Response To Steinberg Staffer’s Response

After a CalWatchdog story last week about Democrat Senate Pro Tem President Darrell Steinberg’s response to a constituent’s letter expressing her dismay that he would encourage a boycott of Arizona’s businesses because of the recent immigration law passed, (Senator Steinberg Writes Back), CalWatchdog received the following response from Steinberg communications director Nathan Barankin:

The California law to which you refer, Penal Code section 834b, was ruled unconstitutional in 1997.  In other words, the statute is void.

Regardless, even if section 834b was in effect, it is not “practically identical” to the Arizona statute – even as most recently amended.  The Arizona statute is considerably broader, requiring investigation into the immigration status of a person pursuant to a “lawful stop, detention or arrest.”  The California law, which was found unconstitutional, was limited only to “arrests,” and so it is clear that the Arizona law is more expansive since it also applies to “stops” and “detentions.”  If you still have questions about the significance of these terms and the differences between the two statutes, I encourage you to contact an attorney who is an expert on criminal procedure and the 4^th Amendment to the United States Constitution.

Interestingly, there is much more than just an unconstitutional ruling on the penal code section. Former California Attorney General Bill Lockyer published an opinion on the penal code, and found that while local law enforcement cannot be required to cooperate with the INS, they also cannot be prohibited from voluntarily doing so. The State Criminal Alien Assistance Program (SCAAP) reports that California’s cities voluntarily cooperate with the program — except the city and county of San Francisco.

The following opinion dated November 16, 2001 was made by Lockyer after then-Assemblyman Lou Correa, D-Santa Ana made the request:

1. The mandatory provisions of Penal Code section 834b concerning cooperation, verification, and notification with respect to persons arrested who are suspected of being present in the United States in violation of federal immigration laws are not subject to enforcement by local law enforcement officers.

2. A local law enforcement officer, during a detention of a Spanish-speaking person for otherwise valid purposes, may question the person as to his or her immigration status. However, a local officer may not question an individual as to immigration status solely because the individual speaks Spanish or other non-English language.

3. An arrested person’s immigration status may be investigated by local law enforcement officers prior to arraignment. (OIG Audit Report 07-07)

Another legal entity, Judicial Watch, the public interest group that investigates and prosecutes government corruption, entered the fray in 2006 when they petitioned the California Supreme Court to Review Los Angeles’ sanctuary city policy.

Judicial Watch asked the California Supreme Court to settle whether federal law preempts California Penal Code 834b. The statute also prohibits local government entities from limiting the cooperation between local law enforcement officers and federal immigration officials. Judicial Watch’s petition for review (following the appellate court’s upholding of the lower court’s ruling) was denied on September 9, 2009.

Several law enforcement officials, to whom I have spoken at length about this law, said that they operate with the understanding that only Penal Code 834b subsection (c) was found to be unconstitutional, and not the entire statute. ((c) Any legislative, administrative, or other action by a city, county, or other legally authorized local governmental entity with jurisdictional boundaries, or by a law enforcement agency, to prevent or limit the cooperation required by subdivision (a) is expressly prohibited.)

What is confusing is that 834b is still listed in the California Penal Code in its entirety.

Law enforcement officials shared that the Arizona law is broader and does include stops and detentions.  It also is broad enough to emphatically prohibit the practice of racial profiling by law enforcement officers, which does not appear in the California statute.

However, in light of the escalating violence along the border in that state, it is apparent to law enforcement officials that the Arizona legislature wanted to make certain that law enforcement officers had every available tool to keep the gangs and drug cartels out of the state.  Hence, the title of Arizona’s immigration law, SB1070:  Support our Law Enforcement & Safe Neighborhoods Act.

– Katy Grimes