I have lived my life believing in human rights, equality and the law. I am a retired deputy sheriff and have dealt with immigrants, documented and undocumented, up close and personal. I have seen them abused and I have seen them abuse the law. But, as both a Catholic and a retired law enforcement officer, I would like to put forth a perspective rarely touched upon in this debate occurring here on Busted Halo — the perspective of the law.
There is no debate on the fact that comprehensive immigration reform is necessary. The debate resides squarely in how it is to be handled. There is little doubt that undocumented persons are victims of past legal mishandling, corporate greed, bigotry and a host of other social ills. In fact, without clearly defined legal standing, immigrant workers cannot sue, seek redress or practice equal status in U.S. citizenship, making them — for lack of a better term — subject to a unique new form of slavery. There is little doubt that the project of immigration reform demands our due diligence and God’s loving grace in its resolution.
I was once called to a building site at a local “high-end” gated community — surrounded by a golf course, ocean-side view — to arbitrate an issue between the building contractor and the undocumented workers who had built the mansion on that site. There was a nice lady there who was speaking for about a dozen men who did not speak English and who had not been paid for their work. As a matter of law, I had to explain to the nice lady that the sheriff’s office does not handle “civil matters” and that the fellas would have to take the contractor to court to get their money. She smiled but there was a clear look of disappointment on her face. “We already tried that,” she replied, “And we were told they had no legal standing to sue because they are undocumented.” It was a sick feeling — not to be able to help. But then, that’s what this situation does: it turns poor people who are just trying to make a living into slaves to those who would take advantage of them.
The other side of the coin is this: their coming here illegally puts them in this position. That’s the situation that must be addressed: how are we going to make it legal?
We can resolve this issue without violating present law. We can do it without bigotry and hatred. We can resolve the issue to the satisfaction of all… if we don’t succumb to the emotional sentimentality that leads only to violence and increased bigotry.
Lawful contact
The new Arizona law is a case in point. It is a kneejerk emotional reaction, the result of a failure in the clear resolve to enforce laws that already exist, and of a failure to provide undocumented folk with a lawful means of identification. The Federal government is challenging the law on the grounds that immigration policy is a national issue and should not be dealt with on a patchwork, state by state basis. Regardless of the outcome of that debate, I’d like to offer the perspective of a law enforcement officer dealing with the issue daily on a practical level.
To begin with there are literally thousands of citizens for every officer. Each law enforcement officer begins the day knowing that he or she cannot “catch them all” and that policing is largely a matter of setting priorities. As most major crimes (felonies) are committed by only 2 percent of the population, on any given day a police officer’s attention is focused on prioritizing the worst offenders in a sea of misdemeanors. There is, of course, an order of priorities there as well: calls for service take priority because there is an immediate necessity to respond to what the public thinks is important — after all, the police serve the public. The rest is largely community policing which entails driving through the assigned area of jurisdiction, looking for crimes in progress and making casual contact with the public. It is therefore largely traffic control and officer presence.
This makes traffic stops the number one method of contact and therefore the most likely basis of “lawful contact.” Unless there is obvious direct evidence to the contrary, the legal presumption is that all traffic stops are “lawful contact” and that there already exists the “probable cause” that a crime (at least a misdemeanor) has been committed. This does not mean that the law cannot and is not abused but, simply, that we cannot afford to jump to the conclusion it has been abused each time it is enforced, or even most of that time. The same crime statistics that show most laws are broken by less than 2 percent of the population demonstrate that the law is abused by an even smaller percentage of law enforcement officers. The fact is that most officers are so overwhelmed with just trying to keep up with the immediate demands of the job that they have little idle time to act on bigotry by going in search of those against whom they may have social or ideological issues.
Beginning then with “lawful contact,” such encounters fall into two categories — casual contact during officer presence (traffic stops) and response calls for service. All law enforcement officers are thoroughly trained in the law that concerns these situations. In casual contact cases made on patrol, when there is no reason to suspect a violation of law has been committed and the officer is just casually speaking to the subject, the U.S. Supreme Court has ruled that the subject has the right to walk away.
Contrarily, the Court has ruled that in all calls for service, when an officer is acting in good faith — and, especially, when the officer has probable cause to believe a crime has been committed and that the subject contacted during the course of investigation is a suspect – the subject is required to identify himself or herself to that officer. If the person cannot identify himself or herself using a picture ID or by some other means, the officer has a duty to identify that person by the means at his disposal. This is not a matter of discretion. The officer is bound by law to identify the person. He does not get to choose whether to do it or not. A person suspected of a crime cannot be charged with that crime until he has been identified — whether he is documented or undocumented. Before release, after a lawful detention, it is obligatory (not at the discretion of the agency) to check the identified person for holds, writs and outstanding warrants.
Legal, fair and just reform
This is old law, old procedure; it’s all legal, lawful and ethical. It makes no distinction of race, creed, culture or any other human variable. Test cases in the U.S. Supreme Court have found no violation of rights in it, time and again. There is no need for new laws if these laws are enforced. Anyone who, under these conditions and laws, is found to be in the U.S. illegally is guilty of a crime — a misdemeanor violation of the immigration laws of the U.S.
The infraction then is neither less nor greater than, say, running a stop sign — except that, unlike a traffic infraction, by the transitive property of legality, it makes everything he or she does inside the U.S. an illegal act. He or she has no legal standing to get a driver’s license, to bring a tort judgment or civil suit, to draw social security or SSI; in fact, other than universal human rights (not to be confused with constitutional rights), the person has no rights at all. There have emerged in the past 20 years a number of means of affording undocumented aliens rights and granting civil action on their behalf, but, largely, undocumented folk are victimized by the ambiguity of their status — and most of those arbitrary means, however well-intentioned, will not stand constitutional muster.
Any lasting solution to the problem, then, must be legal; it must clearly define immigration status; and, to be fair to all those who wait patiently and legally for U.S. citizenship, it must require the same of all undocumented (and therefore illegal) aliens. What we need and what we should all work for is a means of “documenting” those already within our borders while assuring them that they will not be torn away from families, etc., and deported. There is no reason why undocumented aliens cannot be offered the opportunity to apply for a state or federal ID, become documented at that time, and be put on a waiting list for citizenship. Citizenship should be awarded by the same criteria already in place. This would require providing two things: 1) a legal means of documentation, and 2) a statutory means by which to punish those who don’t comply.
There is no reason to deport anyone if they have broken no other laws; likewise, there is no justice and fairness in any form of amnesty that skirts these requirements. It’s time for a real solution. It’s time for fair and just reform.