Federal Law: Officers do not need reasonable suspicion to ask for immigration status. Under Arizona law, they do. Federal law allows race to be a factor…

Newsbusters:

KELLY: Not only did I read the law, but I actually read case law, U.S. Supreme Court history, and other interpretations of that law. And I have to tell you, this is the first time I’ve taken a seriously hard look at the claim that this is just like the federal law, and the claim that, you know, by the detractors that it’s actually discrimination or will lead to discrimination more so than the federal law. And my legal opinion is, it is a little bit like the federal law, but if anything, it’s less problematic. Did you know that the Supreme Court already ruled a few years ago that under federal law, cops can pull you over for no reason and demand to see your immigration papers? For no reason. They don’t have to have reasonable suspicion. 

O’REILLY: I didn’t know that. What case is that? 

KELLY: It was called Muller versus Menia back in 2005. It was a unanimous Supreme Court decision. 

O’REILLY: And what was the lawsuit about? 

KELLY: And that was about under what circumstances can a police officer stop you and ask you certain questions. And the court, this was written by then-Chief Justice Rehnquist who said in that case, hold on, let me get it because it’s here in front of me some place. He said the officers did not need reasonable suspicion to ask Menia for her name, date, and place of birth, or immigration status. The cops do not need reasonable suspicion to ask you about immigration status.O’REILLY: What was the- 

KELLY: Under Arizona law, they do. They do. 

O’REILLY: Yes- 

KELLY: It’s tougher. Arizona’s tougher. 

O’REILLY: What was the reasoning by Rehnquist and the other eight justices that the police can ask you that? 

KELLY: Because they went through sort of the standards of detention. They’re sort of like brief passing on the street. There’s something that’s greater than that, sort of a detention. And there’s like full-on arrest and custody. And the standard that the cops had to follow in questioning you or stopping you under each one of those. And they basically said that when it’s just like a passing kind of thing where they want to see your ID, they want to check your immigration status. 

O’REILLY: So the police have a right to know who’s in the neighborhood- 

KELLY: Yes. 

O’REILLY: -who’s driving and things like that? 

KELLY: So you could be harassed by federal law enforcement- 

O’REILLY: Okay. 

KELLY: -much more so than you could in Arizona, where they say you do have to have reasonable suspicion to stop. 

O’REILLY: All right, so the Arizona bill then, you have to have an association with the police, an ongoing- 

KELLY: Can I make it clear though? 

O’REILLY: Right. 

KELLY: In Arizona not only, in Arizona, you have to have reasonable suspicion for stopping somebody in the first place. 

O’REILLY: Right. 

KELLY: So it has to be- 

O’REILLY: Right, something like that. 

KELLY: -they call them lawful stop or detention or arrest. So that’s number one. Not required under federal law. And number two, there has to be a reasonable suspicion to then inquire your immigration status. Not required under federal law. And number three, under Arizona law, you cannot consider the person’s race in determining whether you have that reasonable suspicion. Also not a problem under federal law.