On Monday, the ACLU announced a lawsuit challenging the Arizona illegal immigration law on the basis of the “prohibition on unreasonable seizures under the 14th and Fourth Amendments.”
The ACLU, however, might have a difficult time making that case. In 2005, the U.S. Supreme Court handed down a unanimous decision in Muehler v. Mena that questioning someone regarding their immigration status is not a violation of Fourth Amendment rights - provided that person is already lawfully detained.
In the wake of a drive-by shooting, Officer Muehler and other members of local law enforcement handcuffed and questioned Iris Mena in connection to the shooting. They did so while executing a search warrant for a safe house which she and members of West Side Locos gang would gather at, most of whom were illegal immigrants. Small wonder, then, that they asked if she was in the country illegally.
Muehler v Mena establishes that “officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status.”
Even though this was a gang-related case, “no additional Fourth Amendment justification for inquiring about Mena’s immigration status was required.” If that’s true in California, it’s true in Arizona. This is a strong precedent, with six justices from that unanimous decision remaining on the bench.
Certainly, Arizona law enforcement must take care not to be heavy handed, but the choice between heavy-handed local police action and wide open borders was forced upon the states by past administrations and congresses which punted on illegal immigration rather than do the hard work of governing.