Today four lawyers from the Arizona Attorneys for Criminal Justice, the state affiliate of the National Association of Criminal Defense Lawyers, filed what is probably the most important brief to date on SB 1070. Therein they argue that violation of established 4th Amendment standards of suspicion inheres in the mandates of 1070. To quote:
The statutory scheme created by SB 1070 would subject individuals to de facto arrests absent adequate constitutional protections. SB 1070 proposes to substitute reasonable suspicion for the well-established requirement that an arrest must be justified by probable cause to believe that a violation has occurred. Even in cases where an investigative stop by police is justified by reasonable suspicion, it is possible for police to exceed the permissible scope of the stop and convert an investigative detention into a de facto arrest, and SB 1070 seeks to do just that...
A person’s immigration status is not something that can be determined by state and local law enforcement officers, or even by federal immigration officers, in the context of a brief investigatory detention. Instead, persons seized will be subject to a prolonged detention, for which the Fourth Amendment demands a finding of probable cause. SB 1070, however, permits this prolonged detention without the requisite finding of probable cause that the person is unlawfully present in the United States.
Those who've been following the matter may recall that in an interview with the Arizona Republic Mark Spencer of the Phoenix Law Enforcement Association claimed that, in the paper's hypothetical stop scenari (that other interview participants thought would have SB 1070 implications), no reasonable suspicion concerning immigration status existed therefore SB 1070 mandated nothing. The AACJ amicus brief goes further than this, arguing (much more intelligently than Martin Escobar's lawyers did in their sloppy "first post!!!!1111!!" complaint filed immediately following the bill's passage) that there's almost no way a policeman could possibly have reasonable suspicion that someone was in the US illegally:
In Arizona specifically, reliance on race, language, and dress as the basis for reasonable suspicion used to justify a seizure all but guarantees a constitutional violation.
In a 1985 class action against the INS for engaging in a pattern of unlawful stops to interrogate persons of Hispanic appearance, the Ninth Circuit Court of Appeals held that Hispanic appearance and presence in an area where illegal aliens travel is not enough to justify a stop. Nicacio, 797 F.2d at 703. In that case, the government also used the manner of dress as a factor in the reasonable suspicion analysis. However, the Court rejected that factor, noting that such “characteristics were shared by citizens and legal aliens in the area, as well as illegals. As the district court found, the appearance and dress factors relied upon by the agents ‘are a function of the individual’s socioeconomic status.’” Id. at 704....
The scheme employed by SB 1070 pays lip service to the constitution by stating that race cannot be the sole factor for making a stop. However, as seen in decades of case
law, officers routinely use race as the primary basis for a stop and cite “rote” factors as described in Rodriguez or “profiles” of driving behavior such as those described in Gonzalez-Gutierrez that do not distinguish criminal activity from innocent activity. All too often, our attorneys see cases filed by law enforcement officers of all jurisdictions where the initial stop was based on the driver’s demeanor. Included in the list of factors to be used for determining reasonable suspicion include the driver looking at an officer in a parked vehicle as he passes and the driver not looking at the officer...
“Unlawful presence” is a highly technical term, meant to describe the status of individuals who are present in the United States without the proper governmental authorization. Just like citizenship, it cannot be determined by physical appearance or language, but is established by operation of law...
SB 1070 poses an immediate and irreparable harm in that it compels the unlawful detention of U.S. citizens and others who are lawfully present in this country. The prolonged detention requirement of A.R.S. § 11-1051(B) immediately violates the rights of every U.S. citizen in Arizona of “Mexican ancestry” or “Hispanic appearance.” Although the statute allows a presumption of lawful immigration status if the Hispanic
citizen produces an Arizona state driver’s license, there is certainly no requirement under Arizona law for a citizen to possess a driver’s license when he or she leaves home each day. And as a citizen, a person of Hispanic appearance or Mexican descent, of course, does not possess valid immigration documents because he or she is not an immigrant.
The brief has been filed in support of the plaintiff's motion for preliminary injunction in the ACLU Foundation / National Immigration Law Center/ MALDEF Friendly House et al vs Whiting et al lawsuit. The complaint is also worthwhile reading. If nothing else, read the descriptions of the individual plaintiffs: instant rebuttals to the glib right-wingers who think that only illegal aliens will be negatively affected by this law.
Brief authors are, in order listed, David J. Euchner, Louis S. Fidel, Matthew H. Green, and Adam N. Bleier, all Tucson-based defense lawyers. Green's has enough reputation as an immigration lawyer for me to recognize the name; Euchner is an assistant public defender and well-established activist on behalf of various good causes. No word on who wrote what, but large portions have the understated, incisive wit that Euchner brings to everything except his dull, pedantic, and irredeemably awkward contributions to the Arizona and National Libertarian Party platforms. (Which is a way of saying that it's good to see him moving on to better things.)
A final aside: Have a look at Footnote 1. Clever! Complaining that SB 1070 doesn't define "reasonable suspicion" is forgivable when e.g. Facebook commenters do so, but recall that this has been one of Kyrsten Sinema's gripes. However dippy she is, she's a lawyer. She should know better.