La prensa

The Constitution is clear, Arizona is not

Created: 21 May, 2010
Updated: 13 September, 2023
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4 min read

   The tearful 15-year-old girl told her San Diego Police sergeant father that she had been raped in the hills while riding her horse in the hills above her house by three Mexican men and a Mexican woman attacked and raped her. He called out the troops.

   Sheriff Jim Duffy mobilized his entire department and flooded the hills with hundreds of deputies. These hills were home to hundreds of illegal Mexican aliens and legal resident Mexicans who camped in tent communities filled with workers employed in surrounding farming areas, stables and/or did yard work in affluent areas of San Diego.

   Assault-rifle armed deputies rounded up every Mexican they found, men, women and children. Handcuffed, the Mexicans were herded together and forced to lie face down on a paved parking lot while they were individually interviewed by one bilingual deputy. The interviews lasted through the cold night, the men, women and children were not fed, nor allowed to use sanitary facilities. Men in their fifties were held and interviewed despite the fact that the alleged victim claimed that the “perpetrators” were twenty-something.

   Each detainee was interviewed. No one was arrested. It turned out there was no rape. The girl had gotten pregnant by her boyfriend. She lied to cover up.

   Nonetheless, these were “lawful contacts” by deputies. So is when a meter maid writes a parking ticket. So is when a Building Inspector comes to view a retaining wall or the addition of a new room or a garage conversion. So is when a city treasury cashier takes your money for a building permit or parking ticket. So is when a traffic officer pulls a car over because a brake light isn’t “working” on one side or the other, or his muffler is too “loud” or a headlight is “out.” So is when a police officer simply says good morning to a person walking by. If the person answers back, “good morning officer” that is a “lawful contact.” If the person does not answer, the officer is entitled to “lawfully contact and detain” that person for obvious “reasonable suspicion” because the person avoided the officer.

   These are “lawful contacts” by city/county government employees that courts have decided are “enforcers” of laws. “Law enforcement officers” therefore are not just badge and gun carrying officers.

   The result, of course, is the infamous SB1070 that dictates that every “law enforcer” (read any state or local government employee) in Arizona MUST demand proof of legal residency or citizenship of anyone they have “lawful contact” with and have “reasonable suspicion” of their legal residency – read, Mexican looking person.

   Within hours of the bill’s signing into law, the Legislature changed the law to make it more court acceptable. Nonetheless, it still mandates officer harassment of anyone the officer has “reasonable suspicion” of illegal residency. It further empowers individual citizens to sue if the individual doesn’t think the agency is faithfully executing the law.

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   So, with law suits from citizens demanding more enforcement, officers will hound every Mexican looking person they encounter whether or not there is “probable cause” for a stop to begin with. The officer will simply make up an excuse. They always have.  Famed lawyer Alan Dershowitz calls it “testilying.”

   Arizonans maintain the federal government has failed in its responsibility at the border, thus, they say, Arizona has the right to do what it is doing, despite the Constitution. South Carolina once decided the federal government shouldn’t stop slavery’s spread so it passed laws to protect slavery and proceeded to start the Civil War.

   My take is simple, in v. Gant (2009) the Supreme Court threw out common Arizona practice of searching cars without a search warrant. The Supreme Court issued its Miranda v. Arizona (1966) decision in which Arizona interviewed without respecting suspect constitutional rights to an attorney. Now, Arizona again contravenes constitutional rights guaranteed by the Court. The famous case of Kolender v. Lawson (1983), a San Diego case that invalidated a California law that, like Arizona’s SB1070, unleashed police officers to harass anyone they wished is on point here; to wit:

   “We (the U.S. Supreme Court) conclude (this law) is unconstitutionally vague on its face because it encourages arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute.”

   Question, if federal law permits ONLY a federal immigration judge to decide who is legally in the US and who is not, how can a Phoenix meter maid make such a decision pursuant to Arizona law?  Arizona cannot deport anyone, only the federal government can.

   The Constitution (Article 1, Section 8) specifically assigns immigration matters to Congress, not Arizona. Arizona loses again.

Contreras’ books are available at amazon.com

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