Question for DU legal minds: Is it necessary to violate a law in order to challenge it?

[Clintonista2]

Does someone have to go out and intentionally (or otherwise) get caught without their proof of citizenship in Arizona in order to have this law appear before the courts? Or can it be taken up by the courts without any specific case of somebody being prosecuted under this law?

[Statistical]

1. Yes.

You must suffer a harm to have standing. The potential for a harm is not sufficient.

Take Heller v. DC for example. Heller actually tried to register a firearm and was denied. There were 7 other claimants who WANTED to register a firearm (but didn't for fear they would be arrested). The 7 were dismissed and Heller remained the only litigant. Heller had standing because he actually attempted to register a firearm (brought a firearm to police dept and attempted to register it). Now in Heller instance he wasn't arrested because he had a unique circumstance, he was a security guard for federal building and was allowed to have firearm on job but not in his home.

It would be very difficult to have standing in AZ law without actually being arrested.

[paulsby]

3. oversimplification. see my other post

potential for harm is also possible to sue under if one can show an "imminence". that's federal casse law
and of course, standing laws under state case law vary considerably from the federal standard. that would apply to constitutionality under the arizona constitution

[Statistical]

4. How can you show immanency in this case?

Even if you could that is a gamble. The 7 others in Heller v. DC case had immanency or at least what most people would consider immanency in common sense. The law prohibited registration so the only thing actually attempting to register a firearm (which requires bringing firearm to Police Station) would have done is get them arrested. Of course had they been arrested and found guilty of a felony they could never own a firearm anyways thus they would lose standing even IF they had been arrested.

Not every Latino in AZ will be affected by the law. Sheer numbers and all that. It would be very difficult to prove immanency for the AZ law.

Oversimplification or not, dollars to doughnuts any lawsuits being with someone who is arrested/detained as a result of the law.

[paulsby]

5. read my other post

imminency has to be demonstrated. i'm not saaying you are wrong. i am saying it's a simplification

also, you are only addressing the FEDERAL standard. are you familiar with arizona STATE law vis a vis standing. in some states, standing is required. in others, not. that would be if it was challenged as a violation of the state constitution. i'm not familiar with arizona case law on standing, so i remain agnostic on that front. are you familiar with it.?

[paulsby]

2. depends, among other things, on the venue

the SCOTUS for example, will not consider appeals to any laws' constitutionality w.o the petitioner having STANDING. they will accept amicus briefs from people/groups w/o standing GIVEN somebody w/standing is bringing the case.

i can't speak for all court systems in the US, but generally speaking, you need standing to protest the unconstitutionality of a law IN THE COURTS.

the one exception is that a plaintiff can bring suit if he can demonstrate that he will IMMINENTLY be harmed by a law, even if it hasn't happened yet

so, this is the "exception" so to speak.

again, this is FEDERAL case law, and applies only to challenges that a law violates the FEDERAL constitution

i cannot speak for arizona state law, but i do know that state law on standing varies considerably.

[Hippo_Tron]

6. I would imagine in this case there will be a wrongful arrest

Lots of people who do are legally in this country will be arrested and then later found to be innocent and then probable cause will come into question. That's going to create a legal nightmare pretty quickly.