Friday, April 30, 2010

Continuation of SB 1070

This started out as a comment on Warthogs previous blog, but it ran a little long so I just created another blog. Please read the full version of the new law that Warthog posted. I know, it’s a little long and a whole lot of boring legalese, but there is a lot of misinformation being thrown around out there. Read it and decide for yourself.

So here is my $0.02

I keep hearing over and over that an individual state should not be able to enforce laws that are specifically given to the federal government. That the constitution and the US federal codes are the laws of the land and states should not interfere. Unfortunately I only hear this argument now, on this law. These are the same people that argued Kalifornia had an absolute right to legalize marijuana for "medicinal" purposes, and now legislation to outright legalize it all together. Both in direct violation of United States law. Some of these people are screaming the loudest now. Why is one perceived violation of federal law ok and one isn't? I have been EXTREMELY outspoken when it comes to state's rights. I have said that I don't care if Cali wants legalized marijuana. Hell, I don't care if AZ does! I think individuals in their particular states should have the right to choose how they want to live, and what laws they want to be governed under. By no means does this mean I think a state should be allowed to violate any individual’s rights in order to achieve these goals. And nowhere in this current law do I think this is now accepted.

I am so frustrated that people are against this law. How can you say this law is unconstitutional? IT'S ALREADY AGAINST THE FREAKIN' LAW TO BE HERE WITHOUT PERMISSION!!! If it's already a law, how can this law be unconstitutional? And if you’re going to argue that it’s only a federal law....see above paragraph. If you still think the same way, ask yourself if you supported the marijuana laws in California, or the gay marriage laws in the other states, or the original CCW laws issued by individual states. If you supported these other laws, you don’t have any right to criticize this one. They are all about states’ rights. I supported, and still do, every single one of these laws.

Here is another prime example. It is currently against federal law to be in possession of a shotgun that has a barrel length less than 18 inches. It is also against Arizona law. ARS 13-3101.8.iv gives the definition of a prohibited weapon. ARS 13-3102.3 says it’s against the law to be in possession of this type of prohibited weapon. WHERE IS THE OUTRAGE! THE PROTESTS! HOW DARE ARIZONA ENCROACH ON FEDERAL LAWS!

I welcome any and all questions on how this type of law would be enforced. I can only tell you right now that I don't believe its going to be any different with this law than any other type of detention or arrest. No where in this statute does it give an officer permission to stop an individual just to check on their immigration status. I also challenge you to find any type of that wording in this bill. And no, "in the normal course of an officer’s duty" does not mean the 4th amendment against search and seizure is now void. Any violation of this would result in sanctions against the officer both criminal and civil

Let’s talk about an example I was asked about the other day:

A person gets pulled over for speeding. That is a lawful detention. The officer asks for, and receives from the driver, an Arizona driver's license. Guess what? According to this new law, you have just proved you're either a citizen or have some type of long term/permanent residency in this state. Just by having an Arizona driver's license or ID card, you have satisfied the requirements set forth in this law because neither can be issued to aliens in AZ.

Let’s say you forgot your wallet or purse with your ID in it. No problem, a records check can verify if you have ever been issued one of these documents. Technically you can be arrested for driving a motor vehicle without ID, as this is a crime. If that happens, you’re fingerprinted, and guess what? Your immigration status is checked. Every person booked into the jail has there status checked. This is not something new. It has been this way for as long as I can remember.

Please feel free to ask any questions, make a comment, or pose any type of scenario you can think of. I will try my best to answer.


Warthog said...

Thanks RamRod for clarifying this thing for us.

I am sure the readers would love to hear about your week protecting these protesters and about the gun grab over the weekend.

This long post should have stretched the finers enough to allow you to keep on going. I can sense that the hunt and peck method is progressing into a stare at the keys, type slowly, and master the backspace.

Good Work!!!

Fluffy said...

To RamRod:

You wanted to know how this new AZ immigration could be unconstitutional.

From what research I have done, the issue of constitutionality rests on the Supremacy Clause of the U.S. Constitution.

The new AZ law goes further than what Congress enacted. Under federal law, state and local enforcement can arrest & detain someone who is illegally here AND has previously been convicted of a felony. The AZ law goes further in that AZ can arrest without the prior felony part.

That's an important consideration. You might be interested in reading this:

RamRod said...

Thanks for actually posting the link to this. It enabled me to quote the first part of this article that you didn't post

a) In general. Notwithstanding any other provision of law, to the extent permitted by relevant State and local law, State and local law enforcement officials are authorized to arrest and detain an individual who--

I believe that the "extent permitted by state law" just changed. This section of the US code leaves room for the state to act.

By the way....this information comes from another blog. That means its just another idiot like warthog, me, and mediumX running off out the mouth.

Just curious marijuana in california??

Fluffy said...

Hey Ramrod,

I think you are mistaken in your understanding. When you point to the language which states, "to the extend permitted by state laws" and say that the state laws just changed so now it's OK--you missed something big. State laws which are in conflict with federal laws will be ultimately challenged in the courts. Just because a state passes a law, doesn't mean that law will stand. This one may well be stuck down if the courts determine it to undermine or conflict with federal policy.

Anyway, I an interested in the law and the legal concepts at play. I'm interested to see how this plays out. Not in the court of public opinion, but in the court of law.

And yes, the link I posted was a blog/post whose authors are law professors and scholars. Surely they not idiots:) I love lawyers:) My husband is one.

To your question about my opinion on legalization of marijuana in CA...I'm all for it for many reasons:

~~prohibition doesn't work and creates a black market

~~the money used to fight the un-winnable war on drugs should be used to educate and rehabilitate

~~the revenue from the taxation of the sale of marijuana will help the economy

~~it's a waste of money to house drug offenders in more and more jails

Unfortunately, the big pharmaceutical companies will lobby hard to frighten us away from doing so. They prefer the purchase and use of their patented RX drugs regardless of their serious side effects rather than allow marijuana to gain legitimacy.

MediumX said...

First of all sorry for my lack of posting and commenting lately I have been busy with work and a bunch of other things, oh and also lazy.

I have one big question: Why do illegal citizens get more leniency with the laws than I do. If I get caught committing a felony I get in trouble for it, most likely to the fullest extent, and I also will not like my punishment but I will respect it.

Here is an example of this in action: about 2-3 years ago there was a brother and sister that were family friends leaving their house at about 6am. They were going to march in the band portion of the Gilbert Parade. They got no more than a mile from their house when a drunk driver ran a red light and killed the sister. Who was the drunk driver… illegal immigrant, who had been charged I think 3 previous counts of DUI. But we weren’t able to do anything or he was prosecuted to the least extent and he slipped through the cracks.

I am for anything that makes it tougher for things like this to happen. I know that this could have been a legal citizen also….but it wasn’t…it was an illegal.

I am personally sick and tired of people standing up for illegal’s…of any nationality. There are a ton of ways to get here legally but so many people don’t respect that. And think why they might not respect that……just think about that.

I understand that there can and probably will be officers who profile, that’s not right. But the law was written to avoid that, and the bottom line is I want our state to be safer and this is one of many ways to do that. Because more than anything else in this world, I care about me, my family and friends safety. Forget all this read between the lines law BS just look at the cold hard truth. There are illegal’s that commit crimes with disregard for American laws….bottom line, there are also legal citizens that do the same. But if there is 30% (I don’t know that number to be a fact, it is just an example) of the crime committed by illegal’s, and you take them out of the situation. Your city and community just got 30% safer. I bet most police departments would be very pleased with a crime stat like that.

Anyone not for this law put yourself in the shoes of the parents in the above story. I wonder what their take on the law is. Oh and go to Mexico sometime without a passport or try to jump the border into Mexico. Then let me know what happens…I’m curious.

and by the way Happy Cinco de Mayo

RamRod said...

So can we agree that the marijuana law is in direct conflict with federal law? I'm pretty sure it is. How can you defend this law and not the AZ law. I know the actual law is about 2 completly different things, but the principle is exactly the same.

Mike, you're right about the profiling part. Some officers will abuse this law. They would be subjecting themselves to federal civil litigation, and rightly so. I will not defend any officer that uses race, ethnicity, or anything else in the performance of his/her duties.

Let me lend some credibilty to your percentage arguement. In 2007 I was at the scene of a homicide. I began to shoot the shit with one of our homicide detectives. He told me that 80% of murders in the city of phoenix that year had some tie to illegal immigrants, either as suspects or victims. EIGHTY PERCENT!! Can you imagine, even being optimistic, that 40-50 percent of homicides could be stopped by denying these people access to this country?

Fluffy said...

To Medium X:

I can't comment on the case you mentioned but I can be and am empathic. I don't know why an illegal with 3 DUIs was still on the road, but even if an illegal never broke any laws we still need comprehensive immigration reform from the federal government.

I can also empathize with those in Mexico who want a better life. Not all illegals are bad--people are people. For every one story like yours, there are many more of illegals working hard and staying out of trouble.

I am not a native American. My ancestors immigrated here long ago for a better life. I know if I was born in Mexico living in poverty with no hope in Mexico for a better life, I would break the law and come here. Wouldn't you?

I was not defending or opposing the AZ immigration law. I was pointing out there may be a legitimate challenge to it. The rule of law is what interests me.

You wrote: "There are a ton of ways to get here legally but so many people don’t respect that." That isn't true. Here is something you should read that I found on the internet:

"...if a Mexican citizen wants to emigrate [sic] to the United States, he may visit the US embassy or the local consulate. There is an application. The US permits a fixed number of Mexicans to immigrate legally into the United States. If the application is approved, the Mexican citizen's name is added to the waiting list of those wanting to move to the United States.

The list is more than forty years long.

To my mind, that makes illegal Mexican immigration a whole different thing. If I am speeding in my car, I am violating the law. I can make a different choice and live comfortably within the law. However, a Mexican needing to come to the United States can attempt to follow the law, but he will be unsuccessful. There is no reasonable way to obey the law."

As for me, Medium X, I admit to you that on occasion, have violated the laws as a US citizen. And I can tell you that if I was a Mexican living in the Mexico, I'm sure I would break the law to get to the US. I can understand how conditions can be so bad that you risk it. Hell I have broken speeding laws and DUI laws for a lot less than the chance for a better life!!!

You mentioned that illegal citizens get more leniency than you so. I don't know if that is right or not, but I do know that justice in this country has a lot to do with money. But that's a whole other topic. The U.S. is far from perfect on many counts but it is working on getting better--hopefully.

There needs to be immigration reform that conforms to our rule of law and constitution. Those are the two things that make this country great. We should ignore the importance of either to fix a problem. The move AZ made will push this issue forward.

Fluffy said...

To RamRod:

Yes, it would be in conflict with federal law but just like AZ law it will help push the issue forward. You asked me if I was for CA legalizing marijuana. I answered yes. I'm also for marijuana's legalization nationwide, but you didn't ask me that.

But I don't think it will be challenged by the federal government because it doesn't have any real opposition from someone with standing. Who will sue California if they pass that law? Pharmaceutical companies?

The CA marijuana issue is very different than the AZ immigration law. The AZ law may violate the supremacy clause, and violate a few amendments of the U.S. constitution. The federal government wouldn't act against the marijuana law of CA unless and until someone with standing brought forward a legal suit.

Who would have standing and which legal issues would be cited in the lawsuit? I don't know but I don't think it would be due process, search and seizure, and civil rights like the AZ law involves.

Warthog said...

Fluffy, you have got to get off the whole we were immigrants once and this is Native American land, blah blah. What is done is done and none of were there and revisionist history should not be tolerated.

I would like you to tell me who is a native of any one place? Through out history humans have been conquering other civilization and taking the land. Most of the time the conquered people were annihilated or the men where killed and the women raped so that the children born to them would now be of the conquerors blood line.

The question now is how do American protect their country? They do it by enforcing the laws put in place by the people. You can argue that this law is unconstitutional all day, but it mirrors federal law so can not fall under the supremacy clause. The supremacy clause makes it so no state can pass a law that violates a federal law. Where in the bill does it violate a federal law?

The California law is in direct violation of the supremacy clause in that it makes legal what the fed says is illegal. Your opinion states that because a majority of people of a state feel a certain way it makes it all right to violate the constitution. Well 70% of Arizonans polled support the immigration law. That is one of the highest numbers I have ever seen in support of something in America that did not have to do with war.

You bleeding hearts want to take care of everyone in the world but never seem to think about the price. The cost is huge and people are fed up with this liberal progressive attitude toward every piece of crap out there looking for a hand out. We need immigration reform, but in the way of making it easier to get a work visa and not making it easier to become a citizen.

The fact is, the opposition is not against racism it’s against closed borders. We are being invaded and they want us all to smile and let it happen. Too many of these people do not want to assimilate and add to our culture. They want to replace our culture with theirs. I will be writing a blog about this soon.

Fluffy said...

Do you read what I write--or just skim it?

You wrote: "Your opinion states that because a majority of people of a state feel a certain way it makes it all right to violate the constitution."

I didn't say that. After all, Jim Crow laws had popular support at the time too.

I am interested in whether the AZ law is or is not constitutional; aren't you? It might well be constitutional--I don't know. But it's that that interests so I'm interested in discussions which further my understanding of the legal challenges being discussed. You might want to read this because it doesn't seem to be so easy an answer for legal professors as it seems to be for us regular folk not schooled in the law.

As for CA marijuana laws, I never said it mattered whether the proposed law had popular support or not. What I said was that if CA passes such a law, yes, it would conflict with federal law, but who would bring the law suit to challenge it in court? Who has legal standing and how?

The AZ law has had individuals come forward claiming standing and the AZ law will be reviewed. The courts MAY find that the AZ law undermines the federal position (see the link I provided above)but time will tell.

So maybe it's best to now wait and see how the AZ law gets decided through our courts and same with CA if the marijuana laws ever gets passed and then challenged.

For the record, I'm all for protecting our borders and for comprehensive immigration reform.

Just because I'm interested in presenting and discussing a wide perspective of the issue(s), and just because I'm interested in discussing how and on what basis legal challenges are brought and decided upon without thinking I know it all, and just because I am reluctant to pass snap (negative) judgments on the motivation of others, I assure you none of than means my views are philosophically dangerous, or intellectually or politically inferior -- regardless of the label you insist on using as a pejorative:)

Yours respectfully,

Warthog said...

This blog is about personal responsibility and common sense.

Common sense says that if you let people who broke the law stay free then they will continue to break the law and tell their friends it's cool too.

Your arguements have all been on the side of the criminals. You may be interested in seeing what the law says but you root for the bad guys to win. This bothers me.

I read the blog you linked too and it is interesting. However, I find it troubling that that the preemption clause could be used so freely.

Of course this bill is a big middle finger to the feds. They didn't get things done so Arizona is going to do it. Was it intended to be a middle finger? Who cares, it needed to be done.