Wednesday, April 28, 2010

"Reasonable" and the Law: Some Thoughts on Arizona's Immigration Bill

Any practicing lawyer (I make this qualification for a reason, to be addressed) knows well that the word "reasonable" is often used in the law, as a standard.  There's that "reasonable person" one always hears of, for example, in civil negligence cases.  "Reasonably acceptable" is a phrase one encounters in contracts.  Variants of "reasonable" appear often as well.  In contracts, consent to a particular act frequently is not to be "unreasonably withheld."  And, of course, there is constitutional prohibition of "unreasonable search and seizure."

Lawyers and courts have been dealing with "reasonable" and, for that matter, "unreasonable" as standards or requirements for quite some time.  There is a huge amount of case law dealing with what is or is not "reasonable" in given circumstances.  Sometimes, there is statutory language specifiying what is not reasonable which can be referred to by those enforcing and interpreting law.

I've been a practicing lawyer for what I must reluctantly admit to be a long time.  This makes it rather hard for me to understand what I believe to be the very unreasonable response of some to Arizona's recently adopted immigration law.  Some of the declaiming going on strikes me as almost hysterical.  Even my favorite editorial catoonist, Pat Oliphant, is indulging in comparison with the Nazis.

I think that all must admit that there is such a thing as illegal immigration.  There's even a federal law, mirable dictu. Also, there seems to be considerable evidence that there are a large number of illegal immigrants in our glorious republic.

The concern of the bill's opponents appears to arise from the fact that the law allows persons to be questioned or investigated if there is a "reasonable suspicion" that the law is being violated.  In fact, "reasonable suspicion" is already a basis on which a person may be stopped and questioned under the law.  Law enforcement may, under well established law, do all sorts of additional things once "probable cause" exists, and even "probable cause" that a law is being violated is something considerably different from absolute certainty that a law is being violated.  One has to wonder why an inference is being made that "reasonable suspicion" will, in practice, mean something dramatically different from what it already means.  As the law apparently expressly states that a person is not to be stopped, questioned or investigated based solely on his race or appearance (which, of course, tells us something about what is not "reasonable suspicion") one is even more inclined to wonder why such an inference is apparently being made.  If there is no such inference being made, one has to wonder just what the concern may be.

Concerns regarding the misuse of law by law enforcement are, to me, perfectly understandable and significant, and all should be done to prevent this kind of misconduct.  However, the exercise of judgment always takes place whenever a law is being enforced.  Sometimes, it's not properly exercised.  Sometimes, laws are misused.  Sometimes, law enforcement acts improperly.  But, there doesn't seem to be any credible reason, at this time, to think this particular law difers from others by allowing or encouraging the unreasonable exercise of judgment, misuse or misconduct.

So, miserable cynic that I am, I tend to think that the opponents of this Arizona law are not primarily motivated by any legitimate legal concerns.  If that's the case, I think they would be more honest--and honorable--if they simply took the position that immigration should not be illegal, or that the law which already exists and has existed for some time making immigration illegal should be significantly altered.

Many of our elected officials are lawyers.  I tend to think lawyers make bad politicians.  We're not good at representing, at the same time, the interests of large numbers of people.  Our training is in the representation of particular individuals or entities, as to particular disputes.  Generally, were not supposed to represent more than one party in a dispute, because of the obvious potential for conflict of interest.  That's a topic for a different day.

Many of our elected officials are lawyers who have not practiced law for any significant period of time, however.  They've gotten their law degree, but have done other things.  They've taught, perhaps, or became involved in politics just after got their degree, or worked in some non-legal capacity.  It's possible, I suppose, that a lawyer who has never practiced law or did so in some limited capacity is not aware of the fact that the law deals with such concepts as "reasonable suspicion" on a fairly regular basis.  So, I'm willing to cut those lawyers who may be conjuring visions of Nazis in these circumstances, as well as those opponents of this law who are not lawyers, some slack.  Not much, though.  If there are legitimate bases on which to oppose this law, I don't think any in politics or the media have raised them yet.


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