SCOTUS ruling on SB1070….I am not surprised, are you?  They upheld the “Paper’s Please” portion and struck down the rest.

This Court has ruled in such a way as to wait until harm has been done instead of the traditional approach used by Courts in the past to see to prevent harm.  In other word this Court believes it is better to wait and see if anyone’s rights are violated, then wait for those parties to sue and if that suit makes it to the Supreme Court, they would then have to find a pattern of abuse that was due directly to the law itself and then they might rule it unconstitutional.  What I don’t understand is how they think that abuse, i.e., racial profiling and violation of habeas corpus rights, won’t occur.

Let’s look at it logically.  The Court has ruled time and time again that if a police officer pulls you over for one violation (e.g., speeding or a taillight is out), the officer cannot perform further searches (I.e., fish for evidence of other crimes) unless they have reasonable suspicion that some other crime has occurred and suspicion must be based on something in plain sight or by a voluntary admission of the driver.  So in the case of speeding, if the officer sees smoke pouring out of your window and smells the strong odor of pot, the officer has the right to search further.  Same goes for lots of alcohol bottles and cans in the car, the presence of blood on the seats, loaded weapons in view, burglary tools in view, etc, etc.

So what is going to be in plain view and what other things can an officer legitimately ask for that will provide reasonable suspicion that the driver and/or the passengers are illegal immigrants?  Well, you can bet your bippy (whatever the heck that is) that they won’t be voluntarily admitting such a thing.  The officer can look and try to see what is plain view but what are they going to see?  Mexican Flags, I heart Mexico bumper stickers, what?  The officer can ask to see their driver’s license, registration and proof of insurance.  Now the DL and registration are not a sign of illegal status and should not be enough to satisfy the standard of “reasonable suspicion”, UNLESS the license is a very obvious fake.  Even the lack of insurance isn’t enough to point to illegal status as many American citizens are caught every year without having insurance.  So how do they determine reasonable suspicion…because they don’t speak English or because there are way too many people in that tiny dilapidated car or because they happen to be brown…..

This Court is taking the classic ‘free market approach’.  What I mean by that is…the attitude that we don’t need safety regulations to prevent businesses from doing the wrong thing, so instead let the buyer beware.  If harm comes to the buyer, they can sue and THEN a law, if the harm is egregious enough and widespread enough,can be put into place to regulate something.  The only problem with that is, people (and usually many, many people) have to suffer egregious harm AND they have to be able to sue or have someone sue on their behalf before the business is punished and their behavior gets regulated.  This kind of “free market” approach will always favor the wealthy since access to our Justice system is, and make no mistake about, severely limited if you don’t have the funds.  I will regale you on another day about just how unfair our justice system is on another day.


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