch.” Specifically, the U.S. Supreme Court case of Terry v. Ohio (1968) outlined that officers may “stop and frisk” for weapons someone they reasonably suspect may have committed or is about to commit a crime. If a weapon is found, then the officers would have probable cause to make an arrest.
The Supreme Court has since clarified reasonable suspicion in specific situations. In one case, a U.S. Border Patrol agent in Arizona had seen a minivan on a deserted, unpaved road. Children in the van all waved at the agent in unison, as if instructed to do so. Smugglers were known to drive minivans, and smugglers often passed through the area. Based upon the “totality of the circumstances,” the court in U.S. v. Arvizu (2002) held that the agent had reasonable suspicion to stop the minivan, which was found to have 100 pounds of marijuana in it.
Questions of Equal Protection
A major controversy surrounding SB1070 is the issue of racial profiling. Arizona shares its southern border with Mexico. Of Arizona’s 6.5 million residents, an estimated half million are unauthorized immigrants, most of them from neighboring Mexico.
Critics of the law ask how an officer can reasonably suspect someone to be an unauthorized immigrant or ask for proof of lawful resident status without using race or ethnicity as the main factor. Singling out racial or ethnic groups for investigation could mean the officers are violating the equal protection clause in the 14th Amendment of the U.S. Constitution. It declares: “No State shall…deny to any person within its jurisdiction the equal protection of the laws.”
In analyzing equal protection cases, the Supreme Court has applied different levels of scrutiny, or tests, to evaluate them. If a state government (through its laws or policies) discriminates based upon a racial or ethnic classification, the court applies a “strict scrutiny” test to determine whether the law in question is valid. This means that the government must prove that it had a compelling (extremely important) interest in passing the law and that the discrimination was the least restrictive way to achieve that interest. Most laws tested under strict scrutiny fail the test.
On the other hand, when the court deals with a law that discriminates against unauthorized immigrants, the court evaluates the law using “minimal scrutiny,” or the “rational basis” test. Under this test, the government must only prove that the law is rationally related to a legitimate state interest (almost any interest). Most laws tested for a rational basis are upheld.
In Plyler v. Doe (1982), however, the court carved out a separate level of scrutiny for some unauthorized immigrants, known as “heightened scrutiny.” A Texas law had denied free public education to children who were unauthorized immigrants. The court found that the law was not substantially related to a legitimate state interest and that children were in a particularly vulnerable position if denied public education. Laws that discriminate against children must meet the heightened scrutiny test and therefore
often fail.
Supporters of SB1070 argue that the law does not involve a racial or ethnic classification and can be neutrally applied. After signing the bill into law, Governor Brewer said her signature represents “steadfast support for enforcing the law — both against illegal immigration and against racial profiling.” She issued a state executive order to develop training for officers in protecting the civil rights of Arizona residents.
The National Review’s Andrew McCarthy wrote “there is to be no inquiry about a person’s immigration status unless the ‘contact’ between the police officer and the person is ‘lawful’ in the first instance.” In other words, he argues, officers may not single out people based on their ethnic or racial identity. Officers must have a lawful reason to contact those persons to begin with. Moreover, a few days after its passage, the legislature voted to clarify the law. In its original version, the law only required a “lawful contact” by a police officer. The legislature changed this to “any lawful stop, detention
or arrest.”
Opponents of the law, however, warned that the law would lead to abuses of civil rights.
Alessandra Soler Meetze of the American Civil Liberties Union (ACLU) filed a lawsuit challenging the law, stating: “If this law were implemented, citizens would effectively have to carry ‘their papers’ at all times to avoid arrest.” In addition, Vivek Malhotra, also of the ACLU, argues that the law will inevitably cause officers to look at the color of people’s skins. “How do you know people are unauthorized to be in the United States,” she asked, “just by looking at them?”
A law that would allow officers to base their decision on skin color almost surely would not meet strict scrutiny (in the case of adults) or even heightened scrutiny (in the case of minors). But supporters of SB1070 say that the law does not authorize such discrimination.
Is SB1070 Preempted?
Another legal challenge to the law is that federal immigration law preempts the state law. The doctrine of preemption simply means that federal law (made by Congress) is higher than state law (made by Arizona or any other state) and therefore preempts, or trumps, the state law. In fact, the supremacy clause in Article VI of the U.S. Constitution states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof… shall be the supreme Law of the Land.”
There are two kinds of preemption. If a state law makes it impossible for someone to comply with both state law and federal law, it is called a conflict preemption. If, however, a state law merely says the same thing as a federal law, but Congress has thoroughly dominated that field of law, it is called field preemption. In either case, the state law is invalid.
Critics say that SB1070 can be challenged on both preemption grounds. Steven D. Schwinn at John Marshall Law School argues that Congress has created a “comprehensive federal scheme” in Title 8 of the U.S. Code that regulates the “treatment of aliens” (non-citizens). Therefore, he argues, SB1070 is invalid because of a field preemption.
Schwinn also argues for conflict preemption, because Title 8 allows state and local officers to “arrest and detain” unauthorized immigrants only if they also have a prior conviction for a felony. SB1070, on the other hand, authorizes arrests for unauthorized immigrants who have committed “any public offense that makes them removable from the United States.”
Supporters of SB1070 disagree. Kris Kobach, law professor at the University of Missouri-Kansas City and co-author of SB1070, argues that under the legal doctrine of “concurrent enforcement,” states may make laws that prohibit actions or crimes already prohibited by the federal government. For example, federal law already requires immigrants to carry their legal registration with them. SB1070 merely says the same thing, and so it is consistent with federal law.
Legal Challenges to the Arizona Law
SB1070 faced several challenges after it was approved in Arizona. The ACLU and other civil rights organizations filed suit in federal court in Arizona alleging equal protection and preemption doctrine violations. Many citizens in Arizona petitioned to keep SB1070 from being enforced until 2012, giving voters a chance to have a referendum to decide whether it should be repealed.
The U.S. Department of Justice challenged the law in court, too, on the grounds that the state law was preempted by federal law. On July 28, 2010, a federal judge issued an injunction in U.S. v. Arizona, stopping key sections of Arizona’s immigration law from going into effect until legal issues are resolved. (An injunction is a court order.)
The judge’s injunction was directed at the most controversial parts of the Arizona law. These included a provision that required officers to check a person’s immigration status during a traffic stop, detainment, or arrest. The injunction also blocked the part that made it illegal for undocumented workers to ask for work in public places, and the part that required immigrants to carry their paperwork with them at all times.
“Requiring Arizona’s law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully-present aliens because their liberty will be restricted while their status is checked,” U.S. District Judge Susan Bolton ruled. Other provisions of the law, most of them procedural, went into effect. Governor Brewer, a defendant in the case, appealed the decision.
The Alabama Law
In June 2011, the state government of Alabama passed similar legislation to SB1070. Known as H.B. 56, the Alabama law would also allow a law enforcement officer to determine a person’s citizenship status upon a lawful stop or detention. The officer would have to base the status-check on reasonable suspicion that the person is present in the U.S. unlawfully.
H.B. 56 had several other controversial provisions. It would make it a misdemeanor for immigrants to willfully fail to carry an “alien registration card.” A misdemeanor is a crime that is less serious than a felony and punishable by a prison sentence up to one year. H.B. 56 would also require public schools to determine the immigration status of students when the students enroll in school.
As with SB1070, the U.S. Justice Department challenged H.B. 56 in court. The U.S. claimed that the sections listed above were preempted by federal law. In October 2011, the federal 11th Circuit Court of Appeals issued an injunction in U.S. v. Alabama against the public schools’ requirement to check each student’s status and against the alien registration card requirement. The reasonable suspicion and other provisions, however, were allowed to go into effect.
For Writing and Discussion
- Legal scholars disagree about whether preemption applies in the case of SB1070. Which argument do you think is stronger: that SB1070 is preempted by federal law, or that SB1070 is simply concurrent enforcement of the law?
- Many states have passed laws that require employers to use an electronic program called E-Verify that certifies if employees are legally authorized to work in the United States. If these laws are valid, shouldn’t SB1070 also be valid? Why or why not?
- One part of Alabama’s H.B. 56 law requires immigrant residents in the state to carry an “alien registration card.” Failure to have the card is a misdemeanor. The court enjoined (stopped) this part of the law until an appeals court is able to review it. What, if any, constitutional problems do you think there are in this part of the law? Do you think it was a good idea for the court to enjoin this part of the law? Why or why not?
- Section 2(B) of SB1070 contains the following language: “For any lawful stop, detention, or arrest made by a law enforcement official…where a reasonable suspicion exists that the person is an alien who is unlawfully present in the country… a reasonable attempt shall be made…to determine the immigration status of that person.”
a. In the original version signed by Governor Brewer, it read as follows: “For any lawful contact made by a law enforcement official….” (Italics added.) One week later, the Arizona legislature changed the word “contact” to the phrase “stop, detain, or arrest,” which is how the law now reads. Why do you think it made that change?
b. There could be two interpretations of the phrase “where a reasonable suspicion exists.” It could mean that police must make a legal stop, detention, or arrest and then if they have reasonable suspicion that the person is an unauthorized immigrant, they may check the person’s immigration status. It could also mean that police only need a reasonable suspicion that a person is an unauthorized immigrant before they may stop the person and check the person’s immigration status. Which interpretation do you think is correct? Why?