News Release ~ 06/25/2012b

Arizona Immigration Law Could Still Be Abused

Washington, DC (June 25, 2012) – The U.S. Supreme Court struck down most of Arizona’s immigration law, S.B. 1070, today, but left it for the state courts to decide whether a key provision will be enforced lawfully or be exploited to abuse the rights of U.S. citizens and residents. Arizona Governor Jan Brewer claimed victory at a news conference, stating “the heart” of S.B. 1070, Section 2(B), will now be implemented by state law enforcement. That is the provision of the law that the National Association of Criminal Defense Lawyers and the Arizona Attorneys for Criminal Justice warned about in an amicus curiae brief filed with the Court in March. The brief, authored by David J. Euchner, of the Pima County Public Defender’s Office in Tucson, is available on NACDL’s website.

Although the appeals court below upheld the injunction of Sec. 2(B), the high court decided to wait to see how the state’s courts rule on its implementation. By that time, the civil rights of an untold number of Arizona residents and visitors could be violated. Giving the statute the benefit of the doubt, Justice Anthony Kennedy wrote in the opinion of the Court, “The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry.” However, he added, “This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”

Section 2(B) gives police too much discretion when stopping or detaining persons while “checking” their citizenship status. NACDL and AACJ argued in their brief that Sec. 2(B) cannot be implemented without racially profiling Latinos in violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures and the Fourteenth Amendment’s Equal Protection Clause. Even lawful detentions and arrests become unconstitutional when the detention becomes prolonged or unreasonable. If officers rely on profiling characteristics such as a person’s ethnicity in determining whether a person should be detained for an immigration check, Sec. 2(B) becomes an unconstitutional “stop-and-identify” law repugnant to all citizens.

Arizonans fears that the law will be misapplied are well-founded. As noted in the amicus brief, Maricopa County Sheriff Joe Arpaio is a defendant in a civil rights lawsuit brought by the U.S. Justice Department for such abuses such as his department’s “immigration sweeps,” where the sheriff and his deputies conduct dragnet operations over large groups of persons of Latino heritage and arrest first and ask questions later. Section 2(B) remains an invitation to more such violations.

Contact: Jack King, Director of Public Affairs & Communications, (202) 465-7628 or jking@nacdl.org.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 10,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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