Tuesday, August 3, 2010

Hibel, Terry and Why Arizona's law was drafted to spark outrage

Why is Arizona's law drafted to single out a selected group for attention (reasonable suspicion stops and asking for papers upon cause)? Why indeed, since under past Supreme Court precedent, a state can require anyone (not as specific group, but all within its borders) to produce papers to the Police. Given the settled state of Terry stops and reasonable suspicion, is the debate on Arizona's law a distraction?

Since an illegal detention would be considered a form of false imprisonment, and many states still allow citizens to resist unlawful arrests by police as they would otherwise resist a tort, I suppose that what is going on in Arizona with their new law, and the opposition thereto, is relevent. But, police have long needed only reasonable suspicion to detain and frisk, and states can require all within their borders to submit papers to the police or risk arrest.

State and local police have had the authority to stop and frisk based solely on reasonable suspicion since the case of Terry v. Ohio, the breakdown of which is: http://en.wikipedia.org/wiki/Terry_v._Ohio .


Fast forward a couple of decades and the Supreme Court upheld a Nevada law that required anyone who was stopped by a police officer to produce an ID, state license, military ID, state ID, or green card or immigration papers. That case was Hibel v. The Sixth Judicial District of Nevada. Click here for an editorial review of the case before the final decision.

By the way, the federal government, working with local authorities, has been held to a reasonable suspicion standard and may question workers and ask for papers if they have a reasonable suspicion that the worker is not in the U.S. legally ( see: INS v. Delgado).
You can look up Terry and Hibel on Findlaw.com. It seems to me that the Arizona law would be 100 percent lawful under Hibel and Terry had the drafters of the law merely incorporated the right to ask for ID or citizenship status against all people, and not just a certain group.

Instead, the Arizona law seems drafted to ignite debate and fracture between left and right. The Hibel case held Nevada can require anyone pulled over by police turn over some form of lawful ID or risk arrest. Clearly, that includes undocumented workers.

Surprise. Arizona seeks to single a group out while the media fails to inform the rest of the country that if you live in a state like Nevada, you will be busted wether or not you committed a crime if you fail to turn over ID.

And, nothing here that I have written discounts the gravity of the situation at the Mexican border, especially in Arizona. It is grave, dangerous and escalating. Something needs to be done. But state legislatures know the implications of the Hibel and Terry holdings. Why not draft a law accordingly, that dragnets everyone?

After all, the Fourth Amendment prohibition against unreasonable searches and seizures was never intended to be remedied with the issuance of a judicially sanctioned warrant. The prohibition was against general warrants and writs of assistance of all kinds, even the kinds courts issue. The warrant clause was orginally intended to help comply with the unreasonableness prohibition by requiring all warrants for search or seizure contain particularity and specificity. These days, wholesale seizure and itemization of business records and dragnet searches of houses and places and persons, have rendered the Fourth Amendment as meaningless (all in,  "the war" on whatever). All a judge need do is sign the warrant and the scope of the seizure need only be limited by practical reasons and the totality of the circumstances. It is common knowledge among constitutional attorneys that the Fourth Amendment is on life support.

The difference is, big business has no use for everyone, and much use for undocumented workers, so they are financially backing the media campaign to challenge Arizona's law. Yet, the irony is, all the liberals that are ranting and raving fail to realize that they are MUCH MORE HOPELESSLY UNDER THE POLICE BOOT than the undocumented workers in Arizona. Simply read the Hibel case. The state can do whatever it wants as long as it acts as a police state against everyone, instead of a targeted group.

Wake up! The Arizona law seems drafted to not survive a challenge by targeting one group. Had they really wanted to enforce such laws, why not use a Hibel type law which is draconian against everyone?

To me, the sooner we can put the Arizona case into it's proper context, the better.
As you can see, there has been a police exception to probable cause for decades now, and now a state can enact a law requiring anyone pulled over by police to produce papers. Sorry. We live in a Police State whether we want to admit it or not.

Where Arizona's law differs is it appears to single out a group of people. Why? So it would ignite debate and arguments amongst US citizens who are probably already required to produce papers upon a Terry stop to Police, depending on where you live. That is why they are laughing at us accross the pond...