Request for info from LEO about daylaborers

[Jim Diver]

How does your city address day laborers loitering outside your Lowes or HD stores? Had any success getting rid of them?

I am currently in discussion with a local LEO commander who says there is little they can do to address illegal activities related to day laborer solicitation, such as littering, drinking in public, urinating, and drug use/sales.

He also says that it is unlawful for police officers to detain and interview persons about their immigration status. True?

Thanks for your time.

 

[Pilgrim]

There is a section in the CA penal code near the one on trespassing that deals with people blocking store entrances and/or intimidating customers so the customers don't want to shop at the store.

We used to use it to disperse juveniles who congregated around business entrances with no intention of shopping or patronizing the business.

Here we go:

602.1. (a) Any person who intentionally interferes with any lawful
business or occupation carried on by the owner or agent of a business
establishment open to the public, by obstructing or intimidating
those attempting to carry on business, or their customers, and who
refuses to leave the premises of the business establishment after
being requested to leave by the owner or the owner's agent, or by a
peace officer acting at the request of the owner or owner's agent, is
guilty of a misdemeanor, punishable by imprisonment in a county jail
for up to 90 days, or by a fine of up to four hundred dollars
($400), or by both that imprisonment and fine.
(b) Any person who intentionally interferes with any lawful
business carried on by the employees of a public agency open to the
public, by obstructing or intimidating those attempting to carry on
business, or those persons there to transact business with the public
agency, and who refuses to leave the premises of the public agency
after being requested to leave by the office manager or a supervisor
of the public agency, or by a peace officer acting at the request of
the office manager or a supervisor of the public agency, is guilty of
a misdemeanor, punishable by imprisonment in a county jail for up to
90 days, or by a fine of up to four hundred dollars ($400), or by
both that imprisonment and fine.
(c) This section shall not apply to any of the following persons:

(1) Any person engaged in lawful labor union activities that are
permitted to be carried out on the property by state or federal law.

(2) Any person on the premises who is engaging in activities
protected by the California Constitution or the United States
Constitution.
(d) Nothing in this section shall be deemed to supersede the
application of any other law.

 

[Aguila Blanca]

Not LEO ... but it probably IS illegal to just pick somebody off the curb and ask to see his ID or green card. No probable cause, no "reasonable suspicion" of a crime about to be committed.

Of course, in reality a crime IS about to be committed, but a non-violent one. I guess those don't count with liberal judges.

Better approach is to wait until some guy in a crew cab truck picks up a few of them. Follow the truck to the work site, then ask the boss to see documentation proving his employees are legal. Not sure, but I think that would pass muster.

 

[Control Group]

Not LEO ... but it probably IS illegal to just pick somebody off the curb and ask to see his ID or green card.

Boy, I hope it is. I shouldn't need ID to walk down the street.

 

[Jim Diver]

(c) This section shall not apply to any of the following persons:

That part throws that section out for enforcement as, according to the commander, that soliciting for work is constitutionaly protected...

Seems there is nothing they are willing to do.

 

[Standing Wolf]

...wait until some guy in a crew cab truck picks up a few of them. Follow the truck to the work site, then ask the boss to see documentation proving his employees are legal. Not sure, but I think that would pass muster.

Let me do some complicated mathematics now, eh? If we charged employers $10,000 per illegal alien, that'd add up to...? Well, to...? A lot, maybe?

 

[Pilgrim]

That part throws that section out for enforcement as, according to the commander, that soliciting for work is constitutionaly protected...

That is his learned legal opinion?

Is your business prepared to hire legal counsel to challenge his opinion?

Your other option is to play Minuteman and video tape record every person who solicits and hires these illegal immigrant day workers. Turn the license plate numbers over to Employment Development Department to ensure that every worker is covered by Workman's Compensation Insurance and Unemployment Insurance, and every worker has a W-4 filed and the appropriate payroll withholding is taking place.

Pilgrim

 

[Coronach]

Are they on public or private property? Every Lowes, HD, whatever that I have seen is set well back from the street with a large parking lot. If they are on that lot, they're on private property. Criminal Trespass would apply, I would think.

Mike

 

[Spreadfire Arms]

as a former LE officer from CA i can tell you that 602 PC (Trespassing) cannot be enforced without the property owner complaining about the trespass. that means, a police officer cannot detain or arrest someone, illegal or not, under 602 PC at a public place like Home Depot or a similar place.

this is the part of the law that states an officer must act on the specific authority of the owner:

"...who refuses to leave the premises of the business establishment after being requested to leave by the owner or the owner's agent, or by a peace officer acting at the request of the owner or owner's agent, is guilty of a misdemeanor,..."

since they are not breaking the law by just standing there unless the property owner complains, LE is powerless to detain them under 602 PC.

 

[Coronach]

Must it be the owner, or merely a representative? In Ohio it can be the owner or an agent (read: employee of the establishment).

Mike

 

[Coronach]

Perhaps I am looking at this from the wrong angle. I am assuming that LE is telling the guys from the store that they cannot do anything about the solicitors. Upon a reread, that's not necessarily what we're discussing. Jim Diver, what is the context of this?

Mike

 

[Spreadfire Arms]

yes it can be the owner's agent, but that person must have legal standing to issue such an order.

for example, if i was the responding LE officer at a grocery store, i'd expect the store manager to be the one to sign the complaint, not the cart boy.

i would expect the store manager to have legal standing to act as the owner's agent, but not simply any employee. if this went to court, i don't think the D.A. is going to file a Trespassing charge on a guy who didn't leave because the cart boy told him to vacate the premises and the store manager did not want to get involved, or even worse, was not even aware that the police were called to remove someone from the company's property.

 

[Coronach]

Same here. If the cart boy is the only guy at the store, he'll do. But if a manager is present, it should be him. However, upon a reread, it sounds like the cops are telling a 3rd party (correctly) that they cannot do anything about the persons loitering on the business' property. It's not the 3rd party's business.

Mike

 

[jefnvk]

Boy, I hope it is. I shouldn't need ID to walk down the street.

I was under the impression that foreigners needed to keep their ID's on them at any time. The foreign exchange kids that my friend roomed with seemed to think that.

OTOH, I think it would be hard to prove they wern't a citizen, if they didn't have ID, without locking them up to find out who they were.

 

[Control Group]

I was under the impression that foreigners needed to keep their ID's on them at any time. The foreign exchange kids that my friend roomed with seemed to think that.

I have no idea if that's the case, but I can certainly believe it is. The problem is how one would go about checking only non-citizens' IDs without effectively mandating IDs for everyone, which sort of makes that requirement useless. Not that I'd find it surprising for government to have unenforceable laws which have far more impact on law-abiding citizens than on the people they're purportedly targeting.

OTOH, I think it would be hard to prove they wern't a citizen, if they didn't have ID, without locking them up to find out who they were.

Exactly. If I'm not carrying ID, the police have no right whatsoever to take me in just in case I'm not a citizen.

 

[c_yeager]

I was under the impression that foreigners needed to keep their ID's on them at any time. The foreign exchange kids that my friend roomed with seemed to think that.

Kinda mute since A) not everyone doin daylabor is a foreigner, and B) How do you know someone isnt a citizen if they dont have thier ID? So we start bringing people without ID down to the police station for fingerprinting?

 

[ahenry]

I have no idea if that's the case [whether foreign nationals must carry immigration documents with them at all times], but I can certainly believe it is. The problem is how one would go about checking only non-citizens' IDs without effectively mandating IDs for everyone, which sort of makes that requirement useless.

Any law enforcement officer can walk up to anybody and ask them a question. It’s called a conversation. Detaining the individual in order to question them is a different matter and would require a certain level of suspicion. I would guess that various jurisdictions have varying requirements on what level of suspicion officers must have in order to question an individual.

Exactly. If I'm not carrying ID, the police have no right whatsoever to take me in just in case I'm not a citizen.

I think I know what you’re trying to say; that the police have no right to arrest a citizen because he isn’t carrying ID. I agree with that. However, the police do have the right to arrest a non-citizen who is not carrying any immigration documents, because the alien is in fact, breaking the law.

 

[BeLikeTrey]

anybody think that this was let to go on for so long

That the outcry would be so great against it that we give up yet more of our freedoms to resolve the immigration process? such as a mandatory "Papers please" check or something else instituted thats even worse? This could have been resolved long ago and generated some stout funds for the government by penalizing companies -big time. Ever seen a government give up a chance to tax or collect revenue? Me neither. They aren't dumb enough to have missed the idea, so I wonder if something is in the pipes about to come out...

 

[Control Group]

Any law enforcement officer can walk up to anybody and ask them a question. It’s called a conversation. Detaining the individual in order to question them is a different matter and would require a certain level of suspicion. I would guess that various jurisdictions have varying requirements on what level of suspicion officers must have in order to question an individual.

The question, though, isn't whether the police can ask me for ID, it's whether I have to provide it upon request. IMHO, the answer should be no unless they've got probable cause/reasonable suspicion. The police, just like everyone else, can come up to me at any time and ask to see ID. But the police, just like everyone else, will have to be satisfied when I say "no."

I think I know what you’re trying to say; that the police have no right to arrest a citizen because he isn’t carrying ID. I agree with that. However, the police do have the right to arrest a non-citizen who is not carrying any immigration documents, because the alien is in fact, breaking the law.

Right on both counts. That's exactly what I'm saying, and yes, the police have the right to arrest a non-citizen for not carrying ID. The problem is that when a cop stops me, and I don't present ID, he has no way of knowing whether or not I'm a non-citizen he has the right to arrest. The only way for him to find out is to, in fact, arrest me.

The point is, if we're going to have officers, as policy, arrest illegal aliens who don't present ID, the situation where I get stopped can only go one of 2 ways:

1) I present my ID, prove I'm a citizen, and everything's fine.
2) I don't present my ID, and I get arrested until they can prove I'm a citizen.

You'll notice that my two options here are either present my ID or be arrested. This, then, amounts to a de facto requirement that I carry ID with me at all times, and present it upon request from an officer.

 

[Aguila Blanca]

Any law enforcement officer can walk up to anybody and ask them a question. It’s called a conversation. Detaining the individual in order to question them is a different matter and would require a certain level of suspicion. I would guess that various jurisdictions have varying requirements on what level of suspicion officers must have in order to question an individual.

Not quite.

An officer can indeed walk up and ask a question. And a person can decline to answer, and in fact can decline to even wait for the question to be asked.

Unless the interaction is a Terry stop, and the Supreme Court has established the requirements which must be satisfied in order for an officer to conduct a Terry stop. The officer need not have probable cause, but he must have a reasonable suspicion "based on articulable facts" that a crime has been committed, is being committed, or is about to be committed. Since discrimination on the basis of race or color is illegal, I don't think that "He looks like a Mex" would be sufficient to be an "articulable fact" giving rise to a right to interrogate someone who is just standing on a sidewalk, not bothering anybody.

These requirements don't vary by jurisdiction, because they have been established through U.S. Supreme Court decree. Individual officers or jurisdictions depart from these guidelines at their peril.

 

[ahenry]

Control Group,
You’ll notice that I very intentionally left out any mention of whether or not you had to provide any ID. The point I made is that any officer can ask you a question. Period.

The problem is that when a cop stops me, and I don't present ID, he has no way of knowing whether or not I'm a non-citizen he has the right to arrest. The only way for him to find out is to, in fact, arrest me.

That isn’t necessarily true. Skillful questioning can determine a lot of things, including whether or not a person is an illegal alien. The right sort of questions can at least provide an officer with the required level of suspicion so that he can then detain the individual for more in depth questions. Let me give a brief (and albeit poor) example. Suppose I ask you what the colors of the United States flag are. You and every other American citizen will say, “red, white, and blue”. Somebody who has just been coached about these things might say, “blue, red, and white” or they might omit the word “and”, etc. I’m not suggesting that how a person answers such a simple question gives an officer the right to arrest anybody. I’m only illustrating how a smart individual can establish the required level of suspicion.




Hawkmoon,

Since discrimination on the basis of race or color is illegal, I don't think that "He looks like a Mex" would be sufficient to be an "articulable fact" giving rise to a right to interrogate someone who is just standing on a sidewalk, not bothering anybody.

No, but demeanor, clothing, knowledge of English, actions and attitudes once you ask him a question, etc are facts you can articulate.

These requirements don't vary by jurisdiction, because they have been established through U.S. Supreme Court decree. Individual officers or jurisdictions depart from these guidelines at their peril.

Individual jurisdictions can always be more restrictive of their officers. As I said, I’m not a police officer, but knowing how things work, I wouldn’t be surprised to know that certain locations require higher levels of suspicion in order to question an individual. Agency/departmental policy is always more restrictive than the law.

 

[Coronach]

I'm still waiting to hear the explaination from the thread starter...

As to the rest-

1. State and local officials (read: cops) do not have the authority to arrest or detain based upon suspected (or known) illegal-alien status. That is a federal offense, and the state and local cops have no authority to enforce that law.

What they can and often do is this: they get an arrestable offense on the individual (often driving without a license), throw the person in the clink, and then immediately notify the INS (or whatever it is called now. Same phone number.), that they have captured and hand-delivered to jail one individual who is in violation of imigration law. All they have to do is come and pick him up, we have done all of the hard work- we found him, we caught him, just come get him. INS will then drop the ball and do nothing, allowing the person to post bond and promptly disappear into the woodwork.

2. Unless there is a suspicion of criminal activity that can be enforced by the state/local cops, and local must-ID statutory and case law will determine how much of a suspicion is required, there is no requirement to provide ID to the LEOs. And even if they did, the fact that they have a Guadalajara Driver's License doesn't mean diddly unless they're driving. In the USA there is no requirement to obtain or carry an ID card. This is moot anyway, see #1.

3. So, prove that Juan Valdez is illegal. "Uh...he's brown?" Well, there are lots of brown Americans. Next? "Uh...he has a Spanish name?" I have a coworked named Filipe Vasquez. Phil's a citizen. Next? "He only speaks Spanish?" There is no official language in the USA. He doesn't have to speak English. "Uh...I can't?" That's right. Absent a requirement for a US ID card (remember, state and local agencies cannot require a person to provide their SSN), there is zero way to prove that a given person is not a US citizen. Which is moot anyway, because of #1.

It sounds like Mr. Diver is upset at the local businesses for allowing the day laborers to congregate on their property. I'm guessing that if Lowes, etc, wanted the problem to go away, it could be dealt with. They don't, it can't be.

Mike

 

[Control Group]

You’ll notice that I very intentionally left out any mention of whether or not you had to provide any ID. The point I made is that any officer can ask you a question. Period.

Point taken; you didn't say I had to provide ID.

But you're still placing responsibility to prove legitimacy on the citizen. In your example, I now have the duty to know not only the colors of the US flag, but the common fashion in which they're listed. While every American citizen will almost certainly know this, the point is that they should not be required to prove their citizenship, period. Either by showing ID or by passing a pop quiz the officer gives them.

The right sort of questions can at least provide an officer with the required level of suspicion so that he can then detain the individual for more in depth questions.

We now reach the same point we were at earlier, just without a physical form of ID. When the officer stops me and asks me the colors of the American flag, the situation can only go one of two ways:

1) I recite the colors correctly, thereby demonstrating that I'm a citizen, and everything's fine.
2) I do not answer the officer, or answer incorrectly, and I am detained until the officer is satisfied that I'm a citizen.

Once again, this is a de facto requirement that I, as a citizen, am required to prove to the officer that I'm a citizen. Whether it's actually requiring a card as proof of ID, or requiring that I pass a quiz the officer gives me, it's still putting the burden on the citizen to prove he's innocent of a crime.

This is an inversion of the basis of our legal system.

 

[ahenry]

Coronach,

1. State and local officials (read: cops) do not have the authority to arrest or detain based upon suspected (or known) illegal-alien status. That is a federal offense, and the state and local cops have no authority to enforce that law.

If I’m not mistaken, smoking pot is also a federal offense…

"He only speaks Spanish?" There is no official language in the USA. He doesn't have to speak English.

If he wasn’t born a USC, and didn’t derive his citizenship from his parents, skillful questioning can determine this, then yes there is a requirement to speak and know English.

 

[ahenry]

Control Group,

When the officer stops me and asks me the colors of the American flag, the situation can only go one of two ways:
…I do not answer the officer, or answer incorrectly, and I am detained until the officer is satisfied that I'm a citizen. Once again, this is a de facto requirement that I, as a citizen, am required to prove to the officer that I'm a citizen….This is an inversion of the basis of our legal system.

This is no different than what cops do all the time. They see some suspicious activity, stop to question some individuals, and based on what the individual says, proceed from there. I’d wager that the majority of the time, the person being questioned doesn’t even know that is what is going on. There is nothing wrong with a cop stopping to ask an individual questions. We’ve already established that the individual doesn’t necessarily have to answer those questions. If he chooses to answer those questions, and by so doing, incriminates himself, then it’s his bad. I don’t see the problem here. It is, in essence, what police work is all about.