One of my favorite movie lines is from “The Princess Bride.” Vizzini, the mastermind behind the kidnapping of Princess Buttercup, upon seeing the Man in Black pursuing them keeps repeating the word “inconceivable.” Finally, Inigo Montoya, one of of Vizzini’s then assistants says: “You keep using that word. I do not think it means what you think it means.”
That simple statement applies to so much in the immigration law world that it is hard to even define situations where it does not apply. Much of what we deal with is really about our perception of what the law is, not about what the law actually says. This is true for legislation and for court decisions. Today, this statement seemed more true than ever. I received an email from the Center for Immigration Studies, the anti-immigration “think tank,” promoting a new web program it is hosting on “Local Law Enforcement Authority to Check Immigration Status.” This email comes with this teaser:
This program . . . “discusses a recent court decision affirming that local law enforcement officers may question suspected illegal aliens encounter [sic] about their immigration status and then contact immigration authorities (ICE). Known as Estrada v. Rhode Island, this important decision should reassure local officers that they are not obligated to look the other way when they discover immigration law violations and provide guidance on reasonable actions officers may take in questioning foreign nationals.”
Thus comes into play Inigo Montoya’s statement, to paraphrase here–I do not believe that case means what you think it means. After all, if a court had stated that police officer could pull people over and question them about their immigration status and have no other reason for doing so, don’t you think that we would have all heard about this by now? Heck, the nutty proposed law in Arizona is exactly this, no? Having police ask people their immigration status based upon “reasonable suspicion” is the basis of Senator Russell Pearce’s brainchild. I thought, how could I have missed such a seminal case. Or, perhaps, the folks over at CIS are giving a court’s decision a little more “spin” than it actually deserves?
Go ahead, read “Estrada v. Rhode Island.” This case is exactly NOT about a law enforcement officer’s right to ask questions about a person’s immigration status, with no other basis for stopping the person. The case is about whether or not a police officer can be sued under civil rights and others laws, for engaging in this behavior. The case is NOT a constitutional analysis of the legality of the officers actions in the context of a criminal or immigration related case. Rather, this is a civil case brought by the ACLU of Rhode Island seeking civil damages against the officer because of his actions towards the plaintiffs in the litigation.
The 1st Circuit Court of Appeals explicitly did not rule on the legality of the officer’s action, but rather ruled on whether or not he enjoyed “qualified immunity” for so doing. By finding that the officer was immune from civil suit, the 1st Circuit did not uphold his actions as legal, it simply said he could not be sued over them, expressly NOT ruling on the broader question here.
In the totality of the circumstances, we cannot say that a reasonable officer in Officer Chabot’s position would have understood that his conduct violated Tamup’s constitutional right.
This is not exactly a rousing endorsement for law enforcement officers to engage in what is effectively racial profiling. Given the prospective Arizona law, there is no doubt behind CIS’s efforts to encourage law enforcement officers to stop and question people they believe are undocumented. What should be clearly understood is that no court has found it reasonable to stop and question a person about their immigration status, just because of how they look. But, perception being reality in immigration law, I fear that such activity could become the “law of the land.” That would be a tragic reality.
Matt, you are right. This case has many disturbing elements to it, but keep in mind, it is part of a civil rights case, rather than a criminal proesuction. It is also out of the 1st Circuit, which has become, somehow, the most anti-immigration circuit in the United States.
I'm afraid you may be underestimating how bad a case Estrada is. Of course the case doesn't hold officers may make an arrest or a Terry stop based just on how someone looks. I doubt even CIS suggests that. What it does say is disturbing enough.
The holding that bothers me is that the officer enjoys immunity as to his decision to arrest everyone in the van by forcing the driver to go to the ICE office. See p. 18 of the slip opinion. The court first implies a couple of pages before that unauthorized presence in the US is a crime, by citing INA 266(a) along with the crimes of harboring illegal aliens and failing to carry one's green card on one's person, INA 264(e). Then it notes that by the time the officer made the decision to arrest everyone, no one in the van had produced any valid ID, any proof of citizenship, or a green card, and the driver admitted they were on their way to work but no one had papers. The court thinks this amounts to probable cause that everyone in the van was committing an "immigration violation." If an "immigration violation" is a crime, as the court thinks, then it follows the officer had probable cause to arrest everyone. The court doesn't bother to state the the black letter law that the Fourth Amendment permits a warrantless arrest based on probable cause to believe the subject committed a felony or a misdemeanor in the officer's presence. In sum, the court held the trooper can't be sued for violating the Fourth Amendment when he arrested everyone in the van because the arrest was legal.
I find that disturbing. I had always thought that simply being in US illegally is not a crime, but only a violation of civil law. If being unable to speak English well and being unable to produce ID when questioned is probable cause that one is committing that "crime," it is indeed a boon to state and local police officers who want to take it upon themselves to enforce the immigration laws.
I'm sure AILA strongly advocates that illegal presence should not be a crime. I think AILA should make a point of showing that Estrada is wrongly decided to the extent it relies on the premise that illegal presence is a crime.
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