We do believe the ruling is primarily a win for the state of Utah and our HB497. —Utah Attorney General Mark Shurtleff
SALT LAKE CITY — Utah police officers won't be asking suspected illegal immigrants for identification, at least for now, as a result of the U.S. Supreme Court's ruling on a controversial Arizona law.
But Utah Attorney General Mark Shurtleff expects a federal judge to ultimately allow it based on the high court's decision issued Monday.
"We do believe the ruling is primarily a win for the state of Utah and our HB497," he said. "We believe that because our law is substantially different, our verification provision will go forward."
On Monday, the Supreme Court struck down key provisions of Arizona's crackdown on immigrants but said a much-debated portion on checking suspects' status could go forward.
Specifically, the court backed a section of the Arizona law that calls for police to check the immigration status of people they stop. But it also said the state cannot make it a misdemeanor for immigrants to fail to carry identification that says whether they are in the United States legally; it cannot make it a crime for undocumented immigrations to apply for a job; and officers cannot arrest someone based solely on the suspicion that the person is in this country illegally.
Also emerging from the ruling was Justice Anthony Kennedy's opinion that being in the United States without documentation is not a crime.
Earlier this year in Utah, U.S. District Judge Clark Waddoups issued a temporary restraining order against HB497 pending "additional guidance" from the nation's high court. The judge said he would reserve ruling on a motion for preliminary injunction filed by civil rights organizations and the Department of Justice. That injunction would bar enforcement of the law pending the outcome of the lawsuit.
Though Shurtleff says Waddoups now has that guidance, the American Civil Liberties Union of Utah said the direction of the ruling is not assured.
"I don't think it's that straight forward," said Karen McCreary, ACLU of Utah executive director, noting the Supreme Court decision in the Arizona case did not address racial profiling.
"I do believe ultimately this will be struck down at the Supreme Court or somewhere else because I don't think a 'show me your papers' provision in real life can be administered without racially profiling people."
HB497, approved by the 2011 Legislature, requires police to verify the immigration status of people arrested for felonies and class A misdemeanors as well as those booked into jail on class B and class C misdemeanors. It also says officers may attempt to verify the status of someone detained for class B and class C misdemeanors.
McCreary said the Supreme Court's decision amounts to a "stop light" on three provisions and "blinking red light" on the fourth.
"If I were law enforcement, I would take note," said Marina Lowe, ACLU legislative and policy director. "The Supreme Court is sort of sending a message that you do need to be careful. Perhaps this does open the door for lawsuits against law enforcement on the basis of racial profiling if they choose to go forward with this type of a law."
Gov. Gary Herbert, who signed HB497 into law in 2011, said Monday's ruling acknowledges that the state has a role to play in identifying people who are within its borders illegally.
"The Supreme Court has validated this portion of the Arizona law and by doing so has validated the core part of Utah's HB497 passed in 2011," he said in a statement.
Shurtleff said he hopes Waddoups' decision in the Utah case comes sooner than later. "Law enforcement needs to know what their job is," he said.
The attorney general said he disagrees with some in the Latino community who said the court has allowed racial profiling.
"I hope that they don't continue to inflame the public in that regard because it's not what it's saying," Shurtleff said. "I do believe the message to Hispanics, in particular in states that allow this, is that they're going to be concerned, they're going to be stopped, they're going to be asked for their papers."
Utah and Arizona laws differ in the verification procedure. Arizona police are required to ask for documentation upon making a stop whether it be for a broken taillight or a DUI. In Utah, police would check status based only on a probable cause arrest for felonies or serious misdemeanors.
Shurtleff said the Supreme Court ruling "confirms that the Utah legislators did something different, that they really tried to avoid the major problems that were seen in the Arizona law that in fact were struck down."
Still, attorney and Latino community activist Mark Alvarez said undocumented immigrants in Utah have reason to worry.
"People who are driving are going to feel some anxiety, feel some fears, particularly going to Arizona. That's wrong. We live in an open society," he said.
The Rev. Steve Klemz, pastor of Zion Evangelical Lutheran Church, said the ruling leaves open racial profiling, which "sows the seeds of fear in the community. We cannot build community on fear. We cannot build community when racial profiling opens the way that a mother or father can be detained and possibly removed."
Even though the Supreme Court did not throw out the Arizona provision requiring police to check the immigration status of someone they suspect is in the United States illegally, the justices said the provision could be subject to additional legal challenges.
And Shurtleff anticipates that will be the case. "There's going to be much more litigation on this," he said.
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