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Local control at issue in battle over enforcement of immigration laws

Until last year, Phoenix police officers were banned from inquiring about the immigration status of people contacted during routine encounters such as traffic stops and misdemeanor arrests.
The idea behind the policy was to create an environment in which crime victims and witnesses would feel free to interact with local police to bring criminals to justice. But the policy of ignoring federal immigration laws drew heavy public criticism during much of the past three decades and gave the city a reputation as a “sanctuary city.”
Even though the policy was revised in 2008 after an illegal immigrant shot and killed Phoenix police officer Nick Erfle, a pair of Republican lawmakers is making a push to crack down on sanctuary policies — albeit in drastically different ways.
Already, a House panel has advanced a measure that would prevent cities from enacting any policy that would prevent police from enforcing federal immigration laws. The bill, sponsored by Rep. Tom Boone, a Republican from Peoria, lists no punishment for offending cities.
Sen. Russell Pearce, a Mesa Republican and the state’s foremost immigration hawk, has much stricter laws in mind, including his own immigration omnibus bill that would cost local governments a portion of their state-shared revenue if they ignore bans on sanctuary policies.
It’s nothing against Boone, said Pearce. It’s about using force to make sure cities do their share to enforce federal immigration laws. Pearce wants to ensure that steps are taken to dry up the supply and demand of day laborers, and he wants to be able to charge illegal immigrants with trespassing simply for being on U.S. land unlawfully.
Boone said he does not know of any sanctuary cities in Arizona, yet he said such policies are a “moving target” that should be banned statewide.
Pearce, on the other hand, sees them everywhere. Phoenix, Mesa, Chandler and Tucson, to name a few, all adequately represent the “complete sanctuary city,” he said. He said allowing illegal immigrants to avoid deportation has led to an increase in all types of crime and diminishes public safety.
“What does it take to wake up people? How many people need to die for us to stop being politically correct?” Pearce asked.
Cities across Arizona have enacted policies that outline to local police the procedure to be used when encountering suspected illegal immigrants. Some policies allow more discretion than others. Phoenix, for instance, still prevents officers from questioning witnesses and victims of crimes about their immigration status.

Still, local officials from across the state told the Arizona Capitol Times that the title “sanctuary city” doesn’t apply to their cities. And they said it’s generally not a good idea for the state to micromanage local police or handcuff city officials from enacting policies based on their individual needs and resources.
“We’ve got politicians trying to dictate to professional law enforcement departments on how to do their job, and I don’t personally support that,” said Claude Mattox, chairman of the Phoenix City Council Public Safety and Veterans Committee.
Mesa police officials clashed with Maricopa County Sheriff Joe Arpaio in 2007 and 2008 while Arpaio’s deputies were conducting “neighborhood crime sweeps” that critics blasted as a thinly veiled attempt to target and intimidate Hispanics.
Arpaio’s sweeps into Mesa set off a feud with Mesa Police Chief George Gascón, who has openly criticized the sheriff’s immigration actions, saying they divert resources that could be used to fight other, more serious crimes.
Gascón, who has testified on immigration enforcement in front of congressional committees, was not available for interviews on the topic, according to a spokesman with the Mesa Police Department.
Mesa Mayor Scott Smith said officers are given wide discretion to report suspected illegal immigrants to federal authorities. But the city’s prime concern is maintaining public safety, which requires the best use of available resources and the targeting of serious threats, he said.
“We’re very cognizant of the fact we need to enforce the law, but we need to do it in a manner that follows established procedures and also recognizes that when you’re dealing with immigration, you are walking a fine line between law enforcement and civil rights,” Smith said. “You can’t avoid that. You can’t ignore that. You balance that.
“Mesa has unique issues and unique challenges and we make our policies to enforce the law within the realm of the reality we deal with.”
For instance, all drunk-driving suspects apprehended in Mesa are taken to jail, where officers check their immigration status. That policy came in the wake of several fatal car accidents caused by drunken illegal immigrants, Smith said.
Mesa Councilman Dennis Kavanaugh said city crime rates have decreased significantly across all categories during the past three years. This year, Mesa police have yet to investigate a single homicide. All the while, the city of approximately 500,000 has not maintained any policies that fit the label of sanctuary city, he said.
“We have never been a sanctuary city, and anybody who says that is either a liar or doesn’t know the truth,” Kavanaugh said. “It’s simply not true. Our policies are anything but something that could be considered a sanctuary city.”
Smith also said the Mesa Police Department has officers trained to enforce federal immigration laws as part of the city’s 287g agreement with the federal government, and said suspects booked into Maricopa County jails are routinely screened by Maricopa County sheriff’s deputies.
“People are going to think what they want to think,” Smith said. “With this issue, especially, people are going to jump to conclusions and it doesn’t matter what you do or what you say.”

The public outcry against Phoenix’s policy reached its peak with the September 2007 shooting death of Officer Nick Erfle, who was killed by Erik Jovani Martinez, an illegal immigrant who had several outstanding felony warrants.
Although Martinez had been deported to Mexico once before, he returned to Arizona and was arrested several months before he killed Erfle; the officers who arrested him did not verify his legal status.
The shooting placed Erfle on a tragic list of Phoenix officers who have been killed or seriously injured in the line of duty by illegal immigrants: Ken Collings, Brian Wilbur, Marc Atkinson, Jason Schecterle, Robert Sitek, Brett Glidewell and Shane Figueroa.
Prior to the May 2008 changes — Phoenix Operations Order 1.4 — announced by Chief of Police Jack Harris, immigration status checks were off-limits for police concerning crime witnesses, victims and those involved in domestic disturbances and minor crimes.
The policy survived for almost 30 years, despite objections that began in the late 1980s with the emergence of the city’s bourgeoning drug trade, said Officer Mark Spencer, the president of the Phoenix Law Enforcement Association, a local officers’ union.
The policy was revised to accommodate the growing public safety threat presented by illegal immigration and drug and human smuggling from Mexico.
Spencer said Harris has resisted repeated calls from the union to change the policy.
Beat cops, said Spencer, who have spent more than 20 years with the police department, have long m
ade the association between violent crime and illegal immigrants.
“It’s very easy to make that connection when you’re burying police officers killed by illegal immigrants that shouldn’t be here,” he said.
Now, Phoenix officers are permitted to ask their supervisors for permission to contact federal immigration officials to determine whether suspected criminals are in the country illegally. Officers can report suspected illegal immigrants involved in traffic stops to Immigration and Customs Enforcement through written forms.
The need to contact immigration officials in writing, which officers say can be a time-consuming process conducted after traffic stops are complete, has drawn the condemnation of Pearce, who calls it “about as stupid as it can get.”
Former state Sen. Alfredo Guierrez said Phoenix’s original policy, enacted in the late 1970s, originated from a need to foster cooperation between police and the Hispanic community to combat the emergence of street gangs.
The cooperation was necessary, as most of the gang members “were the kids or the neighbor’s kids,” of Hispanic residents, many of whom were illegal immigrants themselves, Gutierrez said.
At that time, the topic of immigration almost entirely lacked today’s politically charged cries for deportations, Gutierrez said, adding that police benefited greatly from residents’ willingness to speak with authorities without fear of deportation.
Gutierrez, now a radio talk-show host and political consultant, said he does not regard Phoenix’s new policy as overly intrusive or upsetting to the Hispanic community. Time, he said, will prove if the city’s enforcement becomes overly aggressive.
“I don’t think anybody is demanding a change to go back,” he said. “I think everybody is waiting to see what the results are.”
Part of the hesitation, he said, results from the Hispanic community’s initial acceptance of agreements that allow local police to receive training to enforce federal immigration law. The 287g agreements were billed as a necessary tool to target violent and fugitive illegal immigrants, but have been applied to target low-priority immigrants such as “maids and gardeners” by the Maricopa County Sheriff’s Office, he said.

For the past eight years, legislator Pearce has crafted dozens of measures to crack down on illegal immigrants. He has successfully navigated changes in state law to prevent illegal immigrants from receiving certain state benefits, to restrict their ability to post bail after an arrest and to punish employers who hire undocumented workers.
But Pearce says he isn’t finished yet, although his plan to eliminate all sanctuary policies in Arizona cities is among the last major changes he has in mind.
“It is the biggest piece left, but it isn’t the only piece left,” he said.
Still, Boone’s bill has already been drafted and is moving forward; H2331was approved during debate in the House on April 14. It now requires a formal floor vote before being transferred to the Senate.
The bill secured the tepid approval from the Arizona Association of Police Chiefs. The group, fearing a loss of local control, opposed the measure earlier in the legislative session but jumped on board after an amendment was attached to restrict the bill’s impact on city policies.
Bob Devries, president of the police chiefs association, said the bill, as it now stands, allows departments to draft policies that recognize a difference between high priorities for public safety and time-consuming and resource-wasting searches for illegal immigrants.
The chief of the Kingman Police Department said the amendment satisfied his concerns that the bill’s previous version could have left a department helpless to stop officers from refusing their regular duties and choosing instead to enforce immigration law.
“You’re not coming up with a blanket policy that eliminates them from doing immigration enforcement, but adopting this policy still allows a department to direct their staffing as best needed by the community,” he said.
Boone said the amendment creates enough legal leeway for local agencies to make exceptions for crime witnesses, police informants, victims, and in scenarios where public safety, and not illegal immigration, is the prime concern.
Rep. Adam Driggs, a Phoenix Republican, said the bill allows police departments to have some discretion and not be forced to investigate or apprehend every person they suspect may be in the United States illegally, especially if doing so would impede a criminal investigation.

Driggs is chairman of the Judiciary Committee, which approved H2331 earlier this year, and he worked with Boone and police groups to reach a compromise on the amendment.
“Those are policies geared toward public safety, not undermining immigration law,” Driggs said.
But Pearce said he has his concerns H2331’s amendment waters down the bill. And he believes the measure lacks vital ingredients, mainly punitive teeth to ensure compliance.
Pearce said his proposal would also allow individual citizens to sue their local governments if they fail to comply.
Pearce’s bill aside, Phoenix Democrat Rep. Ben Miranda said Boone’s measure is still too broad and could create the possibility of “overzealous” immigration status inquiries by officers.
The bill also would effectively eliminate any abilities of local governments to create policies or procedures that set priorities on crimes relating to the smuggling of drugs, weapons and people, he said.
“Given a choice between detaining a maid on her way to work or a drug dealer on the streets, it’s clear where we should place our priority,” Miranda said.
Karen Peters, government relations director for the city of Phoenix, said City Council members on April 21 decided to oppose Boone’s measure out of a belief that its language doesn’t clearly address differences between law enforcement and immigration policies.
While Peters regards Boone’s bill as vague, it is Pearce’s annual intention to threaten state-shared revenue over local immigration enforcement that is more counterproductive, she said.
Even though many people credit high-profile illegal immigrant crimes and political pressure for the change of the Phoenix policy, City Councilman Michael Nowakowski, who spent 16 years on the Police Chiefs Advisory Board, said the change stemmed from the need to clarify police duties after the city’s 287g agreement was in place with the federal government.
The agreement was reached by the Phoenix Police Department in March 2008, according to ICE, which was approximately one month before the city amended its policy.
Nowakowski said the policy has changed very little and that much of the protections granted for witnesses and crime victims still apply.
“One the things we don’t want to create is people being afraid to call Phoenix PD when there is an emergency or when they are pulled over; afraid that they are going to be asked if they are here illegally,” he said. “And then how do you not profile? How do you know if somebody is here illegally just by the color of their skin?”
The revised policy gives officers expanded discretion to check the immigration status of passengers in cars, whereas before officers were often forced to release a suspect’s accomplices, said Spencer of the Phoenix Law Enforcement Association.
Officials with the Tucson Police Department and its largest union say officers have full discretion to contact federal immigration officials when they encounter people through the course of their duties that they believe are in the county illegally.
Likewise, Department of Public Safety Sergeant Jimmy Chavez, president of the Arizona Highway Patrol
Association, said DPS officers are able to contact ICE if they have reasonable cause to believe detainees are in the country illegally.
Reporter Jim Small contributed to this article.

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