Busted Halo
feature: politics & culture
July 27th, 2010

Time for Legal, Just and Fair Reform

A retired law enforcement officer's perspective on immigration reform



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.

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.

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.

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.

With the help of a grant from the Carnegie Corporation, BustedHalo.com began covering the issue of immigration in a unique way. Instead of contributing to the glut of coverage about immigration, BustedHalo is featuring stories by immigrants themselves about the issue. We distributed Flip video cameras to undocumented individuals and agencies across the country and asked them to start video blogging for a period of at least three months.

Busted Borders is an attempt to use the web’s unfiltered nature to move the immigration debate away from abstractions and statistics. Regardless of where you stand on the issue, we hope to give a personal glimpse into the humanity of these strangers in our midst. For reasons of safety, some of the participants have opted to keep their last names and locations secret.

Busted Borders is an ongoing project and we are still in its early stages. If you or someone you know is interested in participating please contact us at borders@bustedhalo.com.

Busted Borders Producer: Bill McGarvey; Project coordinator: Mirlande Jeanlouis.

The Author : S.A. Roach
S.A. Roach is a freelance writer living in Taylors, South Carolina.
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Please note that the editorial staff reserves the right to not post comments it deems to be inappropriate and/or malicious in nature, as well as edit comments for length, clarity and fairness.
  • Deborah Solomon

    Thanks for sharing the helpful insight and I also believe that this issues must be looked at with wisdom and compassion.

  • Robert “Bobby” Fromer-Bonilla

    Thank you Thank you Thank you for sharing this artical. I was really interested in hearing about this issue from that prespective. I can only pray that everyone will take the time I did to read this artical and read it through to the end.

    We are the United States. I for one can’t help but think that we our of anyone else should be above this kind of non-sence. I mean all this name calling and discrimination or very close to it of persons coming to us from other places.

    Don’t get me wrong. I too believe that we need to do something about this immigration system. I also believe that we must make the system a lot more user friendly. If that were the case then most of the persons coming here would be able to do it the right way. But if we cntinue with a system that is filled with outragous fees, forms that not even some immegration agents can fully understand, lines and waits that are eternal what are people to do. Not that that is an excuse but come on.

    We need to have compassion as well. a very large portion of these fello human beigns are come here scared out of their minds, lost,victims of abuse in any number of ways and so much more. Only to then be abused by us? that is simply more than wrong.

    I also beleive that we must not forget that our country was founded on and by immigrants. Why are so many so willing to forget that and turn around and abuse and belittle them. Maybe we need to have some or all of them stand in the immigrants shoes for a day or so and then ask them the questions again after they have attempted the INS office.

    Let us not forget that WE are ALL children of God and he see no boarders or colors or economic status or gendar or whatever else some will stack up. God see his Children, God has no grandchildren.

  • debbie

    So many issues at hand…. I have lived in foreign countries,and even though I was Blessed by God to have a few people around me to help me when I didn’t understand the language or the customs it wasn’t always a piece of cake .
    I was fortunate that I didn’t have to work or toil like these immigrants do but I can certainly understand the fear of being a long way from home and family; no support system at all.
    It was frightening and embarrassing to not know the language and very intimidating to try to speak the language, knowing my skin color drew attention and I was making serious grammatical mistakes but I had to persevere or sink. I called on God many many times!!!
    I did however have to hop through hoops and obtain my Visas to stay in that country legally.
    I understand how a new Mom feels having a baby where you don’t understand the language, enrolling a child in school and not being able to help with the homework, taking the wrong bus and not understanding directions.
    We must try to put ourselves in their shoes with regards to these issues, small as they may seem.
    However when I lived in that country, I tried to take responsibility to learn the language, and the customs, to live honorably and follow the rules , the laws.
    No one should be torn from their families but those who choose to join gangs, deal drugs etc should be immediately returned to their country . In my opinion, these are acts of terrorism. By the same token ,Americans who do illegal things in foreign countries should be immediately sent to the U.S. authorities.

  • Emily Dale

    Former law enforcement office Roach has presented a clear, unbiased article on the law as relates to crime, and the circumstances under which undocumented persons may be questioned. I cannot disagree with him in that respect, but I believe we have not applied the law equally to those who hire the undocumented persons, as they are expected to know U.S. law and their violation of it. A slap on the hand or a fine doesn’t prevent future violations.
    In defense of the undocumented workers, they should never be torn from their families. Most are illiterate and don’t understand the implications of the law. Having previously lived in the Southern California desert, I have seen them work in temperatures nearing 120 degrees without cessation, living in hovels provided by the farm owners, with substandard sanitary conditions. They love their families and sacrifice greatly for them. We must find a means to rekindle the hope they had when first coming to the United States.

  • RockyMissouri

    What about the white supremacists in Arizona who are connected with new immigration law( Pearce and Ready-and the group FAIR) McCain has not done anything in all the time he gas been a senator to deal with the problem—the entire thing smells like politics- politics-specifically: REPUBLICAN
    politics…! Republicans claim to be Christians and love Jesus,
    however, I don’t think He would know them–since He was not fond of corporations but preferred helping widows and
    orphans….! Republicans are harmful to living things…!

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