Police can check immigration status without violating rights, court says

2012-06-26T00:00:00Z Police can check immigration status without violating rights, court saysHoward Fischer Capitol Media Services Arizona Daily Star
June 26, 2012 12:00 am  • 

PHOENIX - The nation's high court on Monday cleared the way for Arizona to force state and local police to check the immigration status of those they have stopped.

Without dissent, the U.S. Supreme Court said there is nothing inherently wrong with the requirement for police to make such an effort when there is reason to believe a person is in this country illegally. Justice Anthony Kennedy, writing for the court, said there was no reason to believe, at least at this point, that provision of SB 1070 would be enforced in a way to violate the rights of individuals.

And the justices specifically rejected arguments by the Obama administration, which sued the state in 2010, that such a mandate illegally infringes on the exclusive right of the federal government to regulate immigration.

But the justices warned police agencies in Arizona, saying if there is evidence that people are being unfairly stopped or detained for long periods of time they would take another look at the law - and potentially preclude the state from enforcing it.

"We know the critics will be watching and waiting, hoping for another opportunity to continue their legal assault against our state," Gov. Jan Brewer, who signed the legislation two years ago, said at a news conference following Monday's ruling.

Brewer said she is unconcerned because she has "faith in law enforcement."

And Brewer pointed out that that after SB 1070 was approved in 2010 she directed the Arizona Peace Officer Standards and Training Board to come up with materials "to ensure our officers are prepared to enforce this law efficiently, effectively and in a manner consistent with the Constitution." Those materials were updated earlier this month in anticipation of today's ruling.

"Civil rights will be protected," she said. "Racial profiling will not be tolerated."

Monday's ruling also took away any chance that Arizona could prosecute, on its own, those who officers determine are in the country illegally.

Other hurdles remain for Arizona, said Victor Viramontes, senior counsel for the Mexican American Legal Defense and Educational Fund.

He pointed out that the court said it would allow police to detain those they suspect of being here illegally. But the justices said that permission may have to be revisited if it turns out that police are abusing the power and detaining people longer than necessary.

There are ways to enforce the law without violating individual rights, Kennedy said.

As an example, he used a situation where someone in Tucson is stopped for jaywalking and police have reason to believe the person is not in this country legally. Kennedy said it will be up to Arizona judges to determine how long that person can be held while that inquiry is made.

"The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry," Kennedy wrote.

He said that, absent some showing of actual abuse, any move to void the law is premature at best.

"There is a basic uncertainty about what the law means and how it will be enforced," Kennedy wrote. "At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume (the section) will be construed in a way that creates a conflict with federal law."

The Supreme Court's ruling essentially throws the law back to the state to enforce the law and see what happens, said Marc Miller, vice dean of University of Arizona College of Law.

Lawsuits are bound to come based on how police enforce, or doesn't enforce, the law, said Miller, co-author of several journal articles about SB 1070.

"We can see lawsuits going in every which direction now that this is valid," Miller said.

In her response to the ruling, the governor said Arizona did not "seek the task of having to confront illegal immigration - or pick the legal fight with the Obama administration which sued after SB 1070 was enacted.

"We cannot forget that we are here today because the federal government has failed the American people regarding immigration policy, has failed to protect its citizens, has failed to preserve the rule of law and has failed to secure our borders," she said.

Kennedy acknowledged that responsibility, saying there needs to be "searching, thoughtful, rational civic discourse" on accomplishing that.

"Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues," he wrote. "But the state may not pursue policies that undermine federal law."

How quickly police can begin enforcing what foes of the law called the "papers please" provision is unclear.

In issuing the ruling, the high court sent the case back to U.S. District Court Judge Susan Bolton who issued the original injunction just days before SB 1070 was set to take effect. That process could take weeks.

While the decision to let Arizona enforce the part of the law about questioning those they stopped was unanimous, that was not the case in voiding the other three provisions.

In his dissent, Justice Antonin Scalia said he sees no conflict between federal immigration laws and the rest of what is in SB 1070.

"The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively," he wrote. "If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State."

Sb 1070 ruling at a glance

Here are the sections of Arizona's immigration law considered by the U.S. Supreme Court:

UPHELD

• A requirement that police, while enforcing other laws, question people's immigration status if officers have reasonable suspicion they're in the country illegally.

STRUCK DOWN

• A requirement that all immigrants obtain or carry immigration registration papers.

• A provision making it a state criminal offense for an illegal immigrant to seek work or hold a job.

• A provision that would allow police to arrest suspected illegal immigrants without warrants.

Source: The Associated Press

Reporter Brady McCombs contributed to this story.

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