‘Undocumented Person’ Check Box on Arrest Form Legal, Court Rules

An arrest form that includes space for a police officer to indicate whether the person being arrested is an “undocumented person” is not illegal, a state appeal court has ruled.

The form, in wide use among San Diego County police agencies, does not violate the privacy rights--or any other constitutional rights--of the person being arrested, the 4th District Court of Appeal said in a unanimous opinion issued Monday.

The ruling marks another in a series of recent court decisions curtailing individual privacy rights, an issue that has figured prominently in U. S. Supreme Court cases restricting access to abortion and approving drug testing for certain jobs.

American Civil Liberties Union lawyers, who brought the case, said the ruling is particularly noteworthy because it rejects protection afforded by federal privacy rights and the right to privacy spelled out in the California Constitution.

“We think this (opinion) raises concerns about how we as citizens and residents of this country are protected in terms of our privacy,” said Betty Wheeler, legal director for the ACLU office serving San Diego and Imperial counties. But she added, “We think the tenor of the times is that we’re seeing a lot of incursions in our privacy.”

Wheeler said she is unsure whether the ACLU will appeal the ruling to the state Supreme Court.

The ACLU brought the case in November, 1987, in San Diego Superior Court on behalf of the local chapter of a Latino veterans rights group, the American G.I. Forum. Named as defendants were Dist. Atty. Edwin Miller and a regional law enforcement cooperative called Automated Regional Justice Information System.

The cooperative developed a standard arrest form, the ARJIS-8, which an officer fills out with information about the incident and the person arrested. In a section of the form devoted to “identity” information is a check box, where an officer may record whether the person arrested is an “undocumented person.”

The box was added to the form in 1986, according to the ACLU’s complaint. San Diego city police and county sheriff’s deputies collect the ARJIS-8 forms and tally the identity data, officials at both agencies said Tuesday.

The identity information is entered into a nationwide police computer system. Once the information is in the computer, it is extremely difficult to get it erased, Wheeler said.

And that information “can follow the (person who was arrested) throughout his life,” according to the opinion, written by Justice Daniel J. Kremer.

Police check the “undocumented person” box based on a person’s Latino appearance, command of English and accent, Kremer said.

The procedures do not account for people who are American citizens but don’t know it or for migrants entitled to lawful resident status under the 1986 federal immigration reforms, Kremer said. It was precisely because the forms were loaded with the potential for abuse that the ACLU brought the suit, asking for a restraining order to stop police agencies from using them, Wheeler said.

In July, 1988, San Diego Superior Court Judge Vincent P. DiFiglia denied the ACLU’s request. In Monday’s opinion, Kremer affirmed that decision, rejecting each of the ACLU’s contentions.

A federal privacy right, which the U. S. Supreme Court has found is implied in the federal Constitution, simply did not apply, Kremer said. The federal right applies only to cases involving marriage, contraception, family relationships and child rearing, he said, not to the collection of information on police forms.

As for the state right to privacy, that was a closer call, Kremer said. But the ACLU’s concerns about issues such as inaccurately recorded information were outweighed by the “compelling” law enforcement interest in including accurate information, he said.

For instance, state law requires local police to notify U. S. immigration authorities after certain arrests, particularly when an alien is arrested for a drug-related offense, Kremer said. Measured against the police interest in catching suspected criminals, the privacy right in identity information had to give way, he said.

Kremer also rejected the ACLU’s claims that the ARJIS-8 violated federal guarantees to the due process of law and equal treatment.

The process of gathering identity information--data that might be inaccurate and might someday be used to the person’s disadvantage--was not by itself enough to violate any legal process, because no process that could be due had been violated, Kremer said. The ACLU provided no examples in its complaint of any instance where “undocumented” status had adversely affected someone, he said.

The test for deciding whether the ARJIS-8 complied with the federal equal-treatment guarantee was whether the form had “some fair relationship” to a “legitimate” public interest, Kremer said. Having already said that there was not only a “legitimate” but “compelling” interest in gathering the identity information, he said that the form did comply.

Justices Don R. Work and Gilbert Nares concurred.