Former OSBI agent weighs in on Oklahoma’s anti-immigrant law

After reading Oklahoma House Bill 4156, it took me back to 1973 and a practice I abandoned long ago when I was a rookie officer with the Oklahoma City Police Department. At the time, it was standard procedure when meeting a Latin American man to assume that he was not a “citizen or national” of the United States if he did not speak English. I arrested him without any charges other than being an undocumented immigrant if he couldn’t produce a green card. I placed him in the city jail with an ‘immigration ban’. I later found out that everyone I arrested was released within a few days because the U.S. Department of Immigration and Naturalization Service never sent anyone from Dallas to pick them up.

When I made such an arrest, I was challenged by my supervisor, who pointed out that I had no “probable cause” to arrest the person. I countered that he could not produce a green card upon request and that failure to produce a green card was evidence that he was undocumented. I felt justified in making the arrest until my supervisor asked to see my green card. Initially, I received his question with outrage because it was clear that I was not an undocumented immigrant and that I did not have to show a green card. But then it dawned on me what he meant. The “burden of proof” was on me to show that he was undocumented and that he had no burden of proof to prove that he was a citizen or subject of the United States.

Editorial: Oklahoma already has laws to deal with criminals. A new bill could hurt immigrant communities even more

After that conversation with my supervisor, I never had an immigration arrest again. I came to realize that the arrests I was making violated the Fourth Amendment to the Constitution, which granted the right of “people” to be “secure in their persons” against unreasonable seizures. Additionally, Oklahoma law limited my arrest authority to crimes committed in my presence, arrests made with a warrant or probable cause to believe a crime had been committed. I had none of those when I was making immigration arrests.

In reading HB 4156, I find nothing in the bill that would have justified my arrest for unauthorized occupancy in 1973 or today. The bill does not establish probable cause or the evidence necessary to prove that a person is an undocumented immigrant and intentionally and without authorization entered and remained in the State of Oklahoma without first obtaining legal authorization to enter the United States . I would not have been justified in making a lawful arrest due to the lack of probable cause and evidence of the crime. Nor are there any safeguards in the bill that would have prevented me from unlawfully arresting someone I selected for an impermissible occupation if I had been willing to violate the Fourth Amendment and the laws of the State of Oklahoma.

Tommy L. Johnson is a retired special agent with the Oklahoma State Bureau of Investigation.