AZ v. US: Supreme Court Declares Criminalizing Illegal Immigrants & Warrantless Arrests Unconstitutional, Lets Stand Police Status Checks

WASHINGTON, DC — A divided Supreme Court has struck down as unconstitutional key provisions of Arizona’s immigration law pertaining to the criminalizing of illegal immigrants (for not possessing their federal registration cards while working, applying for work or soliciting work) and warrantless arrests by police, while unanimously affirming the “show me your papers” part of S.B. 1070 that requires police to perform roadside immigration checks of people they determine might be in the country illegally. The Rutherford Institute had filed an amicus curiae brief in State of Arizona v. United States of America asking the Court to declare S.B. 1070 unconstitutional on the grounds that giving police officers broad authority to stop, search and question individuals—citizen and non-citizen alike—based primarily on appearance, race and the personal, subjective views and prejudices of the police, would move our nation yet one step closer to a “police state.”

“While the criminalizing and warrantless arrest provisions in the Arizona immigration law needed to be struck down, unfortunately, this ruling does little to recognize or counteract the real danger inherent in S.B. 1070, which is the erection of a prototype police state in Arizona,” said John W. Whitehead. “By allowing Arizona police to stop and search people, citizens and immigrants alike, based only on their own subjective suspicions and visual observations, and by failing to address the core issue being debated here—namely, whether Americans have any Fourth Amendment protections anymore—the Court has opened the door to a host of abuses, the least of which will be racial profiling. Without fail, we will be revisiting this issue again.”

In April 2010, Arizona enacted S.B. 1070 in response to a perceived crisis in illegal immigration. The law requires law enforcement officials to determine the immigration status of a person stopped, detained or arrested if the officer suspects that the person is an unauthorized immigrant. Before such persons may be released, police must determine and verify the person’s immigration status with the federal government. S.B. 1070 also makes it a state crime, punishable by up to 20 days in jail, for an alien legally present in the country not to have in his or her possession an alien registration document. The law also allowed state law enforcement officials to make a warrantless arrest of any person upon probable cause that the person has committed an offense which makes the person removable from the United States under federal immigration laws. The Obama administration challenged the constitutionality of S.B. 1070’s provisions, arguing that they were preempted by the Supremacy Clause of the U.S. Constitution. A federal district court in Arizona agreed, forbidding Arizona from enforcing the law, which the Ninth Circuit Court of Appeals similarly affirmed.

In weighing in on the case before the U.S. Supreme Court, attorneys for The Rutherford Institute argued that enforcement of S.B. 1070 poses a threat to the Fourth Amendment rights of all citizens and others because it authorizes officers to make arrests for misdemeanors constituting “excludable” offenses even though the minor offense was not committed in the officer’s presence. Moreover, the requirement that officers determine the immigration status of detainees would require that detentions extend well beyond what is reasonable under the Fourth Amendment. S.B. 1070 also poses a threat to rights under the Equal Protection Clause because law enforcement officials will, intentionally or subconsciously, use race as a proxy for decisions about a person’s immigration status, resulting in racial profiling of Hispanics.

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