Arizona’s new immigration law — Trial by Police?
Under our constitution, a criminal defendant has the right to have the facts of his case determined by a jury (or in some cases a judge if the possible penalty is low enough). The fact finder does not simply defer to the police officer’s opinion on the facts, but rather makes its own determination.
But under the new Arizona alien trespassing provisions, it appears that the defendant has lost the right to have his or her alien status determined by the judge or jury. Rather, the “final determination … of immigration status shall be determined by … a law enforcement officer”.
This is peculiar, to say the least. It appears that if the police officer says you have no legal status, neither the judge nor the jury has the right to look at other evidence that might contradict the police officer’s opinion. And, unfortunately, there have been many cases on our southern border where citizens have been wrongly deported because the police officers opinion wasn’t well founded.
Maybe it’s just me, but this seems like a pretty promising attack on the constitutionality of the bill.
Here’s the relevant portion of the language:
40 13-1509. Trespassing by illegal aliens; assessment; exception;
41 classification
42 A. IN ADDITION TO ANY VIOLATION OF FEDERAL LAW, A PERSON IS GUILTY OF
43 TRESPASSING IF THE PERSON IS BOTH:
44 1. PRESENT ON ANY PUBLIC OR PRIVATE LAND IN THIS STATE.
45 2. IN VIOLATION OF 8 UNITED STATES CODE SECTION 1304(e) OR 1306(a).
1 B. IN THE ENFORCEMENT OF THIS SECTION, THE FINAL DETERMINATION OF AN
2 ALIEN’S IMMIGRATION STATUS SHALL BE DETERMINED BY EITHER:
3 1. A LAW ENFORCEMENT OFFICER WHO IS AUTHORIZED BY THE FEDERAL
4 GOVERNMENT TO VERIFY OR ASCERTAIN AN ALIEN’S IMMIGRATION STATUS.
5 2. A LAW ENFORCEMENT OFFICER OR AGENCY COMMUNICATING WITH THE UNITED
6 STATES IMMIGRATION AND CUSTOMS ENFORCEMENT OR THE UNITED STATES BORDER
7 PROTECTION PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).
http://www.azleg.gov/legtext/49leg/2r/bills/sb1070s.pdf
UPDATE: It turns out that it’s not that easy to figure out what version of the bill actually passed (at least for me). At this point, I’m pretty sure that the Arizona House amended the language above just before the bill passed, and that the offense is now no longer called “Tresspassing by illegal aliens” but instead “Willful failure to complete or carry an alien registration document.” The section listed above now reads:
A. IN ADDITION TO ANY VIOLATION OF FEDERAL LAW, A PERSON IS GUILTY OF WILLFUL FAILURE TO COMPLETE OR CARRY AN ALIEN REGISTRATION DOCUMENT IF THE PERSON IS IN VIOLATION OF 8 UNITED STATES CODE SECTION 1304(e) OR 1306(a).
B. IN THE ENFORCEMENT OF THIS SECTION, AN ALIEN’S IMMIGRATION STATUS MAY BE DETERMINED BY:1. A LAW ENFORCEMENT OFFICER WHO IS AUTHORIZED BY THE FEDERAL GOVERNMENT TO VERIFY OR ASCERTAIN AN ALIEN’S IMMIGRATION STATUS.2. THE UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT OR THE UNITED STATES CUSTOMS AND BORDER PROTECTION PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).
The words “FINAL DETERMINATION” no longer appear. Maybe that puts the judge back in the picture. I hope so…
Sabino Canyon 
Interesting statute.
Oddly, the law enforcement officer need only “be communicating with [federal agencies]. No need that the communication be complete, or in writing, or confirmable, or what the content of the communication is (whether from the officer or the agency).
Also interesting, I could have a person on my private property with my consent and they would be “trespassing.” Could I be liable for harboring an illegal alien if they are on my property?
The harboring part of this statute is oddly written. Harboring is a crime if you are “in violation of a criminal offense” at the time you do it. I’m not sure what that means. Perhaps it’s a crime to harbor a person if you are smoking marijuana, but not if you are smoking a Marlboro.
29 A. IT IS UNLAWFUL FOR A PERSON WHO IS IN VIOLATION OF A CRIMINAL
30 OFFENSE TO:
* * *
35 2. CONCEAL, HARBOR OR SHIELD OR ATTEMPT TO CONCEAL, HARBOR OR SHIELD
36 AN ALIEN FROM DETECTION IN ANY PLACE IN THIS STATE, INCLUDING ANY BUILDING OR
37 ANY MEANS OF TRANSPORTATION, IF THE PERSON KNOWS OR RECKLESSLY DISREGARDS THE
38 FACT THAT THE ALIEN HAS COME TO, HAS ENTERED OR REMAINS IN THE UNITED STATES
39 IN VIOLATION OF LAW.
Just a thought, but what does this do to my freedom of association if people on my my property are deemed trespassers by the State?
Sounds like I am losing property rights as well as associational rights.
That “person in violation of a criminal offense” language is pretty interesting. It looks like transporting an illegal alien (perhaps even if you don’t know he/she is illegal since it seems that it may be a “status” crime) could lead to impoundment of your vehicle. If you are soliciting an illegal alien for employment from your car and they get in the car and you move the car, then maybe impoundment applies.
I hope they grab the Governor’s or Pearce’s car when they transports their illegal maids or yard workers.