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September 13, 2017 -

Strange as it may seem, the Kansas Supreme Court has recently decreed that it is all but impossible for state or local authorities to arrest or prosecute an illegal alien for identity theft.

This is not “fake news.” It merely sounds like fake news, but it could not be more real.

The headline of the Lawrence Journal World sums up the verdict, “Kansas Supreme Court blocks state prosecution of undocumented immigrants.”

Although a reliably red state, Kansas is burdened with a judicial selection system that favors activist lawyers. The lawyers’ selections have dominated the court for years and frustrated Republican lawmakers on any number of fronts.

On Friday, in a truly bizarre decision, the Kansas Supreme Court outdid itself.  Its ruling in State of Kansas v. Ramiro Garcia needs be read to be believed, but in essence it license illegal aliens to commit identity theft.

The facts of the case are pretty straightforward. In August 2012, a police officer in suburban Kansas City stopped Garcia over for speeding. He was a man in a hurry. As he told the officer, he was late for work at a chain restaurant called the Bonefish Grill.

In doing a routine background check, the Overland Park, Kansas, police discovered that Garcia was working under a social security number not his own.

Prosecutors charged Garcia with one count of identity theft under Kansas law, and a jury convicted him of the crime. A district judge sentenced Garcia to seven months in prison but granted him 18 months probation instead. An appeals court upheld the verdict.

On appeal to the Supreme Court, Garcia’s attorneys argued in essence that only the federal government can charge illegal aliens with fraud, and that the state has no jurisdiction. By a 5-2 majority, the court agreed.

Wrote Justice Carol Beier for the majority, “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. “

Beier continued, “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.”

Justice Dan Biles dissented strenuously. “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.”

Biles was not finished. “Under the majority’s view,” he contended, “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.”

As Biles noted, the Iowa Supreme Court came to an exact opposite conclusion when faced with an almost identical case.  Observed Biles, “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 sided with Biles, “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.”

The catch, of course, is that the decision did not wipe the laws off the books for everyone—just for illegal aliens stealing the identities of others.

For an American citizen caught using a fake social security number in Kansas, it’s tough luck for you, buddy.



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