EXCLUSIVE: AZ Leg. staffer disputes conservatives' "lawful contact" claims about immigration law
Research ››› ››› MEDIA MATTERS STAFF
Conservative media have claimed that Arizona's new immigration law only allows law enforcement to question a person's immigration status if they are suspected of an unrelated offense. But in a statement given to Media Matters for America, a research analyst for the Arizona House Republican majority disputes these claims.
AZ law: "For any lawful contact" with a person, police shall attempt to determine immigration status if they suspect the person is undocumented
S.B. 1070 states:
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, except if the determination may hinder or obstruct an investigation.
Conservative media claim AZ law requires "lawful contact" based on "unrelated offenses" before officer checks legal status
Byron York pushes claim that the phrase "lawful contact" means "the officer is already engaged in some detention of an individual because he's violated some other law." From York's April 26 Washington Examiner column:
Critics have focused on the term "reasonable suspicion" to suggest that the law would give police the power to pick anyone out of a crowd for any reason and force them to prove they are in the U.S. legally. Some foresee mass civil rights violations targeting Hispanics.
What fewer people have noticed is the phrase "lawful contact," which defines what must be going on before police even think about checking immigration status. "That means the officer is already engaged in some detention of an individual because he's violated some other law," says Kris Kobach, a University of Missouri Kansas City Law School professor who helped draft the measure. "The most likely context where this law would come into play is a traffic stop."
Wash. Times: Law applies to those "people already detained for unrelated offenses." An April 27 Washington Times editorial claimed: "The new Arizona immigration law does not institutionalize racial profiling or make being Hispanic a crime. It allows law enforcement officers to conduct citizenship checks of people already detained for unrelated offenses, and only if there is reason to believe someone is in the country illegally."
Hannity: "Proof of citizenship can only be requested by the authorities" when "the individual is already suspected of breaking the law." During the April 27 edition of his Fox News program, Sean Hannity cited York and stated: "Proof of citizenship can only be requested by the authorities during, quote, 'lawful contact' by police. Meaning, the individual is already suspected of breaking the law. It's all right there in the legislation. But the left, well, they don't want you to know that." During the April 28 broadcast, Hannity further stated of the Arizona law: "All they're saying is, if you get pulled over by the police for some other reason and you find yourself in law enforcement custody in some way, shape, matter, or form, that they're allowed to check your status. What's the big deal? What's the big deal with that?"
Daily Caller: "[U]nless an immigrant is committing a crime or some sort of legal violation, no one asks them a thing about their papers." A Daily Caller post stated, "[T]he law requires 'lawful contact' before police can do anything -- so, unless an immigrant is committing a crime or some sort of legal violation, no one asks them a thing about their papers."
AZ House majority research analyst: "Lawful contact" could be with "victims, witnesses" and others interacting with police
AZ House majority research analyst: "[I]t wouldn't just be those suspected of crimes. It could be victims, witnesses or just people who are lawfully interacting with the police officer." Media Matters obtained a statement from the Republican House majority's Homeland Security research analyst, Rene Guillen, who stated in a phone message in response to a question about the nature of lawful contact:
[L]awful contact is definitely different than reasonable suspicion in terms of the initiation of the contact. So lawful contact is essentially any interaction a police officer may have with an individual through the normal legal, lawful course of the performance of their duties. So it wouldn't just be those suspected of crimes. It could be victims, witnesses or just people who are lawfully interacting with the police officer where through the course of that contact they are able to build reasonable suspicion and therefore inquire.
Legal experts, law enforcement say "lawful contact" with a person is not limited to cases in which that person is suspected of an unrelated offense
AILA: "If the Arizona legislature had meant to require that the police first suspect a person of an unrelated offense before asking about immigration status it could have clearly put that requirement in the statute, but it did not." David Leopold, immigration lawyer and president elect of the American Immigration Lawyers Association (AILA), stated in correspondence with Media Matters that " 'lawful contact' does not appear to be defined by Arizona statute or case law" and that "the term would appear to encompass many situations involving contact between the police and an individual. If the Arizona legislature had meant to require that the police first suspect a person of an unrelated offense before asking about immigration status it could have clearly put that requirement in the statute, but it did not."
MALDEF general counsel: "[I]t's inaccurate to say that it only relates to someone who's guilty or accused of another offense." During the April 26 edition of CNN's Campbell Brown, Bob Dane of the Federation for American Immigration Reform asserted that "[y]ou have to have another infraction, speeding or reckless driving," before being questioned about immigration status. Dane qualified his comments by saying, "I'm not a lawyer." In response, Thomas Saenz, general counsel for the Mexican American Legal Defense and Education Fund (MALDEF), stated that "it's inaccurate to say that it only relates to someone who's guilty or accused of another offense":
SAENZ: Well, first, Campbell, it's inaccurate to say that it only relates to someone who's guilty or accused of another offense.
In fact, what the law says is, any lawful contact between a police officer and someone else. That means it could be a victim of a crime, a witness of a crime. Those folks, too, could face reasonable suspicions that they're undocumented and be required by a police officer to produce some proof of their status.
And if they don't produce adequate proof, they could end up being swept in by this dragnet as well.
U of A law professor: "Lawful contact" could "mean any normal interaction a cop has with ordinary people." Chicago Tribune columnist Steve Chapman wrote on April 29 that University of Arizona law professor Marc Miller "says 'lawful contact' could also mean any normal interaction a cop has with ordinary people. If a Hispanic asks a patrolman for directions, she could expose herself to immigration questions. If an officer walks up to someone and starts a conversation without detaining him -- something police are allowed to do -- he may have established 'lawful contact.' "
AZ police chief: Talking "to a witness of a crime" and "a victim of a crime" are "legal contacts of law enforcement." In an interview on NPR's All Things Considered, Tuscon police chief Roberto Villasenor stated: "I think where a lot of people are getting confused is those instances where we stop someone for a criminal violation, we have some reason for that stop and that contact, but I don't believe that's what we're talking about in regard to this law."
From the NPR interview:
Mr. VILLASENOR: Well, I think it says that you can't use race or ethnicity solely as the means of making that determination. I think that there will be an element of that that's looked at. And I think where a lot of people are getting confused is those instances where we stop someone for a criminal violation, we have some reason for that stop and that contact, but I don't believe that's what we're talking about in regard to this law.
This law is talking about in the course of any legal contact, as well as when we talk to a witness of a crime or when we talk to a victim of a crime. Those are legal contacts of law enforcement. Now we look at it in the context of those legal contacts.
If in the course of them, we develop reasonable suspicion that the individual we're talking with is illegally in the country, we are mandated to take enforcement action. That's where the questions are coming up is how do you develop that reasonable suspicion that they're in the country illegally if they're there talking to you just about being a victim of a crime. [All Things Considered, 4/26/10]