Bouc émissaire, Juden…
Here we go again. Phil Bryant (PB) and his cronies have all the answers on how to end illegal immigration. With all the grandstanding and the dubious participation by the “Guvener” in United States v. Texas (without approval or consent of Mississippi’s top elected attorney, Jim Hood, as far as we know), the temptation to find a scapegoat for all of Mississippi’s problems knows no limits.
Senate Bill 2306, introduced by Senator Sean Tindell for Gulfport, requires all law enforcement agencies (LEA) to affirmatively notify “federal immigration authorities” (whoever that may be, there are at least five different federal agencies that could be, but who really cares anyway) that someone in their jail is “not legally present in the United States.” I’ll call them FIAs for short, but the lack of precision in this is stunning. I guess if you sent President Obama an email that a guy named José is in the Newton county jail that would count as notifying a FIA. Who knows for sure.
Despite the lack of precision, this bill places a specific legal duty on your county sheriff, chief of police, state trooper, etc. to somehow let FIAs know that a person is not here in the US “legally.” So now, the agency has to determine if someone is not legally in the US. Last time I checked that was something that those vaguely identified FIAs had the sole authority to determine pursuant to federal law, and, by the way, the Constitution of the United States. (like Professor Cochran used to say: Who needs a constitution among friends anyway? It just makes life harder.)
So I am at a loss as to how the LEA is supposed to determine if a person is not legally in the US. Of course, the detainee can tell you. But in the absence of that, how will the LEA know when and when not to “notify” the FIAs? Doesn’t speak English? Has darker colored skin? Doesn’t have any identification? Has a weird last name? Exercises his 5th amendment right to remain silent? Can’t tell you who won the World Series last year? Doesn’t celebrate Confederate Pride Month (CPM) in April? I simply don’t know.
Then the bill goes on to require the LEA to “fully honor” a detainer placed by FIAs. Again the lack of precision makes this bill fertile ground for abuse. I suspect that the word “detainer” refers to DHS Form I-247, Immigration Detainer-Notice of Action that requests a LEA to “Maintain Custody of Alien for a Period not to exceed 48 hours.” Federal case law as well as precedent from SCOTUS has held that Form I-247 is merely a request and is not mandatory. See, Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014) (citing, Printz v. United States, 521 U.S. 898 (1997) that struck down most of the Brady Bill as violating the 10th amendment). To hold otherwise would be tantamount to the federal government nationalizing the state police. I doubt PB would go for that given his love for President Obama and Attorney General Loretta Lynch.
So, this bill scuttles the distinction between the federal and state spheres of authority over the detention of criminal defendants in county jails and effectively deputizes state LEAs as extensions of the Federal Government. So, now your local sheriff is no longer allowed to exercise his/her professional judgment as to whom to keep in his/her jail. The sheriff is now a de facto immigration officer thanks to this unnecessary piece of political theater.
Of course, SB 2306 will be enforced consistent with federal law and “protecting the civil rights of all persons.” Why is this in there? Isn’t that always the case? Do LEAs need to be reminded that they are sworn to protect the civil rights and dignity of ALL persons? Have we become such a police state that we have to legislate what the constitution already requires? My thought is that there is a perception out there that persons who are not “legally present” in the US have no rights whatsoever and cannot complain later if they are not treated the same as others. “Those” illegals have no rights! There illegal! The Constitution doesn’t apply to them! Thanks for reinforcing that idea, PB and Senator Tindell.
Under federal law, a LEA is only required to keep a suspected alien for 48 hours if it chooses to do so. If a LEA detains a person beyond this time, the LEA and the individual officers are subject to liability for violating federal civil rights statutes, even if the detainee is not legally present in the US. So, despite the dubious need for this legislation, if a LEA detains someone beyond 48 hours, it does so at its peril and SB 2306 will not immunize the LEA against liability despite its attempt to do so in section 4 of the bill.
The last clause of section three states: “and respecting the privileges and immunities of United States citizens.” What the ___ does this mean? Oh, I guess it would not be good if a FIA deported a US citizen. That never happens because LEAs are provided with so much guidance on how to determine if someone is legally present in the good ole USA.
Reality check: FIAs deport as many as 4000 US citizens each year. FIAs have deported US citizens despite clear and obvious evidence of US citizenship. The FIAs and the LEAs have been sued and paid out large settlements for their blatant disregard for basic human rights. It is hard to distinguish between incompetence and outright willfulness in those cases, but SB 2306 certainly doesn’t provide any guidance on the issue.
If you want to protect your basic human rights you must protect the basic human rights of all persons, citizens and non-citizens. History is replete with politicians finding a venerable group to blame for all that is wrong. Mississippi has bigger problems than illegal immigration. The story is different for border states like Texas and Arizona, but Mississippi’s foray into this issue is simply political scapegoating and the use fear as a means of political power. Beware the politician selling fear. She is selling snake oil that doesn’t cure anything. Likewise, SB 2306 does nothing to solve the problem of illegal immigration. Violent criminals who are US citizens are let out of jail all the time and go on to commit other heinous crimes as well. The connection between illegal immigration and violent crime in general is the very definition of a non sequitur.
Mississippi has a dreadful history with regard to human rights and therefore has a special duty to be exceedingly vigilant guarding those rights of all people. In 2016, poverty is rampant in large parts of the state, on par with many third world countries. I have been told by immigrants from Mexico that they would rather live in Mexico than live in certain parts of Mississippi because the standard of living is higher in Mexico. Not something to be proud of folks.
So, maybe our time would be better spent regulating fantasy football or celebrating CPM?
James P. Tinsley, Esq.