Monday, April 19, 2010

Inaccurate that AZ Sanctuary City bill SB1070 would lead to a national ID card

The Arizona Legislative Council (attorneys) and the Maricopa County Attorney's Office have both issued opinions stating that Arizona's anti-Sanctuary City legislation, SB1070, does NOT provide a mechanism for the government to set up a national ID card.

Thanks to Sen. Russell Pearce for alerting us to the following:
The Final passage of Senate Bill 1070 will be heard today.  SB1070 is the most comprehensive enforcement bill in the nation, it will remove all “illegal” sanctuary policies that limit or prevent law enforcement from performing their duties, and it will allow law enforcement the discretion to enforce our immigration laws as intended.  Other states are anxious to follow our lead.
Some concerned members of the community believe this legislation with result in a form of national ID.  NO ONE fights any harder for freedom and limited government than Senator Russell Pearce.  To ensure this would not be an unattended consequence of the legislation, Senator Pearce asked Legislative Council and the Maricopa County Attorney’s Office to provide their interpretation.
Both indicated the legislation does not allow for any kind of National ID nor does it expand ID requirements.  A letter is attached from the MCAO answering many of the questions and concerns expressed.  The official legal opinion from the Arizona Legislative Council is also included.
Governor Brewer – 602 542 4331
State Senators –

(Legal opinion); Second one in attachment.
A.R.S. section 11-1051, subsections B through E essentially empowers state agencies and employees with law enforcement authority to determine the status of illegal aliens, transfer aliens already determined to exist in the United States illegally to federal custody and arrest anyone believed to have engaged in an offense warranting legal removal from the United States. The bill section does not grant authority, either explicitly or implicitly, to detain a person indefinitely.
A.R.S. section 11-1051 states well established legal concept in the context of immigration enforcement; however, there are a few points worth noting. Subsection B allows a law enforcement entity, where reasonable suspicion exists, to presumably detain a suspected illegal alien for the purpose of determining immigration status. This is simply a restatement of the federal law already in place. See Brown v. Texas, 443 U.S. 47 (1979); see also Ramirez v. Webb, 719 F.Supp. 610, 616 (W.D. Mich. 1989) (holding that law enforcement authorities “may detain an individual for a brief period of interrogation here the circumstances create a reasonable suspicion that the individual is engaged in illegal activity. In this case, the relevant illegal activity is that the individual is illegally present in this country.”). There is nothing in this subsection that would permit a law enforcement entity to go beyond this allowance and indefinitely detain someone.
Subsection E provides that a law enforcement officer “may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States.” Again, as with subsection B, this is simply a restatement of the established constitutional protections and does not go so far as to permit indefinite detention. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (holding that “[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”).
Subsection C requires the immediate transfer of an illegal alien to federal custody once state sanctions expire. Subsection D allows a law enforcement agency to transport an illegal alien in the agency’s custody to a federal facility at other points in the process.
Neither subsection authorizes indefinite detention.
The other issue presented in this memorandum focuses on whether A.R.S. section 11-1051 functionally implements the REAL ID Act of 2005 (“RIDA”). The bill would not implement RIDA. RIDA states that “a Federal agency may not accept, for any official purpose, a driver’s license or identification card issued by a State to any person unless the State is meeting the requirements of this section.” Further, RIDA states that the Secretary of Homeland Security “may make grants to a State to assist the State in conforming to the minimum standards set forth in this title.” Other than allowing the Secretary to make grants to assist states in conforming to the minimum standards, it is an all or nothing policy: a state either conforms or it is in violation of the Act.
The fact that A.R.S. section 11-1051 allows for the sending, receiving, maintaining or exchanging of immigration status information with any federal, state or local agency does not in any way invoke the application of RIDA in Arizona. Arizona, If a law enforcement entity did detain a person indefinitely, it would violate federal and constitutional law. There is nothing in A.R.S. section 11-1051 that attempts to override these federally mandated procedural protections.
Pursuant to federal and state law currently in place, could easy exchange information with any federal entity and maintain its “sovereignty” with regard to RIDA.
Finally, A.R.S. section 11-1051 narrowly restricts when a public agent can access status related information. Subsection F states four limiting “official purposes.” If a public agent or bureaucrat cannot demonstrate that he accessed a person’s information pursuant to subsections F’s official purposes, that agent would not find asylum in section 11-1051. This subsection is apparently causing some people confusion, because they are reading the paragraphs as a new requirement for governmental entities to seek information. SB 1070 does not create new mandates to seek information. These paragraphs must be read with the whole subsection. They limit the purposes for which immigration status information may be exchanged.
A.R.S. section 11-1051 does not allow for the indefinite detention of an individual. A.R.S. section 11-1051 is not a de facto implementation of the REAL ID Act of 2005. A.R.S. section 11-1051 limits access to information to four narrowly constructed official purposes.

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