Friday, in a stunning decision, the Kansas Supreme Court ruled in essence that the State of Kansas cannot prosecute illegal aliens for most common forms of identity theft. The ruling in State of Kansas v. Ramiro Garcia grants Kansas citizens no such license.
What follows may read like an article from the Onion, but unfortunately it is not. Writing in dissent, Justice Dan Biles observed, “The majority’s rationale sets up a sweeping prohibition against identity theft prosecutions for such crimes generally occurring in the employment process.” Justice Caleb Stegall agreed, “Today’s decision appears to wipe numerous criminal laws off the books in Kansas—starting with, but not necessarily ending with, laws prohibiting identity theft.” These Justices did not overstate the enormity of this decision whose majority opinion was written by the predictably liberal Justice Carol Beier. Said Biles, “The majority stretches statutory interpretation past the breaking point.”
The facts in the case are beyond dispute. In August 2012, an Overland Park police officer pulled Garcia over for speeding. When asked where he was going in such a hurry, Garcia said he was on his way to work at Bonefish Grill. A routine records check revealed that Garcia had secured his job using someone else’s social security number. As a result of the investigation, Garcia was charged with one count of identity theft under Kansas law and eventually convicted in a jury trial. The district judge sentenced Garcia to seven months in prison but granted 18 months’ probation.
On appeal, Garcia’s attorneys argued that the federal government has preemptive power over immigration and the status of aliens, specifically in regards to an alien who commits fraud in the employment eligibility verification process. In a nutshell, the majority on the court bought that argument.
Wrote Beier, “States are prohibited from using the I-9 and any information contained within the I-9 as the bases for a state law identity theft prosecution of an alien who uses another’s Social Security information in an I-9. The fact that this information was included in the W-4 and K-4 did not alter the fact that it was also part of the I-9.” Implied, but not stated, was that citizens have no such immunity from state prosecution.
Biles dissented vigorously. “The specific conduct for which Garcia was convicted was using someone else’s Social Security number in completing his federal W-4 and state K-4 tax forms,” he argued. “Garcia’s immigration status was not relevant to whether this conduct was unlawful, and the conduct was independent of the federal employment verification system.”
Continued Biles: “Under the majority’s view, federal law effectively prevents any prosecution under the Kansas identity theft crime occurring in the employment context if it relies on information that also just happens to be on or attached to a Form I-9. This cannot reflect congressional intent.”
The irony of this decision is that in most instances–sanctuary city edicts, federal vote fraud investigation–the left supports the rights of states to resist federal oversight of immigration related issues. But then again, consistency has never been one of the left’s virtues.