And my non lawyer gut instinct is that this language is there to lower the hurdle in keeping these cases from being thrown out. Christo keeps claiming (seemingly) that these cases don't have a chance of getting very far, in which case I ask why is the language there to encourage the public to waste everyone's time to begin with?
What cases? And why would a lawsuit filed to get the police to do their jobs be a waste of time?
Whether Christo is correct or not in these points, I still don't see how this is there for any reason other than to force the most hard line policies possible. ETA: Or, if Y23K is correct that this is "toothless" it is just there to grandstand, to pander to the masses.
It's there to keep whole police/sheriff's departments from ignoring the law because of politics not to make sure that street cops give superhuman efforts to catch each and every illegal immigrant they come in contact with.
I guess it is best to start over with what I have been concerned about. Let me start with the law (I think) before Friday's changes. The changes on Friday will of course possibly make some of this academic as we are talking about how things were for a few days and not how they are, but those changes were not part of this discussion. I have been using the text as provided in this
link, and have been concentrating on section 2.
11 Sec. 2. Title 11, chapter 7, Arizona Revised Statutes, is amended by12 adding article 8, to read:13 ARTICLE 8. ENFORCEMENT OF IMMIGRATION LAWS14 11-1051. Cooperation and assistance in enforcement of15 immigration laws; indemnification16 A. NO OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR17 OTHER POLITICAL SUBDIVISION OF THIS STATE MAY LIMIT OR RESTRICT THE18 ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT19 PERMITTED BY FEDERAL LAW.20 B. FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR A LAW21 ENFORCEMENT AGENCY OF THIS STATE OR A LAW ENFORCEMENT OFFICIAL OR A LAW22 ENFORCEMENT AGENCY OF A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF23 THIS STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO24 IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE25 MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON,26 EXCEPT IF THE DETERMINATION MAY HINDER OR OBSTRUCT AN INVESTIGATION. ANY27 PERSON WHO IS ARRESTED SHALL HAVE THE PERSON'S IMMIGRATION STATUS DETERMINED28 BEFORE THE PERSON IS RELEASED. THE PERSON'S IMMIGRATION STATUS SHALL BE29 VERIFIED WITH THE FEDERAL GOVERNMENT PURSUANT TO 8 UNITED STATES CODE SECTION30 1373(c). A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY,31 CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE MAY NOT SOLELY32 CONSIDER RACE, COLOR OR NATIONAL ORIGIN IN IMPLEMENTING THE REQUIREMENTS OF33 THIS SUBSECTION EXCEPT TO THE EXTENT PERMITTED BY THE UNITED STATES OR34 ARIZONA CONSTITUTION. A PERSON IS PRESUMED TO NOT BE AN ALIEN WHO IS35 UNLAWFULLY PRESENT IN THE UNITED STATES IF THE PERSON PROVIDES TO THE LAW36 ENFORCEMENT OFFICER OR AGENCY ANY OF THE FOLLOWING:37 1. A VALID ARIZONA DRIVER LICENSE.38 2. A VALID ARIZONA NONOPERATING IDENTIFICATION LICENSE.39 3. A VALID TRIBAL ENROLLMENT CARD OR OTHER FORM OF TRIBAL40 IDENTIFICATION.41 4. IF THE ENTITY REQUIRES PROOF OF LEGAL PRESENCE IN THE UNITED STATES42 BEFORE ISSUANCE, ANY VALID UNITED STATES FEDERAL, STATE OR LOCAL GOVERNMENT43 ISSUED IDENTIFICATION.1 C. IF AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES IS2 CONVICTED OF A VIOLATION OF STATE OR LOCAL LAW, ON DISCHARGE FROM3 IMPRISONMENT OR ON THE ASSESSMENT OF ANY MONETARY OBLIGATION THAT IS IMPOSED,4 THE UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT OR THE UNITED STATES5 CUSTOMS AND BORDER PROTECTION SHALL BE IMMEDIATELY NOTIFIED.6 D. NOTWITHSTANDING ANY OTHER LAW, A LAW ENFORCEMENT AGENCY MAY7 SECURELY TRANSPORT AN ALIEN WHO THE AGENCY HAS RECEIVED VERIFICATION IS8 UNLAWFULLY PRESENT IN THE UNITED STATES AND WHO IS IN THE AGENCY'S CUSTODY TO9 A FEDERAL FACILITY IN THIS STATE OR TO ANY OTHER POINT OF TRANSFER INTO10 FEDERAL CUSTODY THAT IS OUTSIDE THE JURISDICTION OF THE LAW ENFORCEMENT11 AGENCY. A LAW ENFORCEMENT AGENCY SHALL OBTAIN JUDICIAL AUTHORIZATION BEFORE12 SECURELY TRANSPORTING AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES13 TO A POINT OF TRANSFER THAT IS OUTSIDE OF THIS STATE.14 E. EXCEPT AS PROVIDED IN FEDERAL LAW, OFFICIALS OR AGENCIES OF THIS15 STATE AND COUNTIES, CITIES, TOWNS AND OTHER POLITICAL SUBDIVISIONS OF THIS16 STATE MAY NOT BE PROHIBITED OR IN ANY WAY BE RESTRICTED FROM SENDING,17 RECEIVING OR MAINTAINING INFORMATION RELATING TO THE IMMIGRATION STATUS,18 LAWFUL OR UNLAWFUL, OF ANY INDIVIDUAL OR EXCHANGING THAT INFORMATION WITH ANY19 OTHER FEDERAL, STATE OR LOCAL GOVERNMENTAL ENTITY FOR THE FOLLOWING OFFICIAL20 PURPOSES:21 1. DETERMINING ELIGIBILITY FOR ANY PUBLIC BENEFIT, SERVICE OR LICENSE22 PROVIDED BY ANY FEDERAL, STATE, LOCAL OR OTHER POLITICAL SUBDIVISION OF THIS23 STATE.24 2. VERIFYING ANY CLAIM OF RESIDENCE OR DOMICILE IF DETERMINATION OF25 RESIDENCE OR DOMICILE IS REQUIRED UNDER THE LAWS OF THIS STATE OR A JUDICIAL26 ORDER ISSUED PURSUANT TO A CIVIL OR CRIMINAL PROCEEDING IN THIS STATE.27 3. IF THE PERSON IS AN ALIEN, DETERMINING WHETHER THE PERSON IS IN28 COMPLIANCE WITH THE FEDERAL REGISTRATION LAWS PRESCRIBED BY TITLE II, CHAPTER29 7 OF THE FEDERAL IMMIGRATION AND NATIONALITY ACT.30 4. PURSUANT TO 8 UNITED STATES CODE SECTION 1373 AND 8 UNITED STATES31 CODE SECTION 1644.32 F. THIS SECTION DOES NOT IMPLEMENT, AUTHORIZE OR ESTABLISH AND SHALL33 NOT BE CONSTRUED TO IMPLEMENT, AUTHORIZE OR ESTABLISH THE REAL ID ACT OF 200534 (P.L. 109-13, DIVISION B; 119 STAT. 302), INCLUDING THE USE OF A RADIO35 FREQUENCY IDENTIFICATION CHIP.36 G. A PERSON WHO IS A LEGAL RESIDENT OF THIS STATE MAY BRING AN ACTION37 IN SUPERIOR COURT TO CHALLENGE ANY OFFICIAL OR AGENCY OF THIS STATE OR A38 COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE THAT ADOPTS39 OR IMPLEMENTS A POLICY OR PRACTICE THAT LIMITS OR RESTRICTS THE ENFORCEMENT40 OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL41 LAW. IF THERE IS A JUDICIAL FINDING THAT AN ENTITY HAS VIOLATED THIS42 SECTION, THE COURT SHALL ORDER THAT THE ENTITY PAY A CIVIL PENALTY OF NOT43 LESS THAN ONE THOUSAND DOLLARS AND NOT MORE THAN FIVE THOUSAND DOLLARS FOR44 EACH DAY THAT THE POLICY HAS REMAINED IN EFFECT AFTER THE FILING OF AN ACTION45 PURSUANT TO THIS SUBSECTION.1 H. A COURT SHALL COLLECT THE CIVIL PENALTY PRESCRIBED IN SUBSECTION G2 OF THIS SECTION AND REMIT THE CIVIL PENALTY TO THE STATE TREASURER FOR3 DEPOSIT IN THE GANG AND IMMIGRATION INTELLIGENCE TEAM ENFORCEMENT MISSION4 FUND ESTABLISHED BY SECTION 41-1724.5 I. THE COURT MAY AWARD COURT COSTS AND REASONABLE ATTORNEY FEES TO ANY6 PERSON OR ANY OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR7 OTHER POLITICAL SUBDIVISION OF THIS STATE THAT PREVAILS BY AN ADJUDICATION ON8 THE MERITS IN A PROCEEDING BROUGHT PURSUANT TO THIS SECTION.9 J. EXCEPT IN RELATION TO MATTERS IN WHICH THE OFFICER IS ADJUDGED TO10 HAVE ACTED IN BAD FAITH, A LAW ENFORCEMENT OFFICER IS INDEMNIFIED BY THE LAW11 ENFORCEMENT OFFICER'S AGENCY AGAINST REASONABLE COSTS AND EXPENSES, INCLUDING12 ATTORNEY FEES, INCURRED BY THE OFFICER IN CONNECTION WITH ANY ACTION, SUIT OR13 PROCEEDING BROUGHT PURSUANT TO THIS SECTION IN WHICH THE OFFICER MAY BE A14 DEFENDANT BY REASON OF THE OFFICER BEING OR HAVING BEEN A MEMBER OF THE LAW15 ENFORCEMENT AGENCY.16 K. THIS SECTION SHALL BE IMPLEMENTED IN A MANNER CONSISTENT WITH17 FEDERAL LAWS REGULATING IMMIGRATION, PROTECTING THE CIVIL RIGHTS OF ALL18 PERSONS AND RESPECTING THE PRIVILEGES AND IMMUNITIES OF UNITED STATES19 CITIZENS.Now for the most part I was following along in this thread trying to wrap my thoughts around whether I agree with this law or not, whether it actually addresses a problem, etc., etc. I was happily on the sidelines when the discussion was about racism and the gestapo because they offered little to my understanding. I threw out a thought about
trusting officers discretion that didn't really go anywhere for me to formulate an opinion. I'm not certain that I get
Y23F's statement that he "could argue it actually gives them [police] more [discretion]and relies more on the beat walking on the ground police officer and his instincts and knowledge of his territory" as it seems counterintuitive, but I don't have any good place to try to take that conversation.While I was an occasional participant in this conversation about how this pieces together to allow citizens to sue police officers from around page 15 or so until page 22, when I
asked in response to
this reply whether the police department was an agency, and a police officer was an official? I then
admittedly lost track of the actual law and
posted based on a summary that seemed to only offer a police officer protection when he went too far, as opposed to what the law really states. The next morning I
started replying to TheCommish that the point of this law seems to be to have ordinary citizens force the strictest possible policies. And then asked
"Why not?" when Y23F stated "The language of the law does not back up your [Timmy's] seeming assertion that joe citizen can sue joe cop." And the answer has been because it would get
tossed out based on facts.
Some asserted that this was
already answered.
You point to section J and show that the point is to "allows citizens to sue an 'official or agency.' But the indemnification provision protects 'officers'." But while the "indemnification provision protects" the individual officer from financial loss as long as they were appropriately following the policies, procedures, and accepted practices of their departments it doesn't keep them from facing these suits,
does it? The cases are going to be thrown out based on facts, with the only fact being offered
being section J, which makes some sense we are talking about how section G allows suits in the general sense, not any specific case. But for the same reason that Section J being the only fact being offered makes sense, all the replies about these cases based on this law being tossed out in various stages of the case being thrown out "due to the facts of the case" pointless.
Now I more or less willing to take
Y23F's word for it that "a suit is filed it will have an effect on actual policy. You are right. It will. In that, yes, this is nothing new. That is what our common law is." That the language of this law is nothing special. But you jump back in either declaring all of these lawsuits
would be meritless or offer a useless point on how cases without merit are tossed out. So giving you the benefit of doubt that you actually had a point,
I asked "What exactly makes the accusation that Officer Christo is, as a matter of practice not pursuing these cases to the fullest extent allowed by the federal government meritless?"
Your next reply to a different post was "don't seem to understand that police officers can already be sued for their action and/or inaction. This law does nothing to change that fact." Which is a repeat of Y23F's answer, so
I asked for examples is similar laws. Where you took
listing all the places that a meritless case could be thrown out as meaningful reply and reasserted that Section G wasn't needed to sue the police department and/or officer. I section G wasn't needed then
is it there? Which gets us here.
So
"What cases?" The cases allowed, whether necessary or not by Section G.
And why would a lawsuit filed to get the police to do their jobs be a waste of time? Because my laymen's reading of the section is that this is to force that the executive branch of Arizona's government to always use Section A as the policy and to allow ordinary citizens to use the courts to force the actual "practices" to always be a strict as possible. In other words the policy experts, not just those in the police force have no wiggle room to create the actual procedures to fully "do their jobs". For the most part "doing their jobs" only minimally includes caring about immigration status, yet this law forces immigration status to always be near the top of the priorities list.
It's there to keep whole police/sheriff's departments from ignoring the law because of politics not to make sure that street cops give superhuman efforts to catch each and every illegal immigrant they come in contact with. But you seem to arguing that section J is there to prevent the cases merely being about suing individual officers. I see it being there to encourage individuals to sue individual officers to establish "the practices" that are in violation of this law.
There was a short discussion of a "practice" is in a legal sense. I don't think there was a good answer. So I am simply defining it from my own experience. A policy is a statement of principle. As mentioned all of the policies are going to state that such and such agency will be charged with "ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO THE FULL EXTENT PERMITTED BY FEDERAL LAW." They will carefully craft procedures that define how this policy will be met. And then in the field
accepted practices will develop that may or may not conform to the stated policy and procedures. Absent a better definition, I have to assume that this is why "or practice" is there.
So piecing it together to me Section G is there to remove any discretion from the executive branch in interpreting Section A by giving the oversight responsibilities to the average citizen. Section B further narrowly defines how a police officer can perform his job duties and how this can be written into "policies" and procedures. Section J seems to allow the "practices" of individual officers be challenged for the purposes of forcing police departments to fully comply with Sections B (and A). That is how individual officers are observed to perform their jobs will be the basis of challenging the "practices" of the departments. That the end result of this is that the courts will be used to force the most "draconian" version of enforcement possible. Now I'm willing to be shown that this is how it works in general, and that this law is nothing new and hardly warrants the previous sentence's hyperbole. But your contentions that you don't need this in the statute for this to be true doesn't seem to support this view.
Now I didn't take the time to create this post in order to continue a pissing contests. I'm hoping (but have no right to expect) that I can benefit from the expertise that you, Y23F, Tobias, even Woz can offer to shape how the above paragraph is incorrect. Except for that this might be just common boiler plate language, I don't think this has been done. Maybe that is because we have largely been talking past one another, if so I'm sorry for my inabilities to be clear enough that this wasn't the case.