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Salinas: Senate Bill 590 is a step back for Indiana

March 2, 2011
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Indiana Lawyer Commentary

 

Salinas-Jose Salinas

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.

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  • double standard
    The comparison between John Smith and Jose Salinas is inapposite. The absolute number of illegal immigrants with English names versus Hispanic names is not knowable, but, we do know that there are millions more illegal immigrants here from Mexico and Latin America than there are from Great Britian. That is a factual reality and His Honor ignores it just as the rest of the illegal immigration apologists do. Nevertheless, it is a well written editorial and I have seen plenty worse, such as the NPR buffoon calling all Tea-Partiers and Republicans uneducated racists.

    Which reminds me. It was not so long ago that Mexico did not even allow ownership of land by foreigners. And I recall hearing more than once about human rights abuses by the Mexican federales on their southern border with Guatemala that shock the conscience and make American detention look pleasant and humane by comparison. I find it obnoxious that Mexican presidents come to this country and lecture Americans when their own record with Guatemalans is woefully bad.

    In short, there is a double standard that some people want to impose on Americans where immigration is concerned.

    PS how about all that democracy we are supposedly fighting for in Iraq and Afganistan? I wonder what they would think of the idea of the judiciary telling the legislature that the legislature cant pass immigration control laws. Some democracy!
  • I agree
    Well written and thoughtful. This commentary by Judge Salinas is right on point. SB 590 is bad policy. A person should be stopped, detained, and questioned based on his/her affirmative acts that reasonably may cause suspicion that a crime has been committed or is being committed. Not based on skin color, dialect, accent or last name.
    In this instance, too much subjective discretion leaves too much room for error and miscalculation.
    Good work Judge.

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  1. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  2. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  3. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  4. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  5. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

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