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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. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  2. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  3. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  4. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  5. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

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