Monday, August 01, 2005

Andrew Thomas: If the Polls Disagree with the Law, Go with the Polls

This column was published on July 24, but I was out of the office all last week. Once again, our local ADL whiffs big time on an important issue--their board decided to support Thomas without ever hearing any legal analysis except from Thomas's chief deputy. Don't get me started on ADL's double standards for Republicans; just don't give them any money. Newspaper version is available here.

East Valley Tribune, July 24, 2005

Maricopa County Attorney Andrew Thomas made his political base happy by deciding not to prosecute Army Reservist Patrick Haab for detaining, at gunpoint, seven illegal aliens. But in justifying his decision, one opposed by GOP Sheriff Joe Arpaio and U.S. Attorney Paul Charlton, Thomas just didn’t anger a wide-ranging coalition of Hispanic and community groups. He also twisted the law like a pretzel -- in ways that might prove very interesting in the right hands, namely anybody with a plausible story and a gun.

On April 10, Haab saw 7 Mexican nationals at an Interstate 8 rest area, concluded (correctly) that they were undocumented aliens, drew his .45, forced the men to the ground, and then called the sheriff’s office. When the deputies arrived, they arrested Haab for aggravated assault, which is the crime when someone without authority pulls a gun on someone else. Haab was never in any personal danger -- although he later claimed he acted in self-defense, a claim even Thomas couldn’t swallow.

Haab then claimed he was enforcing the law by making a citizen’s arrest, and Thomas ultimately agreed. Thomas said he declined to prosecute Haab because (1) one of the 7 was a coyote smuggler, who was violating U.S. immigration law, and (2) the other 6 men were “conspiring” with the coyote to smuggle themselves, and (3) Arizona law lets a private citizen make a “citizen’s arrest” if he or she observes a felony being committed, or if a felony actually was committed and there’s reasonable grounds to believe the person arrested committed it.

This may be good politics, but it’s seriously bad law. First, immigration is a federal responsibility, and Congress wrote the law so that only federal immigration officials and state or local police officers can make any arrests under the alien smuggling statute.

Private citizens like Haab, according to the actual law (8 U.S.C. §1324), have no authority to make arrests under the statute, and because the federal government controls immigration law entirely, the state citizen’s arrest statute can’t grant authority that the feds have explicitly denied.

Second, even if the anti-smuggling statute allowed citizen’s arrests, that wouldn’t cover the 6 aliens being smuggled. There’s no law -- and Thomas most certainly didn’t cite any -- that makes individuals guilty of conspiracy or of aiding and abetting their own smuggling. There’s actual case law on this point; passengers who aren’t doing the transporting can’t be charged under the anti-smuggling statute. This principle goes back to Mann Act prosecutions, where the U.S. Supreme Court held that the woman transported across state lines for immoral purposes couldn’t be charged with conspiring with her transporter.

Third, Thomas also misread the Arizona citizen’s arrest statute, A.R.S. §13-3884, because it allows an arrest for a felony -- but another Arizona statute defines “felony” as a state criminal offense, punishable by imprisonment in a state prison, and purely federal immigration statutes aren’t state law offenses and aren’t punishable in state prison.

But under Andrew Thomas, the law, in its majesty, must yield to opinion polls, so he’s now officially on record that private individuals can make citizen’s arrests, even for entirely federal crimes where enforcement is restricted to authorized officials. Heck, Thomas even believes that you can justify a citizen’s arrest as a conspiracy if someone is with somebody else committing a federal crime.

But there’s another body of federal law where the state plays no role and where enforcement is limited to authorized federal officers: The Internal Revenue Code. According to Thomas, if I have a reasonable basis to believe some business or accounting firm is committing criminal tax fraud, I can pull a gun on ‘em, and Thomas won’t prosecute.

Or federal bank fraud -- why merely write columns attacking Fife Symington when I could have arrested him instead?

That’s our county attorney, who supports people taking the law into their own hands if it’s politically popular. But there are other laws besides immigration, and it won’t always be true that the people threatened have the wrong color skin or ethnicity.

Andrew Thomas is wrong on the law -- blatantly and dangerously wrong.

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