Appearing For The Defense Of Arizona's Controversial Immigration Law: Fox News

››› ››› ANDY NEWBOLD

This Wednesday the U.S. Supreme Court will decide if portions of Arizona's controversial immigration enforcement law, Senate Bill 1070, are inconsistent with federal law and therefore must be struck down. Fox has taken this opportunity to push misleading talking points about Arizona's immigration enforcement law and to continue to fearmonger about crime in Arizona.

Fox Fearmongers About Crime In AZ To Push Immigration Law

Fox's Johnson Claims There Is A "Crime Wave" In AZ. During the April 23 edition of Fox News' Fox & Friends, Fox News legal analyst Peter Johnson Jr. suggested that crime is on the rise in Arizona and that the Arizona immigration law would help prevent it from increasing further:

JOHNSON: [W]hat Arizona is saying: Listen, we've got a crime wave, taxes are too high, the hospitals are overtaxed, the jails are brimming, they're posting signs that basically Arizona is a dangerous place, public warning, travel not recommended, human smuggling area, visitors may encounter armed criminals, and smuggling vehicles traveling at high rates of speed -- federal government, what are you doing to us? We just want to enforce your laws. [Fox News, Fox & Friends, 4/23/12, via Media Matters]

Fox Regular Sekulow: "The State Of Arizona Is Under Siege." During the April 23 edition of Fox News' America's Newsroom, Jay Sekulow, an attorney for the American Center for Law and Justice and a frequent Fox News guest, suggested that crime in Arizona is increasing:

SEKULOW: And this argument that we just allow the federal government to make the decision ignores the reality that the state of Arizona is under siege on its borders between the drug wars that are going on, with the gangs coming across. It's illegal immigration policy has to be enforced, and it has to be enforced at the state level, as well as the federal level, and what's happening right now is inexcusable. [Fox News, America's Newsroom, 4/23/12, via Media Matters]

But Statistics Do Not Show An Increase In Crime In Arizona

Arizona Crime Rate Dropped From 2007 Through 2010. Bureau of Justice Statistics (BJS) data show that violent crime rates for Arizona dropped from 2007 through 2010, the most recent year for which data are available:

[FBI, Uniform Crime Reports, accessed 4/23/12, 2007, 2008, 2009, 2010]

Huffington Post: "Hacked Arizona Police Document Contradicts ... Border Violence Claims" In AZ. In a June 27, 2011, Huffington Post article, John Rudolf explained that contrary to the claims of border violence by public officials, the Department of Homeland Security's [DHS] Office of Intelligence and Analysis report "finds no signs that significant violence in Mexico is spilling across the border into Arizona." From the article, headlined, "Hacked Arizona Police Document Contradicts McCain and Brewer's Border Violence Claims":

A trove of internal Arizona state police documents released by a hacker group last week contains a confidential federal report that contradicts claims by Arizona politicians, including Gov. Jan Brewer and Sen. John McCain, that violence tied to drug trafficking and illegal immigration from Mexico is on the rise in the state.

[...]

[T]he hacked report, by the Department of Homeland Security's Office of Intelligence and Analysis, finds no signs that significant violence in Mexico is spilling across the border into Arizona.

The agency "lacks information that indicates Mexican traffickers have directed any killings in Arizona" between 2008 and 2009, the report states, in a section titled "Violence Rising in Mexico, but Not in United States."

The report also notes that Arizona's murder rate plunged by 20 percent statewide between 2008 and 2009. It cites one murder -- the 2010 shooting of an Arizona rancher -- as "one of the few homicides that clearly have a cross-border connection." [Huffington Post, 6/27/11]

Fox Misleads To Claim That Arizona Law Is Compatible With Federal Law

Fox's Johnson: All Arizona Wants To Do Is Enforce The Federal Government's Immigration Laws. During the April 23 edition of Fox News' Fox & Friends, Peter Johnson Jr. suggested that the Supreme Court upholding the AZ immigration law would be the same as the federal government enforcing federal immigration laws. From the show:

JOHNSON: [W]hat Arizona is saying: Listen, we've got a crime wave, taxes are too high, the hospitals are overtaxed, the jails are brimming, they're posting signs that basically Arizona is a dangerous place, public warning, travel not recommended, human smuggling area, visitors may encounter armed criminals, and smuggling vehicles traveling at high rates of speed -- federal government, what are you doing to us? We just want to enforce your laws. [Fox News, Fox & Friends, 4/23/12, via Media Matters]

Sekulow: The AZ Immigration Law Is "Consistent With Federal Policy." During the April 23 edition of Fox News' America's Newsroom, Jay Sekulow said that "Arizona ... was correct in applying immigration law, consistent with federal policy":

SEKULOW: I think the Court is going to follow what it did in the Arizona immigration case last year and hold in fact that Arizona was not only within its rights, but was correct in applying immigration law, consistent with federal policy, but enforcement at the state level.

[...]

BILL HEMMER (co-host): But what Arizona is arguing, Angie, is that the government in Washington has not acted, therefore they have no choice but to act. Jay, argue that.

SEKULOW: Well, that's right. But there's another important point. ... The states have a valid role to play, in fact, the federal law that is in place that unfortunately, you're right, Bill, is not being enforced properly -- the federal government says it's lack of man power. But the reality is that federal law has in it a requirement that state law enforcement officers contact federal officials when there is a question on immigration status. So it's not as if the state government has no role to play.

And this argument that we just allow the federal government to make the decision ignores the reality that the state of Arizona is under siege on its borders between the drug wars that are going on, with the gangs coming across. Its illegal immigration policy has to be enforced, and it has to be enforced at the state level, as well as the federal level, and what's happening right now is inexcusable.

HEMMER: OK, let me get to Angie to respond to this.

ANGIE KELLY (immigration expert): Yeah.

HEMMER: Because Jay is arguing that the law is clear already.

SEKULOW: Yeah. [Fox News, America's Newsroom, 4/23/12, via Media Matters]

However, Lower Court Found AZ Law Inconsistent With Federal Law

Ninth Circuit: AZ Requirement That Officers Check Immigration Status "Interferes With The Federal Government's Authority." In United States v. Arizona, the U.S. Court of Appeals for the Ninth Circuit struck down Section 2(B) of S.B. 1070, which states that when officers have reasonable suspicion that someone they have lawfully stopped is an unauthorized immigrant, they "shall" make "a reasonable attempt ... when practicable to determine the immigration status" of the person. The court stated:

By imposing mandatory obligations on state and local officers, Arizona interferes with the federal government's authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed DHS agents. As a result, Section 2(B) interferes with Congress' delegation of discretion to the Executive branch in enforcing the INA.

[...]

In light of the foregoing, we conclude that the United States has met its burden to show that there is likely no set of circumstances under which S.B. 1070 Section 2(B) would be valid, and it is likely to succeed on the merits of its challenge. The district court did not abuse its discretion by concluding the same. [United States v. Arizona, 11/1/10]

Ninth Circuit: AZ Requirement That Immigrants Carry Alien Registration Document "Stands In Opposition To The Supreme Court's Direction." The Ninth Circuit also found that Section 3 of S.B. 1070, which makes it a crime in Arizona for an immigrant to fail to carry "an alien registration document," was pre-empted by federal law. The court stated:

S.B. 1070 Section 3 plainly stands in opposition to the Supreme Court's direction: "where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations." Hines, 312 U.S. at 66-67, 61 S.Ct. 399. In Hines, the Court considered the preemptive effect of a precursor to the INA, but the Court's language speaks in general terms about "a complete scheme of regulation," -- as to registration, documentation, and possession of proof thereof -- which the INA certainly contains. Section 3's state punishment for federal registration violations fits within the Supreme Court's very broad description of proscribed state action in this area -- which includes "complement[ing]" and "enforcing] additional or auxiliary regulations."

[...]

In addition, as detailed with respect to Section 2(B) above, S.B. 1070's detrimental effect on foreign affairs, and its potential to lead to 50 different state immigration schemes piling on top of the federal scheme, weigh in favor of the preemption of Section 3. [*357]

In light of the foregoing, we conclude that the United States has met its burden to show that there is likely no set of circumstances under which S.B. 1070 Section 3 would be valid, and it is likely to succeed on the merits of its challenge. The district court did not abuse its discretion by concluding the same. [United States v. Arizona, 11/1/10]

Ninth Circuit Also Found That Two Other Sections Of The Arizona Law Are Incompatible With Federal Law. The Ninth Circuit also found that S.B. 1070 Section 5(C), which makes it illegal for an undocumented immigrant to apply for work, and S.B. 1070 Section 6, which grants authority to any Arizona police officer to arrest people who allegedly commit crimes that make them removable from the United States, are pre-empted by federal law. [United States v. Arizona, 11/1/10]

Reagan-Appointed Federal Judge: S.B. 1070 Is "Chilling" And "Incompatibl[e] With Federal Foreign Policy." Ninth Circuit Judge John Noonan, an appointee of President Ronald Reagan, joined the majority opinion striking down portions of S.B. 1070. However, he wrote a separate opinion saying:

I concur in the opinion of the court. I write separately to emphasize the intent of the statute and its incompatibility with federal foreign policy.

[...]

The Arizona statute before us has become a symbol. For those sympathetic to immigrants to the United States, it is a challenge and a chilling foretaste of what other states might attempt. For those burdened by unlawful immigration, it suggests how a state could tackle that problem. It is not our function, however, to evaluate the statute as a symbol. We are asked to assess the constitutionality of five sections on their face integrated by the intent stated in Section 1. If we read Section 1 of the statute, the statute states the purpose of providing a solution to illegal immigration into the United States. So read, the statute is a singular entry into the foreign policy of the United States by a single state. The district court properly enjoined implementation of the four sections of the statute. [United States v. Arizona, 11/1/10]

Bush-Appointed Federal Judge Agreed That Two Sections Of S.B. 1070 Are Unconstitutional. Judge Carlos Bea, an appointee of President George W. Bush, agreed that S.B. 1070 Sections 3 and 5(B) are pre-empted by federal law. Bea disagreed with the majority's ruling on Sections 2(B) and 6. [United States v. Arizona, 11/1/10]

Experts: Having Local Police Enforce Immigration Law Would Increase Ethnic Profiling And Wrongful Detentions

Local And State Law Enforcement Officials Says AZ Law Would Lean To Detention Of "Individuals Who In Fact Are Not Subject To Removal." According to a section in a Supreme Court amici curiae brief by local and state law enforcement officials, "it will be virtually impossible for local police officers" to familiarize themselves with all the complexities of federal immigration law, given the "numerous other responsibilities" they have. The brief adds that "[t]he inevitable result will be the erroneous application of federal immigration laws to detain for removal individuals who in fact are not subject to removal." From the brief:

[F]ederal immigration laws are extremely complex, and it will be virtually impossible for local police officers, who already have numerous other responsibilities, to become sufficiently familiar with the various categories of immigration status under federal immigration law. The inevitable result will be the erroneous application of federal immigration laws to detain for removal individuals who in fact are not subject to removal.

[...]

To carry out S.B. 1070's mandate properly, every local law enforcement officer in Arizona would have to become familiar with the multitude of different immigration categories that are created by federal immigration law. While some categories of lawful status are relatively straightforward (i.e., U.S. citizen, lawful permanent resident), local police officers will have to understand the full array of nonimmigrant visas and special authorization programs to ensure that they do not detain someone who has received permission from a federal agency to remain in the country.

Nearly 50 million individuals are lawfully admitted into the United States each year. They fall into a wide range of different nonimmigrant visa categories, including the following:

· foreign government officials (A visas),

· business travelers (B-1 visas),

· tourists (B-2 visas),

· students (F-1 visas),

· guest workers and seasonal workers (various kinds of H visas),

· North American Free Trade Agreement (NAFTA) professional workers (TN visas), and

· workers in religious occupations (R-1 visas) [Brief Of State And Local Law Enforcement Officials in Arizona v. United States, March 2012]

Republican And Democratic Former State Attorneys General: If S.B. 1070 Goes Into Effect, "Racial Profiling Will Occur." From an amici curiae brief filed on behalf of former Republican Arizona attorney general Grant Woods and other former state attorneys general:

Although SB 1070 prohibits utilizing race as the only factor in determining whether an officer has reasonable suspicion of undocumented status, the prohibition is limited by the statement that race may be considered "to the extent permitted by the United States or Arizona Constitution." SB 1070 § 2(B). As the Court is well aware, United States v. Brignoni-Ponce can be read to permit officers to consider race as one of many permissible factors, at least in certain limited contexts. See 422 U.S. 873, 882-87 (1975). Thus, by its very terms, SB 1070 invites officers to consider race

SB 1070's use of race, however, goes further. The text of the law contains no guidance as to what other factors Arizona police can use to make the reasonable suspicion determination, and neither Petitioners nor their amici have proffered any guidance.

[...]

[T]he collective experiences of amici and other law enforcement agencies bear out that racial profiling will occur when local officials act as immigration agents. [Brief of former Arizona attorneys general Terry Goddard and Grant Woods and of 42 other former attorneys general in Arizona v. United States, 3/26/12]

U.S. Civil Rights Commissioner: SB 1070 Targets People "Simply Because Of Their Resemblance To Other Individuals Who May Be In The Country Illegally." Michael Yaki, attorney and member of the U.S. Commission on Civil Rights, wrote on April 26, 2010:

What this law does, without question, is target individuals for special treatment by law enforcement simply because of their resemblance to other individuals who may be in the country illegally. It attempts to skirt the federal pre-emption argument by simplying putting more people into the potential federal holding pen and letting ICE sort it all out. But the law, by its very wording, cannot distinguish between an American, a green card holder, and an undocumented person without first subjecting that person to a wholly different level and standard of identification and presumption of guilt. [San Francisco Chronicle, 4/26/10]

Mesa Police Chief: SB 1070 Would Require "People To Prove Their Innocence" Before Being Charged With A Crime. The Arizona Republic reported that Mesa police chief Frank Milstead said the legislation "would essentially require 'people to prove their innocence' before even being charged with a crime." He also said he was concerned over the potential costs to enforce the law. [The Arizona Republic, 4/14/10]

Lawyer James Doty: New Law Is "Vulnerable To The Argument That It Essentially Criminalizes Walking While Hispanic." Lawyer James Doty wrote on April 26, 2010, that "no one has come up" with an answer to the question, "What do illegal immigrants look like?" that doesn't invoke ethnicity. Doty further wrote that "[t]he new law, on its face, doesn't make racial distinctions, but its supporters haven't articulated any other grounds for suspecting that someone is an unlawful resident. It is, therefore, vulnerable to the argument that it essentially criminalizes walking while Hispanic," and that "the law seems to require that officers demand documentation from suspected aliens based on mere hunches -- a clear violation of the Constitution." [Salon, 4/26/10]

ACLU: "To Avoid Arrest, Citizens And Immigrants Will Effectively Have To Carry Their 'Papers' At All Times." The American Civil Liberties Union stated on April 23, 2010, that SB 1070 "creates new immigration crimes and penalties inconsistent with those in federal law, asserts sweeping authority to detain and transport persons suspected of violating civil immigration laws and prohibits speech and other expressive activity by persons seeking work." The ACLU further stated that the law "requires police agencies across Arizona to investigate the immigration status of every person they come across whom they have 'reasonable suspicion' to believe is in the country unlawfully. To avoid arrest, citizens and immigrants will effectively have to carry their 'papers' at all times." [ACLU, 4/23/10]

Law Enforcement Officials Say AZ Law Distorts Police Priorities

AZ Republic: Police Chiefs Said Officers "Will Have To Make Immigration Enforcement Their Priority Over Every Other Type Of Crime." The Arizona Republic reported on April 22, 2010, that SB 1070 "requires local law-enforcement agencies to enforce federal immigration law to the fullest extent permitted by federal law" and "would allow Arizonans to sue agencies if they don't believe an agency is complying with the law." The AZ Republic further reported:

Police chiefs who oppose the bill have said these requirements will mean officers will have to make immigration enforcement their first priority over every other type of crime.

They may have to wait around for federal Immigration and Customs Enforcement to verify a suspect's immigration status and possibly transport a suspect to jail to be held until that status can be determined.

The chiefs also say the bill offers no additional funding to train officers in how to judge reasonable suspicion or otherwise enforce federal laws.

"This will further impact police departments already lacking the resources to do their basic job," said former Mesa Police Chief George Gascón, who now leads the San Francisco Police Department. [The Arizona Republic, 4/22/10]

Arizona Police Chiefs: SB 1070 Interferes With Police Work. The Arizona Association of Chiefs of Police stated that SB 1070 "will negatively affect the ability of law enforcement agencies across the state to fulfill their many responsibilities in a timely manner." [Arizona Association of Chiefs of Police, accessed 4/24/12]

Yuma County Sheriff: "We Don't Have Enough People To Be Doing What We're Supposed To Be Doing Anyway." Yuma County Sheriff Ralph Ogden opposed the passage of SB 1070, citing the cost of detaining individuals and a "'12 percent reduction in force availability' for each incident, where a deputy would be tied up investigating someone's immigration status," according to a Phoenix New Times post. The post also quoted Ogden as saying, "[I]f you start spending less time on property crimes and personal crimes, you don't want to do that":

"We're like everybody else," explained Ogden, who's in his fourth term as Yuma County Sheriff. "We don't have enough people to be doing what we're supposed to be doing anyway. But you have to prioritize. And if you start spending less time on property crimes and personal crimes, you don't want to do that."

Ogden was also concerned with another provision of the Pearce legislation that would grant a private right of action for a citizen to sue a law enforcement agency if that person believes that the agency is not pursuing immigration violations to "the full extent permitted by federal law." [Phoenix New Times, 4/12/10]

Sacramento Police Chief: "No Other Law In The Country Allows Citizens To Sue A Government Agency For Not Arresting Enough People." The San Francisco Chronicle reported on April 22, 2010, that former Sacramento Police Chief Arturo Venegas said that the bill "essentially legislates racial profiling, putting police in the middle of the train tracks to face an onslaught of civil-rights violations lawsuits" and that "[n]o other law in the country allows citizens to sue a government agency for not arresting enough people." [San Francisco Chronicle, 4/22/10]

AZ Law Could Undermine Trust Of Police, Community Policing

Major Cities Chiefs Association: AZ Law Could Harm "Trust And Cooperation Between Local Police And Immigrant Communities." USA Today reported that San Jose Police Chief Robert Davis, president of the Major Cities Chiefs Association, "said the group stands by its 2006 policy that 'immigration enforcement by local police would likely negatively effect and undermine the level of trust and cooperation between local police and immigrant communities.'" [USA Today, 4/26/10]

Former Mesa Police Chief: "People Will Be More Hesitant To Report Crimes." The Arizona Republic reported that former Mesa Police Chief George Gascon "said the bill also will have 'catastrophic impacts on community policing.' " The AZ Republic further quoted Gascon as saying, "People will be more hesitant to report crimes, and that will create some very, very tough circumstances for local police in dealing with crime issues in areas heavily visited by people here from other countries." [The Arizona Republic, 4/22/10]

WSJ: People Are Less Likely To Report Crimes If They See "The Local Police As Deportation Agents." In an April 27, 2010, editorial, The Wall Street Journal stated that the Arizona law "is an extraordinary state criminalization of a heretofore federal authority." The editorial further stated, "Local enforcement agencies don't want responsibility for enforcing national immigration laws because they say it makes them less effective at their day jobs. When people in immigrant communities see the local police as deportation agents, they become less likely to report crimes and help in investigations. Conditions worsen." [The Wall Street Journal, 4/27/10]

American Jewish Committee: SB 1070 Encourages "Fear Of Police." Richard Foltin, AJC's Director of National and Legislative Affairs stated: "This law essentially allows police to question and arrest people on little more than suspicion. It will encourage racial profiling, fear of police and further distrust in a community already wary of law enforcement." [American Jewish Committee, 4/26/10]

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