Arizona law a blow to liberty

April 29, 2010

by Roger Koppl

Kris Kobach defends Arizona’s new immigration law, SB 1070, in today’s New York Times.  He says, “Presumably, the government lawyers . . . will actually read the law, something its critics don’t seem to have done.”  Well, I read the law and I do not like it.

Whenever a  law enforcement officer makes a “lawful contact” with a person, the officer must attempt to determine that person’s immigration status if he or she has “reasonable suspicion” the person is an illegal immigrant.  It is a “lawful contact” if the cops ask for a statement at the scene of an accident, for example.  Illegals now have an incentive to flee even as mere witnesses.  The local police or sheriff’s office cannot have a policy to counter this incentive lest they be sued.  The law provides that “a person” may bring suit against any “official or agency” that has a policy that “limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law.”  The central provision of SB 1070 threatens to reduce the ordinary protections of the law for illegal aliens, which threatens order and security for them and everyone else.

For any law enforcement agency that loses a suit brought under the law, SB 1070 provides sanctions of at least $1,000 “for each day that the policy has remained in effect after the filing” of the suit.  The money collected is to be given to Arizona’s Department of Public Safety.  The right to sue would seem to apply to the Arizona’s attorney general or other employees at the state level.  The law seems to create an inappropriate incentive for persons in (or allied with) the state government to sue local law enforcement agencies to increase the state’s budget.

The law says that Arizona’s attorney general “shall” investigate even anonymous complaints about a business using illegals, subject only to the constraint that the complaint not be based “solely” on “race, color or national origin.”  I cannot find any language to the effect that the complaint be reasonable or credible.  If a complaint is made and any other consideration is raised beyond “race, color or national origin,” then the attorney general “shall” investigate.  Once a business is found to have violated the law it is subject to costly reporting requirement on all of its employees, suspension of its business licenses, and other sanctions.  These provisions of the law seem to invite abuse; they seem to invite businesses to use the law strategically against rivals.  Large incumbent firms have the advantage in such a game.  Thus, the law will have a strong anti-competitive effect.

And if the authorities surreptitiously entice an employer into hiring illegal immigrants, an employer mounting an entrapment defense has the burden of proof to show he or she “was not predisposed to commit the violation.”   This provision of the law makes an entrapment defense difficult to mount, thus reducing a constraint on potential abuses of law enforcement.

I do not know whether the law can withstand constitutional challenge.  Be it constitutional or not, however, no friend of liberty should support SB 1070.

29 Responses to “Arizona law a blow to liberty”

  1. azmyth Says:

    “Arizona’s attorney general “shall” investigate even anonymous complaints about a business using illegals, subject only to the constraint that the complaint not be based “solely” on “race, color or national origin.””

    This is extremely susceptible to a DDOS attack. I propose that lovers of liberty simply flood the AG’s office accusing every and all businesses in Arizona of breaking the law, swamping their ability to enforce it.

  2. Gabriela Tafoya Says:

    The law is unconstitutional. It violates the 14th ammendment guarantee to equal protection under the law to all persons within federal and state jurisdiction. This law applies only to certain persons, unless the government require every person, legal or not, to carry proof of citizenship or status.


  3. I haven’t read the law and have no opinion on its constitutionality. Once again, I ask not what but why?

    No one is seriously asking why it was passed and why 60-70% of Arizonans support it. The southern part of Arizona is in a state of near anarchy, with person and proerty not being protected. If people no longer feel safe, they take drastic action.

    If the act is overturned, I would expect to see vigilantism. That is what happens when a government abandons its citizens to lawlessness.

    If you haven’t been there, you can’t understand it. It is a frontier once again in all senses of the word.

  4. chidemkurdas Says:

    If this law stands & is applied, Arizona will spend a lot of resources investigating anonymous tips. One wonders what effect that will have on the state’s economy.

  5. Roger Koppl Says:

    Jerry,

    Steve Chapman gives evidence that illegal immigration has coincided with a decrease in crime and violence in AZ.

    http://reason.com/archives/2010/04/22/how-immigration-crackdowns-bac

    What objective numerical evidence do we have that illegals are causing an overall increase in “anarchy,” crime, violence, or anything bad besides (presumably) lower wages for low-skill jobs?

    Chapman also makes the good point that a crackdown in the cities has diverted the flow of immigrants to rural areas, thus increasing the amount and seriousness of trespassing by them.

    I don’t know why the law was passed and passed now. Presumably, the job market is a factor. It may also be relevant that the law increases demand for law enforcement, promises to boost the budget of the attorney general’s office, expands the opportunities for property forfeitures, and protects relatively large businesses from the competition of small firms and startups.

    The “war on drugs” has caused much more “anarchy” than illegal immigration without inducing any change in the general direction of policy. If “anarchy” is the explanation, wouldn’t you have to explain that asymmetry?

  6. Tom Dougherty Says:

    The Arizona law is a blow to anarchy. Arizona would not have had to resort to this law if the federal government had done its job of keeping illegal immigrants out of the country. But I don’t see the bill as anti-competitive unless you think being competitive means having a willingness to break the law. Those employers breaking the law achieve a competitive advantage over those employers following the law. Let’s see, if I hire an illegal alien I can pay below the minimum wage, I don’t have to pay the employer’s share of payroll taxes, no medical plan, no retirement plan. While, on the other hand, if you are an employer who follows the rules you certainly are at a competitive disadvantage. I am in favor of eliminating the minimum wage, but I don’t think employer should break the law to obtain a competitive advantage. Not punishing those who break the law is anti-competitive. Perhaps company X should dump all of its toxic chemicals in to the near by creak to obtain a competitive advantage. Certainly, using your logic, preventing company X from doing this is anti-competitive, too.

  7. Tom Dougherty Says:

    From the Reason article: “Truth is, illegal immigrants are less likely to commit crimes than native Americans.”

    EVERY illegal immigrant in the United States is a criminal by being here illegally. Is every native American a criminal? If not, then how is the above statement logical?

  8. chidemkurdas Says:

    Jerry’s question, again, is the big one. I don’t know the particular situation in Arizona but probably like everywhere else, people get upset that illegal immigrants take jobs that otherwise would be available to citizens. But this perception is usually wrong. Americans don’t want the low-paying jobs that immigrants take, but those businesses don’t make enough to pay high wages, so if they can’t get immigrant workers they shut down. That does not benefit anybody and the local economy becomes weaker.

  9. Roger Koppl Says:

    Tom:

    Let’s say I’m a small guy who would never hire an illegal. If you’re a big guy, you can harass me by constantly filing complaints with the AG. Such complaints must be investigated. I will then have to devote a large fraction of my entrepreneurial resources to addressing the state authorities on my hiring policy. If you are a big firm, you can afford to devote a whole office to that function. Thus, there is no symmetry allowing me to strike back with equal effect. The law is anti-competitive even if we consider only those small firms that do not hire illegal immigrants.

    Chapman’s comment refers, obviously, to common law crimes such as theft and assault, and not to formal violations of legislative measures. Besides, if Harvey A. Silverglate is right, then the average American commits “three felonies a day,” thus making all of us criminals in some sense.


  10. Roger,

    With respect, you are the one lacking facts.

    I can tell you what sparked the law and why it is so immensely popular. It was the murder of a rancher by illegals. He and his wife had begged for protection. That was the violent culmination of many lesser threats: trespass, theft, etc.

    Folks in the Southern part of the state live in fear. They are afraid to leave their homes; afraid to visit the countryside that is the very reason many live there.

    Phoenix (which is nowhere near the border) is suffering under a wave of kidnappings. One report,which I haven’t verified, is that it is second only to Bogota in that regard.

    The problem is the drug war has intersected with the business of moving illegals. The coyotes are now running drugs along with people. Argue all you want about the merits of the drug war. But I will say again that a government’s most basic function is protecting its citizens. And the federal government has abdicated its responsibility.

    The violence has been going on for a long time. But it is escalating out of control. In Mexico, entire villages are being abandoned by residents under threats from the drug cartels. How would you think this would not spread North?

    And I must say to all those worried about civil liberties, there is nothing you speculated about that MIGHT happen, which doesn’t happen every day of the year. Except it is being done by ICE agents, not local police.

    You have no rights near the border, not even as an American citizen. ICE agents can stop, question and search you just because you are within a zone near the border. They blockade highways, including I-10, and stop and question everyone. (I have travelled I-10 from Ft. Worth to Los Angeles, and know of what I speak.) The federal courts have always refused to intervene.

    You reason about this in an institutional vacuum. Folks along the border have already lost their civil liberties. They just want their person and property protected. The Feds have botched it, so the citizens of Arizona turned to the state.

  11. Roger Koppl Says:

    Jerry,

    I certainly erred in not listing the *perception* of violence among the motives for the law. Such perceptions were indeed a motive. They seem to be mistaken perceptions, however.

    Let’s take up first the murder of rancher Robert Krentz. The news reports I have seen seem all support the idea that his murder is related to the drug trade. His murder might be an appropriate spur to some sort of legislative response, but not one that makes honest work more difficult for illegal immigrants. In other words, the problem here is the drug trade not immigration per se. SB 1070 is aimed at all illegal immigrants and not at the drug trade. Moreover, Krentz’s murder does not imply that the murder rate is higher because of illegal immigration. What murders have been prevented by the presence of illegal immigrants employed in the homes of, for example, vulnerable old people? Robert Krentz was a human being and thus my brother. His murder does not prove, however, that illegal immigration increases the risk of violence or death for the lawful residents of Arizona.

    I am not aware of any evidence supporting the claim that Phoenix has a rate of kidnapping rivaling that of Bogota or anywhere else. One source I found supports the view that such claims are baseless.

    http://www.azcentral.com/arizonarepublic/news/articles/2009/07/11/20090711Montini0712.html

    The same source seems to show that the victims of the kidnappings are mostly illegal immigrants, not lawful residents of Arizona. Kidnapping is a serious crime and should be addressed as such. The kidnapping happening in Phoenix and, presumably, the rest of Arizona do not constitute evidence, however, of reduced security for the lawful residents of Arizona.

    A CNN news report published on the Internet yesterday says the data show, “that both the number of illegal crossers and violent crime in general have actually decreased in the past several years.”

    http://www.cnn.com/2010/CRIME/04/29/arizona.immigration.crime/index.html

    You have still not provided objective numerical evidence to support the view that illegal immigrants from Mexico or anywhere else has caused in reduction in the security of lawful residents of Arizona. I have provided solid, albeit journalistic, sources for the claim that the numerical data do not support the view that immigrants are a threat of that sort.


  12. Roger,

    You basically are saying statistics trump the real world experience of human beings in place. There is not a “perception” that Robert Krentz was a victim of violence. He was murdered.

    We all know how unreliable crime statistics are. They are manipulated in both directions with the shifting winds of political expediency.

    If people avoid going to parts of Arizona out of fear, there is no crime statistic. They just live in fear. (It reminds me of living in NYC in the 1970s. I was never mugged, but whole areas of the city were “no go.”) I live in a gated community and there is no violent crime here. But I would rather be able not to have the extra expense.

    As I wrote in my last comment, “the drug war has intersected with the business of moving illegals.” Those crossing the border illegally are often forced to carry drugs. As someone correctly pointed out, the crossings are often in rural areas. The drug dealers/coyotes/ illegal immigrants run out of water and food and take from the locals what they need. I listened to and have read first hand accounts of what is going on (just this week).

    Next article on the Phoenix kidnappings I read, I’ll clip and send you a link. I’m not going to do research on what I have personally experienced to see if it is true. But if run across something on point, I’ll forward it.

    The number of illegal crossings have fallen because of the economy. Additionally, a couple of years ago Arizona enacted a law with draconian penalties on employers for hiring illegal immigrants. That sent many out of state. But the crossing have shifted into AZ from CA because the fence and enforcement in CA has been relatively effective.

    I’m describing facts not expressing opinions. I think the detioration of safety on the border should lead to a rethink of any number of policies. But first people in the rest of the country need to exit denial about what their fellow Americans are experiencing.

  13. Andrew Says:

    Regarding claims of Phoenix’s high kidnapping rate, it is worthwhile to note that (now former) County Attorney Andrew Thomas made it a policy to file kidnapping charges against all individuals associated with organizing and maintaining drophouses. There is no “wave of kidnappings.” It’s a numerical trick created by questionable prosecutorial tactics.

  14. ThomasL Says:

    I’ve always wondered _why_ illegal immigrants were so much less likely to commit a crime than US citizens. It is given as an unquestionable certitude in hard-core libertarian circles.

    Why? Are all people outside the US angels or something?

    Maybe we should allow them, provided they agree to teach their secrets of a pure and holy life.

  15. ed Says:

    How can one say they are more law abiding if many locales and municipalities don’t document the legal status of those arrested, charged or convicted? Chicago just had a roundup of 28 ranking gang members, with 27 of 28 illegal. Chapman lives in Chicagoland-was that just a mirage.

  16. Tom Dougherty Says:

    I can’t vouch for the immigration status of those on the list below. But it I’m sure it just my mistaken perception that 90% of them are hispanic.

    http://www.lapdonline.org/all_most_wanted

  17. Tom Dougherty Says:

    Or how about the Pima County, Arizona most wanted.

    http://pimasheriff.org/index.php?cID=69


  18. A news report from Wednesday sourced to a National Drug Threat Assessment report. Someone is kidnapped in Phoenix every 35 hours. Three Border Agents are assaulted daily.

    http://www.cnsnews.com/news/article/64910

  19. Efinancial Says:

    Jerry

    I was intrigued by your comment: “Next article on the Phoenix kidnappings I read, I’ll clip and send you a link. I’m not going to do research on what I have personally experienced to see if it is true. But if run across something on point, I’ll forward it.”

    Please tell us more about the kidnappings you “have personally experienced.” This would be useful information, however, if it is too painful or personally traumatic I appologize for seeming insensitive. Its just that this issue has clearly become emotionally charged and first-hand accounts of the violence could provide a knowledgable basis for understanding.

  20. ed Says:

    What’s the acceptable number of Americans robbed, raped or murdered by illegals?


  21. Efinancial,

    I’ve witnessed how the border works, no kidnappings. Thank God.

    I’ve seen illegal immigrants crossing. Some being picked up by ICE agents, some evading capture. I have been stopped multiple times with K9 dogs checking for drugs, and agents peering into my truck for illegals. For many years, going back into the 1980s.

    It’s been 5 years since I personally got right down to the border itself. I keep in touch with folks closer to the scene.

  22. Bill Stepp Says:

    The Opening Remarks column of the new issue of Bloomberg Businessweek has an interesting article on “The Wailing Wall.” It points out the unintended consequences of the Clinton.con clique’s (my term) 1994 crackdown, Operation Gatekeeper, an operation directed at southern California. It caused the flow of “human trafficking” to be redirected from California to Arizona. “By 2000 the human traffic had shifted eastward, and Arizona was the site of 45% of illegal crossings, up from 8% in 1992….” That spurred the growth of Mexican smoggling rings. It’s well worth reading.
    Yo Bubba!


  23. When the US cracked down on drug trafficing through the Caribbean, it shifted to Mexico. Same effect.

  24. Mario Rizzo Says:

    Pragmatically speaking, the new law is bound to encourage all sorts of unrest without solving the basic problem.


  25. Perhaps AZ has done the nation a favor by focusing attention on the issues.

  26. Efinancial Says:

    A final observation. The town of Escondido in southern California implemented a very similar policy last year. The local police set up frequent traffic blocks checking for auto registration and insurance. The hispanic community is upset but no large rallies…the police state grows

  27. Roger Koppl Says:

    I hope it’s okay if I tag on three comments.

    First, even if illegal immigration is bringing way more violence than I imagine, the law as it was written at the time of my post would seem to be ineffective, just as Mario suggests. By more or less excluding illegals from the usual protections of law, it would have encouraged reduced security. It’s a classic Misesian argument: Your preferred policy does not achieve your stated ends.

    Second, the law has been somehow modified Friday. I’m still fuzzy on that, but the main thing seems to be dropping the language of “lawful contact” in favor of “lawful stop, detention, or arrest.” That’s better, but still likely to needlessly alienate illegals from basic protections and still, therefore, likely to diminish security for all.

    Third, Jerry’s stat of once in 35 hrs represents about 250 kidnapping per year, which is less than the number suggested in my sources and, in any event, not necessarily comparable to the unknown rates of kidnapping in other cities on the planet. (Mostly, here, I just wanted to acknowledge that Jerry *did* come out with a relatively hard number.)

  28. emuleman Says:

    * The Arizona law simply enforces existing federal laws. Now Arizona police can actually enforce laws that are already on the books. Obviously the reason for this is because the federal government is not enforcing the law effectively in Arizona. The new Arizona law simply states that violating federal immigration law is now a state crime as well. Because illegal immigrants are by definition in violation of federal immigration laws, they can now be arrested by local law enforcement in Arizona. No new actions. No new powers. No new nothing. Simply enforcing federal law, and absolutely nothing else.

    * The law only allows police to ask about immigration status in the normal course of “lawful contact” with a person, such as a traffic stop or if they have committed a crime. Before asking a person about immigration status, law enforcement officials are required by the law to have “reasonable suspicion” that a person is an illegal immigrant. The concept of “reasonable suspicion” is well established by court rulings. Since Arizona does not issue driver’s licenses to illegal immigrants, having a valid license creates a presumption of legal status. The same thing happens to me when I get pulled over, they ask to see my drivers license or identification card. This is not a new, radical concept or law. Police have been asking people for identification for many years.

    Again I just find it amazing that people are getting all worked up about this. Federal law already exists, but the Federal government does not enforce it. Arizona has a huge immigration problem. They finally decide to pass a law that allows state officers to enforce the federal laws. It is the federal government’s irresponsibility that has finally caused Arizona to take charge and protect its citizens.

  29. johnfx Says:

    Man, there are some really weak arguments against this law in the comments of this post.

    1) The law can be abused to harass companies/gov’t agencies with frivolous reports.
    This is in no way unique to this law. The same could be said for access to the civil judicial system. Should we revoke the right of citizens to sue each other because some people are clearly abusing the privilege. No, you just set up mechanisms to modulate the noise from the system as best possible.

    2) Equal protection clause.
    If it is indeed true that it violates the equal protection clause to require some people to be able to produce documentation and not others, then the equivalent federal laws are equally unconstitutional as are any laws that require people to show an ID to get into a bar.


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