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Police board warns against profiling in S1070 enforcement

Training material unveiled July 1 by the state board charged with guiding police on the enforcement of Arizona’s new immigration law gave a clear message to officers: You are being watched, and certain groups want to see you apply the law with bias.

The material, contained in seven written documents and a 65-minute video, heavily stressed the importance of not allowing racial profiling or any other perceived violation of civil rights to occur in the enforcement of the new law.

“Each and every one of you will carry the reputation of the entire Arizona law enforcement community with you every day,” said Arizona Peace Officers Standards and Training board director Lyle Mann said of racial profiling. “Each of you took an oath and each of you signed a pledge and each of you know what is expected from you.”

The key test, Mann said, for whether an officer’s actions constitute racial profiling involves asking this question: If the race, color or ethnicity of the person in question were different, would the officer still suspect unlawful presence? Mann said that if the answer to that question is “no,” then the reasonable suspicion required by the new law does not exist.

Gov. Jan Brewer tasked the Arizona Peace Officers Standards and Training board to create the training for the new law, which makes a state crime of being in the U.S. unlawfully, requires police officers to initiate an immigration check on those reasonably suspected of being in the country illegally and enables Arizona residents to file suit against any government agency that prevents the full enforcement of the new law.

The materials, issued about a month before the law is set to take effect July 29, also explain how a lawful contact between an officer and a person can lead to an immigration check, and what considerations should be used in developing reasonable suspicion of an illegal immigrant in Arizona.

The video points out that officers are not required – but are able – to follow the new law during what is known as “voluntary contact” with people, or those interactions that don’t involve the investigation of another crime.

This point seems to counter critics’ arguments that the new law will lead to racial profiling because they fear officers will ask for papers from anyone who looks like they might be an illegal immigrant.

Officers are only required to follow the new law during the course of investigating another crime, and when reasonable suspicion of unlawful presence is developed by the officer, Mann said. And they’re required to do so, only “when practicable,” which means that it would not hinder other law enforcement activity.

Beverly Ginn, an attorney for the City of Tucson who specializes in legal services for law enforcement agencies, gave legal interpretation of the new law in the video.

She outlined three types of contact. The first is a voluntary contact. The second is a detainment in the course of an investigation. The third is an arrest. The requirement to use Arizona’s new law only applies to the second and third cases, Ginn said.

Mann said he’s confident that police officers throughout the state will understand the difference between the requirement to apply the new immigration law in a detainment or arrest, and the ability – not requirement – to use it during a voluntary stop.

In developing “reasonable suspicion” that a person may be in the country illegally, the material includes a list of factors. These can include possession of foreign ID, an overcrowded vehicle, the inability to provide a residential address, difficulty speaking English, and a long list of other factors.

The video stresses that the combination of those factors is what is most important, and that police officers need to be prepared to document exactly what led to their reasonable suspicion.

Because the Arizona Peace Officers Standards and Training board does not have authority over individual departments, police departments around the state must now develop specific policies for the application of the new law, and whether to offer supplemental training.

Tucson Police Chief Roberto Villaseñor, said the materials released July 1 are only a starting point for training his officers, and that a lot more effort will need to go into the final policies and procedures his department adopts.

Villaseñor, a critic of the law, said some issues were still not made 100 percent clear in the materials, such as whether a police department is required to determine someone’s immigration status before releasing them from arrest.

“You had some of the best legal minds in Arizona reading this law, and they couldn’t agree on its meaning,” Villaseñor said. “I have a problem with that.”

Villaseñor said he believes police agencies throughout the state are still set up to be sued by those who will feel the law is being applied with bias and those who believe police departments are not carrying it out to the fullest extent possible.

“All the larger agencies will be sued, from one side or the other,” Villaseñor said.

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