Friday, May 21, 2010
Muehler v. Mena (Thank you, Megyn Kelly!)
It's rare, but every once in awhile watching Bill O'Reilly comes in handy!
(*WINK*)
Last night was one of those nights.
While discussing Arizona's recently passed new immigration control law with O'Reilly, Megyn Kelly pointed out the following:
Muehler v. Mena, 544 U.S. 93 (2005)
A unanimous decision by the United States Supreme Court, which held that the Fourth Amendment to the United States Constitution allows detention of a search subject in handcuffs while a search is being conducted, and that it does not require officers to have an independent reasonable suspicion before questioning a subject about his or her immigration status.
Quoting from the unanimous ruling:
The officers' questioning of Mena about her immigration status during her detention did not violate her Fourth Amendment rights. ... [T]his Court has "held repeatedly that mere police questioning does not constitute a seizure."
Because Mena's initial detention was lawful...there was no additional seizure within the meaning of the Fourth Amendment, and, therefore, no additional Fourth Amendment justification for inquiring about Mena's immigration status was required.
Now, folks... if this is the first you're hearing of Muehler v. Mena - even with all the non-stop chatter from politicians and the media concerning Arizona's new immigration control law - ask yourselves one simple question:
Why...???
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18 comments:
Regardless of what one thinks about the Arizona law, one should not be misled by the holding of this case.
This case held that while a person was already in lawful custody, officers could question a person with regard to immigration status, provided that the person was aware that they were not required to answer. Megyn left out these details.
Furthermore, I don't think the controversy over Arizona law is whether people already in lawful custody can be questioned about their immigration status. The controversy and fervor is with regard to whether the law allows for the stopping of people for the sole reason of asking them about their immigration status.
Some people argue the law does allow for this, some seem to argue that it does not.
If it does allow such stoppings, then by what does an officer base a finding of reasonable suspicion with regard to immigration status.
That's the real issue. This case is irrelevant.
Thanks for chiming in, Tony.
Agreed. The case held that while a person was already in lawful custody officers could question that person with regard to immigration status.
Did ANYTHING which I referred to - anything I noted in my post - say or even suggest otherwise...???
I mean... Tony... I'm a straightforward kinda guy; I provide the citation links... I make very clear via my punctuation and "style" which are my words and which are from quotes - and furthermore the same transparency applies when I'm creating a "digest" in order to save space and get to the point.
(*SHRUG*)
Now I take it (and correct me if I'm misreading you here) that you're not a fan of the new Arizona law.
Fine.
(*SHRUG*)
But if you're inferring that KNOWING ABOUT... BEING FAMILIAR WITH... the Mena case is "irrelevant" to the broader discussion... well... then on that we definitely disagree.
The more you know... well... the more you know. (See what I'm saying...???) Ignorance is certainly NOT bliss when it comes to reasonable debate and discussion.
Finally... (*SMILE*)... to answer your question of what "reasonable suspicion" might look like...
Easy enough!
A van runs a stop light or stop sign or gets caught up in a speed trap. An officer pulls the van over. The van is being driven by an individual who has no drivers license. The driver has a passenger - also with no drivers license. Neither individual demonstrates a command of the English language that you'd expect from your average adult citizen. When asked for their names and birth dates in order for the officer to call in the info to verify whether either individual is legally licensed to drive no match is found.
I mean, jeez, Tony... this ain't rocket science. You don't like my scenario? Then create your own; it shouldn't be too hard.
Anyway... I this has answered your question. In any case... again... thanks for stopping by.
BILL
Tony, with regard to, "whether the law allows for the stopping of people for the sole reason of asking them about their immigration status." The bill explicitly says that an officer can only ask a person about their immigration status after "lawful contact." Meaning that police cannot stop people to ask them about about their immigration status, they can only ask them about their immigration status after they've already stopped someone. And no, walking past a police officer is not lawful contact, or any similar situation.
Thanks for joining the conversation, Dylan.
Did you happen to catch Fox News Sunday yesterday - specifically the panel discussion?
Brit Hume was patiently trying to explain to Kirsten Powers exactly what you've tried to get across to Tony here.
(*SHRUG*)
I don't know... it just seems to me that even if you can find someone on the "anti-1070" side who has bothered to read the bill...
http://azgovernor.gov/dms/upload/SB_1070_Signed.pdf
...along with the amendments...
http://azgovernor.gov/dms/upload/HB_2162Signed.pdf
...it seems that the actual words of the bill refuse to register.
Anyway... to reiterate my prior comment to Tony - "It Ain't Rocket Science!"
BILL
Hello Mr. Barker and Mr. Dylan:
Since you've clearly implied that Mr. Garrido hasn't read the bill, perhaps you could cite the portion of the bill that says:
"The bill explicitly says that an officer can only ask a person about their immigration status after "lawful contact.""
After that, please cite the cases that imply the following:
"Meaning that police cannot stop people to ask them about about their immigration status, they can only ask them about their immigration status after they've already stopped someone"
After that, please cite the cases that define "reasonable suspicion".
Thanks.
Sal,
Sorry to take so long to get you post up; I was away on vacation and didn't check my emails nor the blog once.
(*GRIN*)
Anyway... I don't know what to tell you. If you don't buy my points or Dylan's... (*SHRUG*)
I wrote my post. There's nothing more I can tell you except to read the bill.
Best regards,
BILL
You don't have to post this on your blog, but I have read the bill.
I think Mr. Garrido was, more or less, simply saying that the real controversy over the law is far removed from the legal minutia regarding which law is stricter on illegal immigrants, federal law or Arizona State law. I think that's a fair observation.
Additionally, I don't think reading the law would be helpful in understanding this controversy. To discover whether the the controversy is a real one or not, one might have to actually consult the Arizona code, but if you did, you would not find language definitive enough to decide the issue. That's probably, in part, why the controversy exists.
The truth is that anyone prosecuted under this law will find no defense under the clause that explicitly forbids police officers from being "reasonably suspicious" based on race alone. This portion of the law only exists for good public relations and contains no objective defensible proscription. More or less, it's just a ruse. It's a clever ruse, because outside the legal community, this concept is not well understood. The requirement of reasonable suspicion completely swallows the the clever preamble, making it virtually meaningless. For example, if an officer can articulate the requisite reasonable suspicion, there will be no inquiry as to whether race was the sole reason for the stop, because there was reasonable suspicion established at law. If there was no requisite reasonable suspicion, again, there will be no inquiry as to whether race was the sole factor, because such a case would be dismissed for failure to provide a legal foundation for the seizure. Conclusion: the preamble, while a nice public relations ploy, has no practical legal effect.
(to be continued). . .
Basically any crime that hovers (or at least seems to) on a particular racial, ethnic or cultural identity marker, coupled with mere "lawful contact" and "reasonable suspicion" as the foundational justification for the seizure will always raise suspicious eyebrows of certain folks, and it's not an unjustified response in my view.
The reality is that citizenship status is not something that can be objectively observed. There are objective things we can observe about foreign cultures, races, ethnicities, etc., but in this melting pot we call America, there's no way to tell the difference between an illegal alien and a legal one.
(continued) . . . .
Consider this statement: reasonable suspicion does not exist in a vacuum. In other words, an officer must be able to articulate to the court's satisfaction that a person is committing or is about to commit a crime. If the officer doesn't know what crime it is that he is suspecting, he is really undermining his credibility. Therefore, in most cases, the officer will need to somehow establish reasonable suspicion of a certain sort of crime, and often times, a specific crime. So the question becomes, in what manner can a person be reasonably suspected of being in the United States illegally? That's a good question, not easily resolved. I'll use your own hypothetical of illegals committing traffic violations and failing to provide a drivers license to illustrate.
If a person runs a red light, they've violated a law, and are certainly a law breaker. If a person drives beyond the speed limit, the former conclusion also applies. Niether of these would establish reasonable suspicion with regard to the crime of illegal presence in the U.S. because the vast majority of these types of infractions are committed by people in the United States legally. There's nothing particular to illegal aliens that makes them more inclined to violate traffic laws. I don't think that's what you were suggesting, however. You were just providing a basis for the stop. Fair enough.
But you went on to say that the suspects in question couldn't speak English very well, and implied that was reasonably suspicious behavior of a lack of citizenship. Well, the Civil Rights Act prohibits discrimination on the basis of "race, color, religion or national origin." In many Civil Rights cases, the Supreme Court has tied language of origin discrimination to national origin discrimination. To put it mildly, the chance that a person can constitutionally be held reasonably suspicious of being an illegal because they can't speak English is almost zero. There's no case law on point that I know of, but in variety of less critical forums, language has been held a surrogate for national origin discrimination. (See Hernandez v. New York, 500 U.S. 371).
Of course, I haven't even mentioned the passenger yet. In your hypo, he hasn't even been suspected of committing an offense yet. It's unlikely, absent additional facts, that he could be. A passenger, simply riding in a car, could not legally be required to provide written identification, absent additional facts. Again, inability to speak English is an unconstitutional factor.
So, at least in my view, your hypothetical fails to describe facts that would allow an officer to articulate objective observations that would constitutionally allow for reasonable suspicion of illegal presence in the United States.
Recall that in Muehler v. Mena, questioning about immigration status is permissible, but a response was not required of Mrs. Mena because the search and seizure she was subjected to had nothing to do with citizenship or a lack thereof. This is an important detail.
What I think is that certain legal terms of art, eg., "reasonable suspicion", "lawful contact", etc., are void of actual meaning in practice. Law enforcement personnel are well trained with regard to what to say to the court in order to establish "reasonable suspicion", ie., "the suspect was behaving in a furtive manner." Many of their training manuals have the courts' case language quoted inside them. There really are magic words that they utilize.
(continued) . . . .
Consider this statement: reasonable suspicion does not exist in a vacuum. In other words, an officer must be able to articulate to the court's satisfaction that a person is committing or is about to commit a crime. If the officer doesn't know what crime it is that he is suspecting, he is really undermining his credibility. Therefore, in most cases, the officer will need to somehow establish reasonable suspicion of a certain sort of crime, and often times, a specific crime. So the question becomes, in what manner can a person be reasonably suspected of being in the United States illegally? That's a good question, not easily resolved. I'll use your own hypothetical of illegals committing traffic violations and failing to provide a drivers license to illustrate.
If a person runs a red light, they've violated a law, and are certainly a law breaker. If a person drives beyond the speed limit, the former conclusion also applies. Niether of these would establish reasonable suspicion with regard to the crime of illegal presence in the U.S. because the vast majority of these types of infractions are committed by people in the United States legally. There's nothing particular to illegal aliens that makes them more inclined to violate traffic laws. I don't think that's what you were suggesting, however. You were just providing a basis for the stop. Fair enough.
But you went on to say that the suspects in question couldn't speak English very well, and implied that was reasonably suspicious behavior of a lack of citizenship. Well, the Civil Rights Act prohibits discrimination on the basis of "race, color, religion or national origin." In many Civil Rights cases, the Supreme Court has tied language of origin discrimination to national origin discrimination. To put it mildly, the chance that a person can constitutionally be held reasonably suspicious of being an illegal because they can't speak English is almost zero. There's no case law on point that I know of, but in variety of less critical forums, language has been held a surrogate for national origin discrimination. (See Hernandez v. New York, 500 U.S. 371).
Of course, I haven't even mentioned the passenger yet. In your hypo, he hasn't even been suspected of committing an offense yet. It's unlikely, absent additional facts, that he could be. A passenger, simply riding in a car, could not legally be required to provide written identification, absent additional facts. Again, inability to speak English is an unconstitutional factor.
So, at least in my view, your hypothetical fails to describe facts that would allow an officer to articulate objective observations that would constitutionally allow for reasonable suspicion of illegal presence in the United States.
Recall that in Muehler v. Mena, questioning about immigration status is permissible, but a response was not required of Mrs. Mena because the search and seizure she was subjected to had nothing to do with citizenship or a lack thereof. This is an important detail.
What I think is that certain legal terms of art, eg., "reasonable suspicion", "lawful contact", etc., are void of actual meaning in practice. Law enforcement personnel are well trained with regard to what to say to the court in order to establish "reasonable suspicion", ie., "the suspect was behaving in a furtive manner." Many of their training manuals have the courts' case language quoted inside them. There really are magic words that they utilize.
(To be continued) . . .
Sal,
How'd you happen upon my blog?
I'm just curious...
Do we know each other? You're not one of those folks who posts under all different handles, I hope.
Anyway... to answer some of your points:
1) "Since you've clearly implied that Mr. Garrido hasn't read the bill..."
Sal. I don't know whether Tony had read the bill prior to posting or not. Nor - if he hadn't read it then - can I hazard a guess as to whether he's yet read it.
All I can do is ask that people interested in this issue read the bill.
Human nature being what it is, I'm pretty confident that the vast majority of folks who have an opinion - one way or the other - about the bill haven't read it.
(*SHRUG*)
2) "I think Mr. Garrido was, more or less, simply saying that the real controversy over the law is far removed from the legal minutia..."
It's too bad that Tony hasn't returned to speak for himself.
As to "legal minutia," well... what you call "legal minutia" I call the facts.
As to whatever "controversy" revolves around the Arizona bill, I believe basic ignorance is a huge part of the problem and when ignorance isn't at the center of the controversy... (*SHRUG*)... then ideology bears the brunt of the jumping off point regarding "controversy."
3) "Additionally, I don't think reading the law would be helpful in understanding this controversy."
Sal. With respect... (*DEEP BREATH*)... I don't even know how to respond to such a statement.
* To be continued...
BILL
* Continuing...
4) "To discover whether the the controversy is a real one or not, one might have to actually consult the Arizona code, but if you did, you would not find language definitive enough to decide the issue."
We disagree. (*SHRUG*) Besides the clear language of the bill itself, there's case law. (*SHRUG*)
No... again - respectfully - I believe you've come to a conclusion and are not trying to make the facts fit into the conclusion instead of the other way around.
5) "The truth is that anyone prosecuted under this law will find no defense under the clause that explicitly forbids police officers from being "reasonably suspicious" based on race alone."
Again... we simply disagree.
Time will tell how the burden of proof is actually weighted in practice, but again, I point to case law (precedent) which the Arizona Courts will take into account. The defense attorneys will make their arguments; the prosecutors will make theirs.
6) "The requirement of reasonable suspicion completely swallows the the clever preamble, making it virtually meaningless. For example, if an officer can articulate the requisite reasonable suspicion..."
Can CREDIBLY articulate... CREDIBLY articulate, Sal!
(*SMILE*)
Again... you're prejudging. Let the process play out case by case for awhile after the law takes effect and we'll see.
(*SHRUG*)
7) "Consider this statement: reasonable suspicion does not exist in a vacuum."
Agreed. However... "reasonable" vs. "unreasonable" suspicion does in fact exist.
Again... we seeming differ on the question of whether the legal system will be able to separate the two concepts. I think it will be able to. If anything, my fear is that the Courts will put too high a burden on the police.
(*SHRUG*)
8) "So the question becomes, in what manner can a person be reasonably suspected of being in the United States illegally?"
Sal. We're going in circles here. To answer you question, just read the Arizona bill and then go back to the original post highlighting Muehler v. Mena.
Again, Sal, you seem to be trying to put the cart before the horse; you're attempting to "create" a scenario/sequence that's simply not in line with the intent nor textual reading for the law.
* To be continued...
BILL
* Continuing...
9) "If a person runs a red light, they've violated a law, and are certainly a law breaker. If a person drives beyond the speed limit, the former conclusion also applies. Neither of these would establish reasonable suspicion with regard to the crime of illegal presence in the U.S."
(*SCRATCHING MY HEAD*)
Sal. I'm really having trouble following you here. Again... returning to the original post: The United States Constitution...does not require officers to have an independent reasonable suspicion before questioning a subject about his or her immigration status.
My purpose in posting the original commentary was to get this point across.
Arizona's law is actually "weaker" than federal law in this regard. Arizona law adds an additional hurdle - burden of "reasonableness" - to Arizona police procedure.
10) "...the Civil Rights Act prohibits discrimination on the basis of "race, color, religion or national origin." In many Civil Rights cases, the Supreme Court has tied language of origin discrimination to national origin discrimination."
Ha! Ha! Nice try, Sal! Problem is... you fail to differentiate between "lawful" and "unlawful" activity. It's no more a violation of the Civil Rights Law to treat an illegal immigrant as an illegal immigrant than it is to treat a criminal as a criminal - "discriminating" against the criminal vs. the non-criminal.
Sal. Again. We're going around in circles here.
11) "To put it mildly, the chance that a person can constitutionally be held reasonably suspicious of being an illegal because they can't speak English is almost zero."
But, Sal... (*SIGH*)... we're not talking about a cop walking past two people speaking Spanish and in response asking them to prove citizenship. Again... SEQUENCE matters. We're talking about "language" as a foundation of "reasonable suspicion" after the fact of an otherwise "reasonable" police contact.
You're not deliberately trying to jumble all this up simple to confuse the issue, are you Sal...???
I mean... I'm arguing in good faith here. I hope that the sloppiness of your argument is unintentional. Otherwise we're just wasting each others time.
* To be continued...
BILL
* Continuing...
12) "A passenger, simply riding in a car, could not legally be required to provide written identification, absent additional facts."
You could be right on that one. We'll see.
13) "Basically any crime that hovers (or at least seems to) on a particular racial, ethnic or cultural identity marker, coupled with mere "lawful contact" and "reasonable suspicion" as the foundational justification for the seizure will always raise suspicious eyebrows of certain folks, and it's not an unjustified response in my view."
I "hear" what you're saying, Sal, but where we disagree is upon whether these suspicions are indeed justified. I tend to believe they're not.
14) "The reality is that citizenship status is not something that can be objectively observed."
No. Not in one all seeing, all knowing glance. (*WINK*) (*GRIN*) Which is why I keep returning to the "sequence" of how the law will work in practice - how it's actually written... how it in a sense ADDS "protections" that Muehler v. Mena says aren't "constitutional" in nature.
Arizona is clearly within its Rights. While states can't take away federal constitutional protections, they can add to them. What Arizona has done is basically make parts of federal immigration law it's own while adding a layer of probable cause within the overall "process" of the legal encounter which develops into enforcement of federal and state immigration law.
Anyhow... that's how I see it.
15) "...in this melting pot we call America, there's no way to tell the difference between an illegal alien and a legal one."
Sure there is; the legal resident has "papers" while the illegal... er... doesn't.
(*SHRUG*)
That really is the bottom line, Sal.
God bless Jan Brewer and the fine folks in Arizona who are tackling this issue head on.
BILL
First, I'm beginning to wonder if you've read the bill.
(*SHRUG*)
You clearly haven't studied any law and have no clue with regard to settled legal terms of art.
(*DEEP BREATH*)
You might want to try law school, you seem to have a lot to say, but very little actual legal knowledge.
(*GRIN*)
Also, you might try actually engaging people with actual conversation and information to offer rather than simply accusing them of not reading the bill, or having difficulty understanding the language, etc.
(*SHRUG*)
Again, if you had any legal knowledge whatsoever, you would understand that there are vagaries of language that leave gaps in the behavior they are trying to capture and proscribe. In some cases, and this is clearly one of them, the fallout from those gaps can have negative consequences.
I'm not sure why I ever posted anything here. For the most part, a monumental waste of time.
If you want to make your argument a little more credible, you might try actually citing the "cases" you refer to. But, since you clearly have a lack of understanding with the very basics of legal interpretation, having graduated from the Fox News School of Law, no doubt, it probably won't help much.
As for the "sloppiness" of my argument, it is only derived from your ignorance of the law.
To put it mildly, not only have you clearly misunderstood, I doubt you are equipped to have understood it.
By the way, most illegal aliens don't walk around with their papers stapled to their heads, neither do legal citizens. Do you know the difference between subjective standards and objective ones? It seems not.
(*SHRUG*)
Sincerely,
Salvatore Bonventure, Esq.
I'm sorry. I forgot to mention, Tony works in my office. At our represent clients with claims against police officers.
And . . . .we love it.
When he mentioned your blog, I couldn't resist. But now that I've seen the quality of the responses, it won't be that difficult.
(*GRIN*)
Sticks and stones, Sal; apparently I touched a nerve with some of my comments.
Hey... (*GRIN*)... I do appreciate the "stylistic" hat tip!
Hey... seriously... you're more than welcome to post here. Feel free to take your best shots. I give it out... I'm willing to take it too.
(*WINK*)
Nope. I'm not a lawyer.
As to law school...
(*LAUGHING OUT LOUD*)
That's for folks who can't be bothered with math yet who want that big check without feeling the need of the self esteem that comes with knowing you're worth the money.
I mean, com'on, Sal... most of what lawyers do can be done by any well trained paralegal.
Beyond that... law school actually tends to retard the continuing development of personal honor, integrity, and the true constitutional underpinnings of what the Founders considered "The Rule of Law."
Law school is where the concept of the "evolving constitution" (without benefit of constitutional amendment) came out of.
(*SNORT*) (*SMIRK*)
If you're a lawyer you know exactly what I'm talking about.
In any case, though... we've gotten off track. Do you have ANY on point replies to my past posts...???
(*PATIENTLY WAITING*)
Seriously, Sal... you throw out a lot of claims, but I don't see you backing any up - neither you nor Tony bother to cite the bill.
(*SHRUG*)
Assuming for the sake of argument that you and Tony are actually attorney's, our little exchange here kinda proves my point about what a racket law school is.
(*SMILE*)
Again, Sal... you're welcome back any time; Tony too!
(How'd Tony stumble upon my blog - key word alerts?)
BILL
"There really are magic words that they utilize." - From Mr. Salvatore's comments in reference to a prepared statement aw officers use in coiurt to establish probable cause. That's what lawyers do is arrange words in some "magical" order and utilize them in the courts of law to achieve their objective. It appears that these words achieve an objective for your opposition and you are attempting to discredit the arrangement. But that's what lawyers do and I believe it is called ‘spin doctoring.’
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