New Arizona immigration law and ID demands

OFF THE WIRE
I suggest we file it under "right to travel.
KIT
http://www.papersplease.org/wp/2010/04/28/new-arizona-immigration-law-and-id-demands/

New Arizona immigration law and ID demands
We’ve been getting a lot of questions about the new Arizona “immigration” law, S.B. 1070.
As we read the text (pdf) of the law, it imposes no new requirement to show ID credentials or other evidence of identity. On the contrary, it gives people even more reasons to invoke their right to remain silent, never voluntarily to provide any evidence (including ID credentials or other evidence of identity) that might be used against them, and never to consent to any search (including searches for ID credentials or other evidence of identity).
The portion of the new law relevant to requests or demands for ID is as follows:For any lawful contact made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person… A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following:
1. A valid Arizona driver license.
2. A valid Arizona nonoperating identification license.
3. A valid tribal enrollment card or other form of tribal identification.
4. If the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state or local government issued identification.
So the police officer is required, if (1) they are in lawful contact with you and (2) they have “reasonable suspicion”, to “attempt… to determine” your immigration status. But that obligation is on the officer, not on you. Nothing in this section purports to create any obligation on you to assist in that “attempt .. to determine” your status, to answer any questions, to carry or produce or display ID, or to consent to a search for evidence of identity or immigration status.
Since the police are under this obligation only when they are in “lawful contact” with you, the first thing you can do is not to consent to any contact with law enforcement officers, and to terminate any such contact as soon as possible by walking away immediately unless you are expressly forbidden or physically restrained from doing so. Once you are no longer in lawful contact with an officer, they need a new lawful basis to establish any new contact.
Most of the misunderstanding of the law comes from the provision quoted above that “A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following” identity credentials.
That language is deceptive. Under the law, to be “an alien who is unlawfully present in the United States” is a crime. Under the U.S. Constitution, you are already entitled to a presumption of innocence of any crime.
The obligation on the police to determine your immigration status is limited to those cases in which they already have a “reasonable suspicion” that you are “an alien who is unlawfully present in the U.S.”, and there is no guarantee (as there would be if the presumption clause were proceeded by, “Notwithstanding any basis for such reasonable suspicion”) that the presumption won’t be overcome by whatever provided the basis for that suspicion.
So under this law, showing satisfactory ID serves only to entitle you to a presumption to which you are already Constitutionally entitled, may not be sufficient to overcome whatever provided the basis for the “reasonable suspicion” that led to the attempt to determine your status — and may itself provide further evidence against you, if for example the name on your ID matches the name of a person previously found to be an illegal alien. Under this law, there is nothing to be gained, and much potentially to be lost, by voluntarily showing ID, even valid ID, or answering any questions.
The bottom line is what the police will say in a Miranda warning, after they arrest you: “Anything you say can and will be used against you.”
Of course, if everyone law-abiding voluntarily waives their rights, answers questions about their immigration status, consents to searches (for ID or anything else), or shows ID to police on request, they may come to consider declining to do so as, in itself, a reasonable basis for suspicion. So the best way to defend your rights is to use them: Don’t talk to police about your immigration status or anything else, terminate any police encounter as soon as possible, never consent to any search, and assert your right to remain silent and to consult a lawyer.
This isn’t limited, unfortunately, to Arizona. In a growing number of places — we’ve heard most recently from activists in Moreno Valley, Riverside County, CA — local law enforcement agencies are using funds from the Department of Homeland Security or state agencies, ostensibly for purposes such as drunk-driving checkpoints, to set up checkpoints used as immigration and general law enforcement dragnets.
For more on your rights if you are stopped or questioned by police, see the excellent “10 Rules for Dealing With Police” video from FlexYourRights.org video, which includes optional Spanish subtitles and additional features for non-US citizens on the DVD.
For specific information about highway checkpoints in Arizona, visit Arizona-based CheckpointUSA.org and their Roadblock Revelations blog.
Heightened penalties like these, imposed on the basis of ID-based status determinations, highlight the danger that any kind of checkpoint can be converted overnight from a “mere” ID check to an ID-based control point. In effect, these checkpoints and ID checks are the germ of a new, virtual Berlin Wall, a new “Silicon Curtain”, to divide place from place, person from person, and family member from family member. The earlier we resist these incursions against our rights, the more effectively we can do so. We all can help by saying, “no” to ID requests, warrantless questioning, and requests to consent to searches for ID or anything else, whether at home, on the street, or at the airport.
This entry was posted on Wednesday, April 28th, 2010 at 3:47 pm and is filed under Freedom To Travel, Papers, Please. You can follow any responses to this entry through the RSS 2.0feed. You can leave a response, or trackback from your own site.