Greg has written about a new Ohio House bill requiring police officers to attempt to determine the immigration status of any individual involved in a lawful stop, detention, or arrest if the officer has a reasonable suspicion that the individual is an alien who is unlawfully present in the United States.
Is this law constitutional? Or is this just another example of Ohio republicans proposing blatantly unconstitutional laws. Recall: Republican introduced a bill to defund Planned Parenthood even though similar laws had been found unconstitutional in other states. And then they tried to pass unconstitutional welfare reforms. At the time, we noted: “many of the Republicans in the Ohio Legislature have decided to put ideology and the scoring of cheap political points above their oaths to defend the Constitution.” (Contrast that to Commerce Director David Goodman, who we recently praised for putting the Constitution before party allegiance.)
The answer, unsurprisingly, is no.
The immigration bill is clearly crafted after the Arizona immigration that the Supreme Court reviewed last term. In a July Opinion, the Court split on Arizona’s immigration law. The Court upheld a provision of the Arizona law that requires state and local police to check the immigration status of people they’ve stopped or detained if a “reasonable suspicion” exists that they’re in the country illegally.
However, this was not the victory that supporters claimed. The opinion of the Court was very narrow. The key issue that is unresolved is whether “in practice, state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status.”
As Greg noted, the Ohio law goes beyond what Arizona tried to do by making it a requirement that law enforcement verify the immigration status of persons prior to their release from custody.
The law from the Supreme Court has long been clear. A lawful stop of a person can become unlawful if the person is held for longer than is necessary to complete the original purpose of the stop. In other words, if the police stop you for speeding, they can only hold you for as long as it takes to issue you a ticket. For example, if the police stop you and suspect you of possessing drugs, they can have a drug dog sniff the outside of your car. However, the police can only have the dog sniff the car while they are verifying your license, checking for warrants, and writing the ticket. The police cannot issue you a ticket and then make you stay and wait for the dog to arrive.
In the Arizona case, the Court imagined a situation where “a person might be stopped for jaywalking.” The Court warned that detaining the person to check the immigration status would likely be unconstitutional, “unless the person continues to be suspected of some crime for which he may be detained by state officers.” The Court further explained: even if a person is stopped for a more serious offense, like OVI, constitutional problems could arise if “the verification process would result in prolonged detention.”
Despite these concerns, the Court punted on this issue, writing “there is no need in this case to address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention . . .” Because the issue in the Arizona case was whether federal law pre-empted the Arizona law, the Supreme Court properly decided to wait and see exactly how the law would be implemented.
We know the answer, however. If a state law requires that a person be detained for the sole purpose of checking immigration status, it will likely be found to be unconstitutional. This is before, even, taking into account that the law will be almost impossible to implement in a non-discriminatory manner.