The only way for [Arizona] to avoid endless civil rights law suits is if the cops harass large numbers of white people too. Enjoy!
UPDATE: Supporters of the new law argue that there is a way for the police to enforce it without engaging in racial profiling…
I suspect that the shoes I’m wearing were made in China. But I’m pretty sure they’re here legally.
Judah, if you’re going to start citing legal precedent, you should try to get at least some of it right.
Terry stops involve the selective lowering, from “probably cause” to an ARTICULABLE “reasonable suspicion,” of the threshold required to BRIEFLY detain a person the officer believes has just committed, is in the process of committing, or is about to commit a crime. Even if failure to carry the proper paperwork is dubiously criminalized by the new Arizona law, this is not the sort of “crime” that officers will be able to articulate a Terry-qualifying suspicion about.
Illinois v. Wardlow was about whether a reasonable suspicion is created when someone spontaneously flees at the sight of police (it does). United States v. Sharpe was about how, in limited circumstances, the definition of a “brief” stop may need to be elastic (the case has no bearing at all on the threshold required to justify the stop in the first place).
So current case-law absolutely does NOT permit random stop-and-I.D. checks because a person “looks illegal,” unless that person spontaneously flees (hint: don’t spontaneously flee). The Arizona law PLAINLY requires cops to run afoul of this.
I find it really sweet and endearing how folks implicitly believe that five out of nine justices on SCOTUS actually give a damn about civil liberties in general and the civil liberties of brown people in particular.
How you find time to do these posts when your days are filled with the busy round of waiting for unicorns and sprinkles and rainbows is really an impressive example of efficient time management.
/end legal accuracy and pintless dickery
Actually, it was pointless dickery, but, given that soon alcohol will probably be illegal again I guess that pintless will do.
@53
I think you need to reread #36. It says nothing like what you claim it does.
And I’m quoting you below because this statement speaks for itself:
Judah, if you’re going to start citing legal precedent, you should try to get at least some of it right.
d.p. you should at least read the comment you’re responding to and comprehend what’s being referenced. I didn’t refer to what the cases held, or what they’re used for in criminal procedure — I referred to what they articulate. I mentioned Sharpe because it’s a good example of how profiling can be used in law enforcement, and what a comparatively low standard the the police have to meet for their suspicions to pass muster (highway known for interstate drug trade, trailer riding low on its suspension). I mentioned Wardlow because it’s a good example of how doing something that’s technically perfectly legal (running when you see cops) can be sufficient to trigger a search; this is relevant to the legislator’s crack about suspicious shoes. Whatever Wardlow held, the Court specified that Wardlow was busted in a high crime area during a raid on an outdoor drug market. The implication was that they were going into a black neighborhood on a massive drug raid and that, in that context, anyone who ran away could be stopped. Can you imagine how that standard — not necessarily the standard held, but the standard articulated — might be applicable to the application of a law aimed at arresting undocumented workers?
And I know what a Terry stop is. Again, I referenced it as a phenomenon, not a criminal procedure. And when you look at how the phrase “Terry stop” is applied in other SCOTUS cases, they often use the term imprecisely to describe any low-cause seizure and/or search.
In conclusion, cases are socially relevant in ways that exceed their holdings, and their social relevance can be more informative than the arc of their holdings for purposes of informing what future decisions are likely to hold, and what may be “legal” for purposes of new laws.
@58: “this is relevant to the legislator’s crack about suspicious shoes”
You miss the larger point, however. That would be that shoes (unless they have a compartment in the heel labeled “CRACK SMUGGLING HOLE”) cannot really be suspicious. I mean, seriously?
I understand that you are not attempting to use this to support the law (only to explain why some might do so), but you seem incapable of comprehending that there really isn’t any overlap.
Damn. And some people think Arkansas is bass ackwards.
Funny vid, btw. I like Rachel Maddow.
@59
Look. When you’re talking about what the law is or isn’t, the only thing you can be sure of is that your best odds for being able to anticipate the outcome of a given case is if there is an earlier case, with a ruling by a court that has the same composition, that contains identical factual and legal issues. Otherwise, in my observation, the best way to anticipate how a court will decide a particular issue is to look at the biases of the court. The current Supreme Court leans way way the fuck over to the right. They have allowed searches and seizures based on laws, and law enforcement techniques, that would be patently prohibited by any common-sense reading of both the Constitution itself, and many previous cases. The Terry case, from which the term “Terry stop” is derived, for example, contains several pages of what one would think, on first examination, would be ironclad rules against the misuse of the searches authorized by that case. And yet, just four years after Terry was decided, Justice Marshall had this to say about the next case that came to SCOTUS on the question of Terry stops:
So my point here has been that the current state of Fourth Amendment protections in the United States would be perfectly amenable to the police stopping someone based on pretty much any pretense, and asking them for identification to prove their legal status. Whether the courts would allow such stops based on an honest rendition of the facts is not the point I’m chasing — I’m talking about whether the courts would allow it based on certain agreed-upon lies that the police already employ on a regular basis. Here again, consider Whren v. United States (1996). d.p. would say that Whren is about whether the stop was legal, and (s)he’d be correct as far as the holding goes. But the fact pattern of Whren specifies that some plainclothes cops in an unmarked car pulled over an SUV full of young black men, that they identified themselves as police officers when they got out of their car, and that when the cops approached the SUV they couldn’t help noticing that the defendant had two large plastic bags of crack in his hands. Now, keeping in mind that SCOTUS upheld that conviction — what do you suppose are the odds that the defendant actually had the drugs in his hands? I’d calculate them to be approximately zero. I’d say that the cops stopped the SUV because it was full of black guys, then searched it illegally, and lied about it afterward, and got away with it in the Supreme Court. And if that’s all it takes to make a search legal, I’d expect the stops an searches that would be necessary to enforce the Arizona law to hold up just fine.
The fact that you don’t see any overlap there might be charitably described as “cute.”
@61
Of course, you’re in favor of such abuses of power because:
@62
“What should be done to make it constitutional,” means, “how should the Arizona law be modified to bring it in line with existing constitutional requirements.”
Did you have another point?
It seems to me that there’s some confusion, here. Judah is detailing (a) what the law is in specific circumstances, (b) how it is illustrative in other circumstances, including the social, and (c) what it is likely to be, given the current anti-BOR makeup of the applicable bench(es). A lot of folks here are taking that to mean that he is arguing, for the most part, as to what the law should be or what he wants it to be. About the only point where he does that is where he noted way upthread (@33) when he is talking about the reasonableness of border and residency restrictions.
I’ve got no brief one way or the other, but it seems to me that you’re arguing past each other.
The thing that has always stood out for me, being on the outside of America looking in, is that there is a fundamentally paradoxical dynamic regarding illegal immigration. There are laws and social forces regarding maintenance of the borders, of residency requirements and the like. On the other hand are very-low-wage jobs which can only be filled by the tacit encouragement of illegal immigration. The problem seems to stem less from the fact that there are people from third world countries who will do necessary jobs than the fact that access to that poverty-level labour pool is mandated by the refusal to pay anywhere close to living wage for work that need be done. It’s not so much that “Americans won’t do it” but a refusal to pay an American wage for an American job. It’s not as if your crops rotted on the vine or your rooms went uncleaned for two hundred years or so until large-scale illegal immigration came along. It was again Judah, I believe, who noted that any response to controlling illegal immigration must be aimed in large measure at the people who exploit them once they’re in America.
@ 61
So are you saying that, even if this Arizona law would be upheld, it does run afoul of any sensible understanding of the Fourth Amendment and prior caselaw? Because if so, then I fail to see what the point of disagreement is among you and the other commentors is. (I’m not trying to be snide – I’m honestly just a bit lost. I think it’s fair to say that blog comment boards tend not to be the best place to engage in political/legal discourse, even if everyone knows what they’re talking about.)
(And yet, here I am, doing just that. Ahem. Anyway.)
As for Illinois v. Wardlow, you’re right that technically legal activity can trigger a reasonable suspicion, but that’s a far cry from saying that all technically legal activity can trigger a reasonable suspicion. Spontaneously fleeing from a cop? That’s pretty suspicious. The crack about shoes – which I agree, was probably pretty tongue-in-cheek – would be a very serious expansion of the Wardlow standard, one that I’m not willing to say the Court would necessarily be comfortable implementing. And I doubt that even the Roberts Court would be willing to say that ethnicity, skin color, or speaking Spanish are enough to trigger that reasonable suspicion. If, on the other hand, a Latino person who lives in a neighborhood populated by a high number of illegal immigrants sees a cop and scrams, that would almost certainly meet the Wardlow standard. Moreover, reasonable suspicion has to rely on articulable facts – manner of dress and speech is (one would hope) not going to meet that bar.
Hiibel v. Sixth Judicial District Court of Nevada, just to cite another example, might suggest that SCOTUS would uphold this law; on the other hand, requiring people to carry identification papers could (and, I’d argue, should) be seen as an overbroad extension of state police power.
As for your general points on illegal immigration, I find this debate just a little hilarious. Not because I think you’re wrong on policy proposals – quite the opposite. Rather, because what you’re proposing seems to be what just about everyone on here is advocating. Amnesty for most of the people already here (because, as Dubya of all people put it, deporting 11 million people is neither a feasible nor desirable outcome), reform of immigration laws to allow a reasonable amount of immigration (frankly, mostly from south of the border), and enhance border security in order to really enforce these new, sane immigration laws (hopefully without any giant fences, seeing as it seems to have had limited effectiveness while being needlessly wasteful). Which gets back to my first point about blog comment boards being lousy debate forums – it’s hard to respond and clarify your points when you have to type up your posts all at once. And people (myself included) don’t tend to put the maximum amount of care and thought into a relatively hurried blog comment.
I’m sure even the very best among us have had moments like this.
@63
I see what you meant now, but if you agree that the law is an unconstitutional abuse of power which should be abandoned as written, I’m not sure what you are being so antagonistic for. Why all the stretched legal interpretations?
I guess you think liberals aren’t prepared to address the problems in our immigration policy? The president has already indicated that he intends to do so–I haven’t heard any complaints about that from anyone here.
It seems like, when pressed, you agree with what everyone else here thinks. Maybe you should drop the convoluted rants and just say what you want to say directly.
@66
To paraphrase: “I misunderstood you. So you’re a bad writer.”
“When pressed”? I articulated the same opinion @63 that I articulated @33. Most of the intervening time has been spent arguing with people like you. But there is one core point where I probably don’t agree with most people here — unless and until something happens at the federal level that actually addresses the illegal immigration situation to the satisfaction of at least some significant faction in the debate, I think state legislation of some kind may be a reasonable response — both to illegal immigration and to the federal refusal to act on the issue. A state law response of any sort is going to make life much harder for the undocumented immigrants who are already here but, as I said above, I’m basically of the opinion that someone who lives in another country illegally has made a choice to accept the consequences if and when they should arrive.
@ 67 – I don’t think people are saying that no state law addressing illegal immigration can be legitimate. In fact, even if federal enforcement were at the maximum level, the fact that federal immigration enforcement uses state officials means that the federal government can’t completely preempt state laws on immigration without running afoul of the anti-commandeering principle. But this particular law is a complete disaster. Not only that, but you agree that it makes little to no sense to deport illegals who have been here more than a year or so; by your own logic, stepping up enforcement against illegal immigrants who have been here for several years, while it might be legally sound, nonetheless makes little policy sense.
I’m basically of the opinion that someone who lives in another country illegally has made a choice to accept the consequences if and when they should arrive.
What if – and I ask this sincerely – the stringency of the laws and the enforcement mechanisms against illegals get much harsher after they arrive? Is that a mitigating circumstance? I’d imagine turning around and leaving once you’ve been here for a while is much more difficult than being turned away at the border. (I’m honestly not leading you one way or another, but I’m genuinely asking you for your take on this situation.)
It’s this sort of situation that makes immigration reform at the federal level such an important priority. Like you’ve pretty much suggested, implementing a Reagan-esque amnesty program, reforming our immigration laws so as to allow for a more reasonable/realistic amount of immigration, then policing our borders to actually enforce those new immigration laws seems to be the fairly obvious solution.
Also, your comment @ 33 and subsequent comments do seem to take pretty different approaches. If I may:
If you think [illegal immigration is] an actual problem that you want to fix, laws like this make sense. If you think it’s not a problem, or you don’t want to fix it, this law seems totally offensive.
Which basically says that this law is legitimate, since no one on here is saying that illegal immigration is a good thing. You subsequently clarified your points, but arguing that people could glean from @ 33 what you proceeded to say in later comments is completely unfair.
No one is expecting you to write a 200-page policy proposal on immigration law and post it on Slog. But you can’t really expect other Sloggers to understand your entire stance from one relatively narrow point.
@67 – you keep making this point:
Well, duh – so is everyone.
The reason people object to this law is that it puts a burden on LEGAL Hispanics for being Hispanic. Imagine how pissed you’d be if you were hauled off to jail for doing nothing illegal or even suspicious, just to be set free hours later when your wife shows up with your ID card.
The lack of success in dealing with illegal immigration is frustrating. But this is similar to the $50 fines for panhandling: when it comes to doing nothing or doing something that won’t actually fix the problem, I’ll vote for doing nothing every time. This law stands zero chance, even with the most conservative bench imaginable. It’s just a waste of everyone’s time.
Generally speaking, I would tend to think that this is factored into the choice one makes when one chooses to live in another country illegally. There are some places where there’s a lot of drift in the law, and anyone who does something connected with that law knows or should know that their status may change — gun dealers, strippers, and so on. Or, to put it in a less weird light; when people get married, the legal meaning of that contract changes over time in response to various forces, and any rational person should know that those changes are not only likely but, to some extent, inevitable. You join the National Guard during peace time, you may end up deployed in the Army when the next president starts a war. There are lots of situations like that, and the stakes of them are pretty high. Undocumented immigrants are just one of the groups that lives under constant threat of getting fucked by history.
Having had this debate on Slog in other contexts, I actually don’t believe that no one here thinks illegal immigration is a good thing. Or, more precisely, I think a lot of people here don’t believe that illegal immigration is an actual problem that needs to be fixed. Maybe in the abstract, but not when it comes to actually doing something about it. And this is where some jerk will accuse me of propping up a straw man, but my observation is that most people on the left who aren’t in favor of open borders basically don’t give a shit about illegal immigration. So they’re happy to criticize any measure aimed at dealing with it (because most of those measure are flawed in one way or another), but they don’t have a better plan for addressing it, they don’t consider it an issue worth changing their vote over, and most of them would never think to send a letter to congress over it. And “of course we want to deal with it, but this law…”
And this is the distinction I was drawing in @33 — if you think illegal immigration is a problem that actually has to be dealt with, you’re willing to balance constitutional considerations against the outcome of addressing the problem. I don’t actually think the balance in the Arizona law is remotely acceptable. But I also think that any law that addresses the illegal immigration problem with the intention of deporting illegal immigrants who are here now is going to open a window for some racial profiling. The Arizona law opens the window too wide. But, barring an amnesty program, someone’s probably going to have to open that window at least a crack.
Should we do that? I’d prefer to avoid it with the amnesty program I mentioned, for a wide variety of reasons. But that’s not the only alternative I’m willing to consider; I don’t think it should be, “amnesty or we just sit on our thumbs for another 20 years”.
Fourth Amendment rights are balanced against policy goals all the time. They did it in Terry, they do it in lots of other circumstances. Sooner or later, someone’s probably going to have to bite the bullet and pass a law on this issue. Hopefully it’s a good, compassionate law with positive incentives to produce good outcomes for lots of people. But something less than that will at least get the ball rolling.
Evidently the legislature and the governor of Arizona didn’t agree with the second part, whatever their thinking on the first part might be.
@ 70
Believe me, I’m fully aware that Constitutional rights are pretty much never absolute (and if I had a nickel for every time I had to explain that to someone, I’d have paid off my student loans by now). But courts also tend to be relatively deferential to constitutional concerns. So much so that, if a statute even raises a constitutional concern – even if it’s not necessarily unconstitutional – the courts will look for ways to interpret the statute so as to disallow that constitutionally sketchy application.
And constitutional provisions do provide meaningful outer limits to state power. The Arizona law doesn’t just fail a meaningful balancing test; it seems to actually go beyond what is constitutionally permissible, regardless of the policy goals it advances. Counterterrorism, for instance, is a pretty compelling policy agenda, but even the Rehnquist and Roberts Courts have recognized limits as to what can be done to advance those policies.
I’m not accusing you of saying the Arizona law is acceptable. You’ve said in the most explicit of terms that you don’t think it’s remotely reasonable. But you seem to be giving the law the Constitutional benefit-of-the-doubt in a way that runs afoul of even conservative interpretations of the Fourth Amendment.
Again, I ask this sincerely – what other alternatives are you talking about? Granting temporary worker status with the possibility of applying for legal residency? Allowing current illegals to apply individually for legal residency (without the guarantee of an amnesty program) while turning a blind eye to the fact that they’re already here? A mass deportation program (and I realize you’re not advocating one), in addition to being a bad idea, would be needlessly wasteful
First, what I was referring to with the “unfair” comment was that it was unfair to expect people to glean everything you said in your later comments from your first post. Sorry if that wasn’t clear.
Second, here’s where my observations have to contrast with yours. The lefties aren’t happy with a constant influx of illegal immigrants, if only because it’s created a shadow economy of cheap workers that are not only being exploited themselves, but are devaluing labor in the US economy as a whole (at least in the southwest). Part of the problem is that most laws that focus on stepping up immigration enforcement I’ve seen gain any traction seem to focus more on the status of illegal immigrants that are already here than any viable way to enhance border security. I realize the concerns are far from wholly separate from one another, but there is a meaningful distinction to be made. It’s also not unreasonable to weigh civil liberties concerns about immigration laws against the actual harm done by the presence of illegal aliens in the US. When you consider that much of the harm done by their presence could be more readily addressed with an amnesty program than a deportation effort, I don’t find it difficult to see why people on the left (yours truly included) see immigration reform in the absence of some sort of amnesty/residency/guest workers program to be a needlessly harsh exercise in futility. On the other hand, I’ve come across far too many people on the Right – and, weirdly enough, a fair number on the Left – who really do think that the best possible solution would be a mass deportation program. But that’s been my experience.
In any event, it sounds like most of us are mostly in agreement on most of the big issues, which is why it struck me as kind of hilarious how heated the debate has gotten. Based on these comments, what most everyone seems to think would be ideal situation is reform of our woefully outdated immigration guidelines, along with an amnesty program in conjunction with increased enforcement of those new immigration laws. And it seems like, with the sole exception of the nigh incomprehensible ramblings @7, no one wants to defend the Arizona law as it stands. So…where’s the disagreement?
Yeah, I don’t know about that. I mentioned the cases I mentioned because they’re sort of the most egregious examples I could think of right off the top of my head of the Court rubber stamping Fourth Amendment violations. But you can just as easily look at Ornelas v. United States. Which, again, d.p. would say that’s a search case, and that would be true, but the officer who initiated the search did it all based on an initial observation that the suspects fit a “drug courier profile.” And there again, the Court cited this protracted litany about how the cop had 20 years experience and how the type of car was known to have lots of hollow places for secret compartments and all this other stuff — but it all started with a Milwaukee County Sheriff going after two Latinos based on a profile opinion. So I’m strongly inclined to think that, if Arizona cops used some discretion about how they apply the new law, a federal court might, in fact, allow it to stand. They’d have to do it right. They couldn’t just pull people over for being brown. But if they could articulate any other pretext, I think it might fly, provided the federal courts were on board with the underlying policy goal. It’s where I’d put my money, if I were betting. Not very much money, but that’s where I’d put it.
Most of the alternatives I’d prefer to see would involve gibbeting employers who hire undocumented workers. But if a state actually decided for some retarded reason that they wanted to deal with this by requiring valid proof of residency status in order to obtain a driver’s license, own, or operate a motor vehicle, I might be willing to let that one slide. Or if they wanted to impose a similar requirement on anyone carrying out a transaction at a payday loan or check cashing place. Or to require a valid passport, green card, or visa for anyone staying at a hotel (that do that in most of Europe). I think those are poor alternatives to constructive federal action, but they’re alternatives I’d tolerate.
Yeah, that’s where we disagree. I think most lefties are ambivalent about illegal immigration, but against in on principle, against laws against it on principle, and basically happy enough with their cheap produce that they don’t care who’s getting screwed on the farms. At best, they pay lip service to the idea of doing something about it. At worst they actively advocate for open borders.
And my personal opinion of guest worker programs — at least the ones proposed under Bush — is that they’re a cop-out designed to do an end-run around labor laws. Having cleaned a lot of toilets in my day, my basic feeling is that if you can’t get anyone to do it for less than twenty dollars an hour, you should have to pay twenty dollars an hour for toilet cleaning. It’s gross, tiring work, and that’s what it’s worth. Bringing someone in from Mexico to do it because, “No American will take that job,” (and I beg to differ for the obvious reason) takes away the only leverage American workers have for some of the only jobs out there that still don’t require a college education. And the fact of it is, every population has a certain percentage of stupid people. Stupid Americans should be able to get good jobs with decent benefits that pay a living wage, and right now that’s a real struggle because they’re competing in a part of the American labor market where labor laws almost don’t apply. Ten years ago I had to work four minimum wage gigs to make my rent every month. These days it’s much worse and a guest worker program wouldn’t do jack shit to improve that situation, is my opinion on the matter.
Judah in general, but particularly @58, @70, and @72,
I never failed to grasp the thrust of your argument — that increasingly conservative courts, through Terry and subsequent cases, have incrementally lowered the threshold for a legitimate police stop and/or detention.
My response was more roundabout than it should have been: your reading of post-Terry case-law is, in totally, incorrect.
Each subsequent case that you site has been about the REFINEMENT of the court’s constitutional understanding of its own Terry precedent, not about altering it. While you are correct in asserting that the Court’s conservative bias has caused it to land repeatedly on the side of deferring to police, the basic principal — that police require a reasonable and articulable suspicion to temporarily detain (and probable cause to search) — remains intact.
1————–2————–3—————4
Picture it as a sliding scale. 1 represents a police state (the AZ law is pretty close to this). 2 represents Terry (articulable suspicion) at its bare minimum. 3 represents a requirement of probably cause for any type of stop. 4 represents anarchy.
The original Terry case put the limits of police discretion somewhere between 2 and 3. All of the case-law that you site has been edging the standard towards 2. But nothing has suggested that 2 can or will be done away with. And the AZ law is basically a 1.
(Another good analogy is Roe v Wade. Dozens of laws making access to abortion more restrictive and more difficult have been passed by state legislatures and upheld by the increasingly conservative Court. But the basic principle — that elective abortion is to remain legal — remains intact.)
Oh, and I just looked up Ornelas. Turns out that the issue at play was that the district court found the cop to have had reasonable suspicion. The appeals court then chose to be “deferential” to the district court’s finding in review the appeal.
The Supreme Court actually DISAGREED with the appeals court’s deference, saying that matters of reasonable suspicion/probably cause are important enough that the appeals court should have re-assessed them anew (“de novo”). I don’t know what happened to Ornelas after the ruling, but I’m guess the Supremes had some doubts about the cop meeting the reasonableness standard or they might have been less likely to vacate/remand.
Lastly, Judah, I want to reiterate that ALL of your examples — even the ones you claim constitute profiling — involve SOME sort of action on the part of the detained, and that all of the ambiguity arises from how the cops profiled what they were “doing.” None of your examples involve people profiled for “being.”
That’s nice, that you’re that certain, and I appreciate that you expressed your opinion so much more concisely than I managed to. That doesn’t mean you’re right. Indeed, Justice Marshall’s dissent in Adams v. Williams seems to suggest that he felt the Court’s expansion of Terry actively contradicted — rather than just “refined” — the Terry standard. Given that Marshall, unlike the Nixon appointees who created the majority in Williams, actually helped write the Terry opinion, his perspective on the meaning of the Court’s interpretation of Terry seems more persuasive to me than your sliding scale.
I might personally agree with the FEARS expressed in Justice Marshall’s dissent. But the Court’s actual holding — the only document of precedential import — did, in fact, rely upon and CLARIFY the basic principles of Terry.
Again, I am not saying that it clarified Terry in a way that I LIKE. But clarifying — not revoking — Terry was its sole legal function.
Judah, you’re a thoughtful individual and a dedicated debater, but you are wrong. That’s not “my” sliding scale. It’s an illustration of the most basic principle of constitutional precedent. Brown v. Board overruled Plessy v. Ferguson. Lawrence v. Texas overruled Bowers v. Hardwick. West Coast Hotel Co. v. Parrish overruled Adkins v. Children’s Hospital. Terry overruled the prior absolute “probable cause” standard. NONE of your subsequent examples has overruled Terry, which any conceivable upholding of the AZ law would demand.
Yes, I understand that you believe that. And, again, while I appreciate your strict adherence to the idea of precedent, I would contend — and I think any Constitutional Law scholar would agree — that the dicta in SCOTUS decisions is legally significant in anticipating the Court’s stance on certain policy issues. The Republican-appointee-dominated Court that has existed since Nixon has shown a fairly consistent willingness to allow Terry-type searches on virtually any pretext. All the officer need to in order to receive SCOTUS approval is concoct a legally sufficient lie (he was holding the bags of crack in his hand when I approached the vehicle), no matter how transparent that lie may be, and the Court is on board. So while I would expect the Court to strike down convictions under the Arizona law where a cop actually asked a person for identification based on their race, I can easily imagine the Court upholding convictions where the cop is smart enough to claim the initial stop was the result of a failure to signal a turn, or a jay walking citation, or something equally frivolous. And, under certain circumstances, I could actually imagine the Court saying that, given that being an undocumented immigrant in Arizona is a crime, certain “profile” factors ostensibly other than race would allow a cop to stop someone and ask them for identification. You can’t imagine that? Fine. I hope we never see it put to the test.
Judah, for someone who is consistently well-reasoned (albeit incorrect) in your parsing of constitutional precedent, you do yourself a disservice when you use weasel phrases like “any Constitutional Law scholar would agree.” Dicta are indeed of great interest to legal scholars, and their words have occasionally found their way into later holdings. But the only dictum you have cited here was found in a dissent; its reading of the case in question as anything more than a clarification of Terry remains a distinctly minority opinion.
In the case of the Arizona law, I expect that it will be challenged wholesale, and that the challenge will be argued on the premise that there is no circumstance under which its specific provisions (requirement that citizens/legal aliens to carry documentation at all times, requirement that cops proactively stop people for seeming illegal) could be enforced and pass constitutional muster. I expect that the Court — yes, even the current Court — will agree.
@ Judah and d.p.
I’m not being sarcastic here – this is honestly one of the most thoughtful debates I’ve ever seen on a blog comment board. Seriously, normally someone would have gone all Godwin’s Law by now.
Speaking of: you’re both liberal neocon commie fascist pinko Nazis. And you probably fuck sheep.
Nazi sheep.
@78
The only dictum I quoted was found in a dissent. I cited, somewhat extensively, the Court’s prior recounting of patently contrived lies, told by police officers, in the fact patterns of cases where the Court upheld conviction and passed over the deplorable behavior of law enforcement officers without comment, provided that the lies were properly constructed, no matter how unlikely.
And here, just for an example, I’ll ask you to go back and take another look at Ornelas. The issue in that case was, as you said, the standard of review that the lower court should have applied to the trial court’s finding on whether the officer had reasonable suspicion. But the following passage is still instructive in anticipating how the Court might look at cases under the Arizona law:
Taken by itself, this assertion would be disquieting to any Fourth Amendment advocate, but there’s an earlier assertion in the fact pattern that’s worth noting in connection with the above holding and its dicta:
Thing is, the Magistrate Judge who investigated the case for the District Court ruled, as a matter of fact, that there was no rust on the screw, but upheld the search on, basically, inevitable discovery grounds. The implication is that the officer anticipated his “loose panel” line wouldn’t hold up, so he made up a story about a rusty screw. As it turns out, he was giving the District Court more credit than they deserved for their attention to Fourth Amendment issues, but the mere fact that he chose to lie suggests that he didn’t think his search had legs.
So basically, the cop was lying, the District Court let it slide, the Court of Appeals tried to doge the issue, and the Supreme Court rubber stamped the District Court’s acceptance of the lie. They only ruled on standard of review, but the Chief Justice’s comments make it clear what decision he felt the lower court should hand down on remand and I think it’s fair to say that, taken as a whole, that case (and many others) suggest that the Court is extraordinarily open to pretextual stops and searches based on, among other things, the race of the suspects.
@79
They’re not sheep. They’re hirsute goats.
Aside to Anne in MA @79:
Thanks for your kind words, and for introducing me to “Godwin’s Law.” I somehow wasn’t aware that the phenomenon had a name.
I am sad, however, to inform you that I made a Nazi analogy all the back at @14. (I was comparing the document-carrying requirement to yellow “Jude” stars; the accusation wasn’t leveled against anyone in this thread. Also, this was before I began engaging Judah in constitutional debate.)
Judah,
I must admit that I hadn’t delved far enough into the fact pattern in Ornelas to make any inferences about how Rehnquist wished the Appeals Court to rule. I wouldn’t say that he “rubber stamped” anything that the District Court “accepted,” although you are correct that he seemed eager to give weight to the “lens of police experience and expertise.”
Do you happen to know what the Appeals Court wound up deciding upon remand (when they gave the probable cause finding its de novo review)?
Like you, I certainly wish there were more case-law suggesting that if a cop doth protest his reasonable suspicion too much, it should be a red flag for heightened scrutiny. But in Ornelas, the crotchety conservative Chief Justice — inclination to trust the cop aside — still held fast to the principle that matters of cause are too important to accept prior findings at face value, and must be reviewed anew. I’d call that case a win for fundamental fairness AND due process.
@ 81 – Godwin’s Law doesn’t apply to something that’s actually a semi-reasonable comparison (even a melodramatic one). And, as you noted, you didn’t call anyone in this thread a Nazi. 😛