Colorado’s 4-year-old law designed to halt illegal immigration did not capture the legal scrutiny of Arizona’s controversial immigration measure because it limited the responsibilities of local law-enforcement officers.
The U.S. Department of Justice sued Arizona last week in federal court over Senate Bill 1070, which requires Arizona’s law enforcement officers to arrest and detain anyone they lawfully contact if they have a hunch or a “reasonable suspicion” the person is in the country illegally.
Under Colorado’s law, local law enforcement must only report people whom they have arrested — but not necessarily detained — for another crime to U.S. Immigration and Customs Enforcement if they have “probable cause” to think the person is in the country illegally.
That distinction likely kept Colorado out of court with the Justice Department because the law didn’t intrude on what federal authorities think is the job of its own agencies, said Richard B. Collins, a University of Colorado at Boulder law professor.
“A person arrested for some other offense who is probably an illegal alien should be reported to Immigration and Customs Enforcement. There is nothing about that that could be inconsistent with federal law,” Collins said.
“Whereas the legal claims against Arizona’s law being made by the Justice Department are that Arizona has no business making it a state crime in violation of the immigration laws,” he said. “That is the core issue in the federal lawsuit.”
Some critics of the Arizona law say the Justice Department suit centers around the issue of racial profiling, which is a political question, Collins said, but the lawsuit focuses only on whether federal law trumps state law on who enforces immigration laws.
“The core of the (Arizona) law is to make presence in the state without being legally present in the United States to be a state crime,” Collins said. “It is a vast difference from anything Colorado did.”
Regina Germain, adjunct professor at the University of Denver’s Sturm College of Law, said the federal government is concerned that all 50 states could try to pass their own immigration-enforcement laws.
“Colorado law is a reporting requirement more than anything,” she said. “The Arizona law is more of what the police and others within the state should do.”
Colorado’s law also has more restrictions on whom law enforcement reports to federal authorities. Police in Colorado are not required to report those arrested for domestic violence until after the person is convicted in court. Minor traffic infractions also don’t trigger a mandatory reporting requirement under Colorado law.
Felisa Cardona: 303-954-1219 or fcardona@denverpost.com
