“You said some nasty things about me. I take it that way.”
That’s how my conversation with Sheriff Joe started on Oct. 14. He was offended that I had said on television that he was trying to use a non-existent federal law to justify the continuation of his crime-suppression sweeps.
After watching Arpaio on the Glenn Beck Show and CNN with Rick Sanchez last week, I was somewhat puzzled that he was upset with me particularly. Seems like those two national personalities beat him up quite a bit more than I did. And I was only on a local program, the Horizon Journalists Roundtable.
Indeed, I had called him out for citing a law that seems to exist only in the minds of anti-illegal immigration groups. In fact, according to Immigration and Customs Enforcement officials, the document he has been citing during press conferences and national TV spots has no place in federal code. In other words, it doesn’t exist.
It all started a week ago when the U.S. Department of Homeland Security reconstructed an agreement with local law enforcement that essentially stripped the Maricopa County Sheriff’s Office of its power to enforce illegal immigration violations under the 287(g) program. While the new agreement allows Arpaio and other sheriffs to check the immigration status of those who are arrested for other crimes, it was intended to stop him from detaining people on the street to check whether they are in the country illegally.
After the new 287(g) agreement was struck, Arpaio called a press conference to blast the feds and to say that he would continuing business as usual. In fact, he said he was planning to do another sweep in two weeks. Now, he says he’s going to do the sweep on Friday.
But during the press conference on Oct. 6 reporters asked Arpaio what authority he would use to continue rounding up illegal immigrants on the streets. He said there are a couple of state laws that permit it and other federal statutes that provide that type of authority. He then passed out a document that he said was a federal law that allows his agency to “detain an individual for a brief warrantless interrogation where circumstances create a reasonable suspicion that the individual is illegally present in the U.S.”
The document Arpaio personally passed out at a press conference and said was federal statute can be found here: http://azcapitoltimes.com/wp-files/pdfs/section8.pdf
The document, at first glance, appeared to be taken from a section of U.S. Code. At the top of the page, it listed a title and chapter numbers, as well as references to subsections.
But about midway through the text, it outlined a set of circumstances that justify such “brief warrantless interrogations,” and that’s where things started to get odd. Here’s an excerpt: “Specific facts constituting a reasonable suspicion include evasive, nervous, or erratic behavior; dress or speech indicating foreign citizenship; and presence in an area known to contain a concentration of illegal aliens.”
Reporter Jeremy Duda brought the document to my attention, and both of us were a skeptical that the federal government would essentially grant authority to interrogate people on the basis of what they were wearing, or their speech patterns. One friend of mine jokingly asked whether a mariachi suit would justify questioning. And what about the reference to an area known to contain a concentration of illegal aliens? Could that be taken to mean Arizona in general?
So Jeremy dug a little deeper. He read through the section of code that Arpaio’s document referenced (Section 8, USC 1324). He couldn’t find any citation of that text. He continued searching records, and later asked ICE officials, immigration attorneys and the Department of Justice to clarify whether that was, as Arpaio had said, included in federal law. Everyone said it wasn’t.
Another editor and I read through actual U.S. code and also couldn’t find any reference to the text of the document Arpaio had handed out. We were perplexed.
Jeremy followed up with a story on Oct. 7 that outlined these developments, which can be found here: http://azcapitoltimes.com/blog/2009/10/06/arpaio-blasts-feds-vows-to-continue-immigration-enforcement/
Then, after our story was published (there was also an item in that afternoon’s Yellow Sheet Report) and a subsequent commentary was written in the East Valley Tribune, Arpaio cited the document as law on both CNN and FOX. Rick Sanchez was incredulous. Perhaps surprisingly, so was Glenn Beck.
Beck asked Arpaio to point to the specific law. Arpaio replied: “If local law enforcement comes across some people who have an erratic or scared or whatever … they’re worried, and if they have their speech, what they look like – if they look like they just came from another country, we can take care of that situation.”
Beck asked if that was profiling, and noted that the federal government doesn’t allow profiling.
Arpaio’s again pointed to the non-existent federal law, saying “It’s in there. It’s in there.”
On CNN, Arpaio told Sanchez that the revocation of the 287(g) agreement really doesn’t mean anything. He said it was just a contract, but “it’s OK, I’m still going to enforce the human smuggling.”
Sanchez asked how the sheriff and his deputies know if someone they stop on the street is in the country illegally.
“It has to do with their conduct, what type of clothes they’re wearing, their speech … a lot of variables involved,” Arpaio said. Questioned further about how clothing can determine a person’s status, Arpaio said, “You look at the federal law. The federal law specifies, the speech the clothes the environment the erratic behavior, it’s right in the law.”
An online search for the text Arpaio was citing revealed that the document existed – but not in federal code. It was plastered all over the websites of anti-illegal immigration groups.
One of the groups that had published the text, the Federation for American Immigration Reform, noted that it was only an analysis of federal law and offered a disclaimer that it was not to be used as a substitute for actual legal advice.
The website showing the overview published by the Federation for American Immigration Reform can be found here: http://www.fairus.org/site/PageServer?pagename=iic_immigrationissuecentersbcdd
So, this morning when I had a chance to interview Arpaio about all that had occurred, he insisted at first that the document was taken directly from U.S. Code. He said ICE had confirmed that the document was valid.
But after further discussion about our findings, Arpaio took a step back. He acknowledged that the document might not be part of federal law. He said, “I thought it was a law. I don’t know what you call it.”
He went on to say that it really doesn’t matter if it’s law or if it’s just an analysis, and said he has plenty of authority to continue the crime-suppression sweeps.
“I still think there’s a federal law out there that gives me the authority to do this,” he said. “I might not have the right one, but there is one out there.”
It’s still not clear what will happen when Arpaio attempts to conduct another sweep because ICE officials have been quiet about how they’ll react and Arpaio says he’ll take the illegal immigrants to Border Patrol if he has to.
“When they (ICE) won’t take them, I’ll take them to Border Patrol,” he said. “So let’s see what happens now. How can you tell Border Patrol that you can’t take them? If mine are illegal and they don’t take them, are they going to take the other ones that they find?”
We might not have to wait long for the answer; the next sweep is scheduled to happen in two days.