Who is Responsible for Securing the State Border

and Arresting 12 Million Illegals?

by Gerry Nance
Written: 6/23/2010 // Revised: 6/23/2010 // Printed: 6/23/2010
>The Preamble to the Constitution of the United States:
"We the People of the United States, in Order to form a more perfect Union, establish Justice,
insure domestic Tranquility, provide for the common defence, promote the general Welfare,
and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish
this Constitution for the United States of America."
Note: (We the People are the whole MILITIA, who under the US Constitution form a nation,
establish a republican form of government, and delegate limited authority to the elected
government, while retaining “powers not delegated to the United States by the Constitution,
nor prohibited by it to the States.”)

>>Article 1 Section 10 Clause 3: (Requires states to (enforce immigration laws using

state MILITIA) declare war if invaded.)
“No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or
Ships of War in time of Peace, enter into any Agreement or Compact with another State, or
with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger
as will not admit of delay.”
Paraphrasing: "Every state in the union, shall, without the Consent of Congress, engage in
War, when actually INVADED."

>>Article II, section 3, of the US Constitution, says "The President, shall take Care that
the Laws be faithfully executed."

>>Article 4 Section 4: (Requires states to enforce border and internal security using state
MILITIA.)
“The United States shall guarantee to every State in this Union a Republican Form of
Government, and shall protect each of them against Invasion; and on Application of the
Legislature, or of the Executive (when the Legislature cannot be convened) against domestic
Violence.”
Paraphrasing: "Every state in the union, is responsible to every state in the union, for
securing our union against INVASION."

>>Article VI: (Attaches treaties to US Constitution)

“This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

>>2nd Amendment: (Authorizes state MILITIA to be recruited from the unorganized

MILITIA of armed citizens.)
“A well regulated MILITIA, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.”
Paraphrasing: “To ensure a well regulated militia is ready to come to the common defence of
the US Constitution, Liberty, life, property, and the rule of law, therefore all citizens will have
a protected right to bare arms, and practice in the militia arts as the unorganized militia, to
be ready for the call to active duty, or immediate voluntary reaction.”

>> 4th Amendment: (Protects personal privacy and property rights of citizens.)
“The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.” (See “Probable Cause”, Open
Fields” and “Terry Stop”.)

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 Who is Responsible for Securing the State Border
and Arresting 12 Million Illegals?
by Gerry Nance
Written: 6/23/2010 // Revised: 6/23/2010 // Printed: 6/23/2010
>> 10th Amendment: (Protects the Powers of the States and People)
“The powers not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people.” (See Article 1 Section
10 and Article 4 Section 4)

>>14th Amendment: (Requires states of the union to protect all citizens equally under the
laws.)
“nor shall any State deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of the laws.”

> Probable Cause .--The concept of ''probable cause'' is central to the meaning of the
warrant clause. Neither the Fourth Amendment nor the federal statutory provisions relevant
to the area define ''probable cause;'' the definition is entirely a judicial construct. An
applicant for a warrant must present to the magistrate facts sufficient to enable the officer
himself to make a determination of probable cause. ''In determining what is probable cause .
. . [w]e are concerned only with the question whether the affiant had reasonable grounds at
the time of his affidavit . . . for the belief that the law was being violated on the premises to
be searched; and if the apparent facts set out in the affidavit are such that a reasonably
discreet and prudent man would be led to believe that there was a commission of the
offense charged, there is probable cause justifying the issuance of a warrant.''
(http://caselaw.lp.findlaw.com/data/constitution/amendment04/02.html#3)

> ''Open Fields.'' --In Hester v. United States, 96 the Court held that the Fourth
Amendment did not protect ''open fields'' and that, therefore, police searches in such areas
as pastures, wooded areas, open water, and vacant lots need not comply with the
requirements of warrants and probable cause.
(http://caselaw.lp.findlaw.com/data/constitution/amendment04/04.html#3)

> Detention Short of Arrest: Stop-and-Frisk .--Arrests are subject to the requirements
of the Fourth Amendment, but the courts have followed the common law in upholding the
right of police officers to take a person into custody without a warrant if they
have probable cause to believe that the person to be arrested has committed a
felony or has committed a misdemeanor in their presence. 6 The probable cause is,
of course, the same standard required to be met in the issuance of an arrest warrant, and
must be satisfied by conditions existing prior to the policeman's stop, what is discovered
thereafter not sufficing to establish retroactively reasonable cause. 7 There are, however,
instances when a policeman's suspicions will have been aroused by someone's conduct or
manner, but probable cause for placing such a person under arrest will be lacking. 8 In Terry
v. Ohio, 9 the Court almost unanimously approved an on-the-street investigation by a police
officer which involved ''patting down'' the subject of the investigation for weapons.
(http://caselaw.lp.findlaw.com/data/constitution/amendment04/03.html#2)

> Muehler v. Mena

In 2005, the U.S. Supreme Court handed down a unanimous decision in Muehler v. Mena
that questioning someone regarding their immigration status is not a violation of Fourth
Amendment rights - provided that person is already lawfully detained.

In the wake of a drive-by shooting, Officer Muehler and other members of local law
enforcement handcuffed and questioned Iris Mena in connection to the shooting. They did so
while executing a search warrant for a safe house which she and members of West Side
Locos gang would gather at, most of whom were illegal immigrants. Small wonder, then,
that they asked if she was in the country illegally.

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 Who is Responsible for Securing the State Border
and Arresting 12 Million Illegals?
by Gerry Nance
Written: 6/23/2010 // Revised: 6/23/2010 // Printed: 6/23/2010
Muehler v Mena establishes that "officers did not need reasonable suspicion to ask Mena for
her name, date and place of birth, or immigration status."

Even though this was a gang-related case, "no additional Fourth Amendment justification for
inquiring about Mena's immigration status was required." If that's true in California, it's true
in Arizona. This is a strong precedent, with six justices from that unanimous decision
remaining on the bench.
(http://www.law.cornell.edu/supct/html/03-1423.ZS.html)

> 10USC311 MILITIA: composition and classes:

(a) The MILITIA of the United States consists of all able-bodied males at least 17 years of
age and, except as provided in section 313 of title 32, under 45 years of age who are, or
who have made a declaration of intention to become, citizens of the United States and of
female citizens of the United States who are members of the National Guard.
(b) The classes of the MILITIA are--
(1) the organized MILITIA, which consists of the National Guard and the Naval
MILITIA; and
(2) the unorganized MILITIA, which consists of the members of the MILITIA who are
not
members of the National Guard or the Naval MILITIA.

>Code of Federal Regulations (32CFR215.4):

"The protection of life and property and the maintenance of public order are primarily the
responsibilities of State and local (County, City, School Board) governments.
Aside from the constitutional limitations of the power of the Federal Government at the local
level, there are additional legal limits upon the use of military forces within the United
States. The most important of these from a civil disturbance standpoint is the Posse
Comitatus Act (18 U.S.C.1385), which prohibits the use of any part of the Army or the Air
Force to execute or enforce the laws, except as authorized by the Constitution or Act of
Congress.
The Constitution and Acts of Congress establish six exceptions, generally applicable within
the entire territory of the United States, to which the Posse Comitatus Act prohibition does
not apply.

>Exceptions to the Posse Comitatus Act:

(a) 10 U.S.C. 331. Authorizes use of the MILITIA and Armed Forces when a State is unable to
control domestic violence, and a request for Federal assistance has been made by the State
legislature or governor to the President. Implements Article IV, section 4, of the Constitution.

(b) 10 U.S.C. 332. Authorizes use of the MILITIA and Armed Forces to enforce Federal law
when unlawful obstructions or rebellion against the authority of the United States renders
ordinary enforcement means unworkable. Implements Article II, section 3, of the
Constitution.

(c) 10 U.S.C. 333. Authorizes use of the MILITIA and Armed Forces when domestic violence
or conspiracy hinders execution of State or Federal law, and a State cannot or will not
protect the constitutional rights of the citizens. Implements Article II, section 3, and the 14th
Amendment of the Constitution.

> 50USC21. Authorizes the US President to issue public proclamation, ordering all Enemy
aliens (Mexicans) not naturalized, to deport from the USA, on any declaration of WAR
against Mexico, by the governor of any state in the union, on invasion or incursion, by the
people of Mexico, under the support of the government of Mexico. On Presidential

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 Who is Responsible for Securing the State Border
and Arresting 12 Million Illegals?
by Gerry Nance
Written: 6/23/2010 // Revised: 6/23/2010 // Printed: 6/23/2010
Proclamation, Authorizes US Citizens to apprehend, restrain, secure, and ARREST ENEMY
ALIENS (MEXICANS). Implements Article 1 Section 10; Article II, section 3; Article IV, section
4; and the 14th Amendment of the Constitution.

>County Sheriff is Posse Comitatus:

A county Sheriff, is one of the most powerful positions of the elected government. Having
power to deputize a posse, under posse comitatus (power of the county), from the state
MILITIA, for the protection of the people. Whenever a county Sheriff determines the
situation is beyond his/her ability to manage, then s/he shall notify the state Governor.

> NOTE: In December 1995, the California State Police merged with the California Highway
Patrol. Therefore the CHP, has assumed responsibilities of CSP, including border protection
and immigration enforcement.

> NOTE: (Wiki) The California Border Police Initiative was a proposed state ballot
initiative seeking to amend the California Constitution to create a new state law
enforcement agency called the "California Border Police." Proponents of the initiative failed
in their effort to gather enough signatures to get it on the June 2006 statewide ballot.

Backers described the proposal as necessary to assist the U.S. Border Patrol's enforcement
of federal immigration laws. However, opponents pointed out that the proposed state
immigration police force would not be limited to the international border area, but rather
have a much broader charge of enforcing federal immigration laws throughout the state.
Since federal immigration law enforcement has traditionally been the exclusive province of
the federal government, there is considerable dispute regarding the constitutionality of civil
immigration law enforcement by state and local authorities. The measure was sure to have
faced legal challenges if approved by voters in California.
Before proponents failed to get it on the state ballot, the measure faltered in the Assembly
Judiciary Committee of the California State Legislature when first introduced by Assembly
Member Ray Haynes (R-Murrieta). They then introduced it as an initiative proposal and had
until December 12, 2005 to collect approximately 600,000 valid signatures of registered
California voters in order to qualify the measure for the ballot.

>287(g): (8USC1357)
(g) (8) An officer or employee of a State or political subdivision of a State acting under color
of authority under this subsection, or any agreement entered into under this
subsection, shall be considered to be acting under color of Federal authority for
purposes of determining the liability, and immunity from suit, of the officer or
employee in a civil action brought under Federal or State law.
(9) Nothing in this subsection shall be construed to require any State or political
subdivision of a State to enter into an agreement with the Attorney General under this
subsection.
(10) Nothing in this subsection shall be construed to require an agreement under this
subsection in order for any officer or employee of a State or political subdivision
(County, City) of a State--
(A) to communicate with the Attorney General regarding the immigration status of any
individual, including reporting knowledge that a particular alien is not lawfully present
in the United States; or
(B) otherwise to cooperate with the Attorney General in the identification,
apprehension, detention, or removal of aliens not lawfully present in the United States.

>US Department of Justice, Criminal Resource Manual, Section 1918 Arrest of

Illegal Aliens by State and Local Officers:

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 Who is Responsible for Securing the State Border
and Arresting 12 Million Illegals?
by Gerry Nance
Written: 6/23/2010 // Revised: 6/23/2010 // Printed: 6/23/2010
Subsection 1324(c) of Title 8 specifically authorizes state and local officers
"whose duty it is to enforce criminal laws" to make arrests for violations of
8 U.S.C. § 1324. There is also a general federal statute which authorizes certain
local officials to make arrests for violations of federal statutes, 18 U.S.C. § 3041. The
Fifth Circuit Court of Appeals has held that 18 U.S.C. § 3041 authorizes those local
officials to issue process for the arrest, to be executed by law enforcement officers.
See United States v. Bowdach, 561 F.2d 1160, 1168 (5th Cir. 1977).
Rule 4(a)(1) of the Federal Rules of Criminal Procedure provides that an arrest
warrant "shall be executed by a marshal or by some other officer authorized by law."
The phrase, "some other officer," includes state and local officers. Bowdach, supra.
Section 439 of the Antiterrorism and Effective Death Penalty Act of 1996 added a
new 8 U.S.C. § 1252c which provides that notwithstanding any other provision of law,
to the extent permitted by relevant State and local law, State and local law
enforcement officials are authorized to arrest and detain an individual who (1) is an
alien illegally present in the United States; and (2) has previously been convicted of a
felony in the United States and deported and left the United States after such
conviction, but only after the State or local law enforcement officials obtain
appropriate confirmation from the Immigration and Naturalization Service of the
status of such individual and only for such period of time as may be required for the
Service to take the individual into federal custody for purposes of deporting or
removing the alien from the United States.
In the absence of a specific federal statute, the validity of an arrest without a warrant
for violation of federal law by local peace officers is to be determined by reference to
local law. See Miller v. United States, 357 U.S. 301, 305 (1958); United States v. Di
Re, 332 U.S. 581, 589 (1948).
In approving a state trooper's arrest of persons who appeared to be illegal aliens, the
United States Court of Appeals for the Tenth Circuit held, simply, as follows: "A state
trooper has general investigative authority to inquire into possible immigration
violations." See United States v. Salinas-Calderon, 728 F.2d 1298, 1301, n. 3 (10th
Cir. 1984).
The United States Court of Appeals for the Ninth Circuit held, in Gonzales v. City of
Peoria, 722 F.2d 468 (9th Cir. 1983), that the structure of tthe Immigration and
Nationality Act does not evidence an intent to preclude local enforcement of the act's
criminal provisions. Id. at 474. Based on the pertinent legislative history, the court of
appeals rejected the argument that since 8 U.S.C. § 1324(c) specifically authorizes
local officers to make arrests for violations of 8 U.S.C. § 1324(a), and 8 U.S.C. §§
1325(a) and 1326 contain no comparable provision, Congress must have intended
that local officers be precluded from making arrests for violations of 8 U.S.C. §§
1325(a) and 1326. Id. at 475. The decision warns, however, that the first violation of
8 U.S.C. § 1325(a) is a misdemeanor, and that if applicable state law authorizes law
enforcement officers to arrest for misdemeanors only if committed in their presence,
they would not be authorized to arrest aliens for illegal entry (unless the officers
should happen to know that the alien had previously been convicted of illegal entry)
unless they saw him/her cross the border.
The disappointing aspect of Gonzales is the statement that an alien's
"inability to produce documentation does not in itself provide probable
cause (to arrest)." See Gonzales v. City of Peoria, supra, at 16. Pursuant to
8 U.S.C. § 1304(e), aliens are issued registration cards and must carry such
cards with them at all times. Aliens who gain entry without the requisite
inspection, and who therefore are not issued such cards, violate 8 U.S.C.
§ 1325. Consequently, a law enforcement officer confronting an alien who is
unable to produce documentation arguably has probable cause to believe
that a violation of 8 U.S.C. § 1304(e) (failure to possess documents or 8
U.S.C. § 1325(a) (entry without inspection) has occurred. (If the alien is

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 Who is Responsible for Securing the State Border
and Arresting 12 Million Illegals?
by Gerry Nance
Written: 6/23/2010 // Revised: 6/23/2010 // Printed: 6/23/2010
undocumented and has been in the United States for longer than 30 days,
he or she has also violated 8 U.S.C. § 1306(a)).

[cited in USAM 9-73.300]

http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01918.htm

>The Governor is Chief Executive of the State and Commander in Chief of the
MILITIA of the State:
Whenever the Governor is satisfied that rebellion, insurrection, tumult or riot exists in any
part of the state or that the execution of civil or criminal process has been forcibly resisted
by bodies of persons, or that any conspiracy or combination exists to resist by force the
execution of process, or that the officers of any county or city are unable or have failed for
any reason to enforce the laws, the Governor may, by proclamation, declare any part of the
State of California or the county or city or any portion thereof to be in a state of insurrection,
and he or she may thereupon order into the service of the state any number and description
of the active MILITIA, or unorganized MILITIA, as he or she deems necessary, to serve for a
term and under the command of any officer as he or she directs. (CA MILITARY AND
VETERANS CODES)

The Governor may at any time revoke a proclamation of insurrection or declare that it shall
terminate at a time or in the manner that he or she directs. The Governor may call into
active service any portion of the active MILITIA as may be necessary, and if the number
available be insufficient, the Governor may call into active service (DRAFT) any portion of
the unorganized MILITIA as may be necessary, in any of the following events: (a) In case of
war, insurrection, rebellion, INVASION, tumult, riot, breach of the peace, public calamity or
catastrophe, including, but not limited to, catastrophic fires, or other emergency, or
imminent danger thereof, or resistance to the laws of this state or the United States. (CA
MILITARY AND VETERANS CODES)

>We the Citizens:

We the citizens of the USA are the whole MILITIA (organized and unorganized), who bear full
responsibility to direct the government to fulfill its duty, supervise the government, or we
will have to rise up to do so ourselves and at great cost, and fertilize the tree of Liberty.

>Arizona SB1070 as amended by AZ HB2162 does not allow racial profiling, and is
equal in scope to federal laws, but restricted in application to a narrow area of public contact
requiring an observable violation of law or ordinance, and/or investigation of a reported
violation.
Arizona SB1070 as amended by AZ HB2162 is constitutional.

> The Rights of Aliens present in the USA:

Aliens in the USA do not have US civil rights, they only can have civil rights in the country of
their nationality.
Aliens in the US have human rights.
Aliens in the US have a human right to leave the US.
Aliens in the US do not have a human right to be here without permission of the US Attorney
General.
Read "Declaration on the Human Rights of Individuals Who are not Nationals of the Country
in which They Live"
Adopted by UN General Assembly resolution 40/144 of 13 December 1985
URL: http://www.un.org/documents/ga/res/40/a40r144.htm

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 Who is Responsible for Securing the State Border
and Arresting 12 Million Illegals?
by Gerry Nance
Written: 6/23/2010 // Revised: 6/23/2010 // Printed: 6/23/2010
>Treaty of Guadalupe Hidalgo:
This treaty ended the U.S.-Mexican War. Signed on 2 February 1848, it is the oldest treaty still
in force between the United States and Mexico. As a result of the treaty, the United States
acquired more than 500,000 square miles of valuable territory and emerged as a world power in
the late nineteenth century. ARTICLES V, IX and XVI

>> ARTICLE V

The boundary line between the two Republics shall commence in the Gulf of Mexico, three
leagues from land, opposite the mouth of the Rio Grande, otherwise called Rio Bravo del Norte,
or Opposite the mouth of its deepest branch, if it should have more than one branch emptying
directly into the sea; from thence up the middle of that river, following the deepest channel,
where it has more than one, to the point where it strikes the southern boundary of New Mexico;
thence, westwardly, along the whole… (Modified by Gadsden Purchase Treaty).

>> ARTICLE IX

The Mexicans who, in the territories aforesaid, shall not preserve the character of citizens of the
Mexican Republic, conformably with what is stipulated in the preceding article, shall be
incorporated into the Union of the United States. and be admitted at the proper time (to be judged
of by the Congress of the United States) to the enjoyment of all the rights of citizens of the
United States, according to the principles of the Constitution; and in the mean time, shall be
maintained and protected in the free enjoyment of their liberty and property, and secured in the
free exercise of their religion without; restriction.

>> ARTICLE XVI

"Each of the contracting parties reserves to itself the entire right to fortify whatever point within
its territory it may judge proper so to fortify for its security."
http://www.mchsmuseum.com/treaty.html
http://www.loc.gov/rr/hispanic/ghtreaty/
http://www.pbs.org/kera/usmexicanwar/war/wars_end_guadalupe.html
http://www.archives.gov/education/lessons/guadalupe-hidalgo/

>Definition of "illegal alien"

9th Circuit Court of Appeals,
Case: Martinez v. Regents of U.C. 10/7/08 CA3
(Super. Ct. No. CV052064)
Appeals Court Justices: Sims, Raye and Hull
Page 3, Footnote 2

“Defendants prefer the term “undocumented immigrants.” However, defendants do not cite any
authoritative definition of the term and do not support their assertion that the terms
“undocumented immigrant” and “illegal alien” are interchangeable. We consider the term
“illegal alien” less ambiguous. Thus, under federal law, an “alien” is “any person not a citizen or

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 Who is Responsible for Securing the State Border
and Arresting 12 Million Illegals?
by Gerry Nance
Written: 6/23/2010 // Revised: 6/23/2010 // Printed: 6/23/2010
national of the United States.” (8 U.S.C. § 1101(a)(3).) A “national of the United States” means a
U.S. citizen or a noncitizen who owes permanent allegiance to the United States. (8 U.S.C. §
1101(a)(22).) Under federal law, “immigrant” means every alien except those classified by
federal law as nonimmigrant aliens. (8 U.S.C. § 1101(a)(15).) “Nonimmigrant aliens” are, in
general, temporary visitors to the United States, such as diplomats and students who have no
intention of abandoning their residence in a foreign country. (8 U.S.C. § 1101(a)(15)(F), (G);
Elkins v. Moreno (1978) 435 U.S. 647, 664-665 [55 L.Ed.2d 614, 627-628] [under pre-1996 law,
held the question whether nonimmigrant aliens could become domiciliaries of Maryland for
purposes of in-state college tuition was a matter of state law].) The federal statutes at issue in this
appeal refer to “alien[s] who [are] not lawfully present in the United States.”(8 U.S.C. §§
1621(d), 1623.)
In place of the cumbersome phrase “alien[s] who [are] not lawfully present,” we shall use the
term “illegal aliens.”
[Reference: URLs:
http://www.courtinfo.ca.gov/opinions/archive/C054124.PDF

END

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