The U.S. Supreme Court struck down three portions of SB 1070 , but upheld the most controversial part of the bill requiring law enforcement to check the legal status of individuals suspected of being in the country illegally. Danny Ortega, Chairman for the National Council of La Raza and Attorney, Tim La Sota, attorney from the Rose Law Group, and ASU Law Professor Andy Hessick give their analysis on the ruling.
Richard Ruelas: On Monday, The U.S. Supreme Court delivered its judgment on S.B. 1070. The outcome left both sides claiming partial victories. The decision came after two years of legal challenges and protests to the law. The Supreme Court struck down key provisions but said a much-debated portion is constitutional. It requires an officer to make a reasonable attempt to determine the immigration status of a person stopped, detained, or arrested if there is a reasonable suspicion that person is in the country illegally. Also this week, the Obama administration suspended the federal program known as 287(g) for Arizona, which allows local law enforcement to investigate a suspect's immigration status after an arrest has been made for any offense. With me tonight to talk about the ruling is Arizona State University law professor Andy Hessick. Also, Tim La Sota, attorney from the Rose Law Group. And, Daniel Ortega, attorney and chairman for the national council of La Raza. Gentlemen, thanks for joining us. And Tim, you were here last week talking about this ruling. With the ruling, governor Jan Brewer declared it a wane -- a win for Arizona.
Tim LaSota: I think the section where they upheld section 2b was a win and we're seeing a little revisionist history on the part of opponents of S.B. 1070. The part that was so objectionable to them previously was the part that was upheld. It was the part that was upheld, and now they're talking about all the other sections that they never talked about before. The main part was upheld, the part with the most application was upheld. Other parts weren't. And so, it's not a complete victory but I think the main part was upheld. So for Governor Brewer and the vast majority of the legislature that voted for it, I think it is a victory.
Richard Ruelas: Although they upheld 2b, there's some opinion around it that talked about its applicability.
Danny Ortega: I don't know. That isn't true that we're not talking about section 2b because we're surely saying is three down, one to go. The court clearly said that we were going to be able to go back to deal with 2b, including preemption, did not include preemption along with other claims, the first amendment, the Fourth Amendment and the 14th amendment. This game is not over. No, tim, it's not third out, bottom of the ninth with the state having the top score. It is right now, we're still in this game. I'll talk directly to you about 2b. It's not my firm belief that it cannot be implemented in a way that's constitutional or doesn't conflict with federal law. The bottom line is -
Richard Ruelas: I was going to ask what the judges said. Is it unusual for them to sort of give sort of thoughts on how it's going to be applied? Is that normal in Supreme Court decisions?
Any Hessick: In this case there was a facial challenge, which means the justices had to say could this law ever constitutionally or lawfully be applied? They said in some situations.
Richard Ruelas: They're saying on paper.
Andy Hessick: There are hypothetical situations that it could be applied and consistent with the Constitution. But their opinion says in future cases, it might be applied in ways that raise Fourth Amendment problems or preemption problems if the stops last too long or there isn't the appropriate level of suspicion, then it's going to be a problem.
Richard Ruelas: Do they hold themselves -- I mean, historically, if a case comes back to them that's been applied now, do they hold themselves to their previous decision? Can they say maybe we didn't get it right in that decision, we're going to decide here on this application now?
Andy Hessick: They are not bound by what they said before and they didn't hold anything on that point in this case. They just said it would raise a serious question. So they're not bound by it but it's a pretty good indication of how the court would rule so long as the membership of the court stays the same.
Richard Ruelas: What do you see the pitfalls in how it's going to be applied?
Danny Ortega: It clearly targets a certain segment of the community. And it's like I said, the Anglo community is not offended by S.B. 1070 because they're not the target of it. The Latino community is offended by it because irrespective of your status, you're going to be the target of it. And that heightened scrutiny in my opinion is what the downfall of the law is going to be.
Tim La Sota: Danny's right. It targets certain segments and that's illegal immigrants. Obviously, it targets a certain segment but going back to the previous point, even the liberal justices, Ginsburg, Soto mayor said it can be applied constitutionally. Danny ought to be debating some of these very liberal justices who have upheld section 2b.
Richard Ruelas: But they seem to uphold it on paper but they gave warnings saying they worried about how long someone would be detained. I'm not sure how much they got into racial profiling but how would you address what they talked about -- sort of a warning to police departments and a warning to the state of Arizona of how long they could detain someone to check out their immigration status.
Tim La Sota: That's true and in all realms of where our police operate. You can't hold onto people forever if there's no reasonable suspicion, no probable cause, you've got to cut them loose. You can't sit on people forever. That's America. I think law enforcement will be trained if they do have a situation where there's a possibility that they think someone is here illegally, you have to move quickly to establish probable cause or you have to cut the person loose, period, end of story. You call that number. The state was saying 10 minutes, the federal government was saying 70 minutes. The issue of how long someone is held to determine their immigration status is where the problem is.
Richard Ruelas: You were in oral arguments, too. What did you see them argue that you saw in the decision?
Tim La Sota: I think that is an issue but I think that's an issue with any realm of criminal justice and I think law enforcement just has to understand and they will be well trained that they have to -- if they cannot establish probable cause, reasonable suspicion and do it in a prompt manner. We don't have a system of justice where we hold people indefinitely whether we determine if they've committed a crime or a deportable offense. It will not be our system of justice after 1070 is implemented.
Richard Ruelas: But if that's the case, is it unusual for the justices to raise an issue like the time of holding someone in detention to give a traffic ticket, is it unusual to raise it if it's one of those typical Fourth Amendment cases?
Andy Hessick: Well, I think that they raised it here because there are potential Fourth Amendment concerns but there are also potential preemption concerns. They said essentially the situation where you get pulled over for a traffic stop or some other legitimate basis to be stopped, you can have your status checked during that time so long there's reasonable suspicion to believe that you're in the country illegally. But once the other stop, the traffic stop or whatnot, once that's resolved, then they were pretty clear that you probably can't be held past that time, unless you have some sort of federal authorization. That goes towards the other provision that was struck down in section 6.
Richard Ruelas: We can read something into the fact they wrote that in the prevailing decision?
Andy Hessick: Sure, yeah. I think so. I mean, even if they didn't -- if they didn't explicitly hold it, which they didn't, they gave pretty strong indications to the lower courts on how they expect the lower courts to rule and they tend to read those admonitions as pretty binding.
Richard Ruelas: Justice Alito in his dissent raised the concern that it might be a new crime and might produce more time to check that ought and that argument could win the day if the case gets back there?
Tim La Sota: In law enforcement, it's like a sliding scale. If there's reasonable suspicion that may justify a slightly longer detention, if there's probable cause that that's a little bit higher standard and it may justify a little bit further questioning, I mean I think people understand that look, we don't want police that go around and harass people and just hold them indefinitely. But at the same time, when they come across people who the objective criteria, the same stuff that ice and all the other agencies use indicates that someone is here illegally or maybe they just admit it, well if it's practicable, pick up the phone and call the feds. If the Obama administration just isn't willing to enforce the law, then that's just life. We have certain expectations of law enforcement here.
Richard Ruelas: The justices did seem to bring up training in their decision, the discussion that the federal agents go through a certain set of training that local law enforcement might or might not.
Danny Ortega: Another hint to police here in the state. The kind of training they're going to have to implement this law is going to be extremely important. And I think what we're dealing with here is another added fact that it hasn't been brought up. Remember, the police are required to enforce to the fullest extent of the law from an immigration standpoint. So we're not talking about the kind of discretion that Tim's talking about because nobody says that -- in other laws, criminal laws or traffic laws, there's no mandatory requirement. In this case, there is.
Richard Ruelas: Once an officer makes reasonable suspicion, they're required to check out.
Tim La Sota: When practicable. That says discretion. I don't know what else that word can mean.
Richard Ruelas: Is all that potential for an applicable case? Where do you see the pitfalls as this law gets applied, reading the decision where they set some the tea leaves for us to read?
Andy Hessick: That could be a pitiful insofar as police officers are going to try to comply with the law, and trying to live up to that requirement might result in longer detentions or detentions that otherwise wouldn't be justified and that could cause some problems under the Fourth Amendment or insofar as it's inconsistent with federal enforcement priorities and discretion.
Richard Ruelas: Did they discuss reasonable suspicion or do you see a potential case that involves the applicability of reasonable suspicion?
Andy Hessick: They did not discuss what it means but there are many supreme court cases that says what it means. It's an up in the air thing. There are cases every day that come out and define what reasonable suspicion means.
Richard Ruelas: And it's a sliding scale and police are going to get training materials we assume that have this in mind and I imagine that they're going to be altered a little bit to tailor themselves to this decision?
Tim La Sota: Police are always trained on what reasonable suspicion is, no matter what the potential criminal offense. That's what our police officers do. They're out in the field and they may come across a situation and they have to make a very quick decision whether they think there's reasonable suspicion that a crime has been committed and police have to make those judgment calls. We live in a society where we expect a lot of our officers. They operate under the public eye. There's a lot of scrutiny. That's good, right? I think the notion that we're going to have rogue officers who just detain people indefinitely, I think that's just not going to happen.
Richard Ruelas: Do you expect, Danny, a lot of arrests under this and do you expect the problem to be a rogue officer or a rogue department? Where do you see it?
Danny Ortega: I think it's going to be a lack of training or a confused officer about what's required of him or her. And I want to set the record straight. I think most officers are going to do their best just like tim says to enforce the law. But I think we're treading on new ground. I think that the training and what kind of training they get is going to be important and unless they do it right, it's going to create a lot of problems for officers as well as those who are subject to the law.
Richard Ruelas: When you say problems for officers, meaning they're going to have to decide what this means on the fly?
Danny Ortega: You know, what is reasonable suspicion, what are you looking for, is it language, is it color, is it an admission, is it that the person doesn't have a driver's license, is it that they don't have any I.D.? The list just goes on and on.
Tim La Sota: That's what ice and border patrol do for a living.
Andy Hessick: But the difference is that before, if an officer wasn't sure, I may or may not have reasonable suspicion, then they could exercise their discretion and they I'm not going to pursue this but now, the law says they're required to do it. If they're trying to comply with the law, they're going to pursue it.
Richard Ruelas: Many layers.
Tim La Sota: If you're not sure if you have reasonable suspicion, you don't have it. I mean, that's just the way it works.
Richard Ruelas: I guess that's the question that's going to come in is once I think I have reasonable suspicion, am I allowed to talk myself out of it?
Andy Hessick: I fully disagree with what you just said. I think that reasonable suspicion is whether a reasonable person could suspect that this person is here illegally, and you could talk yourself out of it because there can be reasonable signs -
Richard Ruelas: If I stop a van filled with a bunch of guys stacked on top of each other who don't speak English and have no I.D., I may not be able to talk myself out of it legally?
Andy Hessick: But that sounds like it's a situation where there's good reason to really think -
Richard Ruelas: The sliding scale goes up. Once this gets applied, we'll probably be back discussing how the law goes again. Thank you for joining us and trying to shed some light on this decision.
Danny Ortega:Chairman, National Council of La Raza and Attorney; Tim La Sota:Attorney, Rose Law Group; Andy Hessick:ASU Law Professor;