Setting the stage for a lawsuit, the Arizona House of Representatives yesterday advanced a proposal forbidding state and local authorities from releasing someone that immigration authorities want them to hold.
HB2121 would make it illegal for any public official to refuse to comply with an “immigration detainer.” That is a formal request by the U.S. Department of Homeland Security that a state or local agency keep for up to 48 hours someone not in this country legally, giving time for federal agents to pick them up.
But the measure by Rep. Bob Thorpe, R-Flagstaff, goes even further than the directive to hold immigrants.
It allows any Arizona legal resident to file suit. If a judge finds there is a violation he or she has to impose a penalty of at least $500 – and up to $5,000 – for each day that the policy of refusing to hold undocumented people is in force.
The move comes on the heels of the decision by Maricopa County Sheriff Paul Penzone that, if a judge has ordered them released, his jails will no longer hold people any longer than necessary to process them for the state charges they are facing.
It does not stop notification of U.S. Immigration and Customs Enforcement that the county has someone the feds may want. But it spells out that if federal agents want someone, they have to arrive before release processing is done.
Maricopa County Attorney Bill Montgomery said that’s what’s required by federal law.
“The Fourth Amendment does not allow a local law enforcement official to detain someone longer than necessary to process a state court-ordered release,” he said.
Penzone is not alone in his view of what federal law requires.
Mark Napier, the newly-sworn Pima County sheriff, said he is keeping a policy of predecessor Chris Nanos about handling ICE detainers.
He said if federal agents tell them they want an inmate, his agency will inform them of when the release process starts. That generally provides them about 90 minutes.
And if no one from ICE shows up in that time, the person is released, if that’s what a judge has ordered, just the same as anyone who is a legal resident.
Thorpe refused to answer questions from Capitol Media Services about whether his legislation not only runs afoul of the Fourth Amendment protections against illegal search and seizure but could also put county deputies and jailers at risk of personal liability if they follow the federal dictate.
But this isn’t the first time the question of the legality of the measure has been raised to Thorpe.
Alex Vidal, lobbyist for the League of Arizona Cities and Towns, warned during a committee hearing last month – the hearing was chaired by Thorpe – that HB2121 has problems, starting with the fact that a detainer is not a warrant but simply a request by ICE to hold someone.
“Federal courts have ruled that holding someone on a detainer without a warrant or probable cause, it violates the Constitution,” he told lawmakers.
“You cannot hold somebody in jail unless you’ve charged them with a crime or there’s a warrant for their arrest,” Vidal said. “What you’re doing here is you’re requiring local entities to violate the Constitution without due process of law.”
And the legal question is not new.
Last year, the state settled the last vestiges of a lawsuit filed against SB1070, the 2010 legislation designed to give police more power to question and detain those who they believe are in this country illegally.
Challengers agreed to drop their challenge to a section of the law that requires police officers, when possible, to check the immigration status of people they have stopped for any other reason.
In exchange, Attorney General Mark Brnovich issued an informal legal opinion designed to spell out that officers cannot detain anyone for longer than necessary for the original reason they were stopped.
Specifically, the opinion says that means no delay while waiting for a radioed response from federal immigration agencies about whether the person is legally entitled to be in this country. It 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 that person actually has been placed under arrest for some state offense.