By Howard Fischer
Capitol Media Services
PHOENIX -- A Republican state senator has introduced legislation dealing with undocumented immigrants that could conflict with a 2012 U.S. Supreme Court ruling which said Arizona has no right to enforce federal immigration laws.
And that could lead to the same multi-year litigation that eventually voided key provisions of a 2010 law.
SB 1231 would make it a state crime for anyone to enter the United States from any foreign nation other than at a port of entry. More to the point, it would authorize local or state police to enforce the law.
The proposal by Sen. Janae Shamp of Goodyear also seeks to let police arrest anyone who is not a U.S. citizen who has been denied admission or already has been ordered deported.
And a third provision also would allow the arrest of anyone who already has been ordered to leave because he or she had been convicted of either of the prior offenses and been ordered to leave but refused to do so.
That one, unlike the other offenses under are misdemeanors or which a judge could dismiss the charges if the person agreed to leave, this would be a felony that carries a presumptive sentence of five years in state prison.
State lawmakers tried a similar approach in 2010 with what was known as SB 1070. That was challenged by not just various civil and immigrant rights groups but also the U.S. Department of Justice.
Proponents argued that the state had the right to take such matters into their own hands due to the failure of the federal government to secure the border. And they argued they weren't enforcing federal immigration laws but simply creating state crimes that happened to affect those not here legally.
The U.S. Supreme Court, however, didn't see it that way.
In its ruling, a majority of the justices voided three sections of the measure that would have specifically given state and local police the power to charge those here illegally with violating state laws for:
-- Seeking working in Arizona without being in this country legally;
-- Failing to carry federally issued registration cards;
-- Allowing warrantless arrests if there is "probable cause'' a person committed an offense that makes them removable from the country under federal law.
The majority said all three provisions illegally conflict with federal law.
That ruling, however, was not unanimous. Justice Antonin Scalia said he saw no conflict between federal immigration laws and the rest of what is in SB 1070.
"The laws under challenge here to not extend or revise immigration restrictions, but merely enforce those restrictions more effectively,'' he wrote. "If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign state.''
Shamp did not specifically address that Supreme Court ruling, saying her goal was to "take the handcuffs off law enforcement.''
But in a statement to Capitol Media Services, the senator said she believes there would be a different outcome than SB 1070 if this one is challenged. She said the situation is different now.
"What was once an issue is now an invasion,'' Shamp said.
"We're not trying to enforce immigration policy,'' she continued. "We're trying to give our state and local law enforcement officers the tools they need to protect Arizona citizens.''
She also said the specific laws she has proposed are different from the ones the Supreme Court struck down.
And there's something else.
"There's a different court,'' Shamp said.
But Justin Cox, an attorney who was part of the litigation that resulted in the Supreme Court overturning most of the 2010 Arizona law, said he believes Shamp is mistaken if she think this will survive litigation -- even if somehow the senator could get Gov. Katie Hobbs, who would not comment on the measure, to sign it. In fact, Cox told Capitol Media Services, SB 1231 is even worse than the 2010 law.
"It's crystal clear the Constitution says only the federal government can decide what's a crime vis-a-vis our border,'' he said.
Cox said proponents of that 2010 law sought to get around that absolute prohibition by claiming they they were not actually trying to create new state laws dealing with illegal immigration.
"It sort of had the pretense that state and local officials are just authorized now to help the feds enforce federal immigration,'' said Cox who represented the national ACLU in the prior litigation.
Cox, now a consultant for various nonprofit organizations, said what Shamp has proposed doesn't even try to argue that her measure is simply the state helping the feds enforce their laws.
"I think it goes further,'' he said. In fact, SB 1231 is titled "State crime; illegal border crossings.''
The legislation does have some limits.
It gives anyone who is arrested an "affirmative defense'' -- essentially an argument that can be made to a judge -- that he or she had been granted asylum. That same defense would be available to those in the Deferred Action for Childhood Arrivals Program instituted under the Obama administration to allow those who arrived as children to remain, and even to work.
The proposal also prohibits police from detaining or arresting anyone under its provisions who is at a public or private private or postsecondary educational institution.
Also off limits would be arrests at a church, synagogue or other" established place of religious worship.'' And those in a health care facility or doctor's office also could not be arrested if the person is there to receive medical treatment.
But the legislation says that a court can't delay prosecution of anyone who is arrested simply on the basis that there is a pending federal determination of that person's immigration status.
SB 1231 also would provides immunity against civil suit for any local or state official or contractor who enforces the law. The only exception would be if the official "acted in bad faith, with conscious indifference or with recklessness.''
One section of that 2010 law did survive the Supreme Court: the "papers, please'' provision that requires that police officers, when possible, check the immigration status of people they have already stopped for some other reason.
Foes had tried to show the law was racially motivated. But the Supreme Court refused to immediately void it.
"There is a basic uncertainty about what the law means and how it will be enforced,'' wrote Justice Anthony Kennedy. That sent the issue back to U.S. District Court Judge Susan Bolton.
She concluded that while it may be that most of the people who would be affected in Arizona are Hispanic, the law itself is racially neutral.
Challengers agreed not to appeal in exchange for the state Attorney General's Office issuing an informal legal opinion spelling out for police officers how they can -- and cannot -- enforce the statute. That also includes cautions against racial profiling.
What that also means is no delay while waiting for a radioed response from federal immigration officials about whether the person is legally entitled to be in this country.
That guidance also says that even if the person is not here legally, police cannot keep them from leaving while awaiting an immigration officer to come and take custody unless they are under arrest for some state offense.
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