Questions and Answers re. HB 87
Sent: Thursday, May 05, 2011 11:58 AM
Subject: RE: [GIRRC] HB 87 Summary
A few good questions about the summary have been posed to me that I think expose some holes in the law and that maybe some of you could answer. I hate to bother Chuck directly.
1. Why do you say that the increased penalties for working with a fake social may be “illegal”?
[Charles H. Kuck] 15 years for a document violation is grossly out of proportion with similar laws. Consequently, for the crime, it may constitute cruel and unusual punishment as that term is referenced in the 8th Amendment. That Amendment does not just refer to death penalty cases, but to all crimes for which the punishment is out of proportion with the offense itself. While wide leeway is typically given the legislative branch on the punishment for crimes, it is not an absolute power, and our founding fathers were sensitive to the horrendous punishments given for minor offenses under the British crown.
2. How can you be sure that a criminal defense attorney (or anyone else for that matter) transporting a witness to court is covered within the meaning of “transports…to a judicial proceeding…when that person is required to appear pursuant to a subpoena…” when so often we bring witnesses first and get subpoenas later, if at all? Who is to say what witnesses are “required” for a particular hearing?
[Charles H. Kuck] We CANNOT be sure that the criminal defense attorney, or anyone for that matter is protected under this exception. It is extremely poorly drafted, and thus likely to be misconstrued, and certainly challenged should it remain the law of Georgia.
3. What are “privately funded social services” or organizations and why do you say that churches are not included?
[Charles H. Kuck] The term is not defined by the legislature, nor is it defined anywhere else under any set of laws. Social services typically means organizations such as those defined under a 501(c)(6) type of IRS definition, such as the Latin American Association. Churches are clearly defined as such under state and federal law. IF the legislature had MEANT Churches they would have said churches, and thus by NOT specifically including them, they specifically excluded. The legislature and the sponsor of this bill clearly misrepresented what was included in it as it pertained to the exceptions, and they did so knowing that most legislators would NOT read the bill before voting on it.
4. You say that during a traffic stop, if you cannot produce an approved document such as a license, you WILL be taken to jail to verify your Citizenship through fingerprints. Is that for everyone or only if the officer has reason to believe that you are a non-citizen?
[Charles H. Kuck] BY NOT producing the REQUIRED documents, the officer has two choices, bring you in and verify your immigration status, OR let you go. Suppose you are the officer and a white guy is driving without his wallet. He has an American accent, “appears” to you to be an “American.” Do you bring him to the stationhouse and verify his immigration status or let him go? Okay, suppose the person is Latino with heavily accented English. What do you do? Now, take into consideration the other parts of HB 87 and SB 529 that talk about the prohibition on Sanctuary policies, and on the new Immigration Enforcement Review Board, otherwise known as the “Immigration Watchers.” If you are an officer and do NOT want to be charged with supporting an sanctuary policy or practice, you will bring EVERYONE in to check their immigration status. If you don’t bring anyone in, you have a de facto sanctuary policy as that term is defined in HB 87 and SB 529, AND if you bring only Latinos/Immigrants in, you are violating the Equal Protection clause and clearly profiling. I would NOT want to be a police officer faced with this prospect.
In other words, if I refuse to provide my license, will I be taken to jail for certain?
[Charles H. Kuck] See above.
Or is the transporting to jail for fingerprinting discretionary?
[Charles H. Kuck] Discretionary, but see above.
And if so, is that when the racial profiling kicks in almost by definition
[Charles H. Kuck] See above.
5. Can an officer come up to you on the sidewalk, having observed no criminal violation, and demand to see proof on your legal presence under this law?
[Charles H. Kuck] No. Not unless he has cause of some kind. This might be what is referred to as a Terry Stop, but the bottom line is that we are allowed, if we are not in the course of any criminal activity, to walk away from the police if we want.
Of course, I know we are free to say nothing and walk away, risking an illegal arrest.