On The Front Lines
Warning that Ariz. Immigration Law Moves Nation Closer to Police State, Rutherford Institute Asks Supreme Court to Declare it Unconstitutional
WASHINGTON, DC — Insisting that an Arizona law allowing police officers to detain persons suspected of being in the United States illegally threatens to move our nation yet one step closer to a “police state” in which basic civil liberties are sacrificed in the interest of quelling popular fears, The Rutherford Institute has filed an amicus curiae brief in State of Arizona v. United States of America asking the U.S. Supreme Court to declare the law unconstitutional. In asking the Court to uphold the lower court rulings in the case, Institute attorneys argue that S.B. 1070 threatens the right of citizens and lawfully-present aliens to be free from unreasonable searches and seizures. Citing the Equal Protection Clause of the U.S. Constitution, the Institute’s brief contends that the law also poses a threat to the rights of all citizens to be free from race discrimination, because race will be used by officers as the overriding factor in determining whether a person is suspected of being in the country illegally.
“The Arizona law is so broad and invasive that it annihilates the Fourth Amendment protection against unreasonable searches and seizures of our persons and effects,” said John W. Whitehead, president of The Rutherford Institute. “It also establishes Arizona as a prototype of the police state.”
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 allows 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, holding that the provisions stand as an obstacle to the execution of preeminent federal immigration policy and entered a preliminary injunction forbidding Arizona from enforcing the law. On appeal to the U.S. Court of Appeals for the Ninth Circuit, the injunction was affirmed and the Supreme Court thereafter agreed to review the decision.
In its amicus brief, attorneys for The Rutherford Institute argue that in determining whether S.B. 1070 is valid, the Court should not only consider whether the law is contrary to federal immigration policy, but also whether it is preempted by fundamental guarantees to civil rights embodied in the Constitution. 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.
