Friday, April 30, 2010

Too Good To Be True

You may not believe it - I didn't believe it until I checked it myself - but the US Supreme Court has already weighed in on the constitutionality of a law allowing police to check on the immigration status of people about whom they have a reasonable suspicion said immigrants are, ahem, not *quite* legal. Not only has the Court declared such state action to be within constitutional bounds, police are even allowed to do a form of racial profiling as part of the investigation. It's The Law, folks! Legal Insurrection has the goods: Do Not Read This Supreme Court Decision
Some quick research, available to all the people screaming about the Arizona law, reveals that the U.S. Supreme Court has reviewed the issue of questioning potential illegal aliens regarding citizenship or immigration status, and has found such questioning permissible provided that the "characteristic appearance" of the person was not the sole factor giving rise to a "reasonable suspicion" that the person might be here illegally.

U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975), the Supreme Court unanimously (with various concurring opinions) held that "roving patrols" by the U.S. border patrol (which by regulation had to be within 100 miles of the border) could not stop vehicles and question the occupants as to immigration status based solely on the occupants appearing to be Mexican. (I assume this case is why the Arizona statuteforbids using race, color or national origin as the sole factor.)

Rather, the Supreme Court held there had to be other articulable factors which formed a reasonable suspicion under a "totality of the circumstances" test:

The Government also points out that trained officers can recognize the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut....

In all situations the officer is entitled to assess the facts in light of his experience in detecting illegal entry and smuggling....

In this case the officers relied on a single factor to justify stopping respondent's car: the apparent Mexican ancestry of the occupants. We cannot conclude that this furnished reasonable grounds to believe that the three occupants were aliens." [case citations and footnotes omitted.]

Just so you know, this isn't some crazy artifact of the (Democrat dominated) Plessey v Ferguson court, or the civil rights denying Rehnquist court. This is a decision from 1975 with paleo-cons like William O Douglas, Thurgood Marshall, Harry Blackmun, and Walter Brennan joining in the opinion. These were the days when the words "sensible" and "liberal" could often be found in the same sentence.

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