Tuesday, April 27, 2010

Arizona's Black Codes

Yeah, I said it, because that is what it is.

If you don't like that terminology, maybe we could call them "Jan Crow Laws." I'd be willing to sacrifice a little historical accuracy (Jim Crow laws were different from Black Codes) to get the larger historical point across.

Eli has a very nice post about this over at The Lens, but it goes too quickly to Third Reich imagery for my taste. A lot of folks on the left are doing that, making connections to Nazi Germany, Soviet Russia or Communist China. I understand why, with all the Tea Party talk of "tyranny" and "fascism," applause for such a transparent erosion of civil liberty appears disingenuous at best.

I'm not even saying those comparisons are inaccurate. Lord knows, asking for someone's papers without probable cause is a hallmark of how those nations kept control of their populations, and part of the reason we consider our nation better than theirs.

How easily we forget.

We don't have to go so far away to find the "papers, please" mentality on our own shores or in our own history. How far back should we go? Shall we start with the Free-Papers required of free people of color during the antebellum period? Remember that happy time for a certain demographic of Americans? Let us not forget that members of that particular demographic not lucky enough to be free had to carry papers too, whenever they left their place of servitude, lest they be beaten with a whip or worse*. During this era, any member of one demographic could demand the papers of the other demographic.

But the Civil War ended all that, didn't it? Nope. I already linked to the online definition of Black Codes, please allow me to parse the money quote:

Whenever it was required of them they must present licenses (in a town from the mayor; elsewhere from a member of the board of police of the beat) citing their places of residence and authorizing them to work.


Oh, the burn. I know it hurts to bring real United States history into a conversation. So uncomfortable for those who disagree.

Shall I go further, into the "War on Drugs" and "War on Terror" erosions of civil liberties in this country? My whole life I've been stopped, questioned, and had my identification examined by authorities for such cause as "walking on a sidewalk," "wearing a red bandana" and "evacuating during a mandatory evacuation." Don't tell me this doesn't happen, just because it doesn't happen to you.

Speaking of that, how about the "emergency situation" requirements for identification? What do you think happens to individuals in disaster areas who are unable to produce ID, even if they are just cleaning up their own homes or trying to use the area's only working phone?

This ain't ancient history, is what I'm sayin'.

Because, while this new law might disproportionately affect only one demographic group right now, don't think it can't be made to affect others. When the last vestiges of probable cause are removed, no one is safe from government intrusion.

And, no, this is not hyperbole; this is what we actually associate with tyranny and totalitarianism. But we shouldn't be surprised, as those associations are rooted deeply in our own uncomfortable history.

Update: Oyster's take on the legislation's authors.

And, at least some conservatives are unhappy with this law. Kyle Wingfield of the AJC says "In short, I don’t think 'Your papers, please' fits in a free society."



* Which was not considered torture by the majority of Americans at that time.

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12 comments:

Dante said...

"And, no, this is not hyperbole; this is what we actually associate with tyranny and totalitarianism."

No, Pat, this is what you associate with tyranny and totalitarianism. I tend to associate real actual tyranny with tyranny. Or do you really think that those cops wouldn't have hassled you if only they wouldn't have the legal authority to check your ID?

And yes, ID checks were used in our past to make sure you were a free man instead of escaped property. The reprehensible part wasn't that ID was checked. It was that some people were property. The same could be said of all of your examples. In all of your examples, there was also a police force to enforce such laws. Should we also do away with police forces because they were used for such purposes?

I get that you're upset because the Man singled you out merely because of your questionable fashion sense, but the legal authority to check IDs isn't going to change that for you or anyone else with the unfortunate burning desire to wear bandannas. Instead, they'll just stop you for your taillights being out even though you're walking because that's how tyranny rolls.

Cousin Pat from Georgia said...

Tyranny noun
2. The office, authority or jurisdiction of an absolute ruler

3. Absolute power, especially when excercised unjustly or cruelly

4.a. Use of absolute power

When you remove all probable cause from the equation, and allow an officer of the law to have an absolute power (ie: they can demand your ID for any reason, whenever they encounter you) that is the definition of tyranny as I understand it.

patsbrother said...

Part I

Here is a link to Arizona SB1070, rather than the fictional bill Cousin Pat describes.

http://www.azleg.gov/legtext/
49leg/2r/bills/sb1070s.pdf

It states that when law enforcement is in legal contact with someone and they have a reasonable suspicion that person is illegally here, that they must reasonably attempt - where practicable - to determine that person's immigration status. They then check that person's immigration status as described under federal law.

Point of Information: "reasonable suspicion" is a legal term of art, sometimes described as a "reasonable articulable suspicion." Which means that if an officer detains you to investigate whether you have or are committing a crime (as he is allowed to do under the Constitution), that later on he will be required to articulate some valid reason for his suspicion. As definitively decided by the U.S. Constitution, by themselves race, color, and national origin are not valid reasons for suspicion. This is EXACTLY the same as the law that applies to you and I under the Constitution.

Under SB1070, only when an officer HAS probable cause to believe that someone has committed any public offense that makes that person "removable" may that officer arrest that person. ("Removal" and "removable" are terms of art in federal immigration laws.)

In other words, if an officer has probable cause to believe that you broke or are breaking the law, he can arrest you. This is EXACTLY the same as the law that applies to you and I.

If convicted, after serving his sentence, law enforcement are then instructed to deliver him to federal custody for removal from our borders.

The laws explicitly requires that its provisions be implemented in compliance with federal immigration law, protecting the civil liberties of all persons, and respecting the privileges and immunities of U.S. citizens.

patsbrother said...
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patsbrother said...

Regarding workplace violations (which, it should be noted, represents the bulk of the new law), the law specifically states that the Attorney General is not to investigate complaints which are based solely on race, color, or national origin; verifies work authorization using federal law; and prohibits a state actor from making that determination (it must be done by the feds). Also, knowingly filing a false or fivolous complaint is a misdemeanor.

Going through the entire bill, I have found no requirement that one have a driver's license except - get this - when one drives. And in that instance, law enforcement impounds your car if you have NEVER been issued a license from Arizona AND you are not able to produce any evidence of getting one from any other state. But, if your spouse is with you and she has a license, then the officer won't impound your car.

Again, there was NO REQUIREMENT that one carry his papers. That Cousin Pat bitches again and again that an officer with less than probable cause can ask you to identify yourself is either (a) disingenuous or (b) a product of a complete lack of familiarity with criminal Constitutional law. In Georgia, if an officer has a reasonable suspicion that I am involved in criminal activity, he can detain me to ask questions to either confirm or dispel that suspicion, and as part of that he can ask me for identification information. It is the SAME DARN THING.

Further, the idea that you can be arrested purely for not having papers is ABSOLUTELY FALSE. Just as in every criminal law in Georgia, or Louisiana, or wherever your are, officers must have probable cause to believe you have broken or are breaking the law.

Finally, the Arizona law calls for individuals to be turned over to federal custody for removal only after they have been convicted of some crime. The Constitutional rights regarding suppression of evidence remains the same for everyone as well as defendants accused of violated SB1070. If the officers don't follow the law, then they don't get to deport people.

Grow up and educate yourself on what you're talking about before you call an entire damn state racist bastards. All it looks like they did was codify federal law into state law, because the feds indicated they sure weren't going to enforce it themselves.

Go on. Be your own Keith Olbermann. Be a self-righteous histrionic jack[XXX] who jumps on the bandwagon uninformed.

You're becoming "that guy."

Cousin Pat from Georgia said...

There is no definition of what constitutes probable cause to believe that a person is in the US illegally. Combined with the other aspects of the legislation, we get "papers, please." It is not a stretch.

A "reasonable attempt" to determine someone's immigration status would require someone to produce papers to satisfy the inquiry. Otherwise, it appears a person may be detained until their immigration status can be determined through other means.

The violation of state or local law clause stands alone, it does not remove the ability of enforcement to detain or investigate the individual's immigration status.

The very next clause provides for arrest or detention and eventual transportation to Federal custody, if the immigration status of the suspect is proven illegal or in doubt, notwithstanding any other law.

In the clause after that, the legislation provides for the non-warrant arrest of any individual the officer has "probable cause" to believe is guilty of a "removable offense" (which would include "being in the country illegally"). Probable cause, again undefined, could be construed as insufficient identification as a citizen.

That's the problem. I'm not making this up. It is right there in the text of the bill.

patsbrother said...
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patsbrother said...

Patrick, stop now.

First, that section permits Arizona law enforcement to take violators to the feds. Generally, the feds come to you. It does not grant law enforcement any separate arrest power. What that section says is this: those people whose immigration status has been determined under federal law to be illegal, you can transport them to the feds. That's it.

Second, as a matter of constitutional law, no one can be detained indefinitely for just reasonable suspicion. The officer has to let someone go if it takes an unreasonably long time to investigate based on that reasonable suspicion. Again, nothing in this law permits the indefinite detention of someone based upon an officer's reasonable suspicion that he's an illegal.

And third: damnit, Patrick, most arrests are made without a warrant. If an officer has probable cause to arrest you, he does NOT need a magistrate to sign off on it before he arrests you. He gets to do it right then, without a warrant, unless you're somewhere the officer has no right to be. Like inside your house. This is how DUI arrests are made. They don't leave the drunk guy on the side of the road with his car. They arrest him.

The fact that you just argued that this law is evil because it does not define probable cause shows your sheer staggering ignorance of an issue (criminal law) on which you chose to pontificate without any basis in knowledge or understanding, and for which you saw fit to call others racist.

Congratulations! You are that obnoxious, know-nothing pundit you constantly rail against.

Please note: PROBABLE CAUSE IS THE STANDARD FOR ARREST FOR EVERY CRIMINAL OFFENSE IN THE UNITED STATES. The fact that what constitutes probable cause is not defined in a statute means nothing. Courts have a lot of experience applying probable cause standards, and they've kind of been doing this a long time. To my knowledge, there is not a criminal statute in the entire Code of Georgia which defines what probable cause is for any particular crime. It would be like having to define what the concept of having a gender each time you use a pronoun.

Again: PROBABLE CAUSE IS THE STANDARD FOR ARREST FOR EVERY CRIMINAL OFFENSE IN THE UNITED STATES. Even if an officer obtains a warrant first, a magistrate issues that warrant upon the officer's showing to her that he has PROBABLE CAUSE to believe that the person has committed or is committing a crime.

PROBABLE CAUSE, PROBABLE CAUSE, PROBABLE CAUSE.

Stop. Stop now.

You are literally making things up to justify your histrionics and the histrionics of others.

Cousin Pat from Georgia said...

No. This is not some made-up opinion I have about some slippery slope future possible abuse of a well reasoned law. Exactly zero of my concerns have been answered by your learned legal responses, and continued reading of the text of this legislation indicates that every concern I have is more than valid.

So, no, I will not shut up and sit down.

Thus "you can transport them to the feds" turns into "how do you get them there if they don't want to go?" Officers have to detain or arrest them (and yes, I know those are two different things). Then they have to find out "where is the nearest Federal facility?" Last time I checked, those locations weren't as innocuous as, say, McDonalds. Arizona is a big place, and they don't have the manpower to personally drive every single individual found in violation of this law to some Federal facility RTFN. That means detaining folks, holding them, processing why they're being held, and waiting on transportation.

Next up, there is a big difference between calling someone "racist" or "evil" and describing a legal parallel to historically racist and evil policies and enforcment mechanisms that are being echoed by current policy. Maybe you'd think I was making up less if you actually read the words I wrote.

For example, you bring up my "ignorance" of probable cause, when I am talking about specific kinds: that which compells an officer to determine if the suspect in in the country illegally or could be guilty of a removable offense.

(I thought I made that clear in several sentences, but I forget that when you and I are discussing an issue, I have to be more aware of my syntax. My bad.)

So: Where are the guidelines that establish what is and isn't acceptable for making those specific determinations of probable cause where officers will be called to make a decision regarding an individual "being in the country illegally" or guily of a "removable offense?"

patsbrother said...

I want to respond but I don't have time. I'll see you tonight.

Cousin Pat from Georgia said...

I know. I'm onna keep adding comments all day, getting more and more obnoxious and histrionic with each one, just so you're thinking about it the whole. drive. down.

:)

The Corwyn said...

Anything that leaves for MORE power in the hands of ignorant, irrational, unethical, bigoted morons on a power-trip (or, as they preferred to be called, 'patrolmen') will lead, inevitably, to abuse of said power. This is not good.

The tragedy is that, like most laws, it is an imperfect "solution" to a "problem" and it will only serve to bog down courts, create even greater inefficiencies, lead to harassment of citizenry and will be exploited by the very same folks the law is designed to enact consequences against.

The supposed benefits of the law do not, to me, outweigh the inevitable negatives that will arise from the practical application thereof. But then, government's never been required to worry about that--it's the rest of us that bear the brunt of it.