By Marion Superior Judge Jose Salinas
I believe that members of Indiana’s legal profession have a duty to voice their concerns when laws are proposed that could dramatically affect the civil liberties of individuals living in Indiana. Think about it, what if you could have voiced your opinion when laws imposing poll taxes or prohibitions against interracial marriages were being considered in some state legislatures. Would you have done it?
My opposition to Senate Bill 590 rests primarily on the provision that obligates local police to enforce federal immigration policy. The bill states that during a lawful stop, detention, or arrest, if police have probable cause to believe a person is not in the United States lawfully, they must request verification of identity and citizenship or immigration status from the federal government. Note, the bill originally used reasonable suspicion as the standard to be applied.
SB 590 mirrors Arizona’s immigration law, which has been temporarily enjoined by Federal District Court Judge Susan R. Bolton. Judge Bolton cited the federal resources that would be diverted from their primary function and the potential burden the law would place on legally present aliens to routinely produce their documents as two reasons for issuing the injunction. In her decision, Judge Bolton did not address the issue of racial profiling. I will.
This ticking time bomb of legal analysis relies on the interpretation of reasonable suspicion or probable cause. It is unclear which legal standard the final version of the bill will use. However, the question remains, how do police get to the level of having reasonable suspicion/probable cause within the context of SB 590? Police, using their training, must rely on observations they make in any given situation in order to formulate reasonable suspicion/probable cause of criminal activity and proceed to the next level of action. These observations normally consist of physical actions on the part of the people they deal with.
In my view, SB 590 would allow police to articulate reasonable suspicion/probable cause from observations of a person’s attributes as opposed to conduct. This would give police the right to take into account someone’s skin color, accent, last name and ability to speak English in evaluating whether they believe someone is undocumented and whether the individual’s legal status needs to be verified. The subjective nature of evaluating someone’s attributes lends itself to human error. SB 590 would take Indiana back to the days when all police used for reasonable suspicion or probable cause was the color of a person’s skin.
For those who say such a prediction is unrealistic in today’s judicial system, remember what police will use in considering whether a person’s legal status needs to be verified. Police observations will consist of a person’s actions and attributes. I submit to you that a person’s actions would be inconclusive in determining citizenship. My fear is that how a person looks or talks will be the way that police get to the questions of “where are you from?” and “are you here legally?” The bill’s author, state Sen. Mike Delph, R-Carmel, said he believes how a person speaks English will be an important factor for police in implementing this law.
Originally, SB 590 had reasonable suspicion as the level of constitutionality required for police to inquire as to an individual’s legal status, but that was changed in committee to the higher standard of probable cause. I am convinced that the legal standard was changed because committee members realized the problematic nature of the task they are asking of police. Under either standard, police will be using the same observational criteria to establish justification for their actions. In today’s courts, a person’s skin color, accent, or ability to speak a certain language should not be enough to establish the constitutional requisites needed to make an inquiry into a person’s legal status.
I ask you to consider the following: Who is an officer more likely to suspect as an illegal immigrant and thus required to prove he is in the U.S. legally, John Smith or Jose Salinas? Delph would like you to believe that all Hoosiers will be treated the same under this law. Unfortunately, history has shown us that the reality could be far more ominous. I am not saying that police should be blind to the immigration issue. But Hoosiers need to be careful in blindly giving police this type of unfettered discretion with our individual freedoms.
To me, being a member of the Indiana bar means voicing your opinions on bills that attack the very fabric of our U.S. and state constitutions. I invite you to do the same.•
The Hon. Jose Salinas serves Marion Superior Court’s Criminal Division 14. Opinions expressed in this column are those of the author.