Thankfully, Ray McEdward of Madera provides a shining example that being able to read does not a lawyer make.

Earlier this month, I wrote about Arizona’s law ostensibly aimed at indocumentados, the less-offensive term for people in the United States without papers, or the legal right to be here.  Since then, a number of people have stopped by to misunderstand the post and drop their own asinine comments.  Some of them are just stupid; others are bigots.

No, that’s not necessarily redundant.  The categories frequently overlap, but being a citizen of the State of Stupid does not bestow automatic dual-citizenship rights in the Republic of Bigotry.  Or vice versa.

Nor have I ever claimed that wishing to do something about people present in the United States without proper authority makes one a member of either group.  A person can believe in immigration laws and wish to see them enforced without being stupid, without being a bigot.  It’s just that overlap thing again.

And I think McEdward’s letter provides a perfect example of how and why discussions on this issue have been problematic.

I don’t know McEdward.  Never met him.  Don’t know if I’d like or dislike him if I ever did meet him.  So I’m not saying he’s part of any of the groups I’ve discussed above.

Although I strongly suspect he’s not an indocumentado.

What I do know about McEdward is that he wrote a Letter to the Editor of the Fresno Bee, which was published today.  The letter appears to berate those who have criticized Arizona’s law by pointing out — incorrectly — that California has a similar law on the books.

With all the attention being focused on Arizona and its recent legislation, I wonder how many Californians are aware of section 834(b) [sic] of the California penal Code. (Ray McEdward, “Violating California law?” in Letters to the Editor (May 28, 2010) The Fresno Bee, B4, col. 5.)

Not to make too much of it, but there being no such section, I think Mr. McEdward is referring to California Penal Code section 834b.  This is not an uncommon mistake, though: I not infrequently demur to Complaints filed in criminal court by prosecutors who can’t read, either.  And prosecutors are allegedly real attorneys.

Less forgivable, however, is the failure to understand the text of 834b, and then to write as if the section states something which it clearly does not.  Subsection (a) of Penal Code section 834b, for example, clearly delimits the scope of the entire “lengthy” code section:

Every law enforcement agency in California shall fully cooperate with the United States Immigration and Naturalization Service regarding any person who is arrested if he or she is suspected of being present in the United States in violation of federal immigration laws.

Here — at least as to interpreting McEdward’s letter — things get a little dicey.  He appears to believe that “mayors and council members of California’s ‘Sanctuary Cities’ are in violation of the Penal Code.”  He doesn’t explain why, but based on a reading of the entire letter, it appears that it’s because they’ve criticized Arizona.

I think.

As I said, it’s not at all clear.  I’m going to invoke the Gricean Maxim of Relation in conversational implicature to assume he thinks there’s a connection between his reference to Arizona, to section 834b, and to the alleged malfeasance of mayors and council members of California’s “Sanctuary Cities.”  From that, I gather that he either thinks that by criticizing Arizona, the mayors are breaking the law, or, at the very least, that he is saying — in some unexplained way which makes the Arizona reference merely superfluous — that they are breaking the law.

Hopefully, he is merely exercising his own right to free speech and not giving out legal advice to mayors, council members, or those he hopes will act to file charges against them.  Besides the latter being illegal if he’s not a lawyer, he’s just wrong.

As a practicing lawyer in Fresno, Tulare, Kings and sometimes even Madera counties, I can assure you that California’s law enforcement agencies cooperate just fine with the United States Immigration and Naturalization Service.  In fact, if you want to see just how quickly they’ll arrange deportation, tell them that a critical defense witness is an indocumentado.

Again, given the ambiguities of McEdward’s letter, it’s not clear, but — if the reference to Arizona in his letter means anything — I think the part he misses involves at least one critical distinction between the California law and the Arizona law.

California’s law requires that law enforcement cooperate with Immigration and Naturalization regarding people who have been arrested if the arrested person is suspected of being present in the United States in violation of immigration laws.  The Arizona law, as originally written, required police to determine immigration status based on “reasonable suspicion during any lawful contact.”  A “lawful contact” would include — as one Phoenix, Arizona police officer who sued the State argued — ordinary encounters on the street between police and others.  The Arizona law has since been modified.

In any event, I strongly suspect that McEdward might have been trying to be funny.  It’s hard to believe that he really thought “mayors and council members of California’s ‘Sanctuary Cities’” were engaged in “[a]ny legislative, administrative, or other action…to prevent or limit the cooperation required by subdivision (a)” of California’s Penal Code by criticizing, or even by sanctioning Arizona through breaking off economic ties (e.g., by not engaging in business with them).

First of all, Arizona is not the U.S. Immigration and Naturalization Service.  Secondly, “mayors and council members” are not “law enforcement agencies.”  Thirdly, the requirements of Arizona’s law are different enough from what California’s Penal Code § 834b requires that even if “mayors and council members” were “law enforcement agencies,” their acts are not violative of 834b’s prohibition.  Neither passing resolutions, nor even performing specific acts, to cut financial ties with Arizona are acts which prevent or limit law enforcement — either in California or Arizona — from cooperating with the Immigration and Naturalization Department (which, incidentally, no longer exists).

The biggest problem of all, though, is not McEdward’s misunderstanding.  After all, presumably, he is a “mere” ciudadano who is also apparently not an attorney.  The bigger problem is that too many of our lawmakers similarly lack any knowledge or understanding of law, which is one reason we’re having so much trouble coming up with laws that effectively address the issues with which we are concerned.

But, hey, if anyone can remove an appendix, who needs doctors?  If anyone can understand laws and legal issues, why should we care if our leaders have any training in, or even any rudimentary knowledge of, law?

I recently ran across one of the small things in this passage from Sinclair Lewis’s It Can’t Happen Here:

“Remember our war hysteria, when we called sauerkraut ‘Liberty cabbage’ and somebody actually proposed calling German measles ‘Liberty measles’?”  (Sinclair Lewis, It Can’t Happen Here (2005 ed.) p. 17, originally published in 1935.)

Can I interest you in some “freedom fries”? 

There’s a situation that’s been brewing for quite some time in Maricopa County, Arizona.  Although more than one of my friends have blogged about it, including Scott Greenfield (criminal defense attorney in New York, New York), Brian Tannebaum (criminal defense attorney in Miami, Florida) and, particularly, Mark Bennett (criminal defense attorney in Houston, Texas), I’ve found myself wanting to delve a little deeper before tossing my hat into the ring.

Aside from my usual tendency to over-prepare for things, I think the reason is because early on I saw the connection between this and my beliefs about how police states are born.  (Some) People I’ve talked to about this scoff, but I believe we’re living in a nascent — maybe “prenatal” — police state in America right now.

And I wanted to dig into this a little more; not just to discuss Maricopa.  I wanted to show exactly why Maricopa and Chief Arpaio are so scary. 

Police states, as I’ve said before, don’t spring into existence fully-formed, as Athena did from the forehead of Zeus. 

First, there is the beginning of a gradual, even imperceptible, erosion of “the rule of law.”  After all, if the rule of law remains in place, the police state — which is a major tool for “the rule of man” — cannot come into existence.  The erosion of the rule of law prepares the ground for the police state.  If I were to stick to the allusion I made above of pre-natalism, I’d say ”the erosion of the rule of law prepares the womb for the birth of a police state.” 

Seen in this light, Maricopa is just another step in the transformation from the rule of law to the rule of man.  It is a demonstration of fertility.

Once started down the path — once fertilization occurs – a symbiosis develops.  The erosion of the rule of law is accentuated by the nascency — the beginnings — of the police state. 

By the time the average person recognizes that a police state exists, it is too late.  The police state has grown up enough to survive outside the womb.  The rule of law is gone.

People don’t think about this much.  Perhaps it’s because the so-called Godwin’s Law teaches that the minute you start to compare something or someone to Hitler and the Nazis, you’ve lost your argument.  That’s usually — perhaps nearly always — true.  But it cannot be always true because if it were, that would mean that there never can be anything that can compare in any way, shape, or form, to Hitler and the Nazis. 

To believe that is not only stupid, it is the most surefire way to ensure that another Hitler, another Nazi Party, another repressive regime will “surprise” us.  By refusing to consider how free democratic republics — such as pre-Nazi Germany was — turn into fascist dictatorships, we leave ourselves wide open to them.  It’s like ignoring the obviously gravid woman and being surprised when her child is born.  What?  Did you think she was just fat? 

The rule of law began taking hits almost from the time the Founders of the United States initially embraced it.  The desire to control others, which is a necessary (but not sufficient) precursor to fascism, is not at all an abnormal desire.  I’m not immune from it, however much I’d like to think I am, and neither are you.

Nor is the push to control always wrong.  Nobody — and that includes me — wants to live in a completely anarchic society.  No one — and that includes me — wants to see those who murder, rape, steal, or otherwise harm society freely roaming the streets, plying their illicit “trades.” 

Unfortunately, it is here, where we are weakest and most emotional, that the Joe Arpaios of the world find purchase on our souls. 

On a day in late October, suddenly striking in every city and village and back-hill hide-out, the Corpos ended all crime in America forever, so titanic a feat that it was mentioned in the London Times.  Seventy thousand selected Minute Men, working in combination with town and state police officers, all under the chiefs of the government secret service, arrested every known or faintly suspected criminal in the country.  They were tried under court-martial procedure; one in ten was shot immediately, four in ten were given prison sentences, three in ten released as innocent…and two in ten taken in the M.M.’s as inspectors.

There were protests that at least six in ten had been innocent, but this was adequately answered by [President of the United States] Windrip’s courageous statement: “The way to stop crime is to stop it!”

The next day, Medary Cole crowed at Doremus, “Sometimes I’ve felt like criticizing certain features of Corpo policy, but did you see what the Chief [as they called the President] did to the gangsters and racketeers? Wonderful! I’ve told you right along what this country’s needed is a firm hand like Windrip’s.  No shilly-shallying about that fellow!  He saw that the way to stop crime was to just go out adn stop it!”  (Sinclair Lewis, It Can’t Happen Here (2005 ed.) pp. 206-207, originally published in 1935.)

With this — the illegal acts which “ended all crime in America forever” — the fascist President Windrip of Sinclair Lewis’s It Can’t Happen Here temporarily beat down the concerns of ordinary Americans for what fascist tendencies he had already exhibited.  Maricopa County residents — including, amazingly and shockingly, an attorney — approve of Arpaio’s actions and seem unperturbed by what they actually signify.  Arizonans — not just those living in Maricopa County — are similarly pleased with Sheriff Arpaio for his attitude toward “criminals.”  Nor is Arpaio himself apologetic for his obvious abuses of power. 

Nevermind that Arpaio’s tactics have brought widespread criticism from Jewish groups such as the Anti-Defamation League and the American Jewish Committee (who well-recognize what happens when fascism goes unanswered), as well as the Arizona Ecumenical Council (a Christian group of churches) and the much-reviled protector of civil liberties, the ACLU.

This is how police states are born!  These Arizonans and all who share their opinion about Arpaio are why it can happen here!  As Doremus Jessup, the “hero” of Sinclair Lewis’s book noted:

“The tyranny of this dictatorship isn’t primarily the fault of Big Business, nor of the demagogues who do their dirty work.  It’s the fault of Doremus Jessup!  Of all the conscientious, respectable, lazy-minded Doremus Jessups who have let the demagogues wriggle in, without fierce enough protest.

“A few months ago I thought the slaughter of the Civil War, and the agitation of the violent Abolitionists who helped bring it on, were evil.  But possibly they had to be violent, because easy-going citizens like me couldn’t be stirred up otherwise.  If our grandfathers had had the alertness and courage to see the evils of slavery and of a government conducted by gentlemen for gentlemen only, there wouldn’t have been any need of agitators and war and blood.

“It’s my sort, the Responsible Citizens who’ve felt ourselves superior because we’ve been well-to-do and what we thought was ‘educated,’ who brought on the Civil War, the French Revolution, and now the Fascist Dictatorship.  It’s I who murdered Rabbi de Verez.  It’s I who persecuted the Jews and the Negroes.  I can blame no Aras Dilley, no Shad Ledue, no Buzz Windrip, but only my own timid soul and drowsy mind.  Forgive, O Lord!” 

(Sinclair Lewis, It Can’t Happen Here (2005 ed.) p. 186, originally published in 1935.)

Hopefully, Maricopa County will turn out to be just another Beer Hall Putsch.  But this does not mean we do not need to be concerned.  Hitler’s push, after all, did not end with the putsch.

That was just the beginning.

It can happen here.