Simple changes complicate bill Use of words 'may' and 'shall' create issue in immigration measure

By Bobby Harrison/NEMS Daily Journal Jackson Bureau

JACKSON – Late on a Wednesday night in March, as the state House worked to meet a key deadline, Rep. Becky Currie, R-Brookhaven, offered a simple amendment to replace the word “may” with “shall” in three separate places in a bill aimed at combating undocumented immigration to Mississippi.
Judiciary B Chair Andy Gipson, R-Braxton, stood on the House floor to tell fellow members he did not oppose Curry’s amendment that went on to pass 64-54, with Gipson voting for it. As chair of the Judiciary Committee that produced the legislation, if Gipson had raised opposition it would have diminished the amendment’s chance of passing.
But the passage of the amendment changing “may” to “shall” in three paragraphs in an 18-page bill ensured that the local law enforcement community would oppose the legislation. That opposition, combined with opposition from business and agriculture groups, eventually led to the defeat of the immigration legislation in the Senate.
Last week, Gipson – looking to try again during the 2013 session to pass legislation to curb undocumented immigration to the state – held a hearing on the issue. During the hearing, he confirmed that because of conversations with law enforcement groups, the bill – before Currie’s amendment – had said that law officers may check the immigration status when making an arrest instead of “shall” check.
Ken Winter, executive director of the Mississippi Association of Chiefs of Police, a University of Mississippi instructor and former Indianola police chief, said Gov. Phil Bryant also had signed off on using the word “may” instead of “shall.”
Winter said the word “may” was important because “law enforcement needs to maintain a certain degree of discretion because of so many different scenarios they will be faced with.” What would law enforcement do if it stopped a car with multiple passengers – some undocumented, some small children?
While local law enforcement leaders also are concerned about the costs to their agencies of enforcing the legislation, they say using “may” instead of “shall” alleviates many of their worries.
But if the word “may” is used, does the legislation make any significant changes to what local law enforcement already is doing?
Yes and no, Winter said.
Earlier this summer, the U.S. Supreme Court struck down most of the Arizona law that was the first effort by a state to deal with the controversial issue of immigration. The Supreme Court ruled that the enforcement of immigration law was the responsibility of federal, not state, officials. States, for instance, could not levy their own penalties on undocumented immigrants.
But the Court did not throw out “the papers, please” provision of the Arizona law requiring law enforcement to check immigration status of someone suspected of being in the country improperly when making an arrest or a stop. But the Court did say that it might look at that provision later on when it was being enforced to ensure that the local law officers were not violating anyone’s constitutional rights in carrying out that provision.
Pepper Crutcher, a Jackson attorney who works on immigration issues, explained the Court said a law officer had permission “to stop someone long enough to check” on immigration status. “The question is how long is too long?” Crutcher predicted that “how long is too long” will be decided by future litigation.
Gipson was quick to point out his legislation dealt with law enforcement checking immigration status only when making an arrest – not during a stop or a detention.
Winter and other law officers said when making an arrest, if a person does not have some type of identification or if they believe the person might be an undocumented immigrant, they already check for immigration status.
Winter said during his 35 years in law enforcement he found that when an undocumented immigrant is detained, that sometimes the federal Immigration and Customs Enforcement Agency sends someone to pick up the foreigner – but often, if the person has not committed a serious offense, federal officials say they are not interested.
When dealing with an estimated 11 million undocumented immigrants, ICE officials have said they cannot address every issue.
Law officers question what would happen under the Mississippi law if it says they “shall” check for immigration status, but ICE officials said they were not going to pick up the person.
Would local law enforcement have to hold the person indefinitely?
Gipson indicated that the simple words “shall” or “may” might need to be revisited in the bill that is introduced during the 2013 session.

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