This article was written by guest author Derrick Diaz. Mr. Diaz is a 2012 graduate of Rutgers Law and is looking forward to a fruitful clerkship with the Superior Court of New Jersey. Mr. Diaz has also authored Minors and Cosmetic Surgery: An Argument for State Intervention, 14 DePaul J. Health Care L. 235 (2012).
Much has been topically written on the Beason-Hammon Alabama Taxpayer and Citizen Protection Act (“HB 56”),[1] which was purportedly passed to “help protect [the] constitutional rights [of] Alabama citizens.”[2] However, HB 56 actually subjects both U.S. citizens and lawful aliens to racial profiling, in addition to robbing them of their Fourth Amendment protections against unreasonable seizures. First, HB 56’s brand of reasonable suspicion lays upon Alabama law enforcement the impossible burden of differentiating between ethnic citizens and aliens, in addition to differentiating between aliens lawfully and unlawfully present. Second, Section 12 of HB 56 requires law enforcement, under threatened loss of state funding and civil lawsuit, to categorically detain any and all people whom they suspect to be an unlawful alien. Third, in direct contravention of Fourth Amendment jurisprudence, HB 56 implicitly calls for unparticularized suspicion of persons not committing an offense. This will consequently lead to profiling based on race, color, and national origin—sweeping both U.S. citizens and lawful aliens into an overly broad immigration dragnet. Fourth, the Bill’s authors were undoubtedly aware of the strong likelihood that racial profiling would occur, so they reserved the weakest language for the five prohibitory provisions restricting officers from using race, color, or national origin. Fifth, even if reasonable suspicion could be employed by Alabama officers without profiling, the verification process is still violative of Fourth Amendment jurisprudence because it requires detention far beyond a brief stop or detention.
Alabama’s Law Poaches the Constitution
Section 12 is the Bill’s catchall provision governing any and all interactions between law enforcement and the public.[3] This section requires an officer conducting “any lawful stop,[4] detention, or arrest,”[5] and who has reasonable suspicion[6] to believe that a person is an unlawful alien, to attempt to determine the “citizenship and immigration status of [that] person.”[7] Section 12(a) also ambiguously qualifies such an “attempt” by providing that it be done when “reasonable” and “practicable.”[8] For reasonable suspicion purposes, the Bill also instructs that the officer “may not consider race, color, or national origin” while enforcing Section 12.[9]
The section also requires that the final status determination be made by federal agents,[10] and that state officers “shall not attempt to independently make a final determination.”[11] Section 12 has an additional provision for any alien “arrested and booked into custody.” This provision requires that an alien “shall be released from custody” if, while checking immigration status, the alien is delayed beyond the time she would normally have been released from police custody.[12]
Section 6, most crucially, threatens loss of state appropriations against any department not enforcing HB 56.[13] It also opens law enforcement to civil liability, most broadly, to any Alabama resident for enforcing HB 56 “to less than the full extent permitted by [HB 56].”[14] As such, all investigatory stops will herein be treated as investigatory detentions because, for all practical purposes, when Section 12 and Section 6 are combined, officers have too strong a motivation to unconstitutionally detain while making a federal immigration inquiry.[15]
Section 12 Bites Off More Than It Can Chew
The reasonable suspicion mandate of Section 12(a) requires officers to retroactively articulate two complex layers of fact which lead the officer to infer before a stop, detention, or continued detention that the person was an alien[16] unlawfully present.[17] First, the officer must articulate how, using only reasonable suspicion, he surmised that the individual was an ethnic non-citizen rather than ethnic citizen–though there are no distinguishing markers to differentiate between the two. Then, if the officer suspected that the person was a non-citizen, the officer must next articulate facts which lead him to presume that the individual was unlawful, rather than lawfully present.[18]
Adding to the complexity is the fact that there are a great diversity of ways to be legally present. The U.S. Citizenship and Immigration Services (“USCIS”) issue permanent immigrant visas, the recipients of which are called “Lawful Permanent Residents.”[19] These visas are issued based on several categories, such as a family preference system,[20] employment,[21] diversity lottery,[22] and derivative status.[23]
The USCIS also issue temporary nonimmigrant visas, the duration for which vary significantly, and are granted for a plethora of reasons. These include business and pleasure visitors,[24] student visas-academic study,[25] professional employees,[26] unskilled workers,[27] student visas-cultural exchange,[28] intra-company transferees,[29] student visas-vocational study,[30] aliens with extraordinary abilities,[31] entertainers,[32] human trafficking victims,[33] or victims of criminal activity.[34] People may also be admitted for humanitarian reasons, as either refugees[35] or asylees.[36] Furthermore, under the Visa Waiver Program, people from 36 different countries can visit the U.S. and stay for 90 days without ever obtaining a visa.[37] In sum, Section 12 requires Alabama law enforcement, using only reasonable suspicion, to differentiate between unlawful aliens and the great diversity of those who are lawfully present–an impossible task.[38]
This Half-Baked Reasonable Suspicion Smells Like Permissible Racial Profiling
While Section 12(a) does not explicitly provide officers with a list of factors for reasonable suspicion determinations, it implicitly does so by flaccidly stating that officers “may not” use race, color, or national origin to enforce the section.[39] In a grammatically imperative sense, Section 12 uses the obligatory word “shall” a total of seven times, but uses the permissive word “may” only once in 12(c), in reference to the use of race, color, or national origin. In fact, the phrase “may not,” used a total of five times throughout HB 56, is the exclusive phrase used when referencing these characteristics.[40] Conversely, the unambiguous prohibitive phrase “shall not” is used a total of 38 times throughout HB 56.
Furthermore, the only other instance where “may not” is used are in Sections 5(c) and 6(c). Both sections grant state authorities the power to send, receive, and maintain immigration status information. However, the use of “may not” in these two sections is legally innocuous for the state, as states already possess this authority under the primary goal of Obama’s Secure Communities program–to identify and share immigration status with state law enforcement.[41] Most importantly, however, the use of “may not” in Sections 5(c) and 6(c) do not infringe on the Fourth Amendment rights of people stopped or detained by state law enforcement.
Such permissive language leaves open an ambiguous zone of legal interpretation which, in practice, allows officers to use race, color, and national origin to enforce Section 12. For practical and legal purposes, the relevant phrase in 12(c) can be interpreted as follows: A law enforcement officer may or may not consider race, color, or national origin. Instead, if the Bill’s authors were truly interested in prohibiting the use of immutable characteristics, then the language would have more properly been drafted: A law enforcement officer shall not consider race, color, or national origin.
The only conclusion to draw is that the drafters intentionally wrote HB 56 ambiguously due to their recognition of the impossibility of enforcing it without using immutable characteristics. In fact, an experienced Alabama sheriff[42] testified that he does not think it even possible to enforce HB 56 without considering characteristics such as appearance and manner of speaking.[43] The sheriff also testified that while his deputies have been trained on reasonable suspicion in criminal matters, they have not been trained on HB 56’s reasonable suspicion standard for immigration matters[44]–thus leaving interpretation and implementation, on an incident-by-incident basis, to the everyday officer on the beat. The sheriff continued to testify that even if his deputies were so trained, such training might not be adequate or appropriate for enforcing the federal law because the state is not competent to train in matters never before in its jurisdiction.[45]
The authors of HB 56, aware of these realities, intentionally chose the legally ambiguous phrase “may not” over “shall not.” The direct result can only be that HB 56’s brand of reasonable suspicion implicitly calls for unparticularized suspicion of persons not committing an offense. This is in direct contravention of the particularity requirement because it makes profiling based on race, color, and national origin openly permissible—sweeping both U.S. citizens and lawful aliens into its overly broad immigration dragnet.[46]
Do Not Overcook: the Prohibition Against Overextending Hot-Seat Time
Pragmatically speaking, Section 12(a), coupled with the threats of Section 6, require officers to continue detention[47] while verifying immigration status with federal authorities.[48] David Palmatier, Unit Chief of the Law Enforcement Support Center (“LESC”),[49] an arm of Immigration and Customs Enforcement,[50] explained that responses to status inquiries are significantly delayed. He explained that the average query must wait 70 minutes before an LESC specialist begins to work on the request.[51] The specialist then needs an additional 11 minutes to search the DHS system and provide a written alien status determination–a total of 81 minutes.[52] The wait time to determine the status of a U.S. citizen erroneously suspected to be an unlawful alien is the same–81 minutes.[53] Detention for such a period of time is certainly a violation of the Fourth Amendment right against unreasonable seizures because it goes far beyond the constitutionally permissible “brief investigatory stop” requirement.[54]
In a leap of legal logic, however, an Alabama district court judge reasoned that the plain language of Section 12(a), which states that a “reasonable attempt” to determine immigration status will be made “when practicable,” indicates that if a stop goes beyond the time necessary to serve the original purpose of the stop then an officer is entitled to terminate the inquiry.[55] Such a leap is unmerited.
First, the language which the Judge indicates as “plain” reads: “a reasonable attempt shall be made, when practicable.” However, the statute neither explains what constitutes a “reasonable attempt” nor when it is “practicable” for an officer to detain someone for a status determination.
Second, if the statute were intended to be plain, rather than legally ambiguous, it would have express termination language to the effect that if the stop goes beyond the time necessary for the purpose of the original stop, then the officer is required to terminate the encounter. However, the statute was plainly not written so. Indeed, the authors were well aware of how to use such language and is the reason the termination requirement was expressly inserted into Section 12(b) for arrested persons.
Third, even if Section 12(a) conceivably suggested that an officer may end an inquiry when not practicable, Sections 6(a) and 6(d) still threaten loss of state funding and subjection to civil liability by any Alabama resident. Rather than making unmerited leaps of logic, it is far easier to reason that so long as HB 56 is allowed to remain state law, civil liability and appropriations loss will remain too strong an incentive for officers to enforce Section 12 beyond what is “reasonable” or “practicable.”[56]
Lastly, while Section 12(b) does explicitly provide for release from custody when delayed too long for status determinations, this provision is expressly limited to persons who have been “arrested and booked into custody [at the police station].” Thus, there is no extension of the release provision to those detained by police but not taken to the police station[57]–for example, people initially detained by the side of the road for a traffic citation, but then awaiting a status determination. As such, under Section 12 as a whole, people detained but not arrested must categorically be detained by law enforcement for the duration of the query wait time, regardless of the delay involved or the actual status of the detainee. Moreover, and most importantly, officers are compelled to do so under threat of appropriations loss[58] and civil lawsuit by any Alabama resident.[59]
In Conclusion: Racial Profiling With a Side of Excessive Detention Time
Alabama’s HB 56 was purportedly passed to protect the constitutional rights of Alabama citizens, but it actually robs, through its overly broad immigration dragnet, both U.S. citizens and lawful aliens of their Fourth Amendment rights. The law unreasonably requires law enforcement, through racial profiling, to distinguish between ethnic citizens and aliens, in addition to differentiating between aliens lawfully and unlawfully present, and then detain the persons while verifying immigration status. Such a law was not passed to protect anyone’s constitutional rights. Instead, it was implemented by lawmakers to force law enforcement, under threatened appropriations loss and civil suit by any resident, to harass and intimidate ethnic people out of Alabama.
[1] 2011 Ala. H.B. 56, available at http://immigration.alabama.gov/docs/Immigration-AL-Law-2011.pdf. See also U.S. v. Ala., 443 Fed. Appx. 411, 420 (11th Cir. 2011) (enjoining enforcement of Sections 10 and 28 pending appeal, and denying temporary injunction of Sections 12, 18, 27, and 30), modified by 2012 U.S. App. LEXIS 9968 (enjoining, in addition, enforcement of Sections 27 and 30). But see generally Az. v. U.S., 132 S.Ct. 2492, 2494-97 (preempting Arizona’s SB 1070 provision making it a misdemeanor to fail to comply with federal alien-registration requirements, the provision making it a misdemeanor for undocumented aliens to work, and the provision authorizing arrests for removable offense; however, withholding a decision, for lack of ripeness, of the provision which authorizes detention, by law enforcement, for immigration status checks based on reasonable suspicion, but also expressly leaving open review once ripeness has been attained and for other constitutional challenges other than preemption).
[2] Alabama Immigration Information Center, http://immigration.alabama.gov/.
[3] The reasonableness clause of the Fourth Amendment guarantees people a right to be secure in their bodily person against unreasonable seizures by law enforcement. U.S. Const. amend. IV.
[4] This article only considers the investigatory stop and detention portion of the law, not the part pertaining to arrests. A law enforcement investigatory stop occurs when an officer stops a person and asks questions or to see identification. The person stopped is free to either decline the officer’s request(s) or immediately end the communication. U.S. v. Drayton, 536 U.S. 194, 202 (U.S. 2002). Such an investigatory stop is not a violation of a person’s Fourth Amendment right against unreasonable seizures, “as long as the police do not convey a message that compliance with their request is required.” Fla. v. Bostick, 501 U.S. 429, 435 (1991); see also INS v Delgado, 466 US 210, 216-17 (1984) (explaining that mere questioning of respondents by federal INS agents [not state law enforcment], without more, concerning their citizenship, did not amount to a detention or seizure under the Fourth Amendment); see also U.S. v. Drayton, 536 U.S. 194, 201 (2002) (“If a reasonable person would feel free to terminate the encounter, then he or she has not been seized.”) (emphasis added). However, if a person refuses the officer’s request and the police then take additional steps to enforce compliance with their request, then the Fourth Amendment imposes a minimal level of justification, under the rubric of reasonable suspicion, to validate a seizure of the person. INS v Delgado, 466 US 210, 216-17 (1984).
[5] Both an arrest and detention constitute a seizure of the person under Fourth Amendment jurisprudence. Seizure of the person occurs whenever an officer has restrained the liberty of a person through either physical force or show of authority. Fla. v. Bostick, 501 U.S. 429, 434 (1991). Such a detention need not lead to an arrest to constitute a seizure because, while an arrest may be the “quintessential seizure of the person under . . . Fourth Amendment jurisprudence,” Cal. v. Hodari D., 499 U.S. 621, 624 (1991), the Fourth Amendment still governs seizures of the person which do not eventuate into a trip to the police station and prosecution for crime. Terry v. Ohio, 392 U.S. 1, 16 (1968) (“It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.”).
[6] Reasonable suspicion requires the officer to “point [out] specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the seizure].” Id. Even though the level of suspicion required for a detention based on reasonable suspicion is less demanding than that for probable cause, U.S. v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000), the officer must still “be able to articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity.” Ill. v. Wardlow, 528 U.S. 119, 123-24 (2000). This “particularity requirement” means that the officer must have reasonable suspicion to believe that the individual being stopped is, in fact, committing or has committed a crime. U.S. v. Cortez, 449 U.S. 411, 418 (1981). As such, courts reject profiles which sweep ordinary citizens into a generality of suspicious appearance—particularly those involving immutable characteristics. U.S. v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000). Moreover, and importantly, an officer must have reasonable suspicion before she detains a person for a stop which eventuates into even the briefest of detentions, id. at 1130 (explaining that a stop may only be justified by reference to factors that were present up to the time the stop was made), without violating that person’s Fourth Amendment right against unreasonable seizures. Terry v. Ohio, 392 U.S. 1, 21 (1968).
[7] H.B. 56, supra note 1, at 12(a) (emphasis added).
[8] Id.
[9] Id. at 12(c) (emphasis added). National origin is a legal phrase used to refer to place of birth and verbal accent. Because HB 56 does not define “national origin” in Section 3, this definition is adapted from the U.S. Equal Employment Opportunity Commission, available at http://www.eeoc.gov/laws/types/nationalorigin.cfm.
[10] H.B. 56, supra note 1, at 12(a).
[11] Id. at 12(c) (emphasis added).
[12] Id. at 12(b) (emphasis added).
[13] Id. at 6(a).
[14] Id. at 6(d).
[15] Declaration of Sheriff Mike Hale at ¶ 4, Hispanic Interest Coalition of Ala. v. Bentley, 2011 U.S. Dist. LEXIS 137846, No. C:5-11-cv-02484-SLB (N.D. Ala. 2011) (explaining that officers will need to detain the target of the stop pending confirmation of immigration status), available at http://www.justice.gov/opa/documents/ex4-hale-declaration.pdf.
[16] HB 56, supra note 1, at 3(1) (defining “alien” as “any person who is not a citizen or national of the United States.”).
[17] HB 56, Section 3(10), defines lawful presence by explaining that “A person shall be regarded as an alien unlawfully present in the United States only if the person’s unlawful immigration status has been verified by the federal government.” Moreover, both Section 3(10) and 12(d) grant a presumption of lawful presence to persons for possessing certain documentation. However, Sheriff Hale expressed concern that reliance on such documentation is not justified because the documentation list is ambiguous and not at all dispositive. For example, both Sections 3(10)(d) and 12(d)(4) grant the presumption of lawfulness, upon carrying any federal or state issued photo ID, “if issued by an entity that requires proof of lawful presence . . . before issuance”; however, Sheriff Hale explained that his department has not been trained on deciphering which agencies, of the great multitude of state and federal agencies in the U.S., require proof of lawful presence before issuance. Sheriff Mike Hale, supra note 15, at 11.
[18] But see Sheriff Mike Hale, supra note 15, at ¶ 10 (explaining that neither he nor his deputies have received, or are likely to receive, the training necessary to determine when someone is present unlawfully).
[19] For a helpful summary, see Cornell University Law School, Immigration, at http://www.law.cornell.edu/wex/Immigration. See also IRS, Immigration Terms and Definitions Involving Aliens, at http://www.irs.gov/businesses/small/international/article/0,,id=129236,00.html.
[20] 8 U.S.C.A. 1153(a), Preference allocation for family-sponsored immigrants.
[21] Id. at (b), Preference allocation for employment-based immigrants.
[22] Id. at (c), Diversity immigrants.
[23] Id. at (d), Treatment of family members.
[24] 8 U.S.C.A. 1101(a)(15)(B).
[25] Id. at (a)(15)(F)(i).
[26] Id. at (a)(15)(H)(i)(b).
[27] Id. at (a)(15)(H)(ii)(a).
[28] Id. at (a)(15)(J).
[29] Id. at (a)(15)(L).
[30] Id. at (a)(15)(M)(i).
[31] Id. at (a)(15)(O).
[32] Id. at (a)(15)(P).
[33] Id. at (a)(15)(T).
[34] Id. at (a)(15)(U).
[35] 8 U.S.C.A. 1157, Annual admission of refugees and admission of emergency situation refugees.
[36] 8 U.S.C.A. 1158, Asylum procedure.
[37] U.S. Department of State, Visa Waiver Program, at http://travel.state.gov/visa/temp/without/without_1990.html#vwp.
[38] See Sheriff Mike Hale, supra note 15, at ¶ 11 (explaining that he does not think it possible, despite his 35 years law enforcement experience, to enforce HB 56 without considering immutable characteristics such as appearance and manner of speaking).
[39] Compare with the Civil Rights Act of 1964, Equal Employment Opportunities, 42 U.S.C. § 2000e-2(a)(1) (“It shall be an unlawful employment practice for an employer . . . to discriminate against any individual . . . because of such individual’s race, color, . . . or national origin.”) (emphasis added).
[40] HB 56, supra note 1, Sections 7(d), 10(c), 11(c), 12(c), and 30(e).
[41] See http://www.ice.gov/doclib/foia/secure_communities/securecommunitiesstrategicplan09.pdf.
[42] Sheriff Hale is an Alabama native son and lifelong resident of Jefferson County, Alabama, with 35 years of law enforcement experience. Sheriff Mike Hale, supra note 15, at ¶ 1.
[43] See Sheriff Mike Hale, supra note 15, at ¶ 11. See also U.S. v. Brignoni-Ponce, 422 US 873, 884-85 (1975) (explaining that, at the border, federal Customs and Border Protection officers can consider such factors as proximity to border, patterns of traffic, recent information on illegal border crossings in area, driving behavior, or an extraordinary amount of passengers). However, the Court was careful to caveat that such factors were to be considered by federal immigration agents at the border; whereas, Alabama is three states away from the U.S. border with Mexico. Indeed, these factors become irrelevant when considered so far from the U.S. border.
[44] Sheriff Mike Hale, supra note 15, at ¶ 10.
[45] Id.
[46] See Brignoni-Ponce, supra note 43, at 885-86 (holding that federal border patrol officer’s reliance on a single factor to justify stopping defendant’s car, the Mexican ancestry of occupants, did not furnish reasonable grounds to believe that the three occupants were aliens). See also U.S. v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (rejecting profiles which are likely to sweep many ordinary citizens into a generality of suspicious appearance); and Brent v. Ashley, 247 F.3d 1294, 1300 (11th Cir. 2001) (explaining that if a profile is overly general, it carries little weight in determinations by a court of whether the federal border patrol officer had reasonable suspicion).
[47] A lawful seizure of the person can become unconstitutional if the detention lasts longer than is necessary to effectuate the purpose of the detention. Muehler v. Mena, 544 U.S. 93, 101 (2005) (explaining that a lawful seizure can become unlawful if prolonged beyond time required to complete mission of seizure). See also Fla. v. Royer, 460 U.S. 491, 500 (1983) (“The investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.”) (emphasis added); and, U.S. v. Place, 462 U.S. 696, 710 (1983) (concluding that 90-minute detention was sufficient to render seizure unreasonable). Indeed, the U.S. Supreme Court has explained time and again that, while law enforcement are permitted to “briefly stop” a person for investigatory purposes, if the detention time exceeds that which is necessary for the purposes of the stop and detention, then the detention is no longer minimally intrusive and thus a violation of their Fourth Amendment right against unreasonable seizures. See also Brignoni-Ponce, supra note 43, at 881-82 (explaining that even federal border patrol agents, on roving border patrol, must conduct only brief investigatory stops, and that any further detention requires either probable cause or consent).
[48] See Sheriff Mike Hale, supra note 15, at ¶ 9.
[49] The LESC fields immigration status requests from state, local, and federal law enforcement, including requests from officers at traffic stops. Declaration of David C. Palmatier at ¶ 5-7, U.S. v. Arizona, 641 F.3d 339, No. 10-16645 (9th Cir. 2011), available at http://www.justice.gov/opa/documents/declaration-of-david-palmatier.pdf.
[50] Id. at ¶ 1.
[51] Id. at ¶ 8.
[52] Id.
[53] Id. at ¶ 12.
[54] See generally, supra note 47.
[55] Hisp. Int. Coalition of Ala. v. Bentley, 2011 U.S. Dist. LEXIS 137846, 124-25 (N.D. Ala. 2011), injunction granted in part & denied in part, sub nom., U.S. v. Ala., supra note 1.
[56] See Sheriff Mike Hale, supra note 15 (explaining, in paragraph 4, that his deputies will be required to detain individuals pending immigration verification because provisions, such as Section 6, mandate enforcement; in paragraphs 5, 6, and 12, expressing concern over subjecting his office to costly litigation; in paragraph 7, explaining that Section 6 makes clear that immigration enforcement is to be given top priority; and, in paragraph 12, expressing concern over the law allowing any Alabama citizen to sue the Sheriff’s Department for even being perceived as softly enforcing the law).
[57] Compare with Plaintiff’s [United States] Motion for Preliminary Injunction at 9, U.S. v. Alabama, 813 F. Supp. 2d 1282, No. 2:11-CV-2746-SLB (2011) (erroneously and outrageously conflating Sections 12(a) with 12(b), despite the express qualification in 12(b) for persons “arrested and booked into custody”), available at http://www.justice.gov/opa/documents/motion-preliminary-injunction.pdf.
[58] H.B. 56, supra note 1, Section 6(a).
[59] Id. at 6(d). See also Sheriff Mike Hale, supra note 15, at ¶ 12 (expressing concern that HB 56 will embroil the Sheriff’s office in costly litigation at a time when resources are low, that his deputies will be burdened with the threat of lawsuit by anyone for even being perceived as failing to enforce HB 56, defending against lawsuits from lawful aliens who happen not to possess the presumption-granting documents, and the loss of law enforcement’s qualified immunity for enforcing a law which is “unconstitutional on its face”).