The first lawsuit challenging the new Arizona immigration law was filed on April 29th. The lawsuit was filed by a 15 year veteran of the Tuscon police force, Martin H. Escobar. Escobar v. Brewer throws six constitutional challenges at the Arizona immigration law. Emma Ruby, a practicing criminal and constitutional lawyer, breaks down the lawsuit on the Huffington Post.
Count One: Due Process
The Fourteenth Amendment guarantees due process when an individual is deprived of their property or liberty. Due process, refers to a lot of different procedural guarantees like understanding the specifics of a charge before being asked to mount a defense or having a charge based on a reasonable suspicion of guilt before being detained by law enforcement officials. Due process is, fundamentally, a guarantee that any deprivation of property or liberty will be fair.
SB1070 authorizes police detention based on the suspicion of illegal presence on U.S. soil and the failure to provide evidence countering that claim. Suspicion of illegal status can be based on skin color as long as that is not the sole factor. In practical terms, this means that an individual can be deprived of their liberty for having brown skin and shabby shoes and then not having, in their possession, proof of citizenship. This is not fair for a number of reasons. First, skin color is not a reasonable basis for suspicion of guilt in any situation. Second, requiring individuals to produce evidence of innocence to avoid detention shifts the burden of proof from the government to the individual. In Arizona, you have to prove you are innocent before you are ever reasonably accused of being guilty of a crime. This is certainly not fair. It is also a violation of due process. Certain exceptions to this burden requirement have been carved out, but only for the Federal government in a limited number of circumstances. Extending this to a State within it’s criminal law power is unprecedented and unwarranted.