By Howard Fischer
Capitol Media Services
PHOENIX -- Rejecting claims it will lead to racial profiling, a Senate panel voted Wednesday to ask voters to let state and local police arrest some people not in the country legally.
HCR 2060, approved by the Republican-controlled Committee on Military Affairs, Public Safety and Border Security on a 4-3 margin, would make it a crime for "an alien'' to enter or attempt to enter this state directly from Mexico at any location other than a port of entry. Violations would be a Class 1 misdemeanor which generally means six months in jail.
But the real purpose appears to be to allow these people to be deported: It would spell out that charges would be dropped if the person agrees to leave the United States.
The verbiage is pretty much identical to a bill that Gov. Katie Hobbs vetoed earlier this year, calling it "harmful for communities and business in our state, and burdensome for law enforcement personnel.'' By putting it in a ballot measure, backers hope to bypass the governor and take their case directly to voters in November.
The measure now needs approval by the full Senate and, eventually, by the House.
Proponents also are using the opportunity to pack other issues into the proposal, including:
- Making it a state crime for someone not lawfully in this country to submit a false document in applying for federal, state or local benefits;
- Requiring any agency that administers benefits to use the federal E-Verify system maintained by U.S. Citizenship and Immigration Services, to determine if someone is here lawfully;
- Criminalizing providing false documents or information to an employer to evade detection as not being in this country legally;
- Imposing a presumptive 10-year prison sentence on any adult who knowingly sells fentanyl to someone else and that is a "substantial cause'' of that person's death.
Most of the debate, however, was about the language giving state and local police enforcement powers.
That is virtually identical to legislation approved in Texas. But enforcement of that measure has been held up by a federal appeals court amid challenges by the U.S. Department of Justice whose attorneys contend that any issue dealing with immigration is strictly a federal matter and beyond the reach of any state.
Hobbs, criticized the plan earlier Wednesday. She also raised the issue of litigation should the measure be approved here.
"Certainly, there are constitutional concerns that will be brought up around this measure,'' she said.
But the crafters are a step ahead.
HCR 2060 has a provision saying that it cannot be enforced here until the Texas law has been allowed to take effect for at least 60 days, presumably after a final order in a case likely to wind up at the U.S. Supreme Court. And if the justices find the Texas statute valid, that likely would undermine any bid to have its Arizona counterpart voided.
But proponents also are anticipating a challenge here.
So they crafted it to ensure that someone actually defends it in court if Democratic Attorney General Kris Mayes will not. It spells out that the president of the Senate or the speaker of the House can intervene if someone claims it is unconstitutional.
Of note is that the measure also gives similar rights to the minority leaders of the House and Senate. While both are now Democrat lawmakers, that provision could give Republicans a foot in the legal door if voters decide in November to oust some GOP lawmakers, a move that could put Democrats in charge of one or both chambers.
Sen. Janae Shamp, R-Surprise, who crafted the earlier version that Hobbs vetoed, said there is a need for action to protect Arizonans against the effects of illegal immigration.
"If the federal government will not protect the citizens of Arizona, the states must do their duty,'' she said.
All this presume not only that HCR 2060 gets final legislative approval -- something that can't occur until at least next week -- but that voters go along. Hobbs said there are plenty of reasons for people to vote against it.
"It will demonize communities,'' she said, a reference to concerns that police, looking for people who may have entered the country illegally, will target Hispanics.
That argument was backed during testimony by Jennifer Reddall, the bishop of the Episcopal Diocese of Arizona.
She told lawmakers of what happened more than a decade ago when the Arizona Legislature approved SB 1070.
That measure was designed to give police the power to question people they have stopped about their immigration status and detain those who they suspected of being here illegally. Reddall said that led to fear amid Hispanics in the community to even go to church.
House Minority Leader Lupe Contreras said he had the same experience after SB 1070 was enacted.
He detailed for colleagues how his father was driving around, with him in the car, and it was pulled over. That, the Phoenix Democrat, said was clearly based on profiling because they had cowboy hats and were in a four-wheel drive vehicle.
"That does not make us criminals,'' he told colleagues during committee debate.
Most of SB 1070 was voided by the U.S. Supreme Court as unconstitutional. Contreras said HCR 2060 would reinstate much of what was wrong with that bill.
"Let's not do this again,'' he said.
But Senate President Warren Petersen said HCR 2060 is different.
He said SB 1070 dealt with statewide enforcement. By contrast, Petersen said, the new measure is designed to target only people along the border. rather than looking for undocumented immigrants throughout the state.
So how does the law get enforced without profiling?
"That's obviously one of the biggest concerns,'' said Yavapai County Sheriff David Rhodes who came to Phoenix Wednesday to express support for the measure. But he said there are safeguards.
It starts, Rhodes said, with the requirement that there be "probable cause'' to believe someone entered Arizona at somewhere other than an official crossing. And Rhodes said he and other sheriffs view this law as something that would be enforced "primarily'' at the border.
What that means, he said, is seeing someone actually come through or over a border fence, have eyewitness testimony that someone crossed illegally, or some other circumstance that would provide a basis for reaching such a conclusion, like finding someone "out in the desert where there's no port of entry for miles and miles.''
So the law won't be used by a deputy who comes across someone far from the border in, say, Chino Valley?
"If there's no probable cause that person entered the country other than at a port of entry, there's no reason to initiate that contact,'' Rhodes said.
But Rep. Analise Ortiz said that's not how HCR 2060 is written. The Phoenix Democat said there's nothing in the measure that has any geographic limits on when someone could be arrested.
Rep. Quang Nguyen, however, said he doesn't see anything in HCR 2060 that allows for racial profiling.
"This law is not about going after skin color,'' said the Prescott Valley Republican.
"It's simply going after illegal entries,'' Nguyen continued. "At what point are we going to say enough is enough?''
Arresting border crossers aside, Hobbs also expressed opposition to provisions dealing with employment.
"It will hurt businesses,'' the governor continued. "It will hurt farmers. It will send jobs to other states.''
She said that's why business interests opposed SB 1231, the earlier version of the plan to let police arrest migrants.
"I'm calling on them to come out against this bill,'' Hobbs said.
Whether that will happen, however, remains unclear. Danny Seiden, president of the Arizona Chamber of Commerce and Industry, said it will be up to the organization's board whether to take a position.
Petersen, for his part, said he doubts such opposition will surface.
"Our business owners are telling us to protect the border,'' he said. "This will make it better for business, safer for business.''
And Petersen argued that what attracts businesses and employees to Arizona is that they know that they will be protected.
"They can go make a living and work,'' he said. "They can live in a neighborhood and be safe.''
Pinal County Sheriff Mark Lamb told lawmakers he resented the claim that law enforcement engages in racial profiling.
"Your profiling and throwing us under the bus as if all of us were bad,'' he told lawmakers. Lamb said that nearly half of his deputies are Hispanic or Black.
"Welcome to my world,'' responded Contreras. "It's exactly what we are feeling.''
Rhodes acknowledged there is another issue. He said there's nothing in the legislation to explain how the counties, faced with arresting and holding a lot more people, are going to cover the costs.
"This can't be put on the backs of the counties,'' Rhodes said. And he said if voters approve the measure in November the sheriffs will be calling on state lawmakers to come up with the necessary cash.
"We will always fund public safety,'' Petersen responded. But he brushed aside questions of additional burdens on taxpayers.
"We are going to save money because of deterrents,'' Petersen said, sending a "clear message'' that if people want to enter the country illegally "it's going to have to be in a different state.''
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