Published on Concord Monitor

(http://www.concordmonitor.com/article/nh-to-arizona-been-there-done-that)

My Turn

Arnie Alpert

May 4, 2010

The ruling of a district court judge doesn't carry the legal weight of one from a higher court, but a five-year-old decision in the Jaffrey-Peterborough District Court in a controversial criminal trespass case caught the attention of the state's highest law enforcement officer, Attorney General Kelly Ayotte. Its implications resonate today in the wake of Arizona's passage of a law ordering the police to pursue and arrest undocumented immigrants.

The story began on April 15, 2005, on the side of a New Ipswich highway, where a Mexican immigrant pulled over to the side of the road to use his cell phone. The town's chief of police, who had already made a name for himself in anti-immigrant and right-wing circles, had the driver arrested for trespassing. Impressed with the New Ipswich precedent, Hudson's chief followed suit with several arrests there.

Civil rights activists immediately raised objections, arguing that one can't trespass on a public road and also that the state's trespass statute was never meant to be used to enforce federal immigration laws.

When the cases reached the district court, Judge Phillip Runyon agreed. Dismissing the charges in an Aug. 12 opinion, he wrote, "The criminal trespass charges against the defendants are unconstitutional attempts to regulate in the area of enforcement of immigration violations," an area in which the federal government "has been found to 'occupy the field.' "

Three days later, Ayotte sent a memo to all New Hampshire law enforcement officials.

"Having carefully examined the Court's decision and the relevant case law," Ayotte wrote, "this office has determined that there is an insufficient basis for appeal. Accordingly, New Hampshire law enforcement officials should not make future arrests for criminal trespassing based solely on the defendants' immigration status."

The story didn't end there. Before the end of the month several state legislators announced they would try to change the law. "We're going to, in essence, overrule the judge," said Rep. David Buhlman, one of several representatives who sponsored House Bill 1137 in the next year's legislative session. But that didn't fare well either.

The bill to make it possible for people to be arrested for criminal trespass if they remain "within the borders of this state" without legal authorization was considered by the Criminal Justice and Public Safety Committee, which voted 14 to 2 to recommend it be killed. The sponsors brought the issue to a floor debate, where it was soundly rejected, 225 to 105.

The same arguments will no doubt be raised again by opponents of the Arizona law, which is opposed by many members of that state's law enforcement, religious, and immigrant communities. President Obama, a former professor of constitutional law, has already indicated his administration will weigh in on the side of the law's challengers.

So far New Hampshire's response to the clamor about illegal immigration has combined compassion, common sense and respect for the Constitution.

We can hope Arizona and the rest of the country will follow our lead.

(Arnie Alpert is New Hampshire program coordinator for the American Friends Service Committee.)