Wednesday, September 29, 2010
Jackson City Attorney Pieter Teeuwissen said he was confident that the city could be exposed to considerable legal liability if legislators pass a bill mimicking a controversial Arizona law, which pushes local police into civil immigration enforcement duty.
"We can find ourselves in a tough spot," Teeuwissen said. "It would probably be somebody who is a (legal) immigrant who would've had a status inquired into for whatever reason taking us to court." He also said that the nature of the law—which allows citizens to sue a government authority for not demanding residential status at public interdictions—would likely put the city in a legal bind either way.
"Once we go to enforce it, (whether) we do it or don't do it, we'll end up in some form of litigation," Teeuwissen said.
Sen. Joey Fillingane, R-Sumrall, said he will submit a bill during the next legislative session to mandate that police inquire about residential status at routine public interactions like traffic stops and domestic complaints.
The bill demands police inquire about residency status—proved with a state-issued driver's license or ID, among other documents—in any situation "where reasonable suspicion exists that the person is an alien."
The bill will also apply to crime victims, but it does not explicitly explain the conditions under which reasonable suspicion is warranted. Residents must have a permanent residence card to qualify for state-issued ID or a driver's license Mississippi Department of Public Safety spokesman Jon Kalahar said.
Still, Fillingane insists nothing about the bill implies racial profiling. "If you read the language of the bill, it specifically prohibits racial profiling," Fillingane said, while adding that officers could use numerous methods that have nothing to do with race.
"Well, one reasonable suspicion would be if someone can't speak English," Fillingane said. "If you're at a roadblock or something like that and the person can't communicate with you in the English language, that might constitute legal suspicion, but this would be subject to the courts."
Arizona law enforcement officers filed suit challenging the Arizona law, which Fillingane said is very similar to his proposed law. Tucson police officer Martin Escobar filed suit in April, complaining that markers such as the vehicle a person is driving, his color or his clothing, as well as his linguistic capabilities in English or Spanish, do "not provide a race-neutral criteria or basis to suspect or identify who is lawfully in the United States."
U.S. District Judge Susan Bolton struck down Escobar's suit this month on a technicality, saying that public officials cannot sue to block laws with which they don't agree and choose not to enforce. Bolton also, however, overturned most of the Arizona law in July. In her opinion in United States of America vs. State of Arizona and Gov. Janice K. Brewer, Bolton wrote that "certain categories of people with transitional status and foreign visitors from countries that are part of the Visa Waiver Program will not have readily available documentation" of their residency, potentially subjecting them to arrest or detention, in addition to the burden of "the possibility of inquisitorial practices and police surveillance."
Bolton agreed with the U.S. government's assertion that "the federal government has long rejected a system by which aliens' papers are routinely demanded and checked," and that she found that the Arizona statute "imposes an unacceptable burden on lawfully-present aliens."
Fillingane argues that police may not pull people over exclusively upon suspicion of immigration violations—which federal law says is a civil violation, not criminal—but must have a reason to interact with the person, such as a speeding violation, or a domestic complaint.
But Ward 2 Councilman Chokwe Lumumba said the proposed law leaves too much room for racial profiling, even if the bill states that police can't "solely consider race, color or national origin in implementing" the law.
"Well, what else are they going to base their inquiries on if not the color of their skin or some other stereotype? They would have to ask the citizenship of everybody they interact with," Lumumba said. He described with bitterness the hypothetical scene of a policeman inquiring about the residential status of a traumatized Mexican-looking assault victim who had called the police after being beaten.
"It's an oppressive kind of legislation meant to try to keep immigrants ... subdued, because any law that was really aimed at reducing their number would have to be more geared toward making sure that businesses were not underpaying people or paying them below minimum wage," Lumumba said.
Fillingane said the state ordinance, should it pass the Legislature and get a signature from Gov. Haley Barbour, would supersede the city of Jackson's new ordinance restricting police from inquiring about residential status.
Hinds County Sheriff Malcolm McMillin simply called the bill that would turn his deputies into immigration officers "silly."
Dr. Lucas Restrepo, of the Barrow Neurological Institute in Phoenix, pointed out in a June letter to the New England Journal of Medicine that the Arizona law "will seriously obstruct, if not undermine, the practice of medicine in the state of Arizona." It says that those who "conceal, harbor or shield" or attempt to conceal, harbor or shield an undocumented resident "are guilty of a class 1 misdemeanor" punishable by a fine of at least $1,000. The Arizona law language concerning concealing violators carries over into the Mississippi bill. Health-care providers, who neglect to report undocumented immigrants under their care and violate the law will be considered criminals, Restrepo said.
Fillingane said he did not expect the bill to have an easy life, should it survive the Legislature: "If it passes in identical form that it is in right now, I certainly think, based on what has happened in Arizona, the federal government would probably seek to have the law enjoined in federal court."
Teeuwissen said he also expected someone to file an injunction in federal court against the law before it could be enacted.