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ACLU claims Arizona immigration law is unconstitutional

by Christopher A. Guzman, published

Attempting to snuff out Arizona’s immigration law, the American Civil Liberties Union (ACLU) is trying to wield its influence, asserting the problematic law is a violation of the Constitution’s 4th Amendment.  In their legal analysis, the ACLU takes aim at the provision allowing law enforcement to make an arrest without a warrant (if there is “probable cause” to do so).

Section E, lines 32-36 of the Arizona bill state the following:

     “A law enforcement officer, without a warrant, may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States.”

The ACLU indirectly accuses those behind the current law of creating “such arrest authority where it does not exist under federal law.”  The ACLU appealed to a court case to make their point.  In one particular court case, Gonzales v. City of Peoria, the plaintiffs claimed the police department pulled them over and questioned their legal status because of their race.

Another issue thrown into the mix by the plaintiffs was that it was not the job of local officials to enforce federal immigration laws.  The court’s final decision included the notion that “lack of documentation or an admission of illegal presence ‘does not, without more, provide probable cause of criminal violation’ of the immigration law.”

With the Ninth Circuit’s restricting ‘probable cause’ here, the ACLU goes on to say that officers trying to enforce the current law face significant hurdles because of court precedent.  “Officers not trained in federal immigration law who attempt to exercise this arrest authority would be subject to legal liability for violation of the Fourth Amendment,” the ACLU document said.

The ACLU says there are even more legal problems with the “warrantless” provision of the Arizona law, saying that immigration judges can “invalidate” the arrest of illegal immigrants.


According to the ACLU’s analysis, “even federal immigration agents do not have the power to conduct warrantless arrests away from the border unless the agent can articulate specific reasons to believe the person was likely to escape before a warrant could be obtained.”

The Arizona immigration law, contrary to what the ACLU may say about unconstitutionality, seems to be making a qualified provision for approaching suspects without a warrant.  Citing the factors of “lawful contact,” “reasonable suspicion,” and “reasonable attempt,” the Arizona law says the following in lines 20-26:

     “For any lawful contact made by a law enforcement official or agency of this state or a county, city, town, or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable to determine the immigration status of the person.”

In essence, the warrantless contact made with a suspect will be a lawful one given that it takes into account the exceptions for when a search warrant is not needed.  

Given the criticism coming from Los Angeles officials concerning Arizona’s immigration law, Kerry Picket of the Washington Times points out that the laws of the two states are actually quite similar in both upholding federal law, as well as in apprehending illegals.

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