Stung by criticism from yours truly this past Sunday when I pointed out that Sheriff Arpaio had cited a nonexistent law as the legal justification for his anti-immigrant, down-on-the-brown sweeps, the MCSO has just sent out an e-mail admitting their fumble, and attempting to right it. Problem is, they end up citing a federal law that makes it illegal to knowingly harbor or bring an illegal alien into the country.
What does that have to do with using pretextual traffic stops to ask people about their immigration status? You guessed right, sports fans, nothing.
The e-mail from MCSO spokesman Lt. Brian Lee is below. As I'm normally not on the MCSO mailing list (can't imagine why), I'm guessing the fact they put me on the list for this one time is a rare acknowledgement that my criticism was correct.
You'll recall that during Arpaio's press conference last week, he claimed he still had federal law on his side, and handed out a press release citing federal code 8 USC 1324(a)(1)(A)(iv)(b)(iii). But that citation doesn't exist. Worse still, the language that came immediately after the citation was from a nativist Web site, though it looked like the MCSO was implying that text was the law itself, and not what it was -- an extremely conservative interpretation of the law.
Arpaio even went on several national talk shows, insisting there was a law that allowed him to act without his 287(g) street authority, which has been stripped from him by the feds.
Now the MCSO is citing part of 8 USC 1324, "Bringing in and harboring certain aliens," specifically, 8 USC 1324(c), which states,
"Authority to arrest: No officer or person shall have authority to make any arrests for a violation of any provision of this section except officers and employees of the Service designated by the Attorney General, either individually or as a member of a class, and all other officers whose duty it is to enforce criminal laws."
However, this authority to arrest is part of the harboring law. Will the MCSO be pulling over cars with broken tail lights in order to find out if the driver is "harboring" an illegal alien? According to ACLU attorney Annie Lai, this doesn't stand up to legal scrutiny.
"Arpaio can't use this to enforce civil immigration law," Lai told me. "He would need to have probable cause that someone is `harboring'."
Lai pointed out that deputies would have to abide by the federal definition of harboring as interpreted by the courts. She cited the case of Gonzales v. City of Peoria (9th Cir. 1983), which held that Arizona authorities must distinguish criminal provisions of federal immigration law from the civil provisions, and must comply the arrest requirements of the U.S. Constitution.
I see that Joe Dana did a story on this on Channel 12 tonight. He cited an Arizona Capitol Times piece, which came out after my Sunday blog. And now the Republic's jumping on the bandwagon. Sheesh, Think they could've picked up on it before Brian Lee sent out an e-mail? Not that I don't mind you fellas following me. Heh.
Bottom line, the law ain't on Joe's side. Here's the e-mail from Lee:
Last week during a news conference discussing the Sheriff's agreement with ICE and the 287g agreement, Sheriff Arpaio made reference to and distributed a document that is an interpretation of Title 8 of the U.S. Code regarding federal immigration laws and the authority to enforce those laws.
Over recent weeks, Sheriff's Office staff has been conducting research on the issue of federal immigration laws and how the Sheriff's Office will be affected by the loss of the law enforcement portion of the 287g program.
During that research, the Sheriff's Office has referred to title 8 of the U.S. code as well as a multitude of interpretations of federal law. This form containing an interpretation was inadvertently given to the Sheriff with an incorrect citation of a certain section of federal law as an example of how to pursue the federal law.
Although the citation and language does not appear in the U.S. code, title 8 does exist and the Sheriff's Office believes that it still has the authority under federal law to detain illegal aliens during the course of their duties.
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That section of title 8 the Sheriff's Office intended to reference is attached to this e-mail.
Lieutenant Brian Lee A6461
Media Relations Unit