OPINION


06-11-2009 

Brock Lorber
Blog: Bloody Mary Breakfast
Pearce Anti-Immigrant Amendment Attacks You!  
 
On Tuesday, SB1162, a bill to establish a multi-jurisdictional felony and violent fugitive task force, passed out of the AZ Senate Appropriations Committee.  The only amendment to the bill was introduced by Russell Pearce, creating a state trespassing offense that applies on public and private land, erases local control of law enforcement, and provides a broad avenue for law suits by anyone who feels local immigration enforcement isn't zealous enough.

Theoretically, the amendment turns all local law enforcement into federal immigration officials and eliminates the ability of state, county, and municipal governments to set law enforcement priorities.  It also turns undocumented border crossings, a federal civil offense, into a state misdemeanor (felony for second offense).

Practically, it creates an underclass to be targeted at will and presents another assault on private property and privacy.

An Enforcer Behind Every Curtain
The immigration enforcement and lawsuit provisions of the Pearce amendment are designed to do one thing and one thing only: create conflict in Arizona communities.  As hard as it is for authoritarian sociopaths like Pearce to fathom, people just want to live their lives in harmony with their neighbors.  The Pearce amendment would make that impossible.

Consider that, if this bill were to become law, it would give your neighbor the ability to harass local politicians and bureaucrats into harassing you, regardless of your immigration or citizenship status.  With the mere threat of a law suit, your neighbor could force government types to go to your property and question your immigration status even if they have known you their entire lives.

Now consider that the harasser need not even be your neighbor.  The Pearce amendment would grant any person, anywhere, standing to bring a nuisance lawsuit against any state taxpayer-funded entity that didn't immediately seek a warrant to violate your property and interrogate you on the mere allegation of questionable immigration status.  And, if the judge didn't sign the warrant, the harasser could sue the judge!

Additionally, under this amendment, you may be detained by any Arizona law enforcement officer without even the need for suspicion of questionable immigration status for as long as it takes that officer to question any federal agency he or she wishes about you and receive a reply.  Any attempt by state, county, or local governments (even by the enforcement agency itself) to inject "reasonableness" would be de facto policy that would open the entity to lawsuit.

State Trespass
Under the Pearce amendment, anyone located within the geographical boundaries of the State of Arizona would be required to conclusively prove their immigration or citizenship status or be guilty of trespass, even on private property that person owns.

Unless you have previously and currently ascertained your immigration or citizenship status to the satisfaction of each and every law enforcer in the State of Arizona, you cannot call 911, allow your children to go to school, or even live in your own house or apartment without being under the constant threat of trespassing charges.

While there is reasonable documentation that is accepted as proof of citizenship and immigration status, I submit to you that no one, not even naturalized citizens, can conclusively prove their citizenship or immigration status.  And, even if you could, there can be no policy requiring any law enforcement officer to accept the proof, as noted above.

Arizona Constitution
Article II " Declaration of Rights " of the AZ constitution declares that governments are established to protect and maintain individual rights.  The Pearce amendment seeks to subvert that declaration by creating an unprotected class of persons.  That alone is enough to condemn the amendment as antithetical to any accepted purpose of government. 

But, the Pearce amendment isn't done assaulting the AZ constitution. 

Article II, Section 13 states, "No law shall be enacted granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations."  If the Pearce amendment treated undocumented border crossings as an individual crimes, this section would not apply.  However, because the amendment applies to all public and private lands in AZ, it makes the very fact of existence a crime for the underclass. 

Section 25 of Article II states, "No bill of attainder, ex-post-facto law, or law impairing the obligation of a contract, shall ever be enacted."  From an English reading of the Pearce amendment, in conjunction with the federal statute cited, it would seem that the trespass would only apply on property abutting the imaginary line between the US and Mexico and future violations of 8 USC 1325 as they occur.  However, as the amendment is constructed and from Pearce's statement to the Arizona Republic, it is clear that the trespass applies to all public and private land in Arizona, thus immediately making persons currently existing in AZ members of the underclass if the bill is signed into law " as ex-post-facto as it gets.

Now, some may suggest (wrongly) that Article II of the Arizona constitution does not afford protections to persons who crossed US borders without asking permission.  Even if you could make a cogent argument to that affect (you can't) Article II, Section 35 specifically recognizes such persons as persons and establishes concretely the application of Article II to those individuals (one of those niggling unintended consequences of previous xenophobic legislation).

Republican Attack
Keep in mind, Russell Pearce is supposedly a Republican.  You know, that grand old party, unabashed defenders of life, liberty, and property?  That Pearce's zeal to enact his xenophobia into state law is not surprising; what is surprising is that, in such a short amendment, Pearce could level such a full-on attack against all Arizona life, liberty, and property.

And, as a sad coda, it is also surprising that another supposed Republican, Jack Harper, who is no stranger to these pages or the philosophy of liberty, joined Pearce in voting for this abomination.  Will this be another time where Harper claims he assumed stopping it was someone else's job?