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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. If real money was spent on this study, what a shame. And if some air-head professor tries to use this to advance a career, pity the poor student. I am approaching a time that i (and others around me) should be vigilant. I don't think I'm anywhere near there yet, but seeing the subject I was looking forward to something I might use to look for some benchmarks. When finally finding my way to the hidden questionnaire all I could say to myself was...what a joke. Those are open and obvious signs of any impaired lawyer (or non-lawyer, for that matter), And if one needs a checklist to discern those tell-tale signs of impairment at any age, one shouldn't be practicing law. Another reason I don't regret dropping my ABA membership some number of years ago.

  2. The case should have been spiked. Give the kid a break. He can serve and maybe die for Uncle Sam and can't have a drink? Wow. And they won't even let him defend himself. What a gross lack of prosecutorial oversight and judgment. WOW

  3. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  4. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  5. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

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