The law cannot -- must not -- confer authority to demand identification of any American citizen unless that individual is reasonably suspected of having committed a crime. Furthermore, an American citizen would often be well within his or her right to refuse to provide identification, or answer any further questions, in which instance the police officer could not further detain the individual without probable cause (see: Terry v. Ohio, 392 U.S. 1 [1968]). In some jurisdictions, however, the individual must state his or her name, but would not be required to furnish an identifying document if he or she wished to avoid further detention (see: Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 [2004]). In New York, an individual may elect not to identify himself, although a police officer may request that he or she do so. Colorado appears to require that an individual furnish such information where they possess it. Refusal to do so may constitute grounds for reasonable suspicion per Dempsey v. People, No. 04SC362 (2005).
What is the objective, reasonable standard by which a police officer will be able to assess that an individual is probably in the United States illegally (i.e., not an American citizen)? When he is standing by a fresh-cut hole in a border fence? When he is pulled over and found to be concealing human cargo? Certainly. But if he is simply unable to speak English? Certainly not. If he is found in the company of persons known to be in the United States illegally? Again, certainly not, for the identity of one individual does not suggest as to the identity (or guilt) of another.
According to the Fourth Amendment of the United States Constitution, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Enforcement of the new law, where it may result in a request of an American citizen, by an officer of the law, for identifying documents, would constitute unreasonable search, because an individual expects privacy of their immediate person, and society finds that expectation reasonable (see: Katz v. United States, 389 U.S. 347 [1967]). By this same logic, the passengers in a motor vehicle which has been stopped solely on grounds of a moving violation, and in which case there is no further crime committed, may not be subject to search (see: United States v. Di Re [1948] 332 US 581, 68 S Ct 222, 92 L Ed 210).
In short, the Arizona law will be practically unenforceable. Granted, that may not be the point. It is, at least in part, a mere statement -- a shot across the bow of the federal government.
The problem of how to address illegal immigrants from Central and South America is a thorny one. As others have observed, there is a willing market for that sort of immigrant labor in the United States, and an established culture in which they can make themselves more or less comfortable. Their remittances do a great deal to stabilize the often-foundering economies of our neighbors. While we are perhaps compelled to grant them social services in the interests of avoiding establishment of a permanent underclass or doing injustice to our own sense of morality and fair play, they do constitute a drain on the public coffers in those instances in which they do not pay tax; they are prone to abuses of all kinds, including criminal behavior; and they undercut competition for jobs that simple economics tell us would otherwise go to citizens. Certainly, stronger measures need to be taken to secure the border. I favor amnesty for those already here, although felony criminal behavior should result in deportation.
Let me also add that I can give no sympathy to the idea that it is reasonable for members of our society to put up with profiling, because they should have "nothing to hide." While I might feel that this is excellent advice for myself, I wouldn't presume to oblige others to live as I see fit. As a white male, selection for enhanced scrutiny at the airport is a novelty that is, at worst, a minor inconvenience, and at best, an opportunity to feel good by "doing my part" to comply with a peace officer or security professional. I don't pretend that it will always be the same for a person of color. To do so would be to ignore history entirely.
BartSimpson BartSimpson:
I agree, the employers should be prosecuted and there's a Federal law that makes hiring someone whow does not qualify to work in the USA (this is ascertained on the I-9 form) is a crime. But it is a crime that the Federal government doesn't often enforce because the fucking Democrats don't want it enforced. See, what happens is these illegal aliens take root here and have kids and those kids vote Democrat in overwhelming numbers so the Democrats tacitly support illegal immigration because they're a bunch of vote-buying, treasonous whores
It is hardly a conceit of the Democrats only. Republicans can only sometimes afford to be "tough" on illegal immigrants: the Big Business lobby that supplies much of the party's bankroll and a significant helping of its ideology is solidly in favor of employing immigrant labor, legal or otherwise.
I would also submit that the Democratic Party is likely to change considerably over the course of the next generation. Hispanic voters tend to be socially conservative on issues like gay marriage, which could force a change in party principle.
CKA Elite 
Wow! Trenacker, Great post. ^^^^
CKA Uber 
