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A reader asks:

What is your position re the Arizona legislation concerning illegal immigration? Do you think we should have a similar law in Colorado?

To answer the second question: Yes, we should have a similar law in Colorado.

To answer the first question: I think Arizona’s recent legislation, SB 1070, aimed at doing something the federal government has largely failed to do—enforcing our immigration laws—is well-written, timely, and unfortunately necessary. If you have been reading or listening to media reports on this, I strongly encourage you to read the actual bill, as the media and others have been significantly distorting the text.

To me there are three somewhat controversial aspects of the bill, which I’ll analyze here:

1. Reasonable Suspicion and Probable Cause

SB 1070 provides that law enforcement officers that come into “lawful contact” with persons “where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States” shall make a “reasonable attempt” to “determine the immigration status of the person.” Then, the officer can arrest the person if he “has probable cause to believe” that “the person to be arrested has committed any public offense that makes the person removable from the United States.”

The keys terms here are “reasonable suspicion” and “probable cause,” which both have a long history in case law that lays out what is appropriate and within the bounds of the law, and what is not. Also, the bill makes it very easy for a normal citizen to defeat any reasonable suspicion the officer may have by simply presenting a driver license or similar identification. In addition, race cannot be the sole factor an officer uses in assessing whether there is a reasonable suspicion that a person is here illegally.

While I’m normally not a fan of governments being able to demand identification from people, I don’t see what choice Arizona—or Colorado—has. Illegal immigration has become such a pervasive problem that the states would be remiss not to take action. And because the concepts of reasonable suspicion and probable cause are well defined in case law, I think the hurdles to making any arrest under SB 1070 are appropriately set.

2. Civil Enforcement

Arizona’s law also provides private citizens with the ability to bring suit against any governmental agency that fails to enforce our immigration laws. Agencies found liable under such a suit would have to pay a $1,000 to $5,000 fine for each day that they failed to enforce the laws properly, beginning at the time the suit is filed. The money would be paid into a special account that SB 1070 creates and that is allocated for “gang and immigration enforcement and for county jail reimbursement costs relating to illegal immigration”; the money is not paid to the private citizen plaintiff. Plus, SB 1070 provides that the loser in such a suit may have to pay for the attorney fees and court costs of the winner, a measure that I think is perfectly appropriate.

This a relatively unique provision, but one that I find interesting. Too often, we have laws on the books that our authorities fail to enforce. And this is, of course, precisely the problem with our federal immigration policy that SB 1070 seeks to address. Therefore, it makes perfect sense to me that there be some extra “teeth” in the bill to make sure the state officials don’t fail to do what federal officials have already failed to do. The remedies are reasonable, and I don’t perceive any kind of perverse incentive to sue being created.

3. Potential for Abuse

This is a real concern. As a general matter, police officers are granted substantial power, and that should always be a point of concern for the normal citizen, even though most officers are conscientious and responsible. And unfortunately, SB 1070 may make the overall situation with respect to the abuse of power slightly worse than it already is. But consider: a racist, bigoted, or simply power-drunk officer already has substantial opportunity and ability to harass people he doesn’t like. SB 1070 doesn’t do anything to ameliorate that problem, to be sure, but it has only a relatively small potential for exacerbating it.

I find this reality objectionable, but I have to weigh it against the vastly more objectionable problem of illegal aliens coming to and remaining in the United States, and more particularly in states like Arizona and Colorado. The latter problem is much, much worse, I believe, than the former. If we are to consider a law like SB 1070 in Colorado (and I believe we will), I will want to look at drafting options that will address this potential for the abuse of power and for unfairly impacting citizens of certain races who simply don’t have their IDs with them, for whatever reason.

Conclusion

Arizona has taken a bold and necessary step by passing SB 1070, and I applaud the legislators and the governor there for their courage in stepping up to do what the federal government should have done in the first place.