Wednesday, June 27, 2012

Morton's Fork

I'm a little concerned that a "show me your papers" bill will turn up in the Nebraska legislature again, now that this provision of Arizona's SB1070 has been upheld by the United States Supreme Court.  The Supreme Court also declared the other provisions of the Arizona law unconstitutional.  The net result is an unsatisfying predicament.  Here's what this decision means, as I read it:

1.  Arizona law enforcement officers can be required by law to investigate the immigration status of someone they lawfully detain for another offense, when the officer has a reasonable suspicion that the person may be an illegal alien. 
2.  If this inquiry reveals that the person is illegally in the United States, there is nothing the officer can do about that, because the State criminal violation for being in the country illegally has been overturned.

3. Oh, and by the way, if you detain the person too long in your attempt to comply with the requirement to investigate immigration status--a rather vague judgement call--you're going to be in trouble for violating his or her Constitutional rights (see pages 22-23 of the decision).

4. And don't forget, the provision in the Arizona law that creates a cause of action against the officer and agency by any Arizonan who believes the police are not being sufficiently diligent about investigating immigration status. That part was untouched by the decision.

What we have here is a Morton's Fork.  The police are left holding the bag.  The Supreme Court's decision is practically inviting a series of lawsuits against Arizona police officers.  Ironically, the Arizona bill was called the "Support Our Law Enforcement and Safe Neighborhoods Act." I've already heard a Nebraska state senator testing the waters on a similar proposition, and thus my concern.  The sensible thing to do, in my view, is to let the case law develop in Arizona and the 9th District, before dipping Nebraska's toes into this murky pool. A little more clarity for the officers on the street would be a mighty good thing.

Now, before the rant begins in the comments, let me re-emphasize:  in Lincoln, the process for every single person arrested for a crime serious enough that he or she is booked into jail includes notification to Federal authorities.  Each has his or her fingerprints and descriptors transmitted electronically to the Department of Homeland Security Immigration and Customs Enforcement for a check against their database. That is the way it has been for a good long time.

8 comments:

Cecilia Burda said...

This is the challenge when laws and policy are developed as part of a political agenda rather than what is best in the governance of the country.

While I have an opinion on this issue, my comments are void of a policy stance. What I want to illuminate is the fact that both sides want to grab some piece of the law and hold it for themselves. Each claiming a victory when that occurs.

But as Mr. Casady's post illustrates. It is the policy enforcers that are left in the lurch. I am not saying that compromise is the best answer to every problem but it seems that we ought to use it more often than we do now.

Steve said...

You're in for a busy day, Tom, if the LJS online commenters get wind of this post.

I'll keep my opinion on this issue to myself, as I'm sure you and your readers will have more than enough others to consider.

Anonymous said...

What a mess. Mexico has been losing their "best and brightest" to their neighbors to the North for decades. I wonder if the flow might be reversed in another decade or two?
Gun Nut

Eric said...

My wife is a legal resident here in the U.S. (she has a 10-year renewable green card). She has a state drivers license, too because of the green card. She doesn't carry the green card around (we keep it safely in the safety deposit box) because if it gets lost os stollen out of her purse... oops - nearly $500 to the feds to replace plus the normal long processing time it takes them to do it.

We've always assumed that a drivers license or a state ID was a proper way if identification, but if nebraska passes a "Show me your papers" law, maybe we'll have to rethink that...

...but who's to say that someone wouldn't suspect me, a U.S. citizen, being a illegal alien with a spoofed ID (or if I forget mine, which I never do) if I get pulled over? Could I get detained for a short time, too??? It's a murky gray area that I don't like.....

Eric

Eric said...

Sorry, let me just edit what I typed earlier - meant to type a "suspected spoofed ID", sorry.....

Eric

Anonymous said...

I'm not sure what the statistics in Lincoln are with regard to suspected illegal aliens, or how many are dealt with in a day. I do know that there are some rural areas in Nebraska where it is a daily (or even hourly) occurrence. Officers on the streets in these areas know their "clients" and are likely to be more accurate in their dealings with them. Federal enforcement was lax for too many years and now it's time to figure out a way to step it up.

Pastor Fuller said...

I am liking your "Morton's Fork" reference. Smart!

Anonymous said...

I also wish the Federal Gov't would do their jobs on immigration enforcement. But, let's face it, both sides of the aisle pander for votes. Right now we have the US Attorney General AGAINST making sure only US citizens vote in our elections.